Country Mutual Insurance Co. v. Little ( 2020 )

NOTICE
2020 IL App (5th) 190382-U NOTICE
Decision filed 12/09/20. The This order was filed under
text of this decision may be
NO. 5-19-0382 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Petition for by any party except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same.
under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
COUNTRY MUTUAL INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 15-MR-285
)
JONATHAN LITTLE, ) Honorable
) Julie K. Katz,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court.
Presiding Justice Boie and Justice Moore concurred in the judgment.
ORDER
¶1 Held: Where Jonathan Little presented genuine issues of material fact of the
existence of a phantom driver who struck the front end of his vehicle, we
reverse the trial court’s summary judgment.
¶2 Jonathan Little appeals from the trial court’s order granting summary judgment in
favor of Country Mutual Insurance Company (Country Mutual). He asks this court to
examine the record as he contends that there is a genuine issue of material fact regarding
contact with the phantom vehicle that would be consistent with Country Mutual’s policy
definition of an uninsured vehicle. For the reasons stated in this order, we reverse and
remand.
1
¶3 I. BACKGROUND
¶4 On August 18, 2015, Country Mutual filed its complaint for declaratory judgment
against Jonathan Little (Little) and Madie Little (Madie) asking the court to declare that it
did not owe uninsured motorist coverage to Little resulting from a motor vehicle collision
that occurred on March 24, 2015, in St. Clair County. Madie was the owner of the vehicle
and is Little’s sister. Little was a permissive user of Madie’s vehicle. Little claimed that
he was driving Madie’s vehicle when he was cut off and struck by another vehicle, and
after taking evasive action, he struck a concrete railroad overpass. According to Little, the
unknown vehicle fled the scene. This phantom vehicle and its driver have never been
located and/or identified. As a result of this accident, Little alleges that he sustained
bodily injuries. He sought coverage for his injuries and damages from Country Mutual’s
uninsured motorist coverage.
¶5 Country Mutual contends that there was no physical contact between Little’s
vehicle and the alleged phantom vehicle. Because there allegedly was no contact,
Country Mutual asked the trial court to declare that it did not owe Little any uninsured
benefits. With no physical contact between the two vehicles, Country Mutual argues that
there was no “hit-and-run vehicle” if there was no contact, and thus there is no
“uninsured motor vehicle.”
¶6 In support of Country Mutual’s claim that there was no physical contact between
the two vehicles, Country Mutual points to the police report and photographs of the
vehicle. The Illinois State Police report prepared by Officer Erica Lavalle indicates that
she found no paint transfer from the phantom vehicle onto the vehicle operated by Little.
2
Country Mutual also contends that the photographs of the vehicle do not reflect paint
transfer or other damage that could have been caused by the alleged phantom vehicle’s
sideswiping.
¶7 The Illinois Motorist Report prepared by Little and sent to the Illinois Department
of Transportation (IDOT) indicates that after the accident a “trooper” arrived at the scene.
Little stated that he did not know if the officer investigated the incident because he was at
the hospital at the time the officer was at the crash site. Little’s narrative of the incident is
as follows:
“I was driving on Rt[.] 13 at night in the rain in Car #1 [Little’s vehicle] on a 45
mph road. I slowed down to 30 and 35 mph in the curve do [sic] to rain. Car #2
came up behind me at a fast speed [and] slowed down [and] drove behind me until
I reached the straight away area on Rt[.] 13, then Car #2 speeded [sic] up[,] passed
me[,] cut in on the front of my car making contact with Car #1[’s] front end. Car
#2 passing me was right of the train overpass. Immediately when Car #2 hit my
car[,] I braked and swerved making me in Car #1 come into immediate contact
with the train overpass. The car or Car #2 was know [sic] where in sight when my
vehicle came to a stop. All I could remember was a chrome or silver bumper. I
didn’t know the overpass was there until I felt the crash. (I slowed down for road
condition in Car #1. Car number 2 maybe thought I was going too slow.)”
¶8 On February 4, 2016, Little entered his pro se appearance and filed a motion to
dismiss Country Mutual’s declaratory judgment complaint. In this motion, he argued that
there were other possibilities for contact other than damage to the side of the vehicle. He
stated that, in his initial statement to Officer Lavalle and in his IDOT report, he indicated
that the contact was to the front end of the vehicle as opposed to the side. Attached to this
motion to dismiss were photographs of the front-end damage to Madie’s vehicle. Little
filed a counterclaim on February 2, 2016, seeking uninsured motorist benefits. These
3
photographs were taken after the accident and appear to reflect damage to the driver side
front headlight cover.
¶9 Little filed a document with the court, entitled, “Uncontested Facts,” on March 18,
2016. In this document, Little alleged that the damages to Madie’s vehicle were on the
front end, and not the side of the vehicle. He stated that he gave Country Mutual a
recorded statement, during which the representative told him that there was $5000 in
medical coverage on Madie’s motor vehicle insurance policy. At some point, Little hired
the Reed & Bruhn law firm in Belleville to represent him on this uninsured motorist
claim. Country Mutual sent Reed & Bruhn a check in the amount of $4860.50 in
settlement of the medical coverage claim. 1
¶ 10 On April 8, 2016, Little filed a pro se motion to file affidavits to support his
motion to dismiss Country Mutual’s complaint. On the same date, two affidavits were
independently filed with the circuit clerk.
¶ 11 The first affidavit in support of Little’s motion to dismiss Country Mutual’s
declaratory judgment action was by Madie Little. Madie’s affidavit appears to be in direct
response to the allegations of the complaint. In this affidavit, Madie expressed her
confusion over Country Mutual’s suit against her. She stated that she loaned a car to
Little on the date of the accident. After the accident, Little was transported to a hospital
by ambulance, and Little called Madie to pick him up from the hospital. Madie stated that
she was present when Little told a police officer that a vehicle passed him and made
1
We presume that the coverage Reed & Bruhn obtained for Little was a “medical payments”
coverage—not the uninsured motorist benefits at issue in this case.
4
contact with the car he was driving before he swerved. She stated that he told the officer
that the car involved was an older model vehicle with a chrome bumper.
¶ 12 The second affidavit filed in support of Little’s motion to dismiss Country
Mutual’s complaint was Little’s own affidavit. In his affidavit, he stated that he was the
driver involved in the March 24, 2015, accident; that his vehicle was involved in a hit-
and-run accident and that the vehicle that made contact with his vehicle was a late model
vehicle possibly manufactured in the 1970s with large chrome bumpers; and that the
vehicle made contact with the front end of Little’s vehicle near the driver’s side headlight
and was not a sideswipe form of contact. Little also stated that he informed the Cahokia
police officer who first arrived on the scene after the accident that another vehicle had
struck his vehicle. He made the same statement to the Illinois State Police officer who
interviewed him at the hospital. The Illinois State Police officer informed Little that she
had not seen any paint transfer on the side of Little’s vehicle consistent with a sideswipe.
Little explained that he hired an attorney to represent him in obtaining insurance benefits
to pay his medical bills, but that same attorney would not represent him in Country
Mutual’s declaratory judgment action. Little finally stated that he would attempt to
provide larger photographs of the front-end damage to Madie’s vehicle resulting from the
collision on March 24, 2015.
¶ 13 At a hearing on all pending motions on May 10, 2016, Country Mutual’s motion to
enter a default judgment against Madie was granted. Little’s motion to dismiss Country
Mutual’s complaint and his motion to allow introduction of exhibits (photographs of the
5
vehicle’s damage) were both denied. Little’s motion to file affidavits in support of his
motion to dismiss was deemed moot.
¶ 14 On July 22, 2016, Little filed a second affidavit provided by Madie. The subject
matter of this affidavit was the damage sustained on March 24, 2015, to Madie’s vehicle.
Madie stated that the damage depicted in the photographs “was not present before the
accident of March 24, 2015.” Attached to the affidavit were close-up photographs
depicting the headlight cover damage.
¶ 15 An attorney for the Bradley Law Firm in St. Louis entered an appearance for Little
on January 30, 2017. The case was apparently internally transferred at the Bradley Law
Firm because on October 6, 2017, a different attorney entered her appearance on Little’s
behalf.
¶ 16 On February 4, 2019, Country Mutual filed its motion for summary judgment,
arguing that the facts were not in dispute and established that a hit-and-run collision had
not occurred, and therefore Little was not entitled to uninsured motorist benefits as a
matter of law. In support of its motion Country Mutual cited to portions of three
depositions. First, Country Mutual stated that Little’s deposition testimony was
potentially unreliable because just days after the deposition, Little sent a letter to his
physician questioning why he had experienced a memory block about the accident during
that deposition. 2 Country Mutual argued that since Little’s deposition testimony was
2
In a letter dated April 17, 2017, Little asked his physician, Mounir Shenouda, M.D., about a
recent episode of “memory block.” Little wrote that, in a recent deposition, his “memory went completely
blank as to the details of a[n] accident. I mean I could not remember the accident from beginning to
end[—]not a thing[—]my mind went completely blank.”
6
unreliable, the trial court should not use that testimony to find a question of fact barring
summary judgment. Second, Country Mutual cited a responding paramedic’s testimony
that Little told him that he spun out and hit the concrete overpass—and had not
mentioned that another vehicle was involved. Finally, the responding Illinois State Police
officer, Erica Lavalle, testified that she found no paint transfer on Little’s vehicle and
therefore found no evidence to establish that another vehicle was involved in Little’s
accident.
¶ 17 Little, through his attorney, did not file a written response to the motion for
summary judgment, and the court held its hearing on the motion on August 14, 2019.
However, Little’s attorney appeared at the hearing on Country Mutual’s summary
judgment. He advised the trial court that he joined the St. Louis firm one month prior to
the hearing and that he had inherited the case from the previous attorney. When the trial
court asked Little’s attorney if there was any proof of involvement of another vehicle
other than Little’s deposition testimony, counsel indicated that he did not believe there
was any other evidence. The trial court then found that based upon Little’s letter to his
physician, the trial court could not rely upon this potentially perjured testimony to find
that there was a genuine issue of material fact. The court granted Country Mutual’s
summary judgment motion.
¶ 18 On August 23, 2019, Little entered a pro se appearance, and on August 27, 2019,
he filed a motion to vacate the trial court’s order of summary judgment. In his motion to
vacate Country Mutual’s summary judgment, he argued that it was premature to have
entered summary judgment on the basis of his letter to his physician regarding the bout of
7
memory loss he experienced during his deposition. He explained that he was taking
cold/flu medication and was experiencing fever at the time of the deposition, and just
days after the deposition, his physician prescribed antibiotics. He stated that his memory
loss was not permanent and that he had regained clarity of all details of the accident. He
indicated that if Country Mutual were to obtain his later medical records, it would reflect
an improvement on memory concerns he had expressed to his physician. He further
argued that the testimony of Illinois State Police Officer Lavalle was incomplete as she
had not been cross-examined about whether she had identified the damage to the
headlight cover and whether that damage was consistent with the front-end contact Little
has consistently stated had occurred. Furthermore, Little averred that, if asked in
deposition, he and Madie would testify to a statement that Officer Lavalle made to them
at the hospital. Officer Lavalle stated that the initial responding officer told her that, at
the scene of the accident, Little said that a phantom vehicle had made contact with his
vehicle. From the record on appeal, it does not appear that the trial court ruled on Little’s
motion to vacate the summary judgment.
¶ 19 On September 5, 2019, Little also filed a notice of appeal. On September 19, 2019,
Little’s attorney filed a motion to withdraw.
¶ 20 II. ANALYSIS
¶ 21 Little appeals from the trial court’s summary judgment order, arguing that there
was a genuine issue of material fact. He argued that the trial court erred in basing
summary judgment solely upon a finding that his deposition testimony had been called
into question by his correspondence with his physician.
8
¶ 22 Section 2-1005(c) of the Code of Civil Procedure provides that a party is entitled
to summary judgment as a matter of law if “the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact.” 735 ILCS 5/2-1005(c) (West 2018). If there are outstanding genuine issues
of material fact, the trial court should deny a motion for summary judgment. Koziol v.
Hayden, 309 Ill. App. 3d 472, 476 (1999). “ ‘A genuine issue of material fact precluding
summary judgment exists where the material facts are disputed, or, if the material facts
are undisputed, reasonable persons might draw different inferences from the undisputed
facts.’ ” Monson v. City of Danville, 2018 IL 122486, ¶ 12 (quoting Adames v. Sheahan,
233 Ill. 2d 276, 296 (2009)); see also Koziol, 309 Ill. App. 3d at 476.
¶ 23 Summary judgment is a drastic remedy and should not be granted unless the
movant’s right to judgment is unquestionable. Monson, 2018 IL 122486, ¶ 12 (citing
Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004)); Hutchcraft v.
Independent Mechanical Industries, Inc., 312 Ill. App. 3d 351, 357 (2000). The trial court
must strictly construe all evidence in the record against the moving party and liberally in
favor of the opponent. Monson, 2018 IL 122486, ¶ 12 (citing Adams, 211 Ill. 2d at 42);
Purtill v. Hess, 111 Ill. 2d 229, 240 (1986); Koziol, 309 Ill. App. 3d at 476. Appellate
courts review summary judgment orders on a de novo basis. Monson, 2018 IL 122486,
¶ 12 (citing Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996)); Myers v. Health
Specialists, S.C., 225 Ill. App. 3d 68, 72 (1992).
9
¶ 24 We begin our analysis of this insurance coverage issue with a recitation of the
language contained in Country Mutual’s motor vehicle policy. At issue in this case is
SECTION 2 of the Uninsured-Underinsured Motorists, Coverage U. The policy provides:
“[W]e will pay damages which an insured is legally entitled to recover from the
owner or operator of an uninsured or underinsured motor vehicle because of
bodily injury sustained by an insured and cause by an accident. The owner’s or
operator’s liability for these damages must arise from the ownership, maintenance
or use of the uninsured or underinsured motor vehicle.”
All bold-faced terms are defined in section 2 of SECTION 2, Coverage U. Of importance
to Country Mutual’s contractual theory of nonliability is the definition of uninsured
motor vehicle:
“Uninsured motor vehicle means any type of motor vehicle ***
***
b. which is a hit-and-run vehicle. A hit-and-run vehicle is one whose operator or
owner cannot be identified and which hits
(1) you or any relative,
(2) a motor vehicle which you or any relative are occupying, or
(3) your insured vehicle causing bodily injury to the occupants. The insured
must notify police within 24 hours of a hit-and-run accident and must submit a
statement of the facts to us within 30 days ***.”
¶ 25 Construction of an insurance policy involves a question of law, and therefore, our
review is de novo. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 480 (1997);
Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993).
The primary objective of a reviewing court is to give effect to the intent of the parties.
Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 362 (2006).
We must review the language of the policy in total and construe the language utilized by
the insurer by affording the language its plain and ordinary meaning. United States Fire
10
Insurance Co. v. Schnackenberg, 88 Ill. 2d 1, 5 (1981); Valley Forge Insurance Co., 223
Ill. 2d at 363.
¶ 26 A court should not try to find an ambiguity in the language where none truly
exists. Schnackenberg, 88 Ill. 2d at 5; Valley Forge Insurance Co., 223 Ill. 2d at 363;
Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 29-31 (2005). However,
“[i]t is the insurer’s burden to affirmatively demonstrate the applicability of an
exclusion.” Pekin Insurance Co. v. Miller, 367 Ill. App. 3d 263, 267 (2006). When an
insurer relies upon exclusionary policy language to deny coverage, the language’s
application to the facts must be clear and free from doubt. Cohen Furniture Co. v. St.
Paul Insurance Co., 214 Ill. App. 3d 408, 412-13 (1991). In situations where insurance
policy language is ambiguous or uncertain—in other words, subject to more than one
interpretation—that language must be construed in favor of the insured and against the
insurer who wrote the policy language at issue. Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 108-09 (1992).
¶ 27 We have reviewed the policy language and find that Country Mutual’s use of the
word “hits,” in the phrase: “[a] hit-and-run vehicle is one whose operator or owner cannot
be identified and which hits,” clearly mandates that the phantom vehicle make physical
contact with the insured’s vehicle. While there could be another vehicle involved that
resulted in the insured’s accident, unless that other vehicle struck the insured’s vehicle,
there is no applicable uninsured motorist coverage.
¶ 28 While there is no question as to the contractual meaning of Country Mutual’s
uninsured motorist coverage in a hit-and-run accident scenario, we find that there were
11
facts not brought to the attention of the trial court judge when Country Mutual presented
its motion for summary judgment. These facts are part of the common law record and
consist of pleadings, an affidavit, and photographic exhibits filed by Little. At the time of
the trial court’s hearing on Country Mutual’s motion for summary judgment, these
pleadings, affidavits, and exhibits were in the court file and had not been stricken.
¶ 29 The hearing on Country Mutual’s motion for summary judgment was held on
August 14, 2019. On July 19, 2016, Little filed his response to Country Mutual’s request
for production of documents, which included photographs of the front-end damage to
Madie’s vehicle. In addition to the photographic evidence, Little also filed Madie’s
affidavit in which she stated that the front-end damage depicted in the photographs was
not present before March 24, 2015. In Country Mutual’s June 29, 2016, response to
Little’s motion to amend his counterclaim, Country Mutual argued that these same
photographs were inappropriate because: “no proper foundation has been laid for the
attached exhibits to be entered into evidence at the trial of this matter.” From the record
on appeal, there was no ruling made on Country Mutual’s response. Furthermore, the
case was not then at a trial setting. Country Mutual’s argument would have been
appropriate as an objection at trial or via a motion in limine, but at this point, Little still
had plenty of time to provide foundational evidence about the identity of the
photographer and the date or dates when the photographs were taken. Madie’s affidavit
provided confirmation (1) that the photographs were of her vehicle, (2) that this was the
vehicle involved in the March 24, 2015, accident, and (3) that the damage to the headlight
cover was not there before March 24, 2015.
12
¶ 30 We also note that much of Country Mutual’s motion for summary judgment was
premised upon Illinois State Police Officer Erica Lavalle’s deposition testimony, in
which she rendered her opinion that Little was fabricating the existence of the phantom
vehicle. During the summary judgment hearing, the trial court judge was careful to
ascertain the timeline involving Officer Lavalle, noting that there had to be a reason that
Lavalle looked for paint transfer onto Little’s vehicle. The trial court noted: “apparently
he must have said something at the scene regarding this other vehicle because otherwise I
would assume Officer Lavalle wouldn’t have been checking for paint transfer or chrome
residue. He must have said something then.” Counsel for Country Mutual explained that
she believed that Officer Lavalle went to the scene of the accident first, and then went to
the hospital and interviewed Little. We find that Madie’s affidavit filed on April 8, 2016,
in response to Country Mutual’s motion for a default judgment, contains the background
to the questions asked by the trial court at the summary judgment hearing. 3 Madie was
present when Officer Lavalle came to talk to Little at the hospital. Initially, Officer
Lavalle had been at the scene of the accident and spoke to the responding local police
officer. While still at the scene of the accident, Little informed the responding police
officer that another vehicle had been involved and made contact with his vehicle. While
Officer Lavalle may have her opinions about whether another vehicle was involved, there
is absolutely nothing in the record indicating that she looked at the headlight cover.
3
We note that during the May 10, 2016, motion hearing the trial court ruled that Little’s motion to
file affidavits was rendered moot. However, both affidavits had already been filed with the circuit clerk’s
office pursuant to section 2-1103(a) of the Code of Civil Procedure (735 ILCS 5/2-1103(a) (West 2012)),
and thus are part of the common law record on appeal.
13
Instead, Officer Lavalle was intent on ruling out a phantom vehicle by ascertaining the
lack of transfer paint.
¶ 31 Further, although there is evidence that Little was suffering from memory loss
when he gave his deposition, there was also evidence that he informed both the
responding officer and Officer Lavalle about the presence of another vehicle immediately
after the accident, at which time there was no evidence he was suffering from memory
loss. Little’s statement to the initial responding officer about the involvement of another
car that made contact with his predated the deposition testimony. He repeated this claim
to Officer Lavalle, who was inclined to believe that the story was fabricated because she
did not find a paint transfer. Regardless of Officer Lavalle’s belief, that conversation
predated the deposition. Madie will be able to testify that she heard Little and Officer
Lavalle have this discussion at the hospital. In addition, Little will be able to testify about
the Illinois Motorist Report he completed and filed with the IDOT shortly after the
accident. That document indicated that the phantom vehicle made front-end contact with
Little’s vehicle. The Illinois Motorist Report clearly predated his deposition. Finally,
Madie will testify that there was driver-side front-end damage to her vehicle that was not
present prior to Little’s accident. Although Little may be constrained by his deposition
testimony he provided while he was suffering from memory impairment, the record
nevertheless contains evidence supporting a genuine issue of material fact.
¶ 32 The party opposing summary judgment does not have to prove his case at that
stage, but he “must provide some factual basis to support the elements” of his claim.
Bank Financial, FSB v. Brandwein, 2015 IL App (1st) 143956, ¶ 40 (citing Illinois State
14
Bar Ass'n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032, 1036 (2009)). “Mere
speculation, conjecture, or guess is insufficient to withstand summary judgment.” Sorce
v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999).
¶ 33 As stated earlier, summary judgment is a drastic remedy and should not be granted
unless the movant’s right to judgment is unquestionable. Monson, 2018 IL 122486, ¶ 12
(citing Adams, 211 Ill. 2d at 42-43). Furthermore, we must construe the evidence against
Country Mutual and in Little’s favor. Id. (citing Adams, 211 Ill. 2d at 42). The focus of
Country Mutual’s claim that it was entitled to summary judgment was on proving that the
phantom vehicle did not exist because there was no paint transfer on the driver side of
Little’s vehicle. Officer Lavalle’s testimony was an important component of Country
Mutual’s defense. However, Little presented genuine issues of material fact even if his
deposition testimony is discounted. We find that there was circumstantial evidence that
could potentially establish that Little’s vehicle was struck by a phantom vehicle on March
24, 2015. If Little’s vehicle was struck by a phantom vehicle, then Country Mutual’s
policy exclusion would be inapplicable. Accordingly, we conclude that the trial court’s
order granting summary judgment was inappropriate at this stage of the case.
¶ 34 III. CONCLUSION
¶ 35 We find that the entry of summary judgment by the St. Clair County circuit court
was premature. Therefore, we reverse the judgment and remand for further proceedings.
¶ 36 Reversed and remanded.
15