Docket No. 105991.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
SECURA INSURANCE COMPANY, Appellee, v. ILLINOIS
FARMERS INSURANCE COMPANY, Appellant.
Opinion filed January 23, 2009.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Freeman, Thomas, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
Plaintiff Secura Insurance Company (Secura) filed a declaratory
judgment action against Illinois Farmers Insurance Company
(Farmers) in the circuit court of Du Page County. Secura sought a
declaration that a policy of automobile insurance issued by Farmers
to Paul Stech obligated Farmers to defend and indemnify Bogoja
Muzikoski, doing business as B&A Automotive Repair (B&A
Automotive), with regard to an accident involving Stech’s
automobile. After cross-motions for summary judgment were filed,
the trial court granted summary judgment in favor of Farmers. Secura
filed a notice of appeal, but did not include a certificate or affidavit
indicating the date of filing with the circuit court clerk. The appellate
court denied Farmers’ motion to dismiss the appeal due to failure to
timely file the appeal, and found in favor of Secura on the merits of
the case. 377 Ill. App. 3d 536. We granted leave to appeal (210 Ill. 2d
R. 315) and find that the notice of appeal was not timely filed, thus
depriving the appellate court of jurisdiction. We therefore vacate the
judgment of the appellate court and dismiss the appeal.
BACKGROUND
The facts are not in dispute. On October 21, 2000, in the course
of his employment, B&A Automotive employee Daniel Dill was
driving a 1995 Chevrolet Blazer owned by Paul Stech when Dill was
involved in an accident with a vehicle driven by Vincent Henehan.
B&A Automotive was insured at the time of the accident under a
commercial liability policy issued by Secura with limits of $1 million.
Stech and his Chevrolet Blazer were insured by Farmers under a
policy of automobile insurance. Henehan and his wife subsequently
sued Dill and B&A Automotive seeking damages. In this underlying
action, the Henehans alleged that Dill was an agent and employee of
B&A Automotive at the time of the accident. This lawsuit later
settled out of court for $1 million.
Secura initially defended both B&A Automotive and Dill in the
underlying action under the commercial liability policy. The
underlying plaintiffs voluntarily dismissed Dill and accepted a
settlement from Secura on behalf of B&A Automotive.
Secura filed a complaint against Farmers in the circuit court of
Du Page County. It sought a declaration that Farmers owed B&A
Automotive defense and indemnity obligations under the automobile
policy. Secura also sought a bad-faith finding against Farmers.
Farmers asserted affirmative defenses to Secura’s complaint. The
parties filed cross-motions for summary judgment. Among Farmers’
arguments were that B&A, as an employer of Dill, did not qualify as
an “insured person” under the policy’s definition. The policy states
that employers of “insured persons” are excepted from coverage.
Secura responded that section 7–317(b)(2) of the Illinois Vehicle
Code (625 ILCS 5/7–317(b)(2) (West 2004)) does not permit an
insurer to exclude permissive employers from coverage. Further,
according to Secura, even if section 7–317(b)(2) granted such
permission, Farmers’ employers exclusion offends public policy as
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articulated in the equal treatment test set forth by this court in
Progressive Universal Insurance Co. of Illinois v. Liberty Mutual
Fire Insurance Co., 215 Ill. 2d 121 (2005), and State Farm Mutual
Automobile Insurance Co. v. Smith, 197 Ill. 2d 369 (2001).
On March 17, 2006, the trial court granted Farmers’ motion for
summary judgment and denied Secura’s motion for summary
judgment. The trial court declared that Farmers owed no duty to
defend or indemnify B&A Automotive. It found the Farmers policy
clearly and unambiguously excluded Muzikoski as an insured and
also did not violate Illinois law or public policy.
Secura then sought reconsideration of the trial court’s March 17,
2006, order. This motion was denied on May 17, 2006. The circuit
court received Secura’s notice of appeal on June 20, 2006.
Farmers filed a motion to dismiss for want of jurisdiction in the
appellate court. The appellate court initially granted Farmers’
unopposed motion to dismiss Secura’s appeal for want of jurisdiction
and issued its mandate on December 21, 2006. After the appeal was
dismissed, however, Secura moved to recall the mandate, for leave to
respond to Farmers’ motion instanter and to rehear Farmers’ motion
to dismiss.
The court allowed the motion to recall the mandate and vacated
the order dismissing the appeal. The appellate court also allowed
Secura to supplement the record with a letter to the circuit court dated
June 16, 2006, and ruled that the motion be taken with the case. No
affidavit or certificate of service was filed, however.
The appellate court then denied Farmers’ motion to dismiss in its
written opinion. The appellate court ruled that it was not deprived of
jurisdiction to hear Secura’s appeal because the failure to comply
with the rules was “harmless error” and there was no showing of
prejudice to Farmers. 377 Ill. App. 3d at 541.
Turning to the merits, the appellate court held that the provision
of Farmers’ policy excepting from the definition of insured person
“[a]ny person or organization, other than you or a family member,
who is the employer of any insured person” was void as against
Illinois public policy as expressed by the Illinois Vehicle Code (625
ILCS 5/1–100 et seq. (West 2004)) and the Illinois Safety and Family
Financial Responsibility Law (625 ILCS 5/7–317(b)(2), (b)(3) (West
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2004)). 377 Ill. App. 3d at 547. We granted leave to appeal. 210 Ill.
2d R. 315.
ANALYSIS
A reviewing court must ascertain its jurisdiction before
proceeding in a cause of action, regardless of whether either party has
raised the issue. People v. Smith, 228 Ill. 2d 95, 106 (2008); R.W.
Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998).
Therefore, before we may consider the merits, we must determine the
threshold question of whether the appellate court improvidently took
jurisdiction over Secura’s appeal.
The timely filing of a notice of appeal is both jurisdictional and
mandatory. 134 Ill. 2d R. 301; People v. Smith, 228 Ill. 2d 95, 104
(2008); Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182
Ill. 2d 6, 7 (1998); R.W. Dunteman, 181 Ill. 2d at 159. At issue is
Secura’s appeal of the trial court’s May 17, 2006, order denying its
motion for reconsideration. By operation of Rule 303(a)(1), Secura’s
notice was due at the circuit court clerk’s office within 30 days, or by
June 16, 2006. See 210 Ill. 2d R. 303(a)(1) (notice of appeal must be
filed within 30 days after the entry of the order disposing of the last
pending postjudgment motion directed against the judgment or order).
There is no dispute that the circuit court did not receive the notice of
appeal on that date.
However, the notice of appeal may be filed by mail pursuant to
Rule 373 (155 Ill. 2d R. 373). In the Harrisburg-Raleigh case, we
stated that a “notice of appeal, unlike many other papers filed in the
circuit court, is closely related to the appellate process.”
Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126
Ill. 2d 326 (1989). We concluded that it was “therefore appropriate
that the promailing policy of Rule 373 should be applied to the filing
of a notice of appeal under Rule 303(a).” Harrisburg-Raleigh Airport
Authority, 126 Ill. 2d at 341-42. Rule 373, entitled “Date of Filing
Papers in Reviewing Court; Certificate or Affidavit of Mailing,”
states:
“Unless received after the due date, the time of filing
records, briefs or other papers required to be filed within a
specified time will be the date on which they are actually
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received by the clerk of the reviewing court. If received after
the due date, the time of mailing shall be deemed the time of
filing. Proof of mailing shall be as provided in Rule 12(b)(3).”
155 Ill. 2d R. 373.
There is no dispute here that Secura’s notice of appeal was received
after the due date. Therefore, Rule 373 directs that we look to Rule
12(b)(3). Rule 12, entitled “Proof of Service in the Trial and
Reviewing Courts; Effective Date of Service” states, in part:
“(a) Filing. When service of a paper is required, proof of
service shall be filed with the clerk.
(b) Manner of Proof. Service is proved:
(1) by written acknowledgment signed by the person
served;
(2) in case of service by personal delivery, by
certificate of the attorney, or affidavit of a person, other
than an attorney, who made delivery;
(3) in case of service by mail, by certificate of the
attorney, or affidavit of a person other than the attorney,
who deposited the paper in the mail, stating the time and
place of mailing, the complete address which appeared on
the envelope, and the fact that proper postage was
prepaid; or
(4) in case of service by facsimile transmission, by
certificate of the attorney or affidavit of a person other
than the attorney, who transmitted the paper via facsimile
machine, stating the time and place of transmission, the
telephone number to which the transmission was sent, and
the number of pages transmitted.” 145 Ill. 2d R. 12.
At issue is subpart (3) of Rule 12(b), concerning service by mail. We
therefore must determine if Secura’s mailing fulfilled the
requirements of proof pursuant to this rule where there is no
certificate or affidavit of mailing in the record.
Farmers asserts that the record reflects that the notice of appeal
was filed on June 20, 2006. Farmers argues that the cover letter
submitted by Secura to supplement the record is not adequate proof
of service. According to Farmers, the cover letter lacks the very
certification that would have permitted the court to determine the
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timeliness of the notice of appeal. Here, according to Farmers, Secura
did not “partially comply” with Rule 12(b)(3). Rather, there was no
compliance with that rule. Secura does not adopt the argument of the
appellate court that it made a “harmless error” and that Farmers was
not prejudiced. Rather, Secura argues that it essentially complied with
the rule and only concedes that there is no reference to the “time” of
mailing. We agree with Farmers.
Rule 373 modifies the requirement of timely filing by specifying
that, if a document is filed “after the due date, the time of mailing
shall be deemed the time of filing.” 155 Ill. 2d R. 373. That rule also,
however, requires that “[p]roof of mailing shall be as provided in
Rule 12(b)(3).” (Emphasis added.) 155 Ill. 2d R. 373. Rule 12(b)(3)
provides that “in case of service by mail, [service is provided] by
certificate of the attorney, or affidavit of a person other than the
attorney, who deposited the paper in the mail, stating the time and
place of mailing, the complete address which appeared on the
envelope, and the fact that proper postage was prepaid[.]” (Emphases
added.) 145 Ill. 2d R. 12(b)(3). Thus, while Rule 373 relaxes the
requirement of timely filing where a party takes advantage of the
convenience of mailing a document, a party can only take advantage
of Rule 373 if it files proper proof of mailing as required by Rule
12(b)(3). 155 Ill. 2d R. 373. The reason for such a requirement is
elementary. If there is no proof of mailing on file, there is nothing in
the record to establish the date the document was timely mailed to
confer jurisdiction on the appellate court.
Secura contends that the cover letter, which lacks any
accompanying certification or affidavit, is alone sufficient to comply
with the rule. The cover letter does not provide “proof of mailing”
such that it is competent evidence under the rule. The letter does not
contain an affidavit or a certificate and nothing is certified or sworn
to. The cover letter contains only a date, which, at best, indicates that
it may have been mailed on that date. This is simply insufficient for
purposes of the rule. Indeed, the record, having been supplemented
with the cover letter, offers no more certainty concerning the
timeliness of the notice than it did before the cover letter became part
of the record.
Additionally, the “Notice of Filing” sent to opposing counsel is
not adequate proof that the notice of appeal was mailed on the date it
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was due. The “Notice of Filing” refers to the notice of appeal, but is
directed to Farmers’ lawyers, and the certificate of service attached
indicates only that the notice of filing was mailed to Farmers’ lawyers
on June 16, 2006. There is nothing in the certification or in the body
of the notice of filing that attests to the mailing of the notice of appeal
to the clerk on June 16, 2006.
Secura argues that the only element required by Rule 12(b)(3) that
was missing from Secura’s entire mailing is the time of the mailing.
This is not true, as Rule 12(b)(3) also requires a certificate or affidavit
of mailing to the clerk.
We emphasize that the timely filing of an appeal is both
jurisdictional and mandatory and the court must determine its own
jurisdiction even if no party objects. The appellate court cited Curtis
v. Pekin Insurance Co., 105 Ill. App. 3d 561 (1982), and Kimbrough
v. Sullivan, 131 Ill. App. 2d 313 (1971), in support of its position.
However, those cases addressed defects in the proof of service. The
issue in this case is not, as the appellate court believed, merely about
a slight defect in the form of the notice. This is not a case where a
certificate or an affidavit was submitted which had a typographical
error, misspelling, or other inadvertent mistake. Rather, this case
concerns Secura’s failure to prove by certificate or affidavit that it
complied with the jurisdictional 30-day notice requirement in Rule
303. Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143 (1994).
Harmless-error analysis is not applicable here. The appellate
court’s decision to review this case on the merits was improper, as the
appellate court did not have jurisdiction over the appeal. As this court
has previously stated in Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143
(1994), “[w]e are not insensitive to the concern expressed by the
appellate court in the instant case. However, this court has general
supervisory authority to oversee the administration of its own rules in
the statewide system of courts.” Mitchell, 158 Ill. 2d at 150. The
appellate court’s ruling may be well intentioned, but the appellate
court does not have the authority to excuse the filing requirements of
the supreme court rules governing appeals. Mitchell, 158 Ill. 2d at
150. Moreover, we note that the record is devoid of any attempt by
Secura to supply a proof of service or affidavit. Further, the record
also does not show that Secura made a motion under Rule 303(d),
arguing a reasonable excuse for a late notice of appeal. 210 Ill. 2d R.
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303 (an appellant may file a motion for late notice of appeal within
30 days of the due date if it has a reasonable excuse).
Because we have determined that the appellate court lacked
jurisdiction over the appeal, the appellate court should have dismissed
the case. We therefore need not reach the merits.
CONCLUSION
For the foregoing reasons, we vacate the judgment of the appellate
court and dismiss the appeal for lack of jurisdiction.
Appellate court judgment vacated;
appeal dismissed.
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