Travelers Indemnity Co. v. Rogers Cartage Co.

Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2018.04.26
13:58:00 -05'00'
The Travelers Indemnity Co. v. Rogers Cartage Co., 2017 IL App (1st) 160780Appellate Court THE TRAVELERS INDEMNITY COMPANY and TRAVELERS
Caption PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiffs-
Appellants, v. ROGERS CARTAGE COMPANY, Defendant-
Appellee.
District & No. First District, First Division
Docket No. 1-16-0780
Filed December 29, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-55238; the
Review Hon. Peter Flynn, Judge, presiding.
Judgment Affirmed; motion denied.
Counsel on Dentons US LLP, of Chicago (Donna J. Vobornik, Steven L. Merouse,
Appeal and Geoffrey J. Repo, of counsel), for appellants.
Nassif Law Firm, of Creve Coeur, Missouri (Joseph G. Nassif, of
counsel), and Lathrop & Gage LLP, of Clayton, Missouri (John M.
Terry, of counsel), for appellee.
Panel PRESIDING JUSTICE PIERCE delivered the judgment of the court,
with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 BACKGROUND
¶2 Rogers Cartage Company (Rogers) is a trucking company that hauls bulk liquid
chemicals from a shipper to an end-user. Two of Rogers’s former truck cleaning facilities in
Cahokia and Sauget, located in St. Clair County, were the subject of environmental
contamination lawsuits. Rogers tendered defense of the underlying claims to The Travelers
Indemnity Company and Travelers Property Casualty Company of America (collectively,
Travelers), seeking coverage under numerous insurance policies issued by Travelers to
Rogers. Travelers ultimately paid all of Rogers’s defense costs under a reservation of rights,
and Rogers eventually settled the two underlying suits for a total of $9 million. Rogers then
sought indemnification from Travelers under numerous comprehensive general liability
(CGL) and auto policies, including the missing CGL and auto policies that are the focus of
these proceedings.
¶3 Travelers filed this declaratory judgment action in Cook County circuit court seeking a
declaration of the parties’ rights regarding the existence, terms, and conditions of various
missing insurance policies allegedly issued by Travelers to Rogers in the 1960s and 1970s. 1
It is undisputed that neither party can locate originals or copies of the disputed policies and
that there are no witnesses with contemporaneous knowledge of the existence, terms, or
conditions of the disputed policies. There are two types of policies at issue: CGL policies and
automobile policies.
¶4 It is undisputed that Travelers issued Rogers CGL policies for the policy periods of
1960-61 and 1965-66 (the bookend policies). Travelers continued to issue Rogers CGL
policies through 1986. However, neither party could locate originals or copies of CGL
policies issued by Travelers for the policy periods of 1961-62, 1962-63, 1963-64, or 1964-65.
As the insured seeking coverage, Rogers had the burden of establishing by a preponderance
of the evidence that the policies existed and the material terms and conditions of the policies.
Rogers introduced secondary evidence consisting of various records produced by Travelers
during discovery. Rogers also introduced secondary evidence to prove the terms and
conditions of the CGL policies for the policy periods of 1961-62, 1962-63, 1963-64, and
1964-65. 2 Travelers contended that Rogers’s evidence was insufficient to establish the
existence of CGL policies for the policy periods of 1961-62, 1962-63, and 1963-64, or the
terms and conditions of the CGL policies for the policy periods of 1961-62, 1962-63,
1963-64, and 1964-65.
¶5 It is also undisputed that, starting in the 1940s and continuing through the 1970s,
Travelers issued Rogers numerous auto policies. Again, the parties were unable to locate
1
Rogers filed its own declaratory judgment action in St. Clair County and moved to transfer or
dismiss Travelers’ declaratory judgment action based on forum non conveniens. The Cook County
circuit court granted Rogers’s motion to transfer in part but retained jurisdiction with respect to the
issue of the alleged lost or missing policies.
2
In the circuit court, Travelers contested the existence of the 1964-65 CGL policy. On appeal, it
concedes the existence of the 1964-65 CGL policy because a known 1965-66 CGL policy indicated that
it was a renewal policy. Travelers does not concede the terms and conditions of the 1964-65 CGL
policy.
-2-
originals or copies of any auto policies issued by Travelers to Rogers between 1961 and
1970, but Travelers acknowledged the existence of the missing auto policies. Rogers
introduced secondary evidence that it contends establishes the terms and conditions of the
missing auto policies, but Travelers contends that Rogers’s evidence is insufficient to
establish the terms and conditions of the missing auto policies.
¶6 The parties filed cross-motions for summary judgment on all of the issues in dispute and
agreed that there was no further discovery to do be done. Travelers’ motion was supported by
numerous exhibits, including business records; discovery responses; SL Letters (also
identified as “Interoffice Memoranda”); 3 an affidavit from Robert J. Harris, Travelers’
second vice president in the special liability coverage unit; and various “Notice of Large
Loss” records. Rogers’s cross-motion was supported by letters written in 2000 by Hal C.
Koplin, a claims adjuster at Travelers; Koplin’s discovery deposition transcript; Travelers’
commercial account claims records; commercial account register records; an excess 1962
“Certificate of Insurance”; the 1960-61 and 1965-66 CGL bookend policies; Travelers’
“specimen” (or standardized) CGL policy forms used between 1961 and 1965; and
certificates of auto insurance from the Illinois Department of Insurance.
¶7 The circuit court granted summary judgment in favor of Rogers and denied summary
judgment to Travelers, finding that (1) Rogers proved the existence of the CGL policies for
the policy periods of 1961-62, 1962-63, 1963-64, and 1964-65 by a preponderance of the
evidence; (2) these CGL polices had the same material terms and conditions as those set forth
in the 1960-61 and 1965-66 “bookend” policies; and (3) Rogers proved the terms and
conditions of the auto policies issued between 1960 and 1971. Travelers appeals.
¶8 ANALYSIS
¶9 On appeal, Travelers argues that Rogers did not prove (1) the existence of the CGL
policies for the policy periods of 1961-62, 1962-63, or 1963-64; (2) the material terms and
conditions of the alleged CGL policies for the policy periods of 1961-62, 1962-63, 1963-64,
or 1964-65; or (3) the terms of the auto policies issued between 1961 and 1970. We address
these arguments in turn.
¶ 10 The parties disagree about the standard of review. Travelers argues that our standard of
review is de novo. It is well-settled that we review a circuit court’s summary judgment ruling
de novo. This is particularly true where the parties file cross-motions for summary judgment
on the same issue since they typically agree that only a question of law is involved and invite
the court to decide the case based on the record before it. Pielet v. Pielet, 2012 IL 112064,
¶¶ 28, 30. Summary judgment may be granted on cross-motions for summary judgment
where it is clear that all material facts are before the court, the issues are defined, and the
parties agree that only a question of law is involved. Haberer v. Village of Sauget, 158 Ill.
App. 3d 313, 317 (1987) (citing Allen v. Meyer, 14 Ill. 2d 284, 292 (1958)). But it is also true
that the mere filing of cross-motions for summary judgment does not obligate the circuit
court to grant one of the motions (Pielet, 2012 IL 112064, ¶ 28), and if reasonable people
could draw different inferences from the undisputed facts, summary judgment is
inappropriate (Danada Square, LLC v. KFC National Management Co., 392 Ill. App. 3d 598,
Travelers explains that an “SL Letter” or “Series Letter” are Travelers’ records that are normally
3
provided to field offices to assist in processing claims made against insureds.
-3-
607 (2009) (citing Mountbatten Surety Co. v. Szabo Contracting, Inc., 349 Ill. App. 3d 857,
867 (2004))).
¶ 11 Rogers argues, however, that we should review the circuit court’s decision under the
manifest weight of the evidence standard because the circuit court’s ruling “more closely
resembles judgment after a bench trial” or a motion for judgment under section 2-1110 of the
Code of Civil Procedure (735 ILCS 5/2-1110 (West 2010)). See, e.g., Chicago’s Pizza, Inc. v.
Chicago’s Pizza Franchise, Ltd., 384 Ill. App. 3d 849, 859 (2008) (“The standard of review
in a bench trial is whether the judgment is against the manifest weight of the evidence.”).
¶ 12 We find that our standard of review is de novo. The parties agreed that the record was
complete and that testimonial credibility is not an issue in this case. The parties were in
agreement that the circuit court was properly positioned to render a decision based on a
wholly documentary record. Here, the circuit court was presented with a complete record,
and the parties agreed that no further discovery was necessary. There was also no dispute that
the circuit court would not need to evaluate the credibility of any witnesses since there were
no disputes over the documents submitted for the court’s consideration. The only remaining
task was to draw reasonable inferences, if any, from the undisputed documentary record and
to reach a conclusion. The circuit court’s written order recognized that the presence of
competing reasonable inferences ordinarily would preclude the entry of summary judgment.
See Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004) (“A triable issue precluding
summary judgment exists where the material facts are disputed, or where, the material facts
being undisputed, reasonable persons might draw different inferences from the undisputed
facts.”). But the circuit court also recognized, given the posture of the evidence submitted,
that denying summary judgment based on the presence of competing reasonable inferences
would result in a bench trial where the parties would introduce the same evidence, raise no
credibility issues, and then require the trier of fact to draw reasonable inferences from the
undisputed evidence and reach a conclusion. The circuit court effectively converted the
summary judgment proceedings into a stipulated bench trial. The procedure employed by the
circuit court in this case was a proper exercise of judicial discretion and made in the interest
of judicial economy. That does not, however, alter our standard of review. We review a
circuit court’s judgment de novo when the only evidence presented to a court is documentary
and the circuit court does not engage in credibility determinations. Danada Square, 392 Ill.
App. 3d at 608; see also Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001) (“If the facts are
uncontroverted and the issue is the trial court’s application of the law to the facts, a court of
review may determine the correctness of the ruling independently of the trial court’s
judgment.”). Based on the foregoing, we begin our de novo review.
¶ 13 Travelers first argues that Rogers failed to present sufficient evidence to establish by a
preponderance of the evidence that Travelers issued CGL policies to Rogers for the policy
periods of 1961-62, 1962-63, and 1963-64. A party seeking to prove the existence of an
insurance policy must do so by a preponderance of the evidence. Central Illinois Light Co. v.
Home Insurance Co., 342 Ill. App. 3d 940, 961 (2003). In order to prove the existence of the
disputed CGL policies, Rogers first relied on an August 30, 2000, letter from Koplin, a
claims adjuster at Travelers. In notifying Rogers that Travelers would defend the underlying
claims under a reservation of rights, Koplin stated that Travelers would pay Rogers’s defense
costs on a pro rata basis. Koplin wrote in a footnote:
-4-
“As you know, Travelers is participating in Rogers Cartage’s defense under
confirmed policies in effect from May 1, 1961[,] to May 1, 1962, [sic][4] and from
April 1, 1967[,] to April 1, 1986. However, Travelers has also located secondary
evidence that Travelers may have also issued policies which were in effect from May
1, 1961[,] to April 1, 1967.”
¶ 14 Travelers contends that Koplin’s letter is insufficient evidence of the policies’ existence
because at his discovery deposition he was asked what the “secondary evidence was for [his]
determination on the possible inclusion or the inclusion in the calculation of the ’61 to ’67
policies.” He responded, “Renewal policy numbers on the front page of insurance policies,
commercial account registers, and commercial account claim records.” Travelers asserts that
the only renewal number Koplin ever identified was on the 1965-66 CGL policy, which only
went to the existence of the 1964-65 CGL policy, the existence of which Travelers concedes
on appeal.
¶ 15 Although Travelers’ argument has some arguable merit, we must consider all of the
evidence to determine whether it was more likely than not that Travelers issued CGL policies
between 1961 and 1965. The 1962 “Certificate of Insurance” containing the header “Stewart,
Smith & Co. Limited,” titled “Excess Comprehensive and Auto B.I. and P.D. as Primary,”
reflected a “period: 12 months at 1st May, 1962,” with Rogers listed as the “Assured.” This
document shows that an excess insurer agreed “to indemnify the Assured in respect of [its]
operations as more fully defined in the Primary Policy issued by Travelers Insurance Co.”
This supports a reasonable inference that Travelers issued Rogers a CGL policy for the
policy period of 1962-63. Furthermore, it is undisputed that Travelers issued CGL policies to
Rogers before 1961 and after 1965, and there is no evidence in the record to suggest that
Travelers did not issue CGL policies for the policy periods of 1961-62, 1962-63, and
1963-64, or that Rogers was covered under CGL policies from other insurers. Koplin’s letter,
when considered in conjunction with the 1962 “Certificate of Insurance,” the undisputed
existence of the bookend policies, the absence of any evidence showing that Travelers did
not issue CGL policies to Rogers, and the absence of any evidence showing that Rogers was
covered under CGL policies from other insurers, demonstrates that it is more likely than not
that Travelers did issue CGL policies to Rogers for the policy periods of 1961-62, 1962-63,
and 1963-64. We find, based on the evidence in the record, that Rogers proved by a
preponderance of the evidence that Travelers issued CGL policies to Rogers for the policy
periods of 1961-62, 1962-63, and 1963-64.
¶ 16 Next, Travelers argues that Rogers did not prove by a preponderance of the evidence the
material terms and conditions of the CGL policies issued for the policy periods of 1961-62,
1962-63, 1963-64, and 1964-65. It argues that a party cannot demonstrate policy terms
through the use of bookend policies and specimen policies alone. Travelers relies on Canal
Insurance Co. v. Montello, Inc., No. 10-CV-411-JHP-TLW, 2012 WL 4891699 (N.D. Okla.
Oct. 15, 2012), Remington Arms Co. v. Liberty Mutual Insurance Co., 810 F. Supp. 1420 (D.
Del. 1992), and Coltec Industries, Inc. v. Zurich Insurance Co., No. 99 C 1087, 2002 WL
31185789 (N.D. Ill. Sept. 30, 2002), to argue that there must be some “evidentiary link”
4
Rogers acknowledges, and we agree, that these dates “appear to be a misprint as both the
preceding and subsequent sentences refer to the missing policy period as May 1, 1961[,] to April 1,
1967.”
-5-
between the bookend policies, specimen policies, and the missing policies before a party can
use such evidence to prove the terms of a missing policy. Travelers insists that the bookend
policies had different payment, coverage, and premium endorsements, and that the 1960-61
policy had no contractual liability endorsement and no contractual liability schedule while
the 1965-66 policy did.5 Additionally, Travelers argues that there was uncontested evidence
that Travelers’ specimen policies are merely “building blocks” that are used to construct
coverage, and Rogers failed to show what coverages would have been selected.
¶ 17 We find that Rogers proved the material terms and conditions of the CGL policies for
1961 through 1965 by a preponderance of the evidence. Travelers has not offered any
affirmative evidence to rebut, undercut, or discount Rogers’s evidence that the disputed CGL
policies contained the same coverage and endorsements as the bookend policies and
specimen policies. Furthermore, although there were some differences between Travelers’
specimen policies used between 1961 and 1965 and the bookend policies, Travelers has not
identified any differences between Travelers’ 1961 through 1965 specimen policies and the
bookend policies that were material to the underlying claims here. We agree with the circuit
court’s conclusion that the terms in the 1960-61 and 1965-66 CGL policies contained no
material differences and were substantially similar.
¶ 18 Rogers proved by a preponderance of the evidence that the 1964-65 policy contained the
same terms and conditions as the 1965-66 CGL policy. It is undisputed the 1965-66 policy
contained a number listed in the “renewal number” box. Koplin explained that the presence
of a renewal number on the 1965-66 CGL policy suggested the existence of a 1964-65 CGL
policy and that, in his experience with Travelers’ policy forms, he did not know of anything
other than a renewal number that might go in the “renewal number” box. Second, it is
reasonable to infer that a renewal policy is renewed on the same terms and conditions as the
previous policy unless otherwise stated. The fact that the 1965-66 CGL policy was a renewal
of a previous policy allows for a reasonable inference that the terms of the 1964-65 CGL
policy contained the same terms and conditions as the 1965-66 CGL policy. Travelers does
not identify any evidence that might lead to an inference that the 1965-66 CGL renewal
policy contains any material changes from the terms and conditions of the policy that it
renewed.
¶ 19 Next, Rogers proved by a preponderance of the evidence that the terms and conditions of
the bookend policies contained substantially similar terms not just to each other but also to
the Travelers’ CGL specimen policies in use during that time period. The evidence before the
circuit court included the CGL policies for the policy periods of 1960-61 and 1965-66, as
well as the specimen policy forms used by Travelers between 1961 and 1965. Rogers argued
that the 1960-61 and 1965-66 bookend policies had the same per occurrence and aggregate
limits of liability and that Travelers’ 1961-65 specimen policies contained the same policy
terms as the bookend policies. The circuit court observed there was no evidence that
Travelers or Rogers sought to change the terms of the CGL policies at any time between
1961 and 1965. Although Travelers argues on appeal that the bookend policies do not match
each other because the policies have different premium payment endorsements, coverage
endorsements, and premium endorsements, Travelers makes no argument that the differences
5
Travelers fails to cite the bookend policies to support this assertion but instead cites to the
transcript of the summary judgment hearing where its counsel made this argument.
-6-
in payment, coverage, and premium endorsements in the bookend policies were material
differences affecting coverage. Nor does Travelers argue that there were any material
differences between the insuring agreements, exclusions, or conditions in the bookend
policies, or that the specimen policies contain terms and conditions that are materially
different from the terms and conditions in the bookend policies.
¶ 20 Travelers argues that a party cannot demonstrate policy terms through “the use of mere
‘bookend’ policies or specimen forms—more evidence is required.” Travelers relies on
Canal, Remington Arms, and Coltec.
¶ 21 Canal involved a declaratory judgment action related to insurance coverage for
asbestos-related injury claims against Montello, Inc. (Montello). During the course of the
litigation, a dispute arose between Montello and Continental Casualty Company
(Continental) regarding the existence, terms, and conditions of two excess umbrella liability
insurance policies allegedly issued by Continental to Montello for the periods of 1968-71 and
1971-74. Canal, 2012 WL 4891699, at *2, 4. Montello could not locate originals or copies of
the policies, but sought to establish the existence, terms, and conditions of the policies
through secondary evidence. Id. at *2. One issue before the district court was Continental’s
motion to strike two expert reports authored by Robert Hughes, a purported expert in the
reconstruction of missing insurance policies. Id. at *2-3. Hughes engaged in an extensive
forensic examination to conclude that the policies existed and that terms and conditions of
the policies could be determined by looking to “exemplar form policies” used during the time
period. Id. at *5-10. The district court ultimately struck Hughes’s reports as unreliable under
Federal Rule of Evidence 702, finding, among other things, that (1) he relied on two
Continental exemplar policies that were never used in Oklahoma, where the policies were
purported to have been underwritten, (2) he changed his conclusion regarding which
exemplar form was most likely to have been used based on new information that he received,
(3) he could not ultimately say with any certainty which exemplar form was most likely used,
and (4) the exemplar forms had materially different terms and conditions. Id. at *7-10.
¶ 22 Canal is distinguishable from the case here. The Canal court found Hughes’s
methodology was too speculative because there was an insufficient link between the missing
policies and the exemplar forms. That is not the case here, where there are confirmed
1960-61 and 1965-66 bookend policies that contain substantially the same material terms and
conditions and Travelers’ specimen policies in use between 1961 and 1965 also contain
substantially the same material terms and conditions contained in the 1960-61 and 1965-66
bookend policies. In other words, much of what the district court in Canal found lacking in
Hughes’s reports is in fact present here. Furthermore, Canal involved an expert’s complex
forensic effort to reach conclusions regarding the contents of unknown policies without
having examined exemplar policies that were actually used by the insurer in Oklahoma at the
time the policies were purportedly issued. Here, the parties do not dispute the existence,
terms, and conditions of the 1960-61 and 1965-66 bookend policies or that the proffered
Travelers’ specimen policies were in use in Illinois between 1961 and 1965. Canal is
therefore distinguishable.
¶ 23 In Remington Arms, the plaintiff insured sought a declaration that the defendant insurer
issued umbrella excess policies for 1965-69 and 1972-73. Remington Arms, 810 F. Supp. at
1421. It was undisputed that the defendant issued some form of liability insurance to the
plaintiff from at least 1936 to 1980. Id. The insured submitted over 2000 pages of evidence,
-7-
including business records, sample policies and bookend policies that were both marked as
renewals, internal memoranda directly referencing the policies, retrospective premium
reports, uncontroverted deposition testimony, and proof of premium payments. Id. at 1427.
The district court denied the insured’s motion for summary judgment, finding that “although
all the evidence presented in this case is uncontroverted, genuine issues of fact exist as to ***
both the inferences to be drawn from the evidence presented and the sufficiency of the
evidence itself.” Id. at 1428. Here, the parties acquiesced to the circuit court making the very
inferences that the Remington Arms court found were within the province of the finder of
fact. Remington Arms provides little guidance for resolving the dispute before us.
¶ 24 In Coltec, the insured sought a declaration regarding the terms and conditions of six CGL
policies from 1959-65 that could not be located. Coltec, 2002 WL 31185789, at *1. The
insured offered secondary evidence to establish the terms and conditions of the missing
policies. Specifically, the insured relied on specimen CGL policy forms containing the terms
and conditions of the policies in use during 1959-65, certificates of insurance for the
insurer’s policies, a contemporaneous memorandum authored by an employee of the insured
summarizing and describing the coverage under the missing policies, and testimony that the
policies were written on the insurer’s form policies. Id. at *7. After considering the evidence,
the district court found that the insured demonstrated by a preponderance of the evidence that
the missing policies were written on the insured’s standard CGL policy forms, that the
certificates of insurance demonstrated that the insurer issued policies with definite terms, and
that the remaining evidence further corroborated the terms and conditions of the missing
policies. Id. at *7-15.
¶ 25 Here, Travelers merely argues that “Rogers did not come anywhere close to producing
similar evidence to support its claims.” But Coltec does not stand for the proposition that any
particular quantity of evidence is necessary to establish the terms and conditions of a missing
insurance policy. Instead, Coltec evaluated the quality of the evidence to conclude that the
insured established the terms and conditions of the missing policies. Here, Rogers came
forward with evidence that the same material terms and conditions are contained in each
bookend policy, as well as evidence that the same material terms and conditions contained in
Travelers’ specimen policies were contained in each bookend policy. Travelers came forward
with no evidence that might call into doubt whether the missing policies were actually issued
or that might support a reasonable inference that the material terms and conditions of the
missing policies were different. Instead, Travelers relies on the absence of evidence to
suggest that summary judgment should be entered in its favor. However, the existence of the
bookend policies and the specimen policies, all of which contain substantially the same
material terms and conditions, coupled with the absence of any affirmative evidence
suggesting the presence of different terms or conditions, supports a reasonable inference that
the missing CGL policies contained the same material terms and conditions as the bookend
and specimen policies.
¶ 26 We conclude that Rogers established by a preponderance of the evidence that the
1961-62, 1962-63, 1963-64, and 1964-65 CGL policies had the same material terms and
conditions as the bookend policies issued in 1960-61 and 1965-66. The circuit court’s
judgment in favor of Rogers is affirmed.
¶ 27 Finally, Travelers argues that the circuit court erred in granting summary judgment in
favor of Rogers regarding the terms and conditions of the auto policies issued between 1961
-8-
and 1970. Travelers does not dispute that the certificates of insurance and “Notice of Large
Loss” forms establish the existence of the auto policies. Instead, it contends that Rogers did
not prove by a preponderance of the evidence the terms and conditions of those auto policies
and the circuit court erroneously found that Travelers’ SL Letters and the bookend auto
policies issued to Rogers prior to 1961 and after 1970 sufficiently provided those terms and
conditions. Furthermore, Travelers argues that it issued Rogers over 100 auto policies
insuring Rogers against a variety of different automobile risks and that there is no single,
uniform auto policy that Rogers can point to as the source of the terms for the missing
policies. Travelers further notes that the circuit court found that the auto policies issued
between 1961 and 1970 contain the same material terms as a confirmed policy for 1960-61
but that the 1960-61 policy was never made a part of the record.
¶ 28 A party seeking to prove the terms of an insurance policy must do so by a preponderance
of the evidence. Central Illinois Light, 342 Ill. App. 3d at 961. A party moving for summary
judgment bears the initial burden of proof. Bank Financial, FSB v. Brandwein, 2015 IL App
(1st) 143956, ¶ 40 (citing Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007)). Once the
moving party satisfies that initial burden, the burden shifts to the nonmoving party to come
forward with some factual basis that would entitle it to a favorable judgment. Nedzvekas, 374
Ill. App. 3d at 624.
¶ 29 Here, Rogers’s motion for summary judgment argued that Travelers’ SL Letters showed:
“ ‘[A] complete outline of the renewal Compensation and Automobile coverages’
containing the essential terms of the polices, including the name and address of the
insured, the name of insurance broker [sic] who obtained coverage, type of car
insured (and excluded), limits of liability, policy number, the policy period, location
of the risk, how the premium was calculated, and which endorsements were added to
the form policy.”
At the hearing on the cross-motions for summary judgment, Rogers argued that Travelers’
SL Letters indicated that Travelers issued Rogers renewal auto policies annually between
1958 and 1970 and that the parties were in possession of the 1960-61 auto policy. Rogers
contended that the 1960-61 auto policy was a renewal policy and that the SL Letters
supported a finding that there were continuous renewals of auto policies through 1970.
Rogers further argued that there was no evidence of any changes, cancellations, or rewritings
of the auto policies. The circuit court agreed, finding that the SL Letters indicated that “each
[auto] policy issued from 1958 to 1970 was a renewal policy, and contain no suggestion of
any relevant policy change through the missing policy years.”
¶ 30 We find that Rogers established by a preponderance of the evidence the terms and
conditions of the auto policy for each annual policy period between 1961 and 1970.
Travelers’ own documentation indicates that it annually renewed Rogers’s auto policy from
1958 to 1970. On November 21, 2012, Travelers’ counsel sent a letter to Rogers’s counsel
denying settlement authority under a number of different confirmed auto policies. In the
November 21, 2012, letter, Travelers acknowledged an auto policy “that could possibly be
implicated” with the policy No. RKSLA-9430000 for a policy period of May 1, 1960 to May
1, 1961. An SL Letter dated April 25, 1960, reflects that policy No. RKSLA-9430000 was a
renewal of policy No. RKSLA-8390542 (1959-60), which was a renewal of policy No.
RKSLA-4510729 (1958-59), which was a renewal of policy No. RKSLA-3135376
(1957-58). The SL Letters show that policy No. RKSLA-3135376 was an auto policy
-9-
covering “Inspection” for “Owned, Hired, and Non-Owned (Owned private passenger cars
not covered)” with limits of “25/100 B.I.; $25,000 P.D.,” with endorsements for “4050
Receipts Basis,” “1721—B.I—Coverage is on ‘Occurrence Basis,’ ” and “1721—Coverage
is excluded as respects owned private passenger cars.” Those identical coverage terms and
endorsements were reflected in the SL Letters for 1958-61 and are also reflected in the SL
Letters describing policy periods for 1961-70. We conclude that Rogers has established by a
preponderance of the evidence the terms and conditions of auto policies issued by Travelers
to Rogers for policy periods covering 1961-70.
¶ 31 Finally, Travelers notes that the 1960-61 auto policy is not part of the record that was
before the circuit court or this court, and thus neither the circuit court nor this court can rely
on that policy to establish the terms and conditions of the missing policies. The circuit court,
however, observed that the 1960-61 auto policy was in the parties’ possession. Travelers
does not dispute that it is in possession of the 1960-61 policy. Furthermore, as described
above, the material terms and conditions of the 1960-61 auto policy can be discerned from
Travelers’ SL letters: the 1960-61 auto policy had the same terms and conditions as the
1957-58 auto policy RKSLA-3135376 and it is clear from the SL Letters that Travelers
issued Rogers a renewal auto policy every year between 1961-70 with the same terms and
conditions as the 1957-58 auto policy. Therefore, the fact that the 1960-61 policy is not in the
record is of no material moment: whatever terms and conditions are in the 1960-61 auto
policy that is in Travelers’ possession are the terms and conditions for the auto policies for
1961-70.
¶ 32 In sum, we find that Rogers established the terms and conditions of the auto policies
issued by Travelers between 1961 and 1970 by a preponderance of the evidence. The circuit
court’s judgment in favor of Rogers is affirmed.
¶ 33 As a final matter, after this court held oral argument, Rogers filed a motion to strike a
comment made by Travelers’ counsel during rebuttal that the circuit court never considered
the 1960-61 auto policy because that policy was not made a part of the record. Rogers
acknowledges that a similar assertion was made in Travelers’ reply brief but claims that
Travelers has only raised this issue when Rogers has no opportunity to respond. Rogers, of
course, could have addressed this issue at oral argument but did not. However, as we have
explained, the absence of the 1960-61 policy from the record is not material because the
terms of that policy can be ascertained from the record, Travelers has acknowledged the
existence of the policy, and the policy is in Travelers’ possession. We therefore deny
Rogers’s motion to strike portions of Travelers’ oral argument.
¶ 34 CONCLUSION
¶ 35 Rogers proved by a preponderance of the evidence the existence of CGL policies issued
by Travelers to Rogers for the policy periods of 1961-62, 1962-63, and 1963-64. Rogers
further presented sufficient evidence to prove that the material terms and conditions set forth
in the 1961 and 1965 CGL bookend policies more probably than not were the material terms
and conditions contained in the missing CGL policies issued for the policy periods of
1961-62, 1962-63, and 1963-64. Finally, Rogers proved by a preponderance of the evidence
that there are auto policies for the period of 1961-70 with the same material terms and
conditions as a known auto policy for the policy period of 1960-61. We therefore affirm the
- 10 -
judgment of the circuit court.
¶ 36 Affirmed; motion denied.
- 11 -