Shelter Mutal Insurance Co. v. Flynn

2023 IL App (1st) 221151-UNo. 1-22-1151
Order filed March 31, 2023
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
SHELTER MUTUAL INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff and Counterdefendant-Appellee, ) Cook County.
)
v. ) Consolidated Nos.
) 18 CH 4794
HALEY FLYNN and LARRY HERSKOVITZ, ) 17 M1 119255
)
Defendants )
)
(Haley Flynn, Defendant and Counterplaintiff- ) Honorable
Appellant). ) David B. Atkins,
)
--------------------------------------------------------------------- Judge, presiding.
)
HALEY FLYNN, )
)
Plaintiff-Appellant, )
)
v. )
)
)
SHELTER MUTUAL INSURANCE COMPANY, and
)
DANNA KRISCHKE, )
)
Defendants ) Honorable
) Daniel P. Duffy,
(Shelter Mutual Insurance Company, Defendant- ) Judge, presiding.
Appellee). )
No. 1-22-1151
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court.
Justices Rochford and Martin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s ruling on cross-motions for summary judgment is affirmed
where the court granted summary judgment in favor of the insurer and against the
insured, finding that the insured’s vehicle at issue was not covered under her
insurance policy and the insurer did not have a duty to defend or indemnify her for
damage she caused to another vehicle.
¶2 The instant appeal arises from a dispute over a motor vehicle insurance policy Shelter
Mutual Insurance Company (Shelter Mutual) issued to Haley Flynn, who was involved in an
accident with a vehicle owned by Larry Herskovitz. When Flynn filed a claim under her policy
with Shelter Mutual, it denied her request for coverage, claiming that her 2009 vehicle was not
insured under her policy.
¶3 Flynn filed a small-claims lawsuit in the circuit court against Shelter Mutual based on its
denial of coverage, and Shelter Mutual filed a counterclaim in the small-claims action, seeking
declaratory judgment as to its duty to provide Flynn coverage. After Herskovitz sued Flynn,
Shelter Mutual filed a separate declaratory judgment action in the circuit court’s chancery division,
seeking a declaration that it did not owe Flynn a duty to defend or indemnify with respect to
Herskovitz’s lawsuit against her.
¶4 Flynn’s and Shelter Mutual’s two lawsuits were consolidated and transferred to the
chancery division. Both Flynn and Shelter Mutual filed cross-motions for summary judgment, and
the circuit court granted summary judgment in favor of Shelter Mutual and against Flynn.
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¶5 Flynn appeals, arguing summary judgment in favor of Shelter Mutual on its cross-motion
against her was error because (1) Shelter Mutual’s declaratory judgment claims improperly raised
the same coverage issue as its pre-suit coverage denial, supplanted an existing remedy, and
deprived Flynn of her chosen forum in small claims court, (2) Flynn was entitled to discovery on
the issue of the authority of Shelter Mutual’s agent, (3) the agent’s consent to Flynn’s request to
switch her vehicle coverage was not required, (4) the agent’s duty and Shelter Mutual’s knowledge
support reformation of the policy, and (5) Illinois law and policy require minimum liability
coverage for Herskovitz’s vehicle damages.
¶6 Flynn also argues that she was entitled to summary judgment against Shelter Mutual
because it waived its coverage defense and ratified and reformed the policy by issuing new
endorsements showing coverage for Flynn’s 2009 vehicle on the accident date and by failing to
return Flynn’s premiums. In addition, Flynn argues that she properly pled a claim for Shelter
Mutual’s abuse of process; the circuit court abused its discretion by denying her motion to amend
her complaint; and she is entitled to attorney fees based on Shelter Mutual’s vexatious and
unreasonable conduct.
¶7 For the reasons that follow, we affirm the judgment of the circuit court. 1
¶8 I. BACKGROUND
¶9 On October 17, 2016, Flynn purchased a 2010 Honda Civic (2010 vehicle) and sent a text
message to Shelter Mutual insurance agent Danna Krischke, requesting insurance coverage for the
vehicle. Krischke obtained coverage for Flynn under a Shelter Mutual policy with effective dates
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
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No. 1-22-1151
from October 17, 2016, through February 16, 2017. Five days later, on October 22, 2016, Flynn
traded in the 2010 vehicle for a 2009 Honda Civic (2009 vehicle). On October 31, 2016, Flynn
sent Krischke a text message asking her to switch Flynn’s insurance policy to the 2009 vehicle.
Krischke, however, never made that change, and the policy was renewed later with the 2010
vehicle listed as the covered vehicle. Specifically, on January 24, 2017, Shelter Mutual billed, and
Flynn paid, a policy premium of $711.20, and Shelter Mutual issued Flynn policy documents
reflecting a policy period of February 16, 2017, through August 16, 2017, but still showing the
insured vehicle as the 2010 vehicle that Flynn had traded in, rather than the 2009 vehicle.
¶ 10 On March 16, 2017, Flynn was involved in a motor vehicle accident when she rear-ended
a vehicle owned by Larry Herskovitz. The collision caused damage to Flynn’s 2009 vehicle in the
amount of $4700, which she paid directly to the repair shop. She also incurred $1029.68 in auto
rental expenses while her vehicle was being repaired, which she paid as well. The collision also
caused $4606.42 in damage to Herskovitz’s vehicle, which Herskovitz’s insurer paid.
¶ 11 On March 29, 2017, Flynn telephoned Krischke to inform her of the collision but was told
that the 2009 vehicle “was not the covered vehicle under the policy.” Krischke then charged Flynn
an additional $2.80 in premium payments and sent Flynn new insurance cards showing an effective
term from March 29, 2017, through August 16, 2017, and listing the 2009 vehicle as the covered
vehicle. Neither Krischke nor Shelter Mutual offered to refund any premiums Flynn had paid on
the 2010 vehicle during the policy period. The record does not indicate that Flynn requested any
such refund.
¶ 12 When Flynn filed a claim under her policy with Shelter Mutual, it denied her request for
coverage on April 12, 2017, claiming that the policy covered the 2010 vehicle and not the 2009
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vehicle. On April 26, 2017, Flynn e-mailed Shelter Mutual’s customer service, asking for her
“current evidence of insurance cards” and received insurance cards showing a policy period from
February 16, 2017, through August 16, 2017, and listing the 2009 vehicle as the covered vehicle.
On May 9, 2017, Flynn again e-mailed Shelter Mutual’s customer service with the same request
and received the same cards.
¶ 13 On July 7, 2017, Flynn filed a four-count small-claims complaint in the municipal division
of the circuit court against Shelter Mutual and Krischke, alleging that Flynn was the named insured
on an automobile insurance policy issued by Shelter Mutual and procured by Krischke that
provided Flynn with collision and liability coverage. Flynn alleged that when she sent Krischke
the text message on October 31, 2016, asking her to switch the insurance policy to the 2009 vehicle,
Flynn “relied on Krischke to make the change and believed the change was done based on their
past dealings.”
¶ 14 Count I of the complaint was for breach of contract against Shelter Mutual and alleged that
a valid contract for insurance existed between Flynn and Shelter Mutual, which covered the 2009
vehicle for damage to it by collision, for auto rental expenses, and for liability to others caused by
the vehicle. Count I further alleged that Shelter Mutual breached the contract by refusing to pay
Flynn for damage to the 2009 vehicle and for her auto rental and by refusing to pay for Flynn’s
liability to Herskovitz, “thereby making Flynn an uninsured motorist despite Flynn paying the full
premiums demanded by Shelter [Mutual] for the policy period.”
¶ 15 Count II of the complaint was for “waiver” against Shelter Mutual and alleged that Shelter
Mutual had affirmatively waived its right to deny coverage for the 2009 vehicle when it kept the
premiums Flynn paid instead of refunding the premiums or issuing a new policy for the 2009
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vehicle. Count II further alleged that Shelter Mutual waived its right to deny coverage for the 2009
vehicle by issuing evidence of insurance coverage cards on April 26, 2017, and May 9, 2017, that
listed the 2009 vehicle as the covered vehicle for the policy period effective February 16, 2017,
through August 16, 2017.
¶ 16 Count III of the complaint was for “vexatious and unreasonable conduct” under section
155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2016)) against Shelter Mutual and
alleged that Shelter Mutual had engaged in vexatious and unreasonable conduct in denying
coverage for the collision despite issuing insurance cards showing the 2009 vehicle as a covered
vehicle and despite keeping Flynn’s insurance premiums.
¶ 17 Finally, count IV of the complaint was for negligence against Krischke and alleged that
she had a duty to exercise reasonable skill, care, and diligence to procure insurance on the correct
vehicle. Count IV alleged that Krischke undertook the duty to act as Flynn’s insurance agent and
to procure auto insurance for her but breached that duty by failing to make the change that Flynn
requested on October 31, 2016, which would have changed the covered vehicle on the policy.
¶ 18 Attached to Flynn’s complaint were several exhibits. First was a copy of her insurance
policy with Shelter Mutual, which states that it is “evidence of insurance as of 05/09/2017,” which
was after the March 16, 2017 collision at issue. Flynn is listed as the named insured, and Krischke
is listed as the agent. The policy lists an effective date of February 16, 2017, through August 16,
2017, and states that the “described automobile” was the 2009 vehicle. The definitions section of
the policy contains the following relevant definitions.
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“Described auto 2 means the vehicle described in the Declarations, but only if
a named insured owns that vehicle. It includes:
***
(d) A temporary substitute auto.
***
Non-owned auto means any auto being used, maintained, or occupied with
permission, other than:
(a) The auto listed in the Declarations;
(b) An auto owned by any insured, or a resident of
any insured’s household; or
(c) An auto that any insured, or a resident of any insured’s household
has general consent to use.
A rental auto is a non-owned auto if it is not an auto described by (a), (b), or (c)
above, is not a temporary substitute auto, and otherwise meets the definition of rental
auto.”
¶ 19 The policy also included a provision titled “Thirty-Day Temporary Insurance on
Replacement Autos,” which provided, in relevant part:
2
The policy denotes defined terms within the policy in boldface type.
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“The temporary insurance provided under this section does not apply to any claim that
is covered by any other policy of insurance regardless of the types of coverage provided
by that policy.
The insurance provided by this policy with respect to the described auto applies to any
other auto in which you acquire ownership, if it replaces the described auto and you no
longer own the described auto. The insurance on this replacement auto includes only
those coverages that applied to the described auto. This coverage expires at the earlier of:
(1) 12:01 A.M. on the thirty-first day after you acquire ownership of the auto; or
(2) The date this policy lapses.
To obtain this temporary coverage, you must notify us, while this policy is in force,
and within 30 days after the date you acquire ownership of the replacement auto,
that you want this policy to apply to it.”
¶ 20 With respect to coverage for bodily injury and property damage liability coverage, the
policy provided that: “We will pay damages on behalf of an insured; but this agreement is subject
to all conditions, exclusions, and limitations of our liability, stated in this policy.” The policy
further provided, in relevant part:
“Damages means money an insured is legally obligated to pay another person because
of bodily injury, property damage, or consequential loss, caused by an occurrence
resulting from that insured’s ownership, maintenance, or use, of the described auto or
a non-owned auto.”
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¶ 21 With respect to collision coverage, the policy provided, in relevant part:
“We will pay the direct loss resulting from property damage to the described auto
if it is caused by:
(1) Accidental upset of the described auto; or,
(2) Accidental collision between the described auto and another object,
other than:
***
But this agreement is subject to all conditions, exclusions, and limitations of our liability,
stated in this policy.”
¶ 22 Also attached to Flynn’s complaint were several text messages between Flynn and
Krischke. One set of text messages, sent on October 17, 2016, discussed insurance coverage for
the 2010 vehicle, and one of Krischke’s responses included an image of an insurance card showing
coverage for the 2010 vehicle from October 17, 2016, through February 16, 2017. Another text
message, sent October 31, 2016, asked Krischke to “switch my car insurance to the 2009 White
Honda Civic”; there was no text from Krischke in response to this message.
¶ 23 Additionally, attached to Flynn’s complaint was a copy of a receipt for a renewal policy,
which showed that Shelter Mutual received a premium payment of $711.20 on January 24, 2017.
The “Risk Description” on the receipt listed the 2010 vehicle. Another receipt showed that Shelter
Mutual received a premium payment of $2.80 on March 29, 2017; the “Risk Description” on that
receipt listed the 2009 vehicle.
¶ 24 Finally, attached to Flynn’s complaint was an April 12, 2017 letter from Shelter Mutual.
The letter indicated that on April 6, 2017, Flynn reported a loss occurring on March 16, 2017, and
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that “[o]ur investigation revealed that you acquired a 2009 Honda Civic *** on October 22, 2016.
You were driving the 2009 Honda Civic on March 16, 2017, when you were involved in the
accident.” The letter further stated that Flynn had informed Shelter Mutual that she had traded in
the 2010 vehicle for the 2009 vehicle and that she had sent Krischke text messages on October 31,
2016, asking her to change the policy accordingly. After quoting the policy, the letter stated:
“Based on our investigation and this policy language, Shelter [Mutual] believes the
policy does not cover this claim. Specifically, the loss occurred outside of the 30 days of
temporary coverage provided under your 2010 Honda Civic’s policy, for the 2009 Honda
Civic that you acquired on October 22, 2016. After the 30 days of temporary coverage
lapsed, you did not purchase a policy for the 2009 Honda Civic. Because no policy was
purchased for the 2009 Honda Civic after you acquired it, and this loss did not occur during
the available 30 day temporary coverage, there is no coverage for this accident.
Further, the policy’s liability coverage applies to damages owed by an insured. The
policy defines damages as money that an insured must pay because of an occurrence
resulting from the ownership, maintenance or use of the described auto. The collision
coverage applies to property damage that results [from] an accidental collision involving
the described auto. The policy defines described auto as the vehicle listed in
the declarations and owned by the named insured. Here, the accident did not involve
the described auto as the 2009 Honda was not listed in the declarations. Furthermore,
you no longer owned the 2010 Honda, which was the vehicle listed in the declarations.
Because the 2009 Honda cannot meet the definition of described auto, neither liability
coverage nor collision coverage is available for this loss.
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Therefore, Shelter [Mutual] denies coverage for this claim under this policy.”
(Emphases in original.)
¶ 25 In September 2017, Shelter Mutual moved for leave to file a counterclaim for declaratory
judgment, and the court granted that motion. The court also severed Shelter Mutual’s counterclaim
and counts I, II, and III of Flynn’s complaint (the counts directed at Shelter Mutual) from count
IV of the complaint (the count concerning Krischke), and ordered the severed counts transferred
to the chancery division. However, the order granting severance was later vacated on February 1,
2018, and the matter was returned to the municipal division.
¶ 26 Later in September 2017, Shelter Mutual filed its counterclaim for declaratory judgment,
seeking an order declaring that it did not owe any duty to either reimburse Flynn for damages to
her vehicle or indemnify her for any damage to the vehicle owned by Herskovitz, arising out of
the March 16, 2017 accident. Shelter Mutual claimed that it did not owe any coverage to Flynn
because the 2009 vehicle “was neither a ‘described auto’ nor a ‘non-owned auto’ ” under the
Shelter Mutual policy and the accident occurred outside of the 30-day window for temporary
coverage under the policy. As part of its counterclaim, Shelter Mutual alleged that Flynn did not
inform Shelter Mutual of her purchase of the 2009 Civic until after the accident.
¶ 27 In March 2018, Flynn filed an answer and affirmative defenses to the counterclaim, raising
as affirmative defenses (1) the claim that Shelter Mutual’s request for declaratory judgment was
barred because it was seeking a declaration of nonliability for past conduct, which was
impermissible, (2) the doctrine of waiver, and (3) the doctrine of unclean hands based on Shelter
Mutual keeping Flynn’s premiums.
¶ 28 In answering Flynn’s affirmative defenses, Shelter Mutual admitted that Krischke was an
insurance agent for Shelter Mutual.
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¶ 29 Also in March 2018, Herskovitz filed a property damages lawsuit against Flynn arising out
of the March 16, 2017 accident. In April 2018, Shelter Mutual filed a complaint for declaratory
judgment in the chancery division of the circuit court, seeking a declaration that it did not owe any
duty to defend or indemnify Flynn with respect to Herskovitz’s lawsuit against her because (1) the
vehicle Flynn was driving at the time of the accident was neither a ‘described auto’ nor a ‘non-
owned auto’ under the Shelter Mutual policy, and (2) the accident occurred outside of the thirty-
day window for temporary coverage under the Shelter Mutual policy. Attached to Shelter Mutual’s
complaint was a March 2018, amended small-claims complaint filed in the municipal division by
Herskovitz against Flynn, alleging that Flynn had caused the accident by negligently operating her
vehicle and seeking $4606.42 in damages.
¶ 30 Shelter Mutual also filed a motion seeking to sever counts I, II, and III and Shelter Mutual’s
counterclaim in Flynn’s small-claims case and to consolidate them with its newly filed declaratory
judgment action in the chancery division. Shelter Mutual claimed that consolidation was proper
because all of the claims depended on the resolution of the question of whether Shelter Mutual
owed Flynn insurance coverage for the collision.
¶ 31 Thereafter, Flynn, in her small-claims action, moved for summary judgment with respect
to counts I, II, and III of her complaint against Shelter Mutual. In support of her motion, Flynn
attached, inter alia, her affidavit, in which she swore to the truth and accuracy of several exhibits.
One exhibit was a screenshot of text messages sent from Krischke to Flynn, which Flynn averred
that Krischke had provided to her. One message on the screenshot bore a date of October 31, 2016,
and stated: “Hi Danna. Please switch my car insurance to the 2009 White Honda Civic. With the
Vin # above.” The screenshot from Krischke’s phone does not display all of the same texts shown
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on the screenshots from Flynn’s phone. For example, the texts containing the 2009 vehicle’s
vehicle identification number are missing in Krischke’s screenshot.
¶ 32 The trial court denied Shelter Mutual’s motion to sever counts I, II, and III and Shelter
Mutual’s counterclaim in Flynn’s small-claims action, but it granted Shelter Mutual’s motion to
consolidate over Flynn’s objection, ordering Flynn’s small-claims action and Shelter Mutual’s
chancery action consolidated into the chancery action.
¶ 33 In June 2018, Flynn filed an answer and affirmative defenses to Shelter Mutual’s
declaratory judgment complaint, as well as a two-count counterclaim. Count I of the counterclaim
was for breach of contract and alleged that a valid insurance policy existed between Shelter Mutual
and Flynn that covered Flynn’s defense and liability to Herskovitz. Count II was for abuse of
process and alleged that Shelter Mutual had “ulterior purposes” in filing its counterclaim to Flynn’s
small claims case and seeking transfer to the chancery division; specifically, that Shelter Mutual
did so to avoid the simplified and cost-reducing procedures of the small-claims process and to
deprive Flynn of the ability to seek a quick resolution of her claims.
¶ 34 Shelter Mutual moved to dismiss count II of Flynn’s counterclaim under section 2-615 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)), alleging that Flynn had
failed to allege sufficient facts to state a cause of action for abuse of process. On August 30, 2018,
the court dismissed count II of Flynn’s counterclaim with prejudice, finding that “[n]othing in the
Counterclaim suggests any improper use of process, citing only standard motions (all granted by
several judges) and pleadings, which are generally not actionable as abuses of process.”
¶ 35 In September 2018, Shelter Mutual filed a response to Flynn’s motion for summary
judgment on her small-claims counts and on its counterclaim in that action, as well as a cross-
motion for summary judgment on its declaratory judgment complaint and on the small-claims
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complaint and counterclaim. Shelter Mutual claimed that its policy did not cover the 2009 vehicle
at the time of the collision, so Shelter Mutual was entitled to summary judgment on all counts.
¶ 36 In response to Shelter Mutual’s cross-motion for summary judgment, Flynn claimed, inter
alia, that summary judgment was inappropriate until it was determined whether Krischke had the
authority to bind Shelter Mutual because, if so, her failure to act on Flynn’s request to change the
insurance coverage would be imputed to Shelter Mutual. Flynn also argued that Illinois law
required the Shelter Mutual policy to insure her for liability when driving any vehicle she owned.
Attached to Flynn’s response was a Rule 191(b) affidavit (Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013)),
averring that discovery was necessary to properly determine whether Flynn was covered under the
policy. In support of the affidavit, Flynn attached an April 14, 2017 letter sent to her by Shelter
Mutual in response to a claim she made against Krischke under Krischke’s error and omissions
policy. In the letter, Shelter Mutual stated that Krischke received text messages from Flynn
concerning a 2009 vehicle but that Krischke “thought you were just following up on the car you
had already insured. She had no reason to think or know you would switch to a different vehicle
so soon, and you did not specifically tell her you returned the 2010 [vehicle] for the 2009.” Shelter
Mutual further stated that, after investigation, it found that “Krischke acted reasonably,” “there is
an inherent risk of miscommunication” when a customer “elects to do business via text,” and the
“texts at issue here were confusing.” Shelter Mutual added that it was not reasonable for Flynn “to
just ‘assume it [, i.e., switching insurance coverage to the 2009 vehicle,] was taken care of’ with
no follow up.”
¶ 37 On May 3, 2019, the circuit court entered an order on the cross-motions for summary
judgment. The court first found that there were no material facts in dispute, finding unpersuasive
Flynn’s claims that there were questions of fact. The court found that the only factual issues raised
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by Flynn were waiver and Krischke’s relationship with Shelter Mutual, and it found that “[s]uch
relationship is immaterial because Flynn provides no evidence of any assurance/acceptance (or
any response whatsoever on [Shelter Mutual’s] behalf) of her text-message request to change the
covered vehicle.” Next, the court found that Flynn conceded that the vehicle she was driving was
not the vehicle listed on the policy and found that there was “no support” for the claim that Shelter
Mutual had waived any denial of the claim by keeping Flynn’s premium payments or by issuing
new insurance cards. The court stated:
“For these reasons, the court must conclude that Shelter [Mutual] owes no duty to
defend or indemnify Flynn in connection with the March 16, 2017 incident. Further,
because the court finds [Shelter Mutual’s] denial of coverage was well grounded, it is also
entitled to judgment on Flynn’s claim under 215 ILCS 5/155 (for vexatious and
unreasonable denial of a claim).”
Accordingly, the court denied Flynn’s cross-motion for summary judgment and granted Shelter
Mutual’s cross-motion, and entered judgment in favor of Shelter Mutual and against Flynn on the
complaint and counterclaim. The court stated that its order was final and appealable.
¶ 38 Flynn appealed in May 2019, but this court dismissed her appeal for lack of jurisdiction on
April 30, 2020. Shelter Mutual Insurance Co. v. Flynn, 2020 IL App (1st) 191123. On remand,
Shelter Mutual moved for entry of a finding under Illinois Supreme Court Rule 304(a) (eff. Mar.
8, 2016) that there was no just reason to delay enforcement or appeal of the court’s May 3, 2019
judgment. Also, Flynn moved on September 11, 2020, for leave to amend her counterclaim to add
counts for respondeat superior and reformation. The circuit court denied Flynn leave to amend.
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The court also entered a Rule 304(a) finding but stayed Flynn’s negligence claim against Krischke
pending resolution of the appeal. Flynn timely appealed.
¶ 39 II. ANALYSIS
¶ 40 “The purpose of summary judgment is to determine if a question of material fact exists.”
Fifth Third Mortgage Company v. McCord, 2021 IL App (1st) 200512, ¶ 19. Summary judgment
should only be entered where “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 and that the moving
party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2016). “Although
summary judgment is to be encouraged as an expeditious manner of disposing of a lawsuit, it is a
drastic measure and should be allowed only where the right of the moving party is clear and free
from doubt.” Wells Fargo Bank, N.A. v. Norris, 2017 IL App (3d) 150764, ¶ 19. We review the
trial court’s decision to grant summary judgment de novo, which means we perform the same
analysis as would the trial court. Id.¶ 41 When, as in this case, the parties file cross-motions for summary judgment, they agree that
only questions of law are involved and that the court may decide the issues based on the record.
Allen v. Meyer, 14 Ill. 2d 284, 292 (1958). However, the filing of cross-motions for summary
judgment does not establish that there is no genuine issue of material fact, or obligate a court to
grant summary judgment. Pielet v. Pielet, 2012 IL 112064, ¶ 28. In determining whether the
moving party is entitled to summary judgment, the pleadings, depositions, admissions, and
affidavits should be construed strictly against the movant and liberally in favor of the opponent.
Kolakowski v. Voris, 83 Ill. 2d 388, 398 (1980). If the presentation allows for more than one
conclusion or inference, including one unfavorable to the movant, the motion should be denied.
Amin v. Knape & Vogt Co., Inc., 148 Ill. App. 3d 1075, 1077 (1986).
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¶ 42 On appeal, Flynn argues that summary judgment in favor of Shelter Mutual and against her
was error because (1) Shelter Mutual’s declaratory judgment claims improperly raised the same
coverage issue as its pre-suit coverage denial, supplanted an existing remedy, and deprived Flynn
of her chosen forum in small-claims court, (2) Flynn was entitled to discovery on the issue of
Krischke’s authority as Shelter Mutual’s agent, (3) Krischke’s consent to Flynn’s request to switch
her vehicle coverage was not required, (4) Krischke’s duty and Shelter Mutual’s knowledge
support reformation of the policy, and (5) Illinois law and the insurance policy require minimum
liability coverage for Herskovitz’s vehicle damages.
¶ 43 Flynn also argues that she was entitled to summary judgment against Shelter Mutual
because it waived its coverage defense and ratified and reformed the policy by issuing new
endorsements showing coverage for Flynn’s 2009 vehicle on the accident date and by failing to
return Flynn’s premiums. In addition, Flynn argues that she properly pled a claim for Shelter
Mutual’s abuse of process; the circuit court abused its discretion by denying her motion to amend
her complaint; and she is entitled to attorney fees based on Shelter Mutual’s vexatious and
unreasonable conduct.
¶ 44 A. Summary Judgment in Favor of Shelter Mutual
¶ 45 First, Flynn argues that the trial court erred by granting summary judgment in favor of
Shelter Mutual because its declaratory judgment claims improperly raised the same coverage issue
as its pre-suit coverage denial, supplanted an existing remedy, and deprived Flynn of her chosen
forum in small claims court.
¶ 46 A declaratory judgment action requires (1) a plaintiff with a tangible, legal interest; (2) a
defendant with an opposing interest; and (3) an actual controversy between the parties concerning
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such interests. Beahringer v. Page, 204 Ill. 2d 363, 372 (2003); see 735 ILCS 5/2-701 (West 2016).
For an actual controversy to exist, the case must present a concrete dispute admitting of an
immediate and definitive determination of the parties’ rights, the resolution of which will aid in
the termination of the controversy or some part thereof. Howlett v. Scott, 69 Ill. 2d 135, 141-42
(1977) (the plaintiff, who had already terminated the relationship at issue, was not entitled to
declaratory judgment because his rights were fixed). The declaratory judgment process exists so
that the court may address a controversy after a dispute has arisen but before steps are taken that
would give rise to a claim for damages or other relief. Beahringer, 204 Ill. 2d at 372-73. A suit for
declaratory judgment is premature if no actual controversy exists, but as long as the case is not one
in which the controversy has progressed so far that there is nothing left for the parties to do except
file suit for damages or other consequential relief, the controversy may still be resolved by
declaratory judgment.
¶ 47 To support her argument, Flynn cites Howlett, 69 Ill. 2d 135 (1977), which noted, inter
alia, that courts have no authority to issue advisory opinions. The court found premature a
declaratory judgment action by the then Illinois Secretary of State for a declaration that a certain
business relationship of his had not created a conflict of interest where the defendant, the then
Illinois Attorney General, had not indicated his intent to prosecute an action against the plaintiff
at the time the declaratory action was filed. The court also found that the plaintiff’s termination of
the relationship forming the basis of the suit rendered the plaintiff’s recourse through the
declaratory judgment statute inappropriate because it was not designed to provide mere
declarations of nonliability for past conduct. Id. at 143.
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¶ 48 Flynn, however, provides no analysis of Howlett or a cohesive legal argument about how
it may be applied to the instant facts to support her claim. “ ‘[A] reviewing court is entitled to have
the issues on appeal clearly defined with pertinent authority cited and a cohesive legal argument
presented. The appellate court is not a depository in which the appellant may dump the burden of
argument and research.’ ” In re Marriage of Auriemma, 271 Ill. App. 3d 68, 72 (1995), quoting
Thrall Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719 (1986). Illinois Supreme Court
Rule 341(h)(7) (eff. Oct. 1, 2020) requires a clear statement of contentions with supporting citation
of authorities. Ill-defined and insufficiently presented issues that do not satisfy the rule are
considered forfeited. Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855 (2007).
Consequently, Flynn has forfeited review of this issue.
¶ 49 Flynn also argues that Shelter Mutual’s declaratory judgment claim improperly supplanted
“existing remedies, including as defense to an already filed small claim suit” and “deprived [her]
of the small claim court goals for simplified and inexpensive litigation.” To support this claim,
Flynn cites Charleston National Bank, Charleston v. Muller, 16 Ill. App. 3d 80, 360 (1974), which
affirmed the dismissal of the drawee bank’s declaratory judgment complaint and motion to transfer
from small claims court where a small claims suit already had been started by the depositor of a
check against the drawee bank. This case, however, is distinguishable from Muller. Here, Shelter
Mutual denied Flynn’s property claim for damage to her vehicle, and she filed suit in small claims
court. Shelter Mutual then filed a counterclaim for declaratory judgment in response to that suit.
Later, when Flynn tendered the third-party liability defense of the Herskovitz lawsuit, Shelter
Mutual filed a separate declaratory judgment action in the chancery division of the circuit court,
which is one of the correct ways to respond to a tender where an insurer is denying coverage. See
Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 150 (1999).
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Furthermore, Shelter Mutual’s counterclaim and motion to transfer to the chancery division did
not deprive Flynn of filing her claims in her chosen forum, i.e., the Circuit Court of Cook County,
and Flynn cites no relevant law or court rule that indicates the transfer within the circuit court was
improper.
¶ 50 Second and third, Flynn argues that the trial court erred by granting summary judgment in
favor of Shelter Mutual because Flynn was entitled to discovery if there was a dispute on the issue
of Krischke’s authority as Shelter Mutual’s agent to bind it to Flynn’s request to change the vehicle
coverage. According to Flynn, Krischke’s status as Shelter Mutual’s agent was dispositive because
her assent to Flynn’s request to switch her vehicle coverage was not required to reform the policy.
We conclude that this claim by Flynn lacks merit. The record establishes that Shelter Mutual
admitted that Krischke was its agent. Furthermore, Flynn’s negligence claim against Krischke was
stayed and remains pending before the circuit court, and Flynn’s complaint did not allege claims
against Shelter Mutual based on vicarious liability for Krischke’s alleged negligence.
¶ 51 Also, the agency relationship between Krischke and Shelter Mutual was immaterial to
Flynn’s breach of contract claim against Shelter Mutual because no contract concerning coverage
for Flynn’s 2009 vehicle was formed since the evidence showed that Krischke did not even respond
to Flynn’s text message to change her vehicle coverage, let alone accept the request or assure Flynn
that the change had been made. A contract of insurance is formed where “one of the parties to such
a contract proposes to be insured and the other party agrees to insure.” Devers v. Prudential
Property & Casualty Insurance Co., 86 Ill. App. 3d 542, 544 (1980) (the agent orally assured the
insured that she would have coverage). See also Zannini v. Reliance Insurance Company of
Illinois, Inc., 147 Ill. 2d 437, 442 (1992) (the agent told the insured that coverage for the jewelry
in question would be provided); Wille v. Farmers Equitable Insurance Co., 89 Ill. App. 2d 377,
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379 (1967) (the agency sent the insured’s application for insurance to the insurer and told the
insured he was covered). Flynn presented no evidence that Krischke ever agreed before the
collision to procure coverage for Flynn’s 2009 vehicle. The evidence shows that Flynn’s text
message concerning her 2009 vehicle went without a response from Krischke, whereas Flynn’s
other earlier text messages had received responses from Krischke.
¶ 52 Fourth, Flynn argues that the trial court erred by granting summary judgment in favor of
Shelter Mutual because Krischke’s duty and Shelter Mutual’s knowledge support reformation of
the policy. Flynn, citing Talbot v. Country Life Insurance Co., 8 Ill. App. 3d 1062, 1065 (1973),
argues that Krischke had a legal obligation to act with reasonable promptness on Flynn’s
application to change the covered auto, either by providing the desired coverage or notifying her
of the rejection of the risk so that she would not be lulled into a feeling of security or put to
prejudicial delay in seeking protection elsewhere. Flynn’s argument lacks merit. As stated above,
her negligence claim against Krischke is stayed and pending in the circuit court, and she has no
claim against Shelter Mutual for vicarious liability.
¶ 53 Fifth, Flynn argues that the trial court erred by granting summary judgment in favor of
Shelter Mutual because Illinois law and the insurance policy require minimum liability coverage
for Herskovitz’s vehicle damages. Specifically, Flynn argues that Shelter Mutual’s 30-day
coverage provision for newly owned vehicles conflicts with sections 7-317(b)(3), 7-203, 7-601,
and 7-602 of the Illinois Vehicle Code (625 ILCS 5/7-317(b)(3), 7-203, 7-601, 7-602 (West
2016)). These sections provide, respectively and in relevant part, that (1) a motor vehicle liability
policy shall insure every named insured and any other person using any motor vehicle owned by
the named insured against loss from liability from such use for $20,000 for damage to the property
of others as a result of any one accident, (2) motor vehicle insurance policies are subject to a
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minimum coverage of $20,000 for injury to or destruction of the property of others, (3) a policy
shall be issued in amounts no less than the minimum amounts set for destruction of property under
section 7-203, and (4) no insurer shall issue an insurance card in connection with an insurance
policy that does not provide the liability insurance coverage required under section 7-601. Id.¶ 54 “The fundamental objective of statutory construction is to ascertain and give effect to the
intent of the legislature.” 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL
118372, ¶ 21. “The most reliable indicator of legislative intent is the statutory language, given its
plain and ordinary meaning.” Id. “A reasonable construction must be given to each word, clause,
and sentence of a statute, and no term should be rendered superfluous.” Id. “ ‘[W]hen statutory
language is plain and certain the court is not free to give it a different meaning.’ ” Kalkman v.
Nedved, 2013 IL App (3d) 120800, ¶ 12 (quoting In re Estate of Hoehn, 234 Ill. App. 3d 627, 629
(1992)). “[A] court may not depart from the plain statutory language by reading into it exceptions,
limitations, or conditions not expressed by the legislature.” Id. “It is a ‘fundamental principle of
statutory construction (and, indeed, of language itself) that the meaning of a word cannot be
determined in isolation, but must be drawn from the context in which it is used. [Citations.]’ ”
Corbett v. County of Lake, 2017 IL 121536, ¶ 27 (quoting Deal v. United States, 508 U.S. 129,
132 (1993)). The terms in a statute are not to be considered in a vacuum; instead, “the words and
phrases in a statute must be construed in light of the statute as a whole, with each provision
construed in connection with every other section. [Citations]” (Internal quotation marks omitted.)
Id.¶ 55 Flynn’s argument focuses on section 7-317(b)(3) of the Vehicle Code, but sections 7-
317(b)(1) and (b)(2) make clear that a liability insurance policy
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“1. Shall designate by explicit description or by appropriate reference all motor
vehicles with respect to which coverage is thereby intended to be granted;
2. Shall insure the person named therein and any other person using or responsible
for the use of such motor vehicle or vehicles with the express or implied permission of the
insured;” 625 ILCS 5/7-317(b)(1), (b)(2) (West 2016)).
¶ 56 Shelter Mutual’s policy did not violate section 7-317 because the policy adequately
described the motor vehicles with respect to which coverage was intended to be granted.
Furthermore, section 7-317 deals with minimum liability limits and ensures that those limits will
not be reduced when the operator of the vehicle is not the named insured, as is the case with
coverage under omnibus clauses. See generally State Farm Mutual Automobile Insurance Co. v.
Illinois Farmers Insurance Co., 226 Ill. 2d 395 (2007). Section 7-317 does not concern the
legitimacy of Shelter Mutual’s described auto provision and attendant definitions under the policy.
Accordingly, we reject Flynn’s argument that Shelter Mutual’s policy provisions violate Illinois
public policy.
¶ 57 We conclude that the trial court properly granted Shelter Mutual’s summary judgment
motion against Flynn. Shelter Mutual did not owe any coverage to Flynn because the 2009 vehicle
“was neither a ‘described auto’ nor a ‘non-owned auto’ ” under the Shelter Mutual policy; the
accident occurred outside of the 30-day window for temporary coverage under the policy; and
Flynn did not inform Shelter Mutual of her purchase of the 2009 vehicle until after the accident.
After the 30 days of temporary coverage lapsed, Flynn did not purchase a policy for the 2009
vehicle. Because no policy was purchased for the 2009 vehicle after Flynn acquired it, and the
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accident did not occur during the available 30 day temporary coverage, there is no coverage for
that loss.
¶ 58 Further, the policy’s liability coverage applies to damages owed by an insured. The policy
defines damages as money that an insured must pay because of an occurrence resulting from
the ownership, maintenance or use of the described auto. The collision coverage applies
to property damage that results from an accidental collision involving the described auto. The
policy defines “described auto” as the vehicle listed in the declarations and owned by the named
insured. Here, the accident did not involve the described auto because the 2009 vehicle was not
listed in the declarations. Furthermore, Flynn no longer owned the 2010 vehicle, which was the
vehicle listed in the declarations. Because the 2009 vehicle could not meet the definition
of “described auto,” neither liability coverage nor collision coverage was available for this loss.
¶ 59 Therefore, Shelter Mutual did not owe Flynn coverage for her collision and liability claims
under the policy.
¶ 60 B. Denial of Flynn’s Summary Judgment Cross-Motion
¶ 61 Flynn argues that she was entitled to summary judgment against Shelter Mutual because it
waived its coverage defense and ratified the policy by re-issuing documents stating coverage for
Flynn’s 2009 vehicle for the period covering the accident after knowing its policy defense
regarding the misdescription, which Flynn refers to as a mutual mistake. According to Flynn,
Shelter Mutual took her additional premium two weeks after the accident and then twice issued to
her evidence of insurance cards showing coverage for the 2009 vehicle for the period from
February 16, 2017, through August 16, 2017, which included the March 16, 2017 accident date.
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Flynn argues that the policy should be reformed for mutual mistake because Shelter Mutual waived
any right to avoid it by not seeking to rescind it.
¶ 62 Flynn contends that once Shelter Mutual learned of the mistake of the policy describing a
vehicle she did not own, Shelter Mutual should have sought rescission and returned her unearned
premiums. However, instead of returning her premiums, Shelter Mutual collected an additional
$2.80 and endorsed the policy to describe the 2009 vehicle. Flynn contends that Shelter Mutual,
by denying coverage based on the misdescription of her ownership of the 2010 vehicle through
the time of the accident, rescinded the contract for the period she did not own any described auto,
but without seeking authority from a court or returning Flynn’s premiums. Flynn argues that
Shelter Mutual cannot both rescind the policy for the period that she did not own the 2010 vehicle,
and ratify the contract by keeping those premiums.
¶ 63 “Waiver arises from an affirmative act, is consensual, and consists of an intentional
relinquishment of a known right.” Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d
307, 326 (2004). Waiver may be either expressed or implied, and arises from acts, words, conduct,
or knowledge of a party. Id.¶ 64 First, Flynn’s argument regarding a mutual mistake lacks merit.
“When there is a mutual mistake of fact as to a material term, the contract is
voidable and can be rescinded by an adversely affected party unless that party bears the
risk of the mistake. Jordan v. Knafel, 378 Ill. App. 3d 219, 234 (2007); Restatement
(Second) of Contracts § 152 (1981). A mutual mistake exists where both parties come to
an understanding, then, unintentionally, a drafted and signed contract fails to express the
true agreement. Cameron v. Bogusz, 305 Ill. App. 3d 267, 272 (1999).” Alliance Property
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Management, Ltd. v. Forest Villa of Countryside Condominium Ass’n, 2015 IL App (1st)
150169, ¶ 39.
Here, there was no understanding reached regarding the 2009 vehicle before the March 2017
accident and Shelter Mutual did not know that Flynn had traded in the 2010 vehicle for the 2009
vehicle until after she filed a claim for the March 2017 accident. Consequently, there was no
mutual mistake concerning the policy for the 2010 vehicle.
¶ 65 Flynn claims that Shelter Mutual waived its coverage defense and agreed post-accident to
her vehicle change request when Shelter Mutual’s customer service department sent her, in
response to her request, two evidence of insurance cards describing her 2009 vehicle for the policy
period including the accident date. Flynn contends that “[w]here a set of facts that exist on a certain
date would allow for denial of a claim, but after that date the insurer then issues an amended
evidence of insurance card providing that coverage is effective on the date of the accident, the
policy language incorporates the amended declarations page into the policy.” Flynn cites Siwek v.
White, 388 Ill. App. 3d 152 (2009), to support her contention but her reliance on Siwek is
misplaced.
¶ 66 In Siwek, the insurance company claimed that it had cancelled an insurance policy on May
13, 2003, prior to a July 27, 2003 automobile accident involving its insured. Id. at 154. However,
the insured presented a memo from the independent insurance broker, dated May 19, 2003 (after
the supposed cancellation, but before the accident), containing an amended insurance identification
card and declaration page issued by the insurer. Id. The court found that the declaration page was
incorporated into the policy, based on language in the policy itself that so incorporated the
declarations. Id. at 159.
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¶ 67 In contrast, here, the evidence of insurance cards including the 2009 vehicle was issued
after the collision, not before like in Siwek. Moreover, Siwek does not stand for the proposition
that an insurance card is incorporated into the policy, but rather that a declaration page is, when it
is issued before the accident. “[A]n insurance card is not a substitute for the policy language,” but
is “simply a form of ‘evidence’ *** that a driver may present as proof of insurance to a ‘law
enforcement officer.’ ” American Service Insurance Co. v. Arive, 2012 IL App (1st) 111885, ¶ 13,
citing 625 ILCS 5/7-602 (West 2010) (noting that the insurance card “does not constitute any part
of [an] insurance policy”). Notably, in Arive, the court found that despite the fact that an insurance
company had not complied with the Illinois law requirement that excluded drivers be listed on the
insurance card, that omission did not void the actual exclusion in the policy. Id. ¶¶ 15-17.
¶ 68 Furthermore, the evidence of insurance cards Shelter Mutual sent to Flynn at her request
both make clear in their title—i.e., “Evidence of Insurance as of 4/26/2017,” and “Evidence of
Insurance as of 5/9/2017”—that the insurance referred to was effective after the March 16, 2017
accident. Shelter Mutual’s issuance of evidence of insurance information to Flynn when she finally
added the 2009 vehicle to her policy (after the accident) did nothing to change or alter the coverage
that was in place as of the date of the collision.
¶ 69 Moreover, Flynn argues that Shelter Mutual keeping her premium somehow constituted
waiver, but this argument has no basis in law, as evidenced by the cases relied on by Flynn. Both
cases cited by Flynn—Insurance Co. of Illinois v. Brown, 315 Ill. App. 3d 1168 (2000), and Auto-
Owners Insurance Co. v. Yocum, 2013 IL App (2d) 111267—involved the cancellation of a policy,
which is not at issue here. Flynn has not presented any legal support for her contention that Shelter
Mutual waived any coverage defenses by keeping her premiums in this case, where she simply did
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not obtain coverage for her new car and, as a result, the coverage continued on her old car. Shelter
Mutual did not cancel her policy at that time. Rather, Flynn did not take the necessary steps to
insure her new car.
¶ 70 Flynn complains about Shelter Mutual’s alleged ratification and waiver based on Flynn’s
perception of Shelter Mutual’s imperfect rescission. The trial court rightly rejected any such
argument because nothing Shelter Mutual did indicated that it pursued rescission or intended to
waive its coverage denial. Section 154 of the Insurance Code (215 ILCS 5/154 (West 2016)),
which governs rescission of insurance policies, allows an insurer to rescind a policy for
misrepresentations of the insured only in the first year of the policy and only if the
misrepresentations either were made with the intent to deceive or materially affect the risk assumed
by the insurer. Shelter Mutual never asserted section 154 because Shelter Mutual never sought
rescission.
¶ 71 We conclude that the trial court did not err when it denied Flynn’s cross-motion for
summary judgment.
¶ 72 C. Abuse of Process
¶ 73 Next, Flynn argues that the trial court erroneously dismissed her claim against Shelter
Mutual for abuse of process because she properly pled that claim by alleging that Shelter Mutual
had an ulterior purpose for seeking a declaration of its duties under its insurance policy.
Specifically, Flynn alleged that Shelter Mutual pled its defense, which was available in small
claims court, as a declaratory counterclaim to seek a transfer to the chancery division and thereby
deny Flynn her chosen small claim forum. Flynn also alleged that “(1) [Shelter Mutual] obtained
transfer and consolidation process to seek in chancery a declaration of non-liability for its past
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No. 1-22-1151
denial of Flynn’s claim which is beyond the purview of transfer and consolidation into chancery,
(2) thereby compelling Flynn to litigate her claim and [Shelter Mutual’s] defense in the chancery
division without the simplifying and inexpensive small claim process, and (3) which is something
she could not have otherwise been legally compelled to do because [Shelter Mutual] had already
denied her claim.”
¶ 74 A section 2-615 motion attacks the legal sufficiency of a complaint. Such a motion does
not raise affirmative factual defenses but alleges only defects on the face of the complaint. Urbaitis
v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991). In ruling on a section 2-615 motion to
dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable
inferences that can be drawn therefrom. McGrath v. Fahey, 126 Ill. 2d 78, 90 (1988). In making
this determination, the court is to interpret the allegations of the complaint in the light most
favorable to the plaintiff. Id. However, this court will disregard mere conclusions of law or facts
not supported by specific factual allegations. White v. DaimlerChrysler Corp., 368 Ill. App. 3d
278, 282 (2006). The question presented by a motion to dismiss a complaint for failure to state a
cause of action is whether sufficient facts are contained in the pleadings which, if established,
could entitle the plaintiff to relief. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991).
A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of
facts can be proved under the pleadings which will entitle the plaintiff to recover. Reuben H.
Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300 (1995). We review de novo a trial court’s ruling
under section 2-615 of the Code of Civil Procedure. Poruba v. Poruba, 396 Ill. App. 3d 214, 215
(2009).
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¶ 75 The elements of a cause of action for abuse of process are (1) the existence of an ulterior
purpose or motive, and (2) some act in the use of legal process not proper in the regular prosecution
of the proceedings. Kumar v. Bornstein, 354 Ill. App. 3d 159, 165 (2004).
“In order to satisfy the first element, a plaintiff must plead facts that show that the defendant
instituted proceedings against him for an improper purpose, such as extortion, intimidation,
or embarrassment. In order to satisfy the second element, the plaintiff must show that the
process was used to accomplish some result that is beyond the purview of the process.
[Citation.] The elements are strictly construed, as the tort of abuse of process is not favored
under Illinois law. [Citation.]” Id. at 165-66.
“The mere filing of a lawsuit even with a malicious motive, does not constitute an abuse of
process.” Commerce Bank, N.A. v. Plotkin, 255 Ill. App. 3d 870, 872 (1994). The word “process”
is given its literal meaning and means process issued by the court, under its official seal, and is
distinguished from pleadings, which are created and filed by the litigants. Id.; see also Holiday
Magic, Inc v. Scott, 4 Ill. App. 3d 962, 967-68 (1972) (defining “process” as “any means used by
the court to acquire or to exercise its jurisdiction over a person or over specific property,” such as
a summons, and specifically finding that pleadings are not considered “process”).
¶ 76 Flynn failed to properly plead the first element of abuse of process, the existence of an
ulterior motive or purpose in Shelter Mutual’s actions in this case other than its stated motive of
seeking and obtaining a declaration of its duties under its insurance policy. Instead, Flynn pled
only conclusory allegations, without any support, that Shelter Mutual intended to avoid the small
claims court and deprive Flynn of a quick resolution of her claim. Conclusory allegations such as
these are not enough to sufficiently plead the first element of an abuse of process. See Reed v.
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Doctor’s Associates, Inc., 355 Ill. App. 3d 865, 875-76 (2005) (finding that conclusory allegations
that a party intended intimidation and coercion were insufficient to support a claim for abuse of
process).
¶ 77 Flynn also failed to plead that Shelter took any improper action in the use of legal process.
Instead, she alleged that Shelter Mutual’s allegations, pleadings and motions were somehow
improper because she was unable to conduct the litigation under the lax rules of the small claims
court, but allegations and pleadings do not constitute “process” under Illinois law. There was no
allegation of any misuse of “process” issued by the court. Furthermore, all the motions were
brought under and granted pursuant to the Code of Civil Procedure and the circuit court’s own
rules. The law does not contemplate an action for abuse of process on the facts alleged in this case.
We therefore conclude that the circuit court was correct in determining that no action for abuse of
process had been stated by the pleadings.
¶ 78 D. Motion to Amend Counterclaim
¶ 79 Next, Flynn argues that the circuit court abused its discretion by denying her motion to
amend her counterclaim after her first appeal to add claims for vicarious liability (based on
Krischke’s relation to Shelter Mutual and alleged failure to notify Flynn of rejecting her vehicle
coverage change request) and reformation of the policy on the grounds of mutual mistake (based
on “the policy conformity provision promising reformation for conflicts, and Section 154 barring
rescission on renewals”). She argues that her amendments are material and have more specific
allegations. She also argues that Shelter Mutual was not surprised because she did not move to
amend during the pleadings; her discovery, which the court had stayed before ruling on Shelter
Mutual’s summary judgment motion, went directly to Krischke’s authority as Shelter Mutual’s
agent; Flynn timely sought to amend 35 days after the case was remanded from this court; and it
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was her first request to amend her pleading and was not prevented by a prior non-final summary
judgment order.
¶ 80 When Flynn attempted to amend her counterclaim to add claims under respondeat superior
and reformation, the trial court denied leave, finding that Flynn did
“not seek to cure any defects in pleading or add claims based on newly discovered
evidence. Instead, she simply seeks to reargue her already pled and rejected theories that
the Policy should be reformed based on a mistake and that Shelter Mutual should be bound
by the alleged mistakes of its agent Danna Krischke. Indeed, Flynn herself argues that the
proposed amendment ‘simply makes[s] more specific what was previously alleged.’ While
amendment is liberally granted under Illinois law, such an attempt at a second bite at the
apple after a summary judgment ruling on those very issues is plainly inappropriate and
[Flynn] offers no explanation for why [she] did not seek leave to amend sooner. (Footnotes
omitted.)”
¶ 81 The trial court shall permit pleadings to be amended upon just and reasonable terms before
or after the entry of summary judgment. 735 ILCS 5/2-1005(g) (West 2016); see also 735 ILCS
5/2-616 (West 2016)) (“At any time before final judgment amendments may be allowed on just
and reasonable terms ***.”). In order to determine whether the trial court has abused its discretion,
we must look at four factors: (1) whether the proposed amendment would cure the defective
pleading, (2) whether other parties would sustain prejudice or surprise by virtue of the proposed
amendment, (3) whether the proposed amendment is timely, and (4) whether previous
opportunities to amend the pleading could be identified. Kupianen v. Graham, 107 Ill. App. 3d
373, 377 (1982). Because a trial court has broad discretion in motions to amend pleadings prior to
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entry of final judgment, a reviewing court will not find that denial of a motion to amend is
prejudicial error unless there has been a manifest abuse of such discretion. Loyola Academy v. S
& S Roof Maintenance, Inc., 146 Ill. 2d 263, 274 (1992). An abuse of discretion occurs when no
reasonable person would take the position adopted by the trial court or when the trial court acts
arbitrarily, fails to employ conscientious judgment, and ignores recognized principles of law.” In
re Commissioner of Banks and Real Estate, 327 Ill. App. 3d 441, 476 (2001).
¶ 82 We conclude that the trial court did not abuse its discretion by denying Flynn’s motion
to amend. First, Flynn’s proposed amended pleading did not cure any defective pleading but,
rather, sought to plead new theories—i.e., respondeat superior and reformation of the policy.
Second, the amendment would prejudice Shelter Mutual with additional unnecessary litigation
after it defended itself against Flynn’s own appeal. Third, the amendment is untimely. Flynn had
more than three years to amend her claims but did not do so until after she lost on cross-motions
for summary judgment and after she appealed that judgment. Moreover, nothing in her motion to
amend or proposed amended pleadings explained the delay. Fourth, Flynn had ample opportunity
to amend her pleadings at any earlier time in the case because she did not identify any newly
discovered information that forms the basis for the additional counterclaims. Rather, her proposed
claims are based on facts available to her when she first filed her case against Shelter Mutual in
July of 2017.
¶ 83 E. Attorney Fees
¶ 84 Finally, Flynn argues that she is entitled to attorney fees based on Shelter Mutual’s
vexatious and unreasonable conduct. She states that Shelter Mutual refused coverage for Flynn’s
liability to Herskovitz, refused to defend Flynn in the Herskovitz suit, and deprived Flynn of the
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funds to pay her car repairs and rental expenses. She contends that Shelter Mutual’s denial of her
claims for coverage is a clear and unambiguous violation of Illinois financial responsibility law.
¶ 85 Section 155 of the Code provides, in pertinent part, for the award of attorney fees in cases
where the insurer caused an unreasonable delay in settling a claim, and it appears to the court that
such action or delay was vexatious and unreasonable. Mobil Oil Corp. v. Maryland Casualty Co.,
288 Ill. App. 3d 743, 751-52 (1997). “A court should consider the totality of the circumstances
when deciding whether an insurer’s actions are vexatious and unreasonable. Factors to consider
are the insurer’s attitude, whether the insured was forced to sue to recover, and whether the insured
was deprived of the use of her property. If a bona fide dispute existed regarding the scope of the
insurance coverage, an insurer’s delay in settling the claim may not violate section 155.”
Valdovinos v. Gallant Insurance Co., 314 Ill. App. 3d 1018, 1021 (2000). “While the question of
whether the insurer’s action and delay are vexatious and unreasonable is a factual one, it is a matter
for the discretion of the trial court; the trial court’s determination will not be disturbed unless an
abuse of discretion is demonstrated in the record.” Dark v. United States Fidelity & Guaranty Co.,
175 Ill. App. 3d 26, 30-31 (1988).
¶ 86 Based on our above-stated analysis in this case and determinations that the circuit court did
not err in concluding that (1) Shelter Mutual owed no duty to defend or indemnify Flynn in
connection with the March 16, 2017 collision, and (2) Shelter Mutual’s denial of coverage was
well grounded, the trial court did not abuse its discretion by denying Flynn’s request for attorney
fees under section 155 of the Insurance Code (215 ILCS 5/155 (West 2016)).
¶ 87 III. CONCLUSION
¶ 88 For the foregoing reasons, we affirm the judgment of the circuit court.
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¶ 89 Affirmed.
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