specially concurring:
I am in complete agreement with the majority’s decision in all respects save one. For the reasons that follow, I do not find the November 2005 documents to be ambiguous and would, therefore, find no need to consider the January 2004 documents as extrinsic evidence. Thus I would affirm the trial court’s allowance of partied summary judgment, but on different grounds, and would also affirm, as has the majority, its decisions concerning ICG’s obligation to respond to the request for information from the Department of Insurance.
Richard McCarthy formed the Richard W. McCarthy Trust on September 2, 2004. In November 2005, McCarthy made a written request to change ownership of the notes to the trust. The November letter reads, in pertinent part, as follows:
“In connection with my estate plan, I have established a revocable living trust, and I am hereby requesting TRANSFER and do hereby ASSIGN, all of my right, title and interest in [the notes] currently titled in my name individually to my living trust as specified below.
* * *
Please change the ownership designation on each account or certificate to: Richard McCarthy, Trustee of the Richard McCarthy Living Trust U/T/A dated September 2, 2004.
My trust is a ‘Grantor Trust.’ Under the provisions of Treasury Regulations Sections 1.671—4(b)(2), 1,671—4(b)(8) and 301.6109—1(a)(2)(I), all interest or other items of income will continue to be reported under my personal social security numbers, as in the past. It is my understanding that you will not impose any penalty by reason of this transfer. If that understanding is not correct, please notify me prior to affecting [sic] the requested transfer.
I understand this transfer will have no effect on the payment due or amounts scheduled to [be] paid under the terms and conditions of the [notes].” (Emphasis added.)
Pursuant to a memorandum issued by the board of Illinois Casualty Company (ICC) authorizing acceptance and approval of the transfer, ICC’s president, John R. Klockau, signed the second page of the letter, accepting and verifying the transfer and dating it November 1, 2005. In December, ICC notified the Department of Insurance of McCarthy’s request and its approval. The Department noted on the company’s letter that there was “no regulatory action required.”
I find no ambiguity in these documents. McCarthy’s written request is that he be allowed to transfer “all” of his right, title and interest in the notes from himself as an individual to himself as trustee of the Richard W. McCarthy Trust. “All” is not ambiguous. It conveys McCarthy’s intent to transfer and assign every right, every title and every interest he currently holds to his living trust. He expresses that request and intent without any reservation.
McCarthy does not stop with that clear and unequivocal declaration of the parameters of his request. He further states his understanding that the transfer will be effected without “any penalty by reason of this transfer,” and asks ICC to notify him, prior to effecting the transfer, if his understanding (that “all” of his right, title and interest can be transferred and assigned without “any penalty”) is not correct.
Then he clarifies his understanding even further: this transfer will have no effect on the payment due or amounts “scheduled to be paid under the terms and conditions of the [notes].” (Emphasis added.)
It appears to me that McCarthy made his request and his understanding of its effect perfectly clear and unequivocal.
ICC responded with equal clarity. The ICC board authorized its president, John Klockau, to accept and approve the requested transfer and then notified the Department of Insurance of the transfer. At no time did ICC advise McCarthy that his “understanding” of a transfer without penalty to any of his rights was incorrect to the extent that neither he nor any successor trustee would be treated as an “original holder” following transfer. Nor did ICC advise McCarthy that paragraph 14 would not apply to any “amounts scheduled to [be] paid under the terms and conditions of the [notes]” because neither McCarthy nor any successor trustee would be treated as or deemed to be the “original holder.” Nor did ICC advise the Department of Insurance that although the transfer/assignment had been granted, the assignees would not have the right to seek accelerated payment pursuant to paragraph 14.
The majority has found, and I agree, that this agreement was capable of being modified by agreement of the parties and that the transfer and assignment effected a modification as requested of ICC by McCarthy. 408 Ill. App. 3d at 534. Given this modification, there is no need to consider or decide whether the transfer of the notes constituted a change of ownership. By the transfer on McCarthy’s requested terms, ICC gave up its right to enforce the “original holder” requirement for accelerated payment upon the death of McCarthy, the grantor of the trust.
In my opinion, this court should construe the contract to mean precisely what it says: that McCarthy requested, and ICC agreed, to assign all of his rights, including his rights under paragraph 14, to the trust. Further, the plain language of the November letter shows that ICC agreed to McCarthy’s request without limitation or modification. The November letter did not need to specifically reference accelerated payment if it referenced all of McCarthy’s rights because those rights included accelerated payment. Similarly, the Board’s approval did not have to specifically reference paragraph 14 to find that it agreed to transfer the rights granted under paragraph 14 to the trust. The approval was of the request to assign all rights to the trust.
ICC argues that its December 2005 letter to the Department, notifying it of the action requested in the November letter, is also consistent with ICC’s interpretation of the effect of the November letter because it does not request the Department’s permission to change the terms of the notes to allow the trust to request accelerated payment when the terms of the notes provide that only the original holder may request accelerated payment. ICC argues its interpretation is consistent with paragraph 13 of the notes, which contemplates transfer of ownership without Department approval. The Department’s response that no regulatory action was required is also consistent with its interpretation based on sections 301.30 and 301.70 of title 50 of the Illinois Administrative Code (50 Ill. Adm. Code 301.30, 301.70 (2010)).
Section 301.30 of title 50 of the Administrative Code provides, in pertinent part, as follows:
“Guaranty Fund or Guaranty Capital certificates issued pursuant to Section 56 of the Illinois Insurance Code [215 ILCS 5/56] shall be submitted, in duplicate, for the approval of the Illinois Director of Insurance (Director) prior to being issued by the company. The certificate must state that, all payments of principal and/or interest must be approved by the Director; and that the obligation of the company under such certificate may not be offset or be subject to recoupment with respect to any liability or obligation owed to the company; and that no agreement or interest securing such certificate, whether existing on the date of such certificate or subsequently entered into, applies to the obligation under such certificate.” 50 Ill. Adm. Code 301.30 (2010).
Section 301.70 of title 50 of the Administrative Code reads as follows:
“A company may only retire guaranty funds and guaranty capital and make payment of interest on any indebtedness as provided under Section 56 of the Illinois Insurance Code ***. No payment shall be authorized by the Director unless:
a) The company’s surplus as regards policyholders is reasonable in relation to its outstanding liabilities and adequate for its financial needs (the determination of the reasonableness and adequacy of surplus shall include consideration of the following factors: premium volume as referenced in Sections 144 and 244.1 of the Illinois Insurance Code (Code) ***; lines of business and additional authority as referenced in Sections 4, 11, 39, and 245.23 of the Code *** and Section 2—1 of the Health Maintenance Organization Act ***; reserves, company size and operational history as referenced in Section 113 of the Code ***), and
b) Such payment will not reduce the company’s surplus as regards policyholders to less than that currently required under Section 43 of the Illinois Insurance Code ***, and
c) Such payment is consistent with the terms of the certificate approved pursuant to Section 301.30 of this Part.” 50 Ill. Adm. Code 301.70 (2010).
ICG’s argument that an assignment of McCarthy’s rights under paragraph 14 to the trust would require regulatory approval lacks statutory support. ICC cites no support for finding that an assignment of rights in an existing agreement is subject to regulatory approval. Section 56 of the Illinois Insurance Code merely provides for the right to “provide for a surplus either by accumulating a guaranty fund or a guaranty capital.” 215 ILCS 5/56 (West 2006). Section 301.30 of title 50 of the Administrative Code does not address the assignment of rights under a certificate that has been previously approved by the Director. That interpretation is supported by the Department’s response that no regulatory action was required to assign McCarthy’s rights under the notes despite clear evidence that this was precisely what the parties may have intended. Under the parties’ agreement as reflected in the November letter, the actual terms of the original notes remained the same. The rights of the original holder were transferred to the trust, but the actual terms of the notes did not change.
For the foregoing reasons, I would find that the November 2005 documents are unambiguous and that there is no need and no legal justification to rely on extrinsic evidence to determine their meaning and effect.
I agree with the reasoning of the majority in all other respects and concur in affirming the trial court’s judgment.