Scottsdale Insurance Company v. Lakeside Community Committee

2016 IL App (1st) 141845
No. 1-14-1845
Opinion filed November1, 2016
Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

SCOTTSDALE INSURANCE COMPANY, )
)
Plaintiff-Appellee, )
)
v. )
)
LAKESIDE COMMUNITY COMMITTEE, )
ROBERT F. HARRIS, COOK COUNTY PUBLIC )
GUARDIAN, as Independent Administrator of the )
Estate of Angel Hill, Deceased, ANGEL GREEN )
AND ANTHONY PRATER, )
Appeal from the Circuit Court
)
of Cook County.
Defendants-Appellants. )
_________________________________________ )
LAKESIDE COMMUNITY COMMITTEE, )
No. 12 CH 23277
)
Counterclaim-Plaintiff, )
v. )
The Honorable
)
Sophia Hall,
SCOTTSDALE INSURANCE COMPANY, )
Judge, presiding.
)
Counterclaim-Defendant. )
__________________________________________ )
LAKESIDE COMMUNITY COMMITTEE, )
)
Third Party-Plaintiff-Appellant, )
v. )
)
W.A. GEORGE INSURANCE AGENCY, )
)
Third Party-Defendant-Appellee. )
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JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Neville and Pierce concurred in the judgment and opinion.

OPINION

¶1 Tragically, two-year old Angel Hill was killed while in the care of her mother, Angel

Green, and her boyfriend, Anthony Prater. At the time of Angel’s death, she and her siblings

were wards of the court with the Illinois Department of Children and Family Services acting as

the children’s guardian due to findings of abuse. DCFS retained Lakeside Community

Committee to monitor the children’s visits to Green’s home. During one visit, Green informed a

Lakeside caseworker of bruises on Angel’s stomach. The caseworker took no action. A few days

later, Angel was dead; Green and Prater were charged with her murder.

¶2 On behalf of Angel’s estate, the Cook County Public Guardian sued Lakeside for

wrongful death. Lakeside agreed to a consent judgment in the amount of $3.5 million and

assigned its claims against its insurer, Scottsdale Insurance Company, and its insurance broker,

W.A. George Insurance Agency, to the Public Guardian. Scottsdale denied coverage and filed a

declaratory judgment action. The Public Guardian then filed a third party complaint against W.A.

George, alleging fraud, negligence, breach of contract, and breach of fiduciary duty in procuring

the insurance policy. The trial court dismissed the third party complaint on statute of limitations

grounds, finding Lakeside knew or should have known that W.A. George obtained the wrong

type of insurance policy when the policy was procured, more than two years before the third

party complaint was filed. We disagree and reverse. Lakeside’s cause of action accrued when it

learned its insurer was denying coverage, not when the policy was procured. Because Lakeside

filed its claim less than two years after learning of the denial of coverage, the statute of

limitations poses no bar to the action.

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¶3 BACKGROUND

¶4 Lakeside, a long-established non-profit corporation, contracts with DCFS to provide

foster care and child welfare services such as supervising foster families and children who have

been made wards of the state, including children victimized by abuse. In early 2009, Lakeside

asked W.A. George, an insurance broker, to obtain an appropriate insurance policy to cover its

services. Lakeside representatives met with W.A. George agents in February 2009 to provide

information about Lakeside’s insurance needs and discuss the nature of the business, including

its role as a DCFS contractor. Lakeside gave W.A. George a brochure describing Lakeside’s

programs and services and its affiliation with DCFS. Based on this information, W.A. George

applied for and obtained insurance from Scottsdale Insurance Company on Lakeside’s behalf.

The policy was a commercial general liability policy, effective until March 2010, and then

renewed for another year, to March 2011. In at least two places—the supplemental declarations

page and the “sexual and/or physical liability coverage form”—the policy erroneously described

Lakeside’s business as a “halfway house.”

¶5 Angel Hill’s Short Life and Tragic Death

¶6 Angel Hill spent her entire life in DCFS custody and foster care. Her mother, Angel

Green, came to the attention of DCFS in October 2006, when her two-month old son presented

with multiple physical injuries, including several broken bones and swelling and bruising to the

back of the head. The circuit court entered an order finding that Green’s two children had been

abused and neglected, made them wards of the court, appointed DCFS as their guardian, and

placed the two children in foster care with their grandmother. In November 2006, DCFS

assigned Lakeside to monitor and provide social services to the children and the family.

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¶7 Immediately after her birth in August 2008, Angel was placed in DCFS custody due to

the serious and substantial risk her mother posed. Like her two siblings, Angel’s grandmother

cared for her. In April 2010, the juvenile court granted Green overnight visits with her children

in her home, and by October 2010, the children were spending six days a week with Green.

When the juvenile court learned Green was dating Anthony Prater, a convicted murderer, the

court ordered Prater not be present during the children’s visits and required Lakeside to perform

unannounced visits to Green’s home to ensure the children’s safety and well-being.

¶8 Between October 6 and 11, 2010, the children stayed at Green’s home for an

unsupervised visit. On the morning of October 9, Green called a caseworker to check in. Green

told the caseworker Angel had a bruise on her stomach and had been crying overnight. The

Lakeside caseworker did not go to Green’s home to see the bruise, did not instruct Green to take

Angel to the hospital, and did not take any action to ensure Angel’s safety and welfare. On

October 11, Green claims she found Angel dead. An autopsy determined that Angel died from

multiple internal injuries caused by blunt force trauma. Green and Prater were charged with

murder, as well as other lesser offenses, in connection with Angel’s death.

¶9 The Circuit Court Proceedings

¶ 10 On March 22, 2012, the Public Guardian, as independent administrator of Angel Hill’s

estate, filed a complaint in the circuit court against Lakeside, Green, and Prater for wrongful

death. Lakeside settled with the Public Guardian and entered into a consent judgment in the

amount of $3.5 million. On April 6, 2012, Lakeside submitted the Public Guardian suit to

Scottsdale through W.A. George. Scottsdale denied the claim on May 4, 2012, and filed a

declaratory judgment action on June 12, 2012. (While this appeal was pending, the circuit court

granted Scottsdale’s motion for summary judgment, finding no coverage under the policy.)

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¶ 11 On August 10, 2012, Lakeside filed its answer, affirmative defenses, and counterclaim to

Scottsdale’s declaratory judgment action. Lakeside also filed its initial third-party complaint

against W.A. George, alleging fraud, negligence, breach of contract, and breach of fiduciary

duty. Lakeside contended, in short, that it suffered damages because W.A. George failed to

procure the proper type of policy based on the information it provided and thus left Lakeside

without insurance coverage for the claim involving Angel’s death. W.A. George moved to

dismiss alleging, in part, that Lakeside’s third-party complaint was barred by the two year statute

of limitations for claims against an insurance producer under 13-214.4 of the Illinois Code of

Civil Procedure (the Code) (735 ILCS 5/13-214.4 (West 2014). That section states, in part, “[a]ll

causes of action *** against an insurance producer *** concerning the sale, placement,

procurement, renewal, cancellation of, or failure to procure any policy of insurance shall be

brought within 2 years of the date the cause of action accrues.” Id. W.A. George argued that the

cause of action accrued when the insurance policy was issued, which was more than two years

before the cause of action was filed.

¶ 12 After a hearing, the trial court denied the statute of limitations argument but granted

W.A. George leave to file another motion regarding Lakeside’s duty to request a copy of the

insurance policy. W.A. George refiled its motion to dismiss, relying primarily on Hoover v.

Country Mutual Insurance Co., 2012 IL App (1st) 110939, to argue that the statute of limitations

commenced when W.A. George procured the policy for Lakeside in March or April 2009 and the

filing of the August 2012 third party complaint was beyond the two year statute of limitations.

¶ 13 After another hearing, the trial court granted W.A. George’s motion to dismiss, without

prejudice, and gave Lakeside 21 days to refile or amend its third party complaint. The court

stated “in this particular case, and based upon the law that I reviewed, *** the allegations in the

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complaint are not sufficient to allege a circumstance where tolling would occur. *** Lakeside

alleges no facts which would give a reasonable basis for it not knowing the terms of its policy.”

On November 8, 2013, Lakeside filed an amended third-party complaint, and W.A. George again

moved to dismiss. At the hearing, Lakeside’s attorney argued that Lakeside assumed, based on

its meeting with W.A. George representatives and the face of the policy, that it had a commercial

general liability policy with an endorsement that covers physical and sexual abuse claims, but

that W.A. George procured a policy that erroneously describes Lakeside as a “halfway house,”

and that the endorsement only covered physical and sexual abuse by Lakeside employees, both

of which precluded coverage.

¶ 14 The trial court granted the motion to dismiss, with prejudice, under section 2-619(a)(5) of

the Code. The trial court stated, “if you had the policy, that would have put you on notice as to

all these issues that you raised during the argument.” The court granted the motion to dismiss.

(Lakeside settled with the Public Guardian for $3.5 million and in a consent judgment assigned

its claims against W.A. George to the Public Guardian.)

¶ 15 ANALYSIS

¶ 16 As an initial matter, Illinois Supreme Court Rule 342(a) requires an appellant’s brief

include “as an appendix, *** a complete table of contents, with page references, of the record on

appeal.” Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005). The table of contents to the Public Guardian’s

brief does not comply with Rule 342(a). The brief does not contain a table of contents to the

record on appeal, but instead a one-page table of contents with references to the pages of the

appendix attached to the appellant brief.

¶ 17 If counsel is unsure about how to prepare a formal brief, it is better to seek clarification.

When a brief fails to follow the rules, we may dismiss it. Fender v. Town of Cicero, 347 Ill. App.

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3d 46, 51 (2004). But, the argument section of the Public Guardian’s appellant brief provides

references to the volume and pages of the record, as required by Illinois Supreme Court Rule

341(h)(7) (eff. July 1, 2008), so we are able to assess whether the facts the Public Guardian

presents are accurate and a fair portrayal. Thus, we choose to exercise our discretion and address

the merits.

¶ 18 Statute of Limitations

¶ 19 A motion to dismiss based on section 2-619 admits the legal sufficiency of the complaint,

but asserts that the claim is defeated based on certain defects, defenses, or other affirmative

matter. Mount Mansfield Insurance Group, Inc., v. American International Group, Inc., 372 Ill.

App. 3d 388, 392 (2007). In particular, section 2-619(a)(5) permits the circuit court to dismiss a

cause of action if was not commenced within the time limited by law. We review a section 2-619

order of dismissal de novo. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008).

¶ 20 The parties agree that the two-year statute of limitations set forth in section 13-214.4

governs Lakeside’s negligent procurement and breach of contract claims against W.A. George.

(735 ILCS 5/13-214.4 (West 2014)). See State Farm Fire & Casualty Co. v. John J. Rickhoff

Sheet Metal Co., 394 Ill. App. 3d 548, 565 (2009) (Two year statute of limitations in section 13-

214.4 “encompasses [all] claims by an insured against his insurance agent.”). That section

provides that “[a]ll causes of action brought by any person or entity under any statute or any

legal or equitable theory against an insurance producer, registered firm, or limited insurance

representative concerning the sale, placement, procurement, renewal, cancellation of, or failure

to procure any policy of insurance shall be brought within 2 years of the date the cause of action

accrues.” 735 ILCS 5/13-214.4 (West 2014). This encompasses claims by an insured against its

insurance agent or broker. State Farm Fire & Casualty Co. v. John J. Rickhoff Sheet Metal Co.,

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394 Ill. App. 3d 548, 565 (2009); United General Title Insurance Co. v. AmeriTitle, Inc., 365 Ill.

App. 3d 142, 152 (2006) (citing AYH Holdings, Inc. v. Avreco, Inc., 357 Ill. App. 3d 17, 32

(2005)), overruled on other grounds by Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d

461 (2008).

¶ 21 The parties disagree as to when Lakeside’s causes of action against W.A. George

accrued. W.A. George maintains that both causes of action accrued when it procured the policy

for Lakeside because Lakeside should have reviewed the policy then and could have discovered

the deficiency. Lakeside contends that the discovery rule applies to delay commencement of the

statute of limitations until a plaintiff knows or reasonably should know of its injury and that it

was wrongfully caused. According to Lakeside, the statute of limitations did not begin to run

until, at the earliest, when Scottsdale denied coverage on May 4, 2012. Lakeside further contends

timeliness of its claims, having filed them within a little more than three months after Scottsdale

denied coverage.

¶ 22 Discovery Rule

¶ 23 The discovery rule was developed to “avoid mechanical application of a statute of

limitations in situations” involving individuals who would be barred from suit before even being

aware of an injury. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 77-78 (1995).

The rule tolls the limitations period until a person “knows or reasonably should know of his

injury and also knows or reasonably should know that it was wrongfully caused.” Knox College

v. Celotex Corp., 88 Ill. 2d 407, 415 (1981).

¶ 24 “Wrongfully caused” does not mean knowledge of a specific defendant’s negligent

conduct or knowledge that an actionable wrong was committed. Steinmetz v. Wolgamot, 2013 IL

App (1st) 121375, ¶ 30 (citing Castello v. Kalis, 352 Ill. App. 3d 736, 744-45 (2004)). Rather, a

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plaintiff knows or should know his or her injury was “wrongfully caused” when he or she

“becomes possessed of sufficient information concerning [the] injury and its cause to put a

reasonable person on inquiry to determine whether actionable conduct is involved.” (Internal

quotation marks omitted.) Steinmetz, 2013 IL App (1st) 121375, ¶ 30; see also Knox College, 88

Ill. 2d at 416, and Hanks v. Cotler, 2011 IL App (1st) 101088, ¶ 19 (“the commencement of the

limitations period” is tolled “until the potential plaintiff possesses sufficient information

concerning his or her injury and its cause to put a reasonable person on notice to make further

inquiries”).

¶ 25 Under well-settled law in Illinois, once an injured person knows or reasonably should

have known both of the injury and that it was wrongfully caused, the person carries the burden to

inquire further as to whether a legal remedy exists. Castello, 352 Ill. App. 3d at 745; Mitsias v. I-

Flow Corp., 2011 IL App (1st) 101126, ¶ 23 (“as soon as [the plaintiff] has sufficient

information about her injury and its cause to spark inquiry in a reasonable person as to whether

the conduct of the party who caused her injury might be legally actionable,” plaintiff has burden

to “investigate whether she has a viable cause of action.”). The rule encourages diligent

investigation by potential plaintiffs without foreclosing any claims about which the plaintiffs

could not have been aware. Mitsias, 2011 IL App (1st) 101126, ¶ 21. As our supreme court

explained: “In that way, an injured person is not held to a standard of knowing the inherently

unknowable [citation], yet once it reasonably appears that an injury was wrongfully caused, the

party may not slumber on his [or her] rights.” Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161,

171 (1981).

¶ 26 Usually, the time a plaintiff knows or reasonably should have known about an injury and

that it was wrongfully caused presents a question of fact. Nair v. Bloom, 383 Ill. App. 3d 867,

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870 (2008) (citing Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981)). But, where “it is apparent

from the undisputed facts *** that only one conclusion can be drawn, the question becomes one

for the court” (Witherell, 85 Ill. 2d at 156), and can be resolved as a matter of law, making a

section 2-619 dismissal on statute of limitations grounds appropriate. See Castello, 352 Ill. App.

3d at 744 (citing Witherell, 85 Ill. 2d at 156); see also Nair, 383 Ill. App. 3d at 870; Saunders v.

Klungboonkrong, 150 Ill. App. 3d 56, 61 (1986) (“If only one conclusion can be drawn from the

undisputed facts, the question of the timeliness of the plaintiff’s complaint is for the court to

decide.”).

¶ 27 Our courts have repeatedly applied the discovery rule to causes of action, such as this

one, brought against an insurance broker or agent, which would otherwise be barred by the two

year statute of limitations in section 13-214.4 of the Code of Civil Procedure (735 ILCS 5/13-

214.4 (West 2010)). See e.g., Broadnax v. Morrow, 326 Ill. App. 3d 1074 (2002); Indiana

Insurance Co. v. Machon & Machon, Inc., 324 Ill. App. 3d 300 (2001); General Casualty Co. v.

Carrol Tiling Service, Inc., 342 Ill. App. 3d 883, 899-900 (2003).

¶ 28 In Indiana Insurance Co., we held that the discovery rule applies to section 13-214.4,

where an insurance company brought a claim against its agent. But, because the insurance

company failed to meet its burden of pleading sufficient facts to invoke the discovery rule, we

did not rule on the precise time that a claim against an insurance agent begins to run.

¶ 29 The point of accrual of the cause of action was specifically decided in Broadnax, a case

involving a claim against an insurance agent. We held the claim accrued at the time of the denial

of coverage and not after damages were sustained as a result of the denial of coverage.

Broadnax, 326 Ill. App. 3d at 1081. In Broadnax, the plaintiff property owner alleged that the

defendant negligently failed to procure an insurance policy that met its insurance needs on a

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piece of property the plaintiff wanted to renovate and develop. Id. at 1076. When a fire destroyed

the property before it was developed, the plaintiff brought a declaratory judgment action against

the insurance company seeking coverage. The trial court granted summary judgment in favor of

the insurer, citing plaintiff’s failure to comply with the vacancy provisions of the policy, which

was affirmed on appeal.

¶ 30 Plaintiff then filed a separate negligence action against the insurance agent. Id. at 1076-

77. Defendant moved to dismiss, arguing that the plaintiff failed to file the negligence claim

within the two year statute of limitations. The trial court granted the motion, which, again, was

affirmed on appeal. After recognizing the fiduciary nature of the relationship between insured

and insurance agent, we applied the discovery rule. Id. at 1080-81. But, because section 2-613 of

the Code (735 ILCS 5/2-613 (West 1998)) permits the pleading of alternative theories of

recovery, we found the plaintiff knew or should have known of the injury when his insurance

claim was first denied and should not have waited until the outcome of declaratory judgment

proceedings to determine whether coverage existed. Broadnax, 326 Ill. App. 3d at 1081. A

dissenting opinion in Broadnax criticized the majority for requiring plaintiffs to file

“anticipatory” lawsuits based on the assumption that the court would rule against them. Id. at

1083 (Cook, J., dissenting).

¶ 31 Broadnax has been followed in several cases to find that a cause of action against an

insurance agent accrues when coverage is denied. State Farm Fire & Casualty, Co. v. John J.

Rickhoff Sheet Metal Co., 394 Ill. App. 3d 548, 566 (2009) (holding cause of action against

insurance broker accrues at “the moment when the coverage is denied” and is extended by the

discovery rule “until the plaintiff learns of the denial of coverage, if the plaintiff was not

immediately aware of it.”); General Casualty Co, 342 Ill. App. 3d at 899-900 (holding that the

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discovery rule tolled applicable statute of limitations to plaintiff’s third-party breach of fiduciary

duty claim against insurance agent until insurer filed claim seeking declaration that plaintiff was

not covered by workers’ compensation policy). See also Commonwealth Insurance Co. v. Stone

Container Corp., 323 F.3d 507, 510-11 (7th Cir. 2003) (compared Broadnax and Indiana

Insurance to the law in other jurisdictions and found nothing “outside the norm”).

¶ 32 W.A. George asserts that if Lakeside had read its policy, as it was obligated to do, it

would have discovered W.A. George’s breach and sought a resolution before Angel was killed

and before the claim was denied. For support, W.A. George relies on Hoover v. Country Mutual

Insurance Co., 2012 IL App (1st) 110939.

¶ 33 The plaintiffs in Hoover built a home on their property and obtained a policy from

Country Mutual insuring against a loss in the event of fire or other casualty. Id. ¶ 4. A few years

later, realizing that they would not be able to rebuild their home with their own labor, as they had

done, the plaintiffs contacted a Country Mutual agent to increase the liability limits to cover the

replacement cost of the home and its contents. Id. ¶ 20. The plaintiffs contended that the Country

Mutual agent did not ascertain the actual replacement cost of the home and did not advise them

that they would not receive the replacement cost unless they purchased a policy with liability

limits of at least 80% of the actual replacement cost. Id. ¶ 21. They also contended the agent led

them to believe that the he had obtained a policy that would cover the actual replacement cost.

Id.

¶ 34 Country Mutual delivered a new policy to the plaintiffs in May 2007. Id. ¶ 4. In January

2008, the home was destroyed in an explosion. Id. ¶ 13. After making several payments to the

plaintiffs, the agent informed them that Country Mutual would make no further loss payments.

He also informed them that their policy did not entitle them to full replacement cost coverage

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because they purchased a policy with a liability limit that was less than 80% of the replacement

cost. Id. ¶ 17. The homeowners sued Country Mutual and the agent, alleging breach of contract,

bad faith, and negligence. Id. ¶ 19. Country Mutual and the agent separately moved to dismiss,

arguing, in part, that the statute of limitations barred plaintiffs’ claims. Id. ¶ 24. Plaintiffs argued

that the discovery rule postponed the running of the statute of limitations period until they

learned of their injury, which was when the agent informed them that Country Mutual would not

make any further payments. Id. ¶ 26. The trial court dismissed all claims as time barred. Id. ¶ 27.

¶ 35 We affirmed the trial court, finding, in relevant part, that when the plaintiffs spoke to the

Country Mutual agent, they only sought to increase the liability limits in the policy but did not

seek to change two policy provisions: (1) the provision stating that the liability limit for the

dwelling had to be at least 80% of the replacement cost to satisfy the requirement for

replacement cost coverage and (2) the condition providing that Country Mutual would not be

liable in any one occurrence for more than the applicable limit of liability. Id. ¶ 56. The

declarations page of the policy expressly limited the amount Country Mutual would pay, and the

conditions section stated that Country Mutual would not be liable in any one occurrence for more

than the limit of liability. Id. ¶ 58. The court found that when Country Mutual provided the

plaintiffs with a copy of the policy, they “knew or should have known” of the policy’s

shortcomings. We rejected plaintiffs’ argument that the discovery rule tolled the statute of

limitations and found that because the plaintiffs received the policy more than two years before

they filed their complaint, the statute of limitations precluded their claims. Id. ¶ 61.

¶ 36 W.A. George contends that, as in Hoover, the discovery rule should not be applied to toll

the statute of limitations because Lakeside was put on notice that the policy was inadequate on

the date it was issued. But, Hoover is readily distinguishable. First, the circumstances in which

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Lakeside acquired its policy differ significantly from the circumstances in Hoover. There, the

plaintiffs already had a homeowners’ policy and were negotiating directly with a Country Mutual

agent to amend just one portion—the limits in the event of a complete loss of the home. While

the specific type of loss that could occur—whether by fire, tornado or, as did happen,

explosion—was unknown, the plaintiffs were seeking a specific provision—the full cost of

replacing the house—and could be expected to determine if the provision they sought was there.

¶ 37 Conversely, Lakeside hired W.A. George to procure a policy that would cover multiple

types of claims it might file in the course of its business as a social services agency and DCFS

contactor. Even if representatives from Lakeside had read the policy, they would not know in

advance that a claim involving the murder of a child in DCFS custody was not covered until the

claim was denied. If, like the plaintiffs in Hoover, Lakeside had sought to renegotiate its policy

to specifically request coverage for claims involving the murder of a child in its care and then

failed to read the policy, the holding in Hoover might apply. But that is not what occurred.

Moreover, under W.A. George’s argument, Lakeside would have to know all possible claims at

the time the policy was issued and read the policy to determine if the policy covered them.

¶ 38 Indiana Insurance and Broadnax and similar cases point to the same moment for the

accrual of a claim against an insurance producer—when coverage is denied. Broadnax, 326 Ill.

App. 3d at 1081; Indiana Insurance, 324 Ill. App. 3d at 304. But as Indiana Insurance explains,

if the plaintiff was not immediately aware of the denial of coverage, the “discovery rule” may

nevertheless delay the commencement of the statute of limitations period until the plaintiff learns

of the denial. Id. Lakeside became aware of the denial of coverage on May 4, 2016, when

Scottsdale denied the coverage. Because Lakeside filed its third party complaint against W.A.

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George only three months later, the statute of limitations had not expired. Thus, we reverse the

dismissal of Lakeside’s third-party causes of action and remand for further proceedings.

¶ 39 Reversed and remanded.

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