FIRST DIVISION
SEPTEMBER 30, 2008
Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
MARK CZAPSKI and ANNA CZAPSKI-FLOREK, ) Appeal from the
Co-Special Administrators of the Estate of Roger ) Circuit Court of
Czapski, Deceased, ) Cook County.
)
Plaintiffs-Appellants, )
)
v. )
)
CHRISTOPHER MAHER, PROGRESSIVE )
UNIVERSAL INSURANCE COMPANY f/k/a )
PROGRESSIVE UNIVERSALE INSURANCE )
COMPANY OF ILLINOIS, a Corporation, )
PROGRESSIVE PREMIER INSURANCE COMPANY )
OF ILLINOIS, a Corporation, NATIONAL CASUALTY )
COMPANY, a Corporation, and FEDERAL INSURANCE )
COMPANY, a Corporation, )
)
Defendants-Appellees. )
)
---------------------------------------------------------------------- ) Nos. 06 CH 9408,
) 06 CH 18422
PAUL JASINSKI and THOMAS GUARNIERI, ) (Cons.)
)
Plaintiffs-Appellants, )
)
v. )
)
CHRISTOPHER MAHER, SCOTTSDALE INDEMNITY )
COMPANY, a Corporation, NATIONAL CASUALTY )
COMPANY, a Corporation, FEDERAL INSURANCE )
COMPANY, a Corporation, and PROGRESSIVE )
UNIVERSAL INSURANCE COMPANY, f/k/a )
Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
Progressive Universal Insurance Company )
Of Illinois, a Corporation, )
) Honorable
Defendants-Appellees. ) Mary Anne Mason,
) Judge Presiding.
---------------------------------------------------------------------- )
)
NATIONAL CASUALTY COMPANY, )
)
Cross-Plaintiff, )
Third-Party Plaintiff, )
Appellee, )
)
v. )
)
CHRISTOPHER MAHER, )
)
Cross-Defendant, )
Appellant, )
)
and SARAH FERRIS, MARK CZAPSKI and ANNA )
CZAPSKI-FLOREK, Co-Special Administrators of the )
Estate of ROGER CZAPSKI, Deceased, )
)
Third-Party Defendants, )
Appellants. )
PRESIDING JUSTICE ROBERT E. GORDON delivered the opinion of the court:
This consolidated appeal arises from a trial court’s finding of no coverage under two
insurance policies issued to an automobile dealership. The major issue presented before the trial
court was whether a test-driver of a motor vehicle owned by an automobile dealership was a
“customer” of that dealership for purposes of an exclusionary clause, excluding “customers”
from coverage, under an automobile liability insurance policy. The trial court found in favor of
National Casualty Company (National) and Federal Insurance Company (Federal) on their
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
respective section 2-619.1 (735 ILCS 5/2-619.1 (West 2000)) combined motions to dismiss and
for summary judgment pursuant to sections 2-615 and 2-1005 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615, 2-1005 (West 2000)). However, the trial court made no
determination whether declarations regarding National’s and Federal’s duty to indemnify in the
underlying matter were premature, since no determination of liability in the underlying lawsuits
had been made at the time of this appeal. The parties did not brief before this court or argue this
issue before the trial court. We find that this appeal is not ripe for adjudication and vacate the
trial court’s granting of defendants’ motions for dismissal and summary judgment.
I. BACKGROUND
On August 4, 2004, motor vehicles driven by Sarah Ferris and Christopher Maher
collided. The facts surrounding the collision are as follows. Maher was test-driving a BMW
automobile owned by Motor Werks of Barrington, Inc. (Motor Werks). Its employee Roger
Czapski was seated in the BMW’s front passenger seat. Paul Jasinski and Thomas Guarnieri,
friends of Maher, were seated in the BMW’s rear passenger seats.
Maher was driving the BMW motor vehicle in an easterly direction on Algonquin Road,
approaching the intersection of Willow Creek Drive. Sarah Ferris, driving a 2002 Saturn motor
vehicle, was traveling in a westerly direction on Algonquin, with the intention of making a left
turn onto Willow Creek Drive. The collision occurred between the BMW and the Saturn as
Ferris made a left turn from Algonquin Road onto Willow Creek Drive. The BMW ultimately
struck a utility/light pole adjacent to the roadway. Czapski was killed and Jasinski and Guarnieri
were seriously injured as a result of the collision.
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
A. The Underlying Complaints
Mark Czapski and Anna Czapski-Florek, co-special administrators of the estate of Roger
Czapski (Czapski plaintiffs), filed wrongful death and survival actions pursuant to the Illinois
Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)) and the Illinois Survival Act (755
ILCS 5/27-6 (West 2000)), against Maher and Ferris in the law division of the circuit court of
Cook County on August 9, 2004. Count I of the complaint is directed against Maher and alleged
that he was negligent, while count II is directed against Ferris and alleged that she was negligent.
Motor Werks was not named as a defendant in that lawsuit.
Jasinski and Guarnieri also filed a negligence action against Maher, Ferris, and Motor
Werks in the law division of the circuit court of Cook County on August 9, 2005. That
complaint consisted of six counts. Counts I and II are directed against Ferris, counts III and IV
are directed against Maher, and counts V and VI are directed against Motor Werks.
The underlying actions were later consolidated. At the time of this appeal, no
determination of liability in the underlying lawsuits had been made.
B. The Declaratory Judgment Actions
The Czapski plaintiffs filed a complaint for declaratory judgment on May 1, 2006.
Jasinski and Guarnieri filed a complaint for declaratory judgment on September 6, 2006. Both
complaints for declaratory judgment sought declarations of coverage available to Maher under
certain insurance policies issued to Motor Werks and certain insurance policies issued to Kevin
Maher, Christopher Maher’s father.
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
1. Insurance Policies Held by Motor Werks
At the time of the motor accident, Motor Werks had three liability insurance policies in
effect. The effective policy period for each of the three insurance policies held by Motor Werks
was May 1, 2004, to May 1, 2005.
The first of these policies, garage policy No. RBI0000025, from defendant Scottsdale
Indemnity Company (Scottsdale), provided $1 million of automobile liability coverage for each
occurrence. It is undisputed that Maher is an insured under the Scottsdale policy. It is also
undisputed that Scottsdale is providing a defense for Maher and Motor Werks in the underlying
lawsuits to these declaratory actions. Scottsdale has provided this defense without asserting a
reservation of rights.1
Motor Werks also had a commercial umbrella policy in force, policy No. UM00030211,
from defendant National Casualty Company (National), which provided liability coverage in
excess of certain underlying insurance policies, expressly including the Scottsdale garage policy,
policy No. RBI0000025, subject to a $5 million limit for each occurrence and in the aggregate.
National has denied that coverage is available to Maher under its policy, relying on an
1
As will be explained shortly, this case does not involve the duty to defend. This case
involves only the question of whether the insurers under certain excess insurance policies issued
to Motor Werks have a duty to indemnify Maher in the event that the $1 million of liability
coverage provided by the Scottsdale garage policy is exhausted by settlement, verdict, or
judgment.
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
exclusionary clause, which states that Motor Werks’ “customers” are not “insureds” under the
policy.
Motor Werks also had a commercial excess liability policy in force, policy No. 7983-85-
63, from defendant Federal Insurance Company (Federal) that provided commercial liability
coverage subject to a $10 million limit (per occurrence and in the aggregate) in excess of “the
underlying limits of insurance.” Federal has also denied that coverage is available to Maher
under its policy contending that policy No. 7983-85-63 if a “follow-form” policy which runs in
excess to policy No. UM00030211 issued by National to Motor Werks. Policy No.
UM00030211 is the policy issued by National; however, Scottsdale Insurance was named instead
of National in the policy, which the trial court found was a transcriptional error, which is further
explained in this opinion. Federal contends that since Maher is excluded from coverage under
the National policy by the “customer” exclusion, he is also excluded from coverage under its
policy.
The Czapski plaintiffs, Jasinski, and Guarnieri counter that Maher was not excluded from
coverage by the “customer” exclusion contained in the National policy. They explain that Maher
was not a “customer” of Motor Werks within the meaning of that word. In support of their
contention, they cite the definition of “customer” contained in Webster’s New World College
Dictionary. That dictionary defines “customer” as: “one who buys, esp[ecially] one who buys
from, or patronizes, an establishment regularly.” Webster’s New World College Dictionary, 341
3d ed. 1997. They argue that since Maher, a test-driver of an automobile owned by an
automobile dealership, was not a “customer” of Motor Werks, he should be deemed an “insured”
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
under the National policy. They further argue that, in the event this court finds that Maher was
not an “insured” under the National policy, he should be deemed an “insured” under the Federal
policy. They argue that the Federal policy followed the form of the Scottsdale policy and not the
National policy.
2. Insurance Policies Held by Kevin Maher
The Czapski plaintiffs, Jasinski, and Guarnieri also initially sought a declaration of
coverage available to Maher under two insurance policies issued by defendant Progressive
Universal Insurance Company of Illinois (Progressive) to Kevin Maher, Christopher Maher’s
father. On August 4, 2004, Kevin Maher had two automobile insurance policies issued by
Progressive. Progressive policy No. 43265386-1 provided insurance coverage subject to a limit
of $250,000 per person and $500,000 per occurrence. Progressive policy No. 4326592-1
provided insurance coverage subject to a limit of $500,000 per occurrence. Kevin Maher was not
named as a defendant in either the Czapski or Jasinski/Guarnieri complaints for declaratory
judgment.
Progressive counterclaimed seeking a declaration of coverage available to Maher under
the National and Federal policies, and sought a declaration that coverage under the two insurance
policies issued by it to Kevin Maher was secondary to coverage provided by the National and
Federal policies. The cases against Progressive were voluntarily dismissed; however,
Progressive’s countercomplaint was not dismissed and remains part of this appeal.
The declaratory judgment actions filed by the Czapski plaintiffs, Jasinski and Guarnieri
were consolidated on November 13, 2006.
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
3. The Trial Court’s Ruling
On July 10, 2007, as noted, the trial court found in favor of National and Federal. The
trial court granted National and Federal’s respective section 2-619.1 (735 ILCS 5/2-619.1 (West
2000)) combined motions to dismiss and for summary judgment pursuant to sections 2-615 and
2-1005 of the Code (735 ILCS 5/2-615, 2-1005 (West 2000)). In the transcript from the hearing
on the motions, the trial court found that Maher was a “customer” of Motor Werks, within the
common meaning of that word, and thus excluded from coverage under the National policy. The
trial court also found that Maher was not an insured under the Federal policy, since the Federal
policy was controlled by the National policy. The trial court denied the Czapski, Jasinski and
Guarnieri, and Progressive responses to National and Federal’s respective section 2-619.1 (735
ILCS 5/2-619.1 (West 2000)) combined motions, and denied their respective motions for
summary judgment pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2000)).
This appeal followed.
II. ANALYSIS
As noted, Scottsdale is providing a defense for Maher and Motor Werks in the underlying
lawsuits. Accordingly, this case does not involve National’s or Federal’s duty to defend. The
trial court ruled on only the question of whether National or Federal had a duty to indemnify
Maher in the event that the $1 million of liability coverage provided by the Scottsdale garage
policy was exhausted by settlement, verdict, or judgment.
In a personal injury action with severe injuries and death, normally all sides desire to
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
know what coverage is available in the underlying action. However, before reviewing the trial
court’s ruling in the instant matter, we must determine whether any determination regarding
National’s and Federal’s duty to indemnify Maher in the underlying matter is premature, since no
determination of liability in the underlying lawsuits had been made at the time of this appeal.
Generally, “a declaratory judgment action to determine an insurer’s duty to indemnify its insured
should not be decided prior to the adjudication of the underlying action where the issues to be
decided in both actions are substantially similar.” Allianz Insurance Co. v. Guidant Corp., 355
Ill. App. 3d 721, 731 (2005), citing Murphy v. Urso, 88 Ill. 2d 444, 455 (1981); Burnett v. Safeco
Insurance Co. of Illinois, 227 Ill. App. 3d 167, 174 (1992). “The rationale for this rule is ‘ “that
an untimely determination in the declaratory judgment action could subsequently prejudice a
party in the underlying action through application of collateral estoppel.” ’ ” Allianz Insurance
Co. 355 Ill. App. 3d at 731, quoting Brotherhood Mutual Insurance Co. v. Roseth, 177 Ill. App.
3d 443, 451 (1988), quoting Maryland Casualty Co. v. Chicago & North Western Transportation
Co., 126 Ill. App. 3d 150, 157 (1984).
“A declaratory judgment action is not intended to permit moot or hypothetical cases, or to
enable parties to secure advisory opinions or legal advice from the court with respect to
anticipated future difficulties.” Weber v. St. Paul Fire & Marine Insurance Co., 251 Ill. App. 3d
371, 373 (1993). An actual controversy capable of resolution by a judicial decision must exist.
Weber, 251 Ill. App. 3d at 372. Where the issue is an insurer’s duty to indemnify, the
controversy does not arise until the insured becomes legally obligated to pay damages in the
underlying action. Weber, 251 Ill. App. 3d at 373. That has not yet happened here.
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
In Murphy v. Urso, 88 Ill. 2d 444 (1981), our Illinois Supreme Court carved out an
exception to the general principle where the issues in the declaratory judgment action are
separable from the issues raised in the underlying actions. However, Murphy did not involve
issues of ripeness, the duty to indemnify, or excess insurers. A judgment for liability there was
obtained before the insurer was made part of the action. Murphy, 88 Ill. 2d at 448-49. At issue
was whether, in hindsight, the insurer should have determined its duty to defend by bringing a
separate declaratory judgment action. Murphy, 88 Ill. 2d at 455. The court held a declaratory
judgment action would have been premature because the issues determinative of coverage were
also determinative of the insureds’ liability. Murphy, 88 Ill. 2d at 455. The court was concerned
with the preclusive effect a determination in the declaratory judgment action would have had on
the underlying action. Murphy, 88 Ill. 2d at 455. It was in this context that the exception that an
insurer may bring a declaratory judgment action to determine its duty to defend where the issues
in the underlying suit and the declaratory judgment action are separable was created. Murphy, 88
Ill. 2d at 455-56.
This appeal concerns only the duty to indemnify. “[W]hether the insurer has a duty to
indemnify the insured for a particular liability is only ripe for consideration if the insured has
already incurred liability in the underlying claim against it.” Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 127 (1992). There has been no determination of liability in
the underlying suits here. A decision by us on whether the excess policies would be triggered in
the event of a future judgment is premature and would serve merely as an advisory opinion,
which this court lacks the authority to issue. See Howlett v. Scott, 69 Ill. 2d 135, 143 (1977)
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
(Illinois judges have no authority to issue advisory opinions).
III. CONCLUSION
The trial court here did not consider the ripeness of the declaratory judgment actions.
Instead the court ruled on the merits and entered an order on July 10, 2007, from which this
appeal was taken. That order prematurely determined the rights and obligations of the parties.
The trial court: (1) granted summary judgment to National and Federal based on its interpretation
of the insurance policies; (2) dismissed the declaratory judgment complaints apparently based on
affirmative matter defeating plaintiffs' claim for coverage; and (3) denied plaintiffs' and
Progressive's cross-motions for summary judgment. We now vacate the trial court’s rulings on
the parties' cross-motions for summary judgment. We affirm the trial court's ruling dismissing
the complaints on the ground that those complaints were not yet ripe for adjudication. See
Beckman v. Freeman United Coal Mining Co., 123 Ill. 2d 281, 286, 527 N.E.2d 303 (1988) (a
court of review may affirm the dismissal of a complaint on any ground appearing in the record,
regardless of whether the trial court relied on that ground).
Affirmed in part and vacated in part.
CAHILL and GARCIA, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be attached to each Opinion)
Please use the ]
following form: ]
]
]
] SEE REVERSE SIDE FOR CAPTION.
]
]
]
]
Complete ]
TITLE ]
of Case. ]
Docket No. ] Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
] Appellate Court of Illinois
COURT ] First District, First Division
]
] SEPTEMBER 30, 2008
Opinion Filed ] (Month, Day and Year)
]
JUSTICES ] PRESIDING JUSTICE ROBERT E. GORDON delivered the
]opinion of the court.
]
] CAHILL, and GARCIA, JJ., concur.
]
]
APPEAL from the ] Lower Court and Trial Judge(s) in form indicated
Circuit Court ] in margin:
of Cook County; ] Appeal from the Circuit Court of Cook County.
the Hon:______ ]
Judge Presiding ] Honorable Mary Anne Mason, Judge Presiding.
]
For APPELLANTS ]Indicate if attorney represents APPELLANTS or
John Doe of ]APPELLEES and include attorneys of counsel.
Chicago. ]Indicate the word NONE if not represented.
For APPELLEES, ]-----------------------------------------------------------------------------------------------
Smith and ]
Smith, of ]
Chicago. ]
Brown, ] PLEASE SEE PAGE 3 FOR ATTORNEYS OF RECORD.
of Counsel. ]
]
Also add atty. ]
for third party ]
appellants ]
or appellees. ]
]
]
]
___________________(USE REVERSE SIDE IF NEEDED_________________________
Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
CAPTION:
M AR K C ZAP SK I and AN NA CZA PSKI-FL OR EK ,
Co-Special Administrators of the Estate of Roger
Czapski, Deceased,
Plaintiffs-A ppellants,
v.
CHRISTOPHER MA HER, PROGRESSIVE
UN IVE RS AL INS UR AN CE CO M PA NY f/k/a
PROGR ESSIVE UNIVERSALE INSURANCE
CO M PA NY OF ILL INO IS, a C orpora tion,
PROGRESSIVE PREMIER INSURANCE COMPANY
OF ILLINOIS, a Corporation, NATIONAL CA SUALTY
COMPANY, a Corporation, and FEDERAL INSURANCE
COM PANY , a Corporation,
Defendan ts-App ellees.
----------------------------------------------------------------------
PA UL JAS INSK I and T HO M AS G UA RN IER I,
Plaintiffs-A ppellants,
v.
CHRISTOPHER MA HER, SCOTTSDALE INDEM NITY
COM PANY, a Corporation, NATIONAL CA SUALTY
COM PANY, a Corporation, FEDERAL INSURANC E
COMPANY, a Corporation, and PROGRESSIVE
UNIVER SAL INSURA NCE C OM PANY , f/k/a
Progressive Universal Insurance Company
Of Illinois, a Corporation,
Defendan ts-App ellees.
----------------------------------------------------------------------
NA TIO NA L C AS UA LTY C OM PA NY ,
Cross-Plaintiff,
Third-Par ty Plaintiff,
Appellee,
v.
CHRISTOPHER MAHER,
Cross-De fendant,
Appellant,
and SARAH FERRIS, MARK CZAPSKI and ANNA
CZAPSK I-FLOR EK, Co-Special Administrators of the
Estate of ROGER CZAPSKI, Deceased,
Third-Party De fenda nts,
App ellants.
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Nos. 1-07-2137, 1-07-2207, and 1-07-2266 (Cons.)
ATTORNEYS OF RECORD
Connelly, Roberts & McGivney, LLC
Chicago, Illinois 60603
Attorneys for Appellants, Czapski and Czapski-Florek
Attn: Thomas R. Rakowski
OF COUNSEL
Lloyd & Cavanagh
Chicago, Illinois 60606
Attorneys for Appellants, Czapski and Czapski and Florek
Attn: Timothy J. Cavanagh and Matthew M. Rundio
OF COUNSEL
Leyhane & Associates, Ltd.
Chicago, Illinois 60606
Attorneys for Appellants, Jasinki and Guarnieri
Attn: Francis J. Leyhane III
OF COUNSEL
James J. Roche & Associates
Chicago, Illinois 60610
Attorneys for Appellants, Jasinki and Guarnieri
Attn: James J. Roche and LeeAnn M. Crow
OF COUNSEL
----------------------------------------------------------------------------
Meagher & Geer, PLLP (Pro Hac Vice)
Scottsdale, Arizona 85258
Co-Counsel for Appellee, National Casualty Company
Attn: Thomas H. Crouch, Esq. and Kurt M. Zitzer, Esq.
OF COUNSEL
Tressler, Sodestrom, Maloney & Priess, LLP
Chicago, Illinois 60606
Co-Counsel for Appellee, National Casualty Company
Attn: James R. Murray, Esq.
Of COUNSEL
14