Melrose Park Sundries v. Carlin

SECOND DIVISION
FILED: March 30, 2010
No. 1-09-0162
MELROSE PARK SUNDRIES, INC., ) Appeal from the Circuit
) Court of Cook County
Plaintiff-Appellant, )
) No. 07 L 1072
v. )
)
DON CARLINI, ) The Honorable
) Lee Preston,
Defendant-Appellee. ) Judge Presiding.
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Melrose Park Sundries, Inc. (Melrose Park),
appeals from an order of the circuit court granting summary
judgment in favor of the defendant, Don Carlini (Carlini),1 on the
plaintiff’s claim of negligence. For the reasons that follow, we
affirm the judgment of the circuit court.
The pleadings, depositions, and written discovery established
the following relevant facts. Melrose Park was the corporate owner
of a packaged liquor and sundries store at 2318 West North Avenue
in Melrose Park, Illinois. Melrose Park and the commercial
1
Carlini died after the complaint was filed but before
service was accomplished. Pursuant to section 2-1008(b) of the
Code of Civil Procedure (735 ILCS 5/2-1008(b) (West 2006)) (the
Code), his widow, Barbara Carlini, was appointed special
representative of his estate for purposes of defending the
action.
No. 1-09-0162
building in which it was located were owned by Faye Alport
(Alport), who was the sole officer, director, and shareholder.
Constantino A. Taddeo (Taddeo) was responsible for overseeing the
day-to-day operations of the store from its opening in
approximately February 2004 until it ceased operation in January
2008. Prior to the opening of the store, Alport and Taddeo met
with Carlini, a licensed insurance producer, and requested that he
obtain insurance for the store. Alport made the decision to
purchase insurance through Carlini because he had provided the
insurance to her husband and his previous businesses for many
years, but Taddeo was responsible for paying the insurance
premiums. The insurance policies obtained by Carlini for Melrose
Park provided coverage for “liquor liability” and various other
forms of coverage for the business and its premises, but did not
include workers’ compensation insurance coverage. These policies
were issued on January 23, 2004, and were subsequently renewed in
2005 for the policy period expiring January 23, 2006.
On October 9, 2005, Sharon Sullivan was injured while working
at the Melrose Park store. Melrose Park did not have workers’
compensation insurance at the time of Ms. Sullivan’s injury.
Initially, Alport and Taddeo jointly paid Sullivan’s medical
expenses. However, this arrangement eventually ceased, and
Sullivan subsequently filed a claim for workers’ compensation
benefits.
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No. 1-09-0162
Alport testified at her deposition that, prior to the
establishment of Melrose Park, her husband, who died in 2000, and
her son operated a business known as Melpark Drugs and Liquors in
the same location. According to Alport, her husband had been doing
business with Carlini for more than 20 years, and Carlini obtained
the insurance for Melpark Drugs and Liquors as well as for the
family’s other businesses and several commercial properties.
Alport also testified that she and Taddeo met with Carlini
once before Melrose Park opened to discuss the insurance for the
store. At that meeting, she asked Carlini to “make sure that all
of the requirements for insurance [were] taken out, including the
building, * * * the liquor, any type of liability policy.”
According to Alport, Carlini said that he would “handle it,” and
she did not have any further discussion with him about the
insurance policies that he obtained for Melrose Park. Alport
admitted that she never specifically requested that Carlini procure
workers’ compensation insurance for the business, nor did she
inquire as to whether workers’ compensation insurance was needed.
Alport also acknowledged that she did not read or review the
policies obtained by Carlini, and she did not discuss Melrose
Park’s insurance with him when the policies were renewed. Alport
further stated that she had more than 30 years of retail and
drugstore experience, and she owned a jewelry store, which was
located in the building adjacent to Melrose Park. In approximately
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No. 1-09-0162
2003, she specifically requested that Carlini procure workers’
compensation insurance for the jewelry store, and he did so.
However, she did not direct Carlini to obtain workers’ compensation
insurance for Melrose Park, as she had done for the jewelry
business. Alport also stated that Taddeo was responsible for
hiring the employees for the business, and she did not recall
whether any employees had been hired when she and Taddeo met with
Carlini to arrange for the purchase of insurance.
Taddeo testified at his deposition that he and Alport met with
Carlini once before Melrose Park opened to discuss the insurance
coverage for the store. According to Taddeo, his participation in
that discussion was limited to asking Carlini whether he was going
to take care of the insurance, and Carlini responded that he would.
Taddeo testified that the issue of workers’ compensation was not
specifically addressed, and neither he nor Alport explicitly
requested that Carlini obtain workers’ compensation insurance.
Taddeo also stated that Carlini came into the store after the
initial meeting, and he asked whether they were “covered on
everything.” Though Carlini responded in the affirmative, they did
not discuss what “everything” encompassed. Taddeo testified that
he did not read or review the insurance policies that were obtained
by Carlini.
In January 2007, Melrose Park brought suit against Carlini,
alleging that he was negligent in failing to obtain or offer to
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No. 1-09-0162
obtain workers’ compensation insurance for Melrose Park and in
failing to advise that such insurance was required by law. The
complaint also alleged that Carlini’s negligent conduct proximately
caused Melrose Park to suffer damages in that it was required to
pay the lost wages and medical expenses of Sullivan and was subject
to fines and penalties imposed by the Illinois Workers’
Compensation Commission. Carlini moved for summary judgment,
contending that Melrose Park had failed to present evidence
establishing a duty to procure workers’ compensation insurance.
The circuit court granted the motion for summary judgment, and this
appeal followed.
On appeal, Melrose Park argues that the summary judgment
against it must be reversed because the circuit court erred in
determining that Carlini had no duty to obtain workers’
compensation insurance. We disagree.
Summary judgment is appropriate where the pleadings,
depositions, admissions, and affidavits on file, viewed in the
light most favorable to the nonmoving party, show there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c)
(West 2006); Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228,
864 N.E.2d 176 (2007). Although a plaintiff need not prove his
case during a summary judgment proceeding, he must present some
evidentiary facts to support each element of his cause of action.
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No. 1-09-0162
Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1069, 793 N.E.2d 68
(2003). This court reviews the grant or denial of summary judgment
de novo. Murray, 224 Ill. 2d at 228.
In order to recover on a claim for negligence, a plaintiff
must show a duty owed by the defendant to the plaintiff, a breach
of that duty, and an injury proximately caused by the breach.
First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256, 720
N.E.2d 1068 (1999). The determination of whether the defendant
owed the plaintiff a duty of care is a question of law to be
determined by the court. Marshall v. City of Centralia, 143 Ill.
2d 1, 6, 570 N.E.2d 315 (1991). Where no duty is owed, there is no
negligence, and the plaintiff is precluded from recovery as a
matter of law. Washington v. City of Chicago, 188 Ill. 2d 235,
239, 720 N.E.2d 1030 (1999). The question of whether a duty exists
turns in large part on public policy considerations. Bucheleres v.
Chicago Park District, 171 Ill. 2d 435, 457-58, 665 N.E.2d 826
(1996). Statutes enacted by the legislature are expressions of
public policy. State Farm Mutual Automobile Insurance Co. v.
Smith, 197 Ill. 2d 369, 372, 757 N.E.2d 881 (2001).
In 1996, the General Assembly enacted Public Act 89-638 (Pub.
Act 89-638, § 5, eff. January 1, 1997), which added section 2-2201
of the Code. Section 2-2201 provides, in relevant part, as
follows:
“(a) An insurance producer * * * shall exercise
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No. 1-09-0162
ordinary care and skill in renewing, procuring, binding,
or placing the coverage requested by the insured or
proposed insured.
(b) No cause of action * * * against any insurance
provider, * * * concerning the sale, placement,
procurement, renewal, * * * or failure to procure any
policy of insurance shall subject the insurance producer,
* * * to civil liability under standards governing the
conduct of a fiduciary or fiduciary relationship except
when the conduct upon which the cause of action is based
involves the wrongful retention or misappropriation by
the insurance producer * * * of any money that was
received as premiums, as a premium deposit, or as payment
of a claim.
* * *
(d) While limiting the scope of liability of an
insurance producer * * * under standards governing the
conduct of a fiduciary or a fiduciary relationship, the
provisions of this Section do not limit or release an
insurance producer * * * from liability for negligence
concerning the sale, placement, procurement, renewal,
binding, cancellation of, or failure to procure any
policy of insurance.” (Emphasis added.) 735 ILCS
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No. 1-09-0162
5/2-2201 (West 2006).
In construing a statute, our primary objective is to ascertain
and give effect to the intent of the legislature. Comprehensive
Community Solutions, Inc. v. Rockford School District No. 205, 216
Ill. 2d 455, 473, 837 N.E.2d 1 (2005). The most reliable
indication of legislative intent is the plain and ordinary meaning
of the statutory language. Hamilton v. Industrial Commission, 203
Ill. 2d 250, 255, 785 N.E.2d 839 (2003). Where the language of the
statute is clear and unambiguous, we must apply it as written
without reading into it exceptions, limitations, or conditions not
expressed by the legislature. People ex rel. Madigan v. Kinzer,
232 Ill. 2d 179, 184-85, 902 N.E.2d 667 (2009).
Pursuant to the clear and unambiguous language of section 2-
2201(a), Carlini had a duty to exercise ordinary care and skill in
procuring the coverage requested by Melrose Park. The evidentiary
material submitted in support of the motion for summary judgment
established that neither Alport nor Taddeo ever requested that
Carlini obtain workers’ compensation insurance for Melrose Park.
In addition, both Alport and Taddeo admitted that they did not
inquire about workers’ compensation insurance, and such coverage
was not particularly discussed, either at the initial meeting at
which the insurance for the store was addressed or thereafter. The
duty imposed by section 2-2201 does not obligate an insurance
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No. 1-09-0162
producer to procure a policy for the insured which had not been
requested. 735 ILCS 5/2-2201(a) (West 2006). To hold Carlini
responsible for insurance coverage beyond that requested by Melrose
Park would extend the duty of ordinary care beyond that expressly
defined by the legislature. Consequently, we conclude that Carlini
did not have a duty to procure workers’ compensation insurance for
Melrose Park, nor was he obligated to offer advice regarding the
need for such insurance where neither Alport nor Taddeo ever
inquired as to that need.
In reaching this conclusion, we find that the cases cited by
the plaintiff do not compel a different result. In particular, we
note that Country Mutual Insurance Co. v. Carr, 366 Ill. App. 3d
758, 852 N.E.2d 907 (2006), on which the plaintiff places
substantial reliance, has been vacated by the supreme court (In re
Country Mutual Insurance Company, et al., ___ Ill. 2d ___, 889
N.E.2d 209 (2007)) and, therefore, carries no precedential weight.
See Mohanty v. St. John Heart Clinic, 225 Ill. 2d 52, 66, 866
N.E.2d 85 (2006); Provena Health v. Illinois Health Facilities
Planning Board, 382 Ill. App. 3d 34, 42, 886 N.E.2d 1054 (2008).
In addition, the plaintiff’s reliance on Golf v. Henderson, 376
Ill. App. 3d 271, 876 N.E.2d 105 (2007), is misplaced where the
cited language did not relate to a claim brought under section 2-
2201 of the Code but rather to a consumer fraud claim brought
pursuant to section 2 of the Illinois Consumer Fraud and Deceptive
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No. 1-09-0162
Business Practices Act (815 ILCS 505/2 (West 2004)). See Golf, 376
Ill. App. 3d at 276-77. The other cases relied upon by the
plaintiff are not controlling here because they were decided or
based upon circumstances occurring prior to the enactment of
section 2-2201.
Melrose Park’s argument, distilled to its essence, is that
Carlini had a fiduciary duty to procure workers’ compensation
insurance despite the fact that no such coverage was requested by
either Alport or Taddeo. This argument necessarily fails because
section 2-2201(b) precludes claims against insurance producers for
breach of fiduciary duty, except where such claims are based on the
wrongful retention or misappropriation of any money that was
received as premiums, as a premium deposit, or as payment of a
claim. See 735 ILCS 5/2-2201(b) (West 2006); see also Moore ex
rel. Moore v. Johnson County Farm Bureau, 343 Ill. App. 3d 581,
585-86, 798 N.E.2d 790 (2003).
We also find unpersuasive Melrose Park’s assertion that,
notwithstanding the terms of section 2-2201, a duty arose based on
the long-standing course of dealing between Carlini and the
Alports. In rejecting this claim, we observe that Melrose Park
failed to provide any specific evidence regarding the nature and
extent of the course of dealings between Carlini and Alport and her
husband. To the contrary, Alport’s testimony merely indicated that
she and her husband had been doing business with Carlini for more
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No. 1-09-0162
than 20 years, and Carlini obtained the insurance for Melpark Drugs
and Liquors as well as for the family’s other businesses and
several commercial properties. No evidence was presented to
indicate that, in the absence of a specific request, Carlini
routinely procured workers’ compensation insurance for the Alports’
businesses. Evidence that Carlini acted as the Alports’ insurance
broker over a number of years, in and of itself, is insufficient to
establish a course of dealing that would put an objectively
reasonable insurance broker on notice that he was obligated to
either procure workers’ compensation insurance or to offer advice
regarding the need for such insurance. In addition, Alport’s own
prior course of dealing with Carlini suggests the opposite
conclusion. In her deposition, Alport testified that in
approximately 2003 Carlini procured workers’ compensation for her
jewelry store because she had specifically requested it and made
sure that such coverage had been obtained. Viewing the pleadings
and evidentiary material in the light most favorable to Melrose
Park, we conclude that the trial court properly entered summary
judgment in favor of Carlini.
For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
Affirmed.
THEIS and KARNEZIS, JJ., concur.
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