2018 IL App (1st) 170862
FIRST DIVISION
September 10, 2018
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
No. 1-17-0862
SAFEWAY INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff and Counterdefendant-Appellee, ) Cook County.
)
v. ) No. 2013 CH 12097
)
BEATRICE EBIJIMI and DADA EBIJIMI, ) Honorable
) Anna Demacopolous,
Defendants, Counterplaintiffs, and Third-Party ) Judge Presiding.
Plaintiffs-Appellants )
)
(Parillo, Weiss & O’Halloran, Third-Party Defendant )
Appellee). )
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justices Harris and Pierce concurred in the judgment.
OPINION
¶1 Beatrice Ebijimi demanded arbitration under her mother Dada Ebijimi’s policy with
Safeway Insurance Company (Safeway) after Beatrice was injured by an uninsured motorist.
Safeway sued Beatrice and Dada (the Ebijimis), seeking a stay of arbitration and a declaration
that it had no obligation to settle or arbitrate the Ebijimis’ uninsured motorist claim. The trial
court denied the Ebijimis’ motion for substitution of judge, struck the affidavit of the Ebijimis’
attorney attached to their opposition to summary judgment, and granted summary judgment to
Safeway, finding that the Ebijimis failed to satisfy several conditions of the policy.
No. 1-17-0862
¶2 We find no error in the trial court’s denial of the motion for substitution of judge. But we
find that the trial court erred in striking all of defense attorney’s affidavit filed in support of the
Ebijimis’ response to Safeway’s motion for summary judgment. When we consider those
portions of the affidavit that should not have been struck, we do not agree that Safeway was
entitled to summary judgment. We also find the trial court should not have dismissed the
Ebijimis’ counterclaim or third-party complaint. We affirm in part, reverse in part, and remand
for further proceedings.
¶3 I. BACKGROUND
¶4 The Ebijimis allege that, on January 20, 2006, Beatrice was hit by Patricia Tyson’s car,
and that Ms. Tyson was not insured. Beatrice submitted a claim to Safeway on March 13, 2006,
for uninsured motorist coverage through her mother, Dada Ebijimi, who was the named insured
on the Safeway policy. The record is unclear as to whether Beatrice was hit as a pedestrian or she
was driving a car, but counsel for the Ebijimis advised us at argument that she was a pedestrian.
¶5 A. The Policy
¶6 Part II of the policy defines “uninsured motor vehicle” as “a motor vehicle or trailer [for
which] there is no bodily injury liability bond or insurance policy applicable at the time of the
accident with respect to any person or organization legally responsible for the use of such
automobile.” Part II also provides for arbitration of uninsured motorist claims. Safeway denied
coverage on the basis of the following provisions:
“[Condition] 3. Notice. In the event of an accident, occurrence or loss, written
notice containing particulars sufficient to identi[fy] the insured and also reasonably
obtainable information with respect to the time, place and circumstances thereof, and the
names and address of the injured and of available witnesses, shall be given by or for the
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insured to the Company as soon as practicable.
***
[Condition] 10. Proof of Claim; Medical Report—Part II, III and IV. As soon as
practicable, the insured or other person making claim shall give to the Company written
proof, under oath, if required, including full particulars of the nature and extent of the
injuries, treatment, and other details entering into the determination of the amount
payable. The insured and every other person making claim shall submit to examinations
under oath by any person named by the Company and subscribe the same, as often as
may reasonably be required. Proof of claim shall be made upon forms furnished by the
Company unless the Company shall have failed to furnish such forms within 15 days
after receiving notice of claim.
The injured person shall submit to physical examinations by physicians selected
by the Company when and as often as the Company may reasonably require ***.”
¶7 The policy also provides: “No action shall lie against the company unless, as a condition
precedent thereof, there shall have been full compliance with the terms of this policy ***.”
¶8 B. The Arbitration Demands and the Parties’ Correspondence
¶9 In a March 13, 2006, letter, the Ebijimis advised Safeway of the accident, told Safeway
that the office of Robert A. Langendorf & Associates represented them, and demanded
arbitration of their uninsured motorist claim. On March 16, 2006, Safeway sent an accident
report form to the Ebijimis to complete and return. On March 17, 2006, Safeway sent uninsured
motorist forms to the Ebijimis and requested that the Ebijimis comply with the policy by
(1) completing and returning the uninsured motorist claim forms, (2) presenting Beatrice for an
independent medical exam (IME), and (3) giving statements under oath. On March 31, 2006,
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Safeway requested proof from the Ebijimis that the “alleged tortfeasor,” Patricia Tyson, “was in
fact uninsured at the time of the occurrence.”
¶ 10 At some point in 2006 or 2007, counsel for the Ebijimis, Robert Langendorf, forwarded a
letter to Safeway issued by the Illinois Department of Transportation (IDOT), dated August 24,
2006, stating that Ms. Tyson was insured by Affirmative Insurance Company (Affirmative
Insurance) at the time of the accident. On December 18, 2007, Mr. Langendorf forwarded a letter
addressed to Safeway, issued by Affirmative Insurance on November 9, 2006, which stated that
Ms. Tyson’s Affirmative Insurance policy had been cancelled before the accident due to
nonpayment of premiums and had not been reinstated.
¶ 11 Safeway’s attorneys responded with three letters—dated January 31, 2008, June 17,
2008, and July 18, 2008—requesting that the Ebijimis supply proof that Ms. Tyson was
uninsured at the time of the accident, complete the accident forms that Safeway sent them, and
schedule and submit to statements under oath and an IME. In the June 17, 2008, letter, counsel
for Safeway specifically renewed the demand for IDOT certification of Ms. Tyson’s uninsured
status, saying that “[t]he fact that Ms. Tyson may or may not have been insured through
[Affirmative Insurance] does not preclude the fact that insurance may have been purchased
elsewhere.”
¶ 12 According to the affidavit of Mr. Langendorf submitted by the Ebijimis in response to
Safeway’s motion for summary judgment, the Ebijimis filed a demand for arbitration with the
American Arbitration Association (AAA) on February 14, 2008, and sent the demand to
Safeway. Mr. Langendorf states that Safeway “refused and would not pay its share of the AAA
administration fee despite numerous requests” and that AAA ultimately closed its file on June
27, 2008, as a result of this lack of payment.
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¶ 13 For nearly five years, the record reveals no action by either party regarding the Ebijimis’
claim. According to Mr. Langendorf’s affidavit, on February 7, 2013, he “reopened the claim
with AAA and again demanded arbitration,” but “Safeway did not respond to the demand for
arbitration or pay its share of the AAA administration fee (which [he] eventually paid).”
¶ 14 C. Procedural History
¶ 15 On May 7, 2013, Safeway filed this lawsuit seeking an order staying arbitration and
declarations that no coverage existed under the policy for the January 20, 2006, accident and
that, due to her failure to comply with the policy terms, Safeway was “not obligated to settle or
arbitrate the uninsured motorist claim of Beatrice Ebijimi.” The trial court stayed the arbitration
of the Ebijimis’ claim on July 8, 2014, pending the outcome of this declaratory judgment action.
¶ 16 On August 5, 2014, the Ebijimis answered the complaint and filed a counterclaim against
Safeway, asking the trial court to find that (1) Safeway was not entitled to a stay of arbitration
and was instead compelled to participate in that proceeding and reimburse the Ebijimis for its
share of the AAA administration fee, (2) Safeway acted in “bad faith” under section 155 of the
Illinois Insurance Code (Insurance Code) (215 ILCS 5/155 (West 2006)), (3) Safeway breached
the terms of the policy, (4) Safeway violated the Illinois Consumer Fraud and Deceptive
Business Practices Act (815 ILCS 505/1 et seq. (West 2006)), (5) Safeway was estopped from
disputing or denying coverage, and (6) a class ought to be certified for those injured by
Safeway’s bad faith. On that date, the Ebijimis also moved for class certification and filed
affirmative defenses to Safeway’s complaint, including that Safeway was estopped from raising
policy defenses because of its conduct and that it was similarly barred from denying coverage
under the doctrine of laches. Safeway never responded to the affirmative defenses.
¶ 17 On September 17, 2014, the Ebijimis were granted leave to withdraw their counterclaim
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No. 1-17-0862
and file an amended counterclaim by October 14, 2014. They did not file an amended
counterclaim, but instead filed a third-party complaint against the law firm Parillo, Weiss &
O’Halloran (PWO), which represented Safeway in the declaratory judgment suit. In their third-
party complaint, the Ebijimis made class action allegations against PWO and sought to recover
against the firm under section 155 of the Insurance Code (215 ILCS 5/155 (West 2006)) for
PWO’s “aiding and abetting” of Safeway’s allegedly vexatious conduct.
¶ 18 On November 12, 2014, Safeway moved for summary judgment, arguing that the
Ebijimis did not satisfy the conditions of the policy and Safeway was therefore not required to
arbitrate. The Ebijimis moved to disqualify PWO as Safeway’s attorneys, but the trial court
denied that motion.
¶ 19 On March 12, 2015, the Ebijimis filed a motion for discovery and, shortly thereafter,
were granted leave to issue written discovery as to the issues raised in Safway’s motion for
summary judgment. Also on March 12, the Ebijimis filed a “motion to clarify and/or supplement
court order and amend title third party complaint,” seeking an order clarifying that their original
counterclaim was still pending because they never filed an amended version, having instead
decided to bring PWO into the case through a third-party complaint. According to our review of
the record, that motion was never ruled on.
¶ 20 From May 2015 to April 2016, the Ebijimis filed various motions related to discovery,
and the trial court entered and continued Safeway’s motion for summary judgment. Judge Anna
Demacopoulos began presiding over this case in late 2015. On April 21, 2016, she entered an
order ruling on certain discovery matters and setting a briefing schedule for summary judgment.
On April 28, 2016, the Ebijimis filed a one-paragraph motion for substitution of judge as of
right, which was denied on May 10, 2016. The trial court denied substitution “based on the
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No. 1-17-0862
substantive ruling of April 21st and [the] testing of waters during [the] hour long hearing.”
¶ 21 On May 23, 2016, the Ebijimis filed a response to Safeway’s motion for summary
judgment, with Mr. Langendorf’s affidavit attached. On June 6, 2016, Safeway filed a motion to
strike Mr. Langendorf’s affidavit as violating Illinois Supreme Court Rule 191(a) (eff. Jan. 4,
2013). The content of that affidavit is discussed in some detail in our analysis below.
¶ 22 D. The Trial Court’s Rulings on the Affidavit and Summary Judgment
¶ 23 The trial court heard argument on both Safeway’s motion for summary judgment and its
motion to strike Mr. Langendorf’s affidavit on August 22, 2016. On that date, the trial court
struck the affidavit in its entirety, finding that it consisted of “[u]nsupported and self-serving and
conclus[ory] statements” regarding Mr. Langendorf’s beliefs and experience, such that he would
not “subsequently be able to testify to” its contents and have “that testimony be competent and
admissible evidence.” The trial court also granted summary judgment for Safeway, finding that
“[n]o genuine issue of material fact exist[ed] on whether or not the [Ebijimis] complied with” the
conditions of the policy. Specifically, it found that the Ebijimis’ letter notifying Safeway of the
accident and their uninsured motorist claim under the policy did not satisfy the notice provision
in Condition 3 of the policy and that the Ebijimis failed to comply with Condition 10 because
they “never set up an [IME], nor did they send the information asked of them in 2006 and in
2008, the IDOT certification and completed accident report forms.”
¶ 24 The court determined that Safeway was “entitled to judgment as a matter of law,”
rejecting the claims of estoppel and waiver raised in the Ebijimis’ counterclaim and affirmative
defenses. It found “conclusory” the argument that Safeway “lulled or induced Attorney
Langendorf and defendants to take no action on their claim as to Condition 10,” and determined
that the doctrine of laches was inapplicable, in that “neither party here is innocent” because of
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No. 1-17-0862
the delay, and the Ebijimis “cannot place their entire blame or blame ignorance on the plaintiff
for [their] own inaction over the years.” According to the trial court, because “there were no
factual allegations that would make the [Ebijimis] successful on their affirmative defenses” of
estoppel, waiver, and laches, the Ebijimis had no excuse for failing to satisfy the policy
conditions and Safeway was entitled to summary judgment.
¶ 25 Safeway then moved to dismiss the Ebijimis’ third-party complaint against PWO and the
Ebjimis’ counterclaim, and the Ebijimis moved to reconsider the trial court’s order of August 22,
2016. On December 12, 2016, the trial court denied the Ebijimis’ motion to reconsider and
denied them leave to file an amended counterclaim. On February 28, 2017, it dismissed their
third-party complaint against PWO and found that this was “a final order disposing of all claims
in this case.”
¶ 26 II. JURISDICTION
¶ 27 The Ebijimis timely filed their notice of appeal on March 28, 2017. We have jurisdiction
under Illinois Supreme Court Rules 301 and 303, governing appeals from final judgments
entered by the circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. Jan. 1,
2015).
¶ 28 III. ANALYSIS
¶ 29 Before addressing the issues raised in the briefs, we address a motion filed by Safeway to
strike those portions of the Ebijimis’ briefs that were not supported by the record. We took that
motion with the case. We agree that certain portions of the brief did not have sufficient support
in the record and those have been disregarded. Other portions of the brief are supported by Mr.
Langendorf’s affidavit, which is in the record and which we find the trial court improperly struck
in part. Therefore, we have relied on that affidavit where appropriate. We now address the issues
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raised by the parties.
¶ 30 A. Substitution of Judge
¶ 31 The Ebijimis challenge the trial court’s May 10, 2016, denial of substitution of judge as
of right. We deal with this issue first because, if it were a proper basis for reversal, it would moot
all other issues. See In re Marriage of Crecos, 2015 IL App (1st) 132756, ¶ 28. We find no error
in the denial of this motion.
¶ 32 Section 2-1001 of the Code of Civil Procedure (Code) provides that, “[e]ach party shall
be entitled to one substitution of judge without cause as a matter of right.” 735 ILCS 5/2
1001(a)(2)(i) (West 2006). A motion for substitution of judge as of right must be filed before the
trial judge considering the motion rules upon any “substantial issue.” Petalino v. Williams, 2016
IL App (1st) 151861, ¶ 18. We review the denial of such a motion de novo. In re Estate of Gay,
353 Ill. App. 3d 341, 343 (2004). The trial court in this case denied substitution “based on the
substantive ruling of April 21st and [the] testing of waters during [the] hour long hearing.”
¶ 33 A substantive ruling is one that directly relates to the merits of the case. Id. “[A] trial
court’s ruling on a discovery motion is a ruling on a substantial issue when it pertains to
evidentiary trial matters.” City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 452,
461 (2002); see also Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1040 (2001) (finding that
rulings are substantial when “any question of evidence to be admitted” is considered). Even if a
court has not made a substantive ruling, it may deny substitution “if the movant had an
opportunity to ‘test the waters’ and form an opinion as to the judge’s reaction to her claim.” Gay,
353 Ill. App. 3d at 343.
¶ 34 The trial judge’s order in this case says there was “testing of waters during [the] hour-
long hearing on April 21, 2016.” The Ebijimis have provided no hearing transcript or bystander’s
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report that would allow us to question that conclusion. The burden is on them as appellants to
provide a complete record and their failure to do so will be construed against them. Foutch v.
O’Bryant, 99 Ill. 2d 389, 391-92 (1984). We affirm the ruling of the trial court on this basis.
¶ 35 We also affirm on the basis that the trial judge made a substantive ruling. We can see
from the common law record that at the April 21, 2016, hearing, the trial court granted the
Ebijimis leave to depose a former employee of Safeway, denied their motion to compel written
discovery and for broader depositions, and ordered them to come forward with evidence that
Safeway disputed or denied coverage. These kinds of discovery rulings are substantive because
they decide what is relevant to the case. In re Marriage of Petersen, 319 Ill. App. 3d 325, 338-39
(2001).
¶ 36 B. The Stricken Affidavit of Robert Langendorf
¶ 37 Before granting summary judgment for Safeway, the trial court struck Mr. Langendorf’s
affidavit in its entirety. If we find that striking the affidavit was improper, we must review the
trial court’s summary judgment ruling in light of the additional contribution, if any, made by the
affidavit. See Smith v. United Farm Mutual Reinsurance, 249 Ill. App. 3d 686, 690 (1993). We
review de novo the trial court’s ruling striking the affidavit. Madden v. Paschen, 395 Ill. App. 3d
362, 386 (2009).
¶ 38 Under Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), affidavits in support of or
opposition to summary judgment:
“shall be made on the personal knowledge of the affiants; shall set forth with particularity
the facts upon which the claim, counterclaim, or defense is based; shall have attached
thereto sworn or certified copies of all documents upon which the affiant relies; shall not
consist of conclusions but of facts admissible in evidence; and shall affirmatively show
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that the affiant, if sworn as a witness, can testify competently thereto.”
¶ 39 An affidavit satisfies the requirements of Rule 191(a) “if from the document as a whole it
appears the affidavit is based on the personal knowledge of the affiant and there is a reasonable
inference that the affiant could competently testify to its contents.” (Internal quotation marks
omitted.) Madden, 395 Ill. App. 3d at 386. When a court rules on a motion to strike, “only the
tainted portions” of the affidavit should be stricken and any remaining portions that satisfy Rule
191(a) should be saved. Murphy v. Urso, 88 Ill. 2d 444, 462-63 (1981).
¶ 40 After stating that he was a licensed attorney in Illinois with a history of practicing
insurance law, that he represented the Ebijimis in this matter, and that he made an uninsured
motorist claim and demand for arbitration on their behalf, Mr. Langendorf attested as follows:
“4. After the uninsured motorist claim was made Safeway and its attorneys
requested through correspondence and communications that I provide them with a
certified letter from I-DOT stating that the driver at fault in the accident (Patricia Tyson)
was not insured at the time of the accident. ***
5. Due to the fact Ms. Tyson reported to the Illinois Department of Transportation
*** that she had insurance with Affirmative [Insurance], I-DOT could not send a letter
certifying Ms. Tyson was uninsured on the date of the accident. ***
6. My office communicated with Affirmative Insurance and obtained a letter from
Affirmative Insurance stating Ms. Tyson was not insured at the time of the accident due
to non-payment of premium ***.
7. I sent the letter from Affirmative Insurance to Safeway’s attorneys at [PWO]
who advised me they were handling the claim for Safeway. ***
8. On January 31, 2008 I received a letter from Cheryl Fleming, the PWO
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attorney handling the claim, stating it was the second notice and requesting proof the
alleged tortfeasor was in fact uninsured at the time of the occurrence within 14 days. ***”
¶ 41 In his affidavit, Mr. Langendorf also reviewed the correspondence through 2008,
including a letter he sent on June 5, 2008, that included the police report with information on the
accident, witnesses, and Beatrice’s initial medical treatment. He then stated the following
regarding his conversations with representatives of Safeway:
“16. Over the course of a few years, prior to and after the AAA demand, I had
various conversations with attorneys from PWO and specifically Cheryl Fleming wherein
I was told nothing would be done on the Ebijimi[s’] claim by Safeway because they did
not have a certified letter from IDOT stating Ms. Tyson was uninsured.
***
18. *** I recall telephone conversations with attorney Cheryl Fleming sometime
after we provided them with the letter from Affirmative Insurance stating this was not an
uninsured motorist case. During the conversations Cheryl Fleming told me Safeway was
not accepting coverage. I asked what they wanted us to do (the Ebijimis) and she told me
not to bother doing anything, no proof of claim, sworn statement or IME and she
suggested I file a declaratory action. I said no and I would proceed with AAA and they
could file a declaratory action.
19. The telephone conversations with Ms. Fleming, and my past experience with
Safeway and PWO, was a clear indication to me the claim was disputed based upon
Safeway’s dissatisfaction with the proof of no insurance provided and that any actions
taken on the part of the Ebijimis would be futile.
***
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No. 1-17-0862
23. No further actions were taken on the claim on behalf of the Ebijimis at that
time because my communications with PWO made it clear and Safeway specifically [led]
me to believe the threshold showing of uninsured motorist status of the driver was not
accepted. Therefore, any actions including completing any forms, and IME and sworn
statement would be futile because Safeway was not accepting the proof of no insurance
provided. I believed no actions were necessary until Safeway accepted the proof the
driver was uninsured. Based upon Safeway’s statements and refusal to pay AAA [I]
believed they would be filing a timely declaratory action to dispute the proof of insurance
(which they did not).
***
26. The last communication Safeway had with me (until the AAA demand claim
was reopened) was July of 2008.
***
29. After it became apparent to me Safeway was not going to file a declaratory
action because it had not taken any action for years, on February 7, 2013 I reopened the
claim with AAA and again demanded arbitration. Again Safeway did not respond to the
demand for arbitration or pay its share of the AAA administration fee (which I eventually
paid).
30. On May 7, 2013 Safeway filed its complaint for Declaratory Judgment and to
Stay Arbitration.
31. At no time did Safeway or PWO, prior to filing the declaratory action, state to
me I was violating the policy or say the claim would be denied if the Ebijimis did not fill
out the forms or do an IME or statement and based upon my experience and
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No. 1-17-0862
conversations with Cheryl Fleming that they would be a waste of time because they were
not accepting coverage. ***”
¶ 42 Several of the remaining paragraphs in Mr. Langendorf’s affidavit generally comment on
business practices of Safeway and PWO or restate Mr. Langendorf’s perceptions of Safeway’s
conduct as it related to the Ebijimis’ claim.
¶ 43 The Ebijimis argue on appeal that it was “improper for the court to strike Mr.
Langendorf’s affidavit,” because the “facts contained in the affidavit are admissible and crucial”
to their defense. In particular, they emphasize the portions of the affidavit containing “details
regarding communications between Mr. Langendorf and Safeway’s attorney, Cheryl Fleming,”
in which Mr. Langendorf was told “nothing would be done on the Ebijimi[s’] claim by Safeway
because they did not have a certified letter from IDOT stating Ms. Tyson was uninsured.”
Paragraph Nos. 16, 18, 19, 23, 26, 29, 30, and 31 all contain sworn statements about the
conversations between Mr. Langendorf and counsel for Safeway regarding the quality of the
proof that Ms. Tyson was uninsured, whether it was futile for the Ebijimis to attempt to comply
with the conditions of the policy absent IDOT certification that Ms. Tyson was uninsured, and
the manner in which the Ebijimis—through Mr. Langendorf—were induced to rely on Safeway’s
remarks regarding the IDOT certification, the uninsured form, the IME, and the sworn
statements. Construed liberally, these portions of the affidavit satisfied Rule 191(a) and should
not have been stricken. See Mitchell v. Simms, 79 Ill. App. 3d 215, 220 (1979).
¶ 44 In addition, in paragraph Nos. 1 through 9 and 13 through 16 of the affidavit, Mr.
Langendorf attests to facts within his knowledge, references attachments included in the
Ebijimis’ response to summary judgment, and generally lays a foundation for the remainder of
the affidavit. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).
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¶ 45 To be sure, the affidavit also contains portions that run afoul of Rule 191(a). The trial
court correctly struck, for example, the conclusory paragraphs attesting to Mr. Langendorf’s
beliefs that “any dispute Safeway had with the proof of no insurance would be determined at the
AAA arbitration as the insurance policy states,” that “through my experience in uninsured
motorist cases *** any discovery which Safeway needed, including sworn statements and IME’s
would be conducted in discovery as allowed in the arbitration rules,” and that Safeway’s “failing
to pay its share of the AAA fees was a common practice.” Nonetheless, the trial court “swept up
the good with the bad” when it struck the affidavit in its entirety, rather than considering those
portions that complied with Rule 191(a). Murphy, 88 Ill. 2d at 462-63.
¶ 46 Safeway points out that Mr. Langendorf’s affidavit “does not identify the dates of any of
the alleged conversations,” nor “where the conversations took place or who was present,” and
urges us to affirm the trial court’s decision to strike the affidavit in its entirety. But the Ebijimis
correctly rely on Allerion, Inc. v. Nueva Icacos, S.A. de C.V., 283 Ill. App. 3d 40, 47 (1996), in
which this court affirmed the trial court’s finding that an affidavit complied with Rule 191(a),
notwithstanding that the affiant generally referenced “ ‘25 telephone conversations and several
items of written correspondence’ ” with representatives of the opposing party. We cautioned that
“affidavits will not be stricken for technical deficiencies” when “it appears that an affidavit is
based on the personal knowledge of the affiant and a reasonable inference is that the affiant
could competently testify to the contents of the affidavit at trial.” (Internal quotation marks
omitted.) Id. at 46.
¶ 47 In sum, while we agree that the trial court properly struck certain paragraphs of Mr.
Langendorf’s affidavit, the paragraphs that we have relied on in this opinion attest to facts within
Mr. Langendorf’s knowledge, lay a foundation for the admissibility of those facts, and comply
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with Rule 191(a) under the liberal construction mandated for affidavits in opposition to summary
judgment. See Mitchell, 79 Ill. App. 3d at 220. We will consider these portions in reviewing
whether summary judgment was properly granted for Safeway.
¶ 48 C. Summary Judgment
¶ 49 Summary judgment is appropriate “if 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
2006). “Although the use of summary judgment aids in the expeditious disposition of a lawsuit,”
it is “a drastic measure and should only be granted if the movant’s right to judgment is clear and
free from doubt.” (Internal quotation marks omitted.) Travelers Insurance Co. v. Eljer
Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001). We review the granting of summary judgment
de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 50 The trial court granted summary judgment to Safeway based on the Ebijimis’ failure to
comply with Conditions 3 (requiring notice) and 10 (requiring proof of claim) of the policy.
While we think an argument could be made that the notice condition was actually complied with,
it does not matter. For the reasons that follow, Safeway would be estopped from relying on either
of these conditions by virtue of what Mr. Langendorf testified in his affidavit was its insistence
that the Ebijimis supply Safeway with certification from IDOT that Ms. Tyson was not insured.
This was a condition that appeared nowhere in the policy and which it appears would have been
difficult, if not impossible, to comply with.
¶ 51 To establish estoppel in an insurance context, the insured must show that (1) the acts or
statements of the insurer or its agent misled her, (2) she relied on those representations, (3) her
reliance was reasonable, and (4) she suffered detriment or prejudice because of her reliance.
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Chatham Corp. v. Dann Insurance, 351 Ill. App. 3d 353, 366-67 (2004). It is not necessary to
show that the insurer intended to mislead the insured in order for estoppel to apply, and the
burden of establishing prejudice rests with the insured. Id. at 367.
¶ 52 The Ebijimis argue genuine issues of material fact precluded the trial court’s finding that
Safeway never “lulled or induced” them into inaction on the policy conditions. They argue the
“factual statements in Mr. Langendorf’s affidavit contradict the contents of the correspondence
Safeway used and the court relied upon in granting summary judgment.” Essentially, they argue
that they were told compliance with other conditions of the policy—completing the uninsured
motorist form, submitting to an IME, and giving sworn statements—would be futile because the
missing IDOT certification was a precondition to coverage. But as Mr. Langendorf explains—in
the portions of his affidavit that we have found should have been considered—the only
information IDOT had was that Ms. Tyson was insured and thus he could not obtain an IDOT
certification stating that she was not.
¶ 53 The Ebijimis cite cases in which insurers were estopped by their own conduct from
relying on the insureds’ failure to comply with policy conditions. In Davis v. United Fire &
Casualty Co., 81 Ill. App. 3d 220, 225 (1980), for example, we held that an insurer that gave a
“flat denial” of coverage to an insured was barred from later denying a duty to defend on the
basis that the insured failed to timely supply documents under the policy terms. In Heneghan v.
State Security Insurance Co., 195 Ill. App. 3d 447, 451-52 (1990), we held that the insurer was
estopped from relying on a two-year period to request arbitration because he had agreed to await
the outcome of the suit against the potentially at-fault motorists. In doing so, we found that the
insurer’s conduct “was calculated to lull [the] plaintiff into the reasonable belief that arbitration
*** would be held off until the jury determined whether the insured or the uninsured defendant
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No. 1-17-0862
was at fault.” Id. at 452. And in Downing v. Wolverine Insurance Co., 62 Ill. App. 2d 305, 316
17 (1965), we found that the insurer induced the insured business owner to believe he had no
obligation to file a formal proof of loss under the policy and was therefore barred from raising
the proof of loss requirement to defeat coverage under estoppel and waiver doctrines.
¶ 54 Safeway relies on our decision in Emcasco Insurance Co. v. Alvarez, 110 Ill. App. 2d 307
(1969). In Emcasco we held that a demand for arbitration by the insureds did not preclude the
insurer from denying coverage on the basis of the insureds’ failure to submit to a medical
examination. However, in Emcasco, in contrast to this case, there was no evidence of conduct by
the insurer that might have estopped the insurer from relying on the insureds’ failure to submit to
the medical examination. The Ebijimis are not seeking an excuse from compliance with the
conditions of the policy because they demanded arbitration. Rather, they are seeking to be
excused because they allege and presented evidence demonstrating that Safeway’s conduct lulled
them into believing that compliance with those conditions would be meaningless. Under these
circumstances, Emcasco does not apply.
¶ 55 While estoppel clearly applies, waiver may be relevant as well. Waiver, by contrast to
estoppel, “consists of either an express or implied voluntary and intentional relinquishment of a
known right” and is “essentially unilateral in character, focusing on an insurer’s conduct, and
requiring no prejudice to, nor detrimental reliance by, an insured.” (Internal quotation marks
omitted.) Chatham Corp., 351 Ill. App. 3d at 365. Questions of estoppel and waiver “are left to
the trier of fact where the material facts are in dispute or where reasonable people might draw
different conclusions from the evidence.” Lumbermen’s Mutual Casualty Co. v. Sykes, 384 Ill.
App. 3d 207, 220 (2008).
¶ 56 We note that it also appears to us that the Ebijimis complied with the notice requirement
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No. 1-17-0862
in Condition 3 of the policy. The purpose of a notice requirement in an insurance policy is to
enable the insurer to make a timely and thorough investigation of the insured’s claim. Allstate
Insurance Co. v. Carioto, 194 Ill. App. 3d 767, 780 (1990). Under the Safeway policy, notice
was to be given “as soon as practicable.” Neither Safeway nor the trial court have suggested that
the less than two-month period from the January 20, 2016, accident until the first letter to
Safeway on March 13, 2006, was not timely notice. Indeed, our supreme court has held that even
a 27-month delay in providing notice can satisfy the “as soon as practicable” requirement. West
American Insurance Co. v. Yorkville National Bank, 238 Ill. 2d 177, 186, 191 (2010).
¶ 57 The notice requirement of the Safeway policy was only for “particulars sufficient to
identi[fy] the insured and also reasonably obtainable information with respect to the time, place
and circumstances thereof, and the names and address of the injured and of available witnesses.”
Mr. Langendorf’s letter of March 13, 2006, advised Safeway that “our office has been retained
by [Beatrice and Dada Ebijimi] to prosecute a claim against you for uninsured motorist,”
attached a notice of attorney’s lien, and stated its demand for arbitration. This appears to be
information sufficient to identify the insured and begin an investigation.
¶ 58 For these reasons, we reverse the summary judgment ruling for Safeway and remand the
case for further proceedings. Genuine issues of material fact exist on the affirmative defenses of
estoppel and waiver. Although Mr. Langendorf’s affidavit does not establish either estoppel or
waiver as a matter of law, it is sufficient to raise factual issues as to what he was told by Safeway
and whether the Ebijimis acted reasonably in reliance on those statements in their failure to meet
the preconditions of coverage.
¶ 59 We also address the Ebijimis’ affirmative defense of laches, which may become relevant
on remand. Laches is “an equitable principle which bars an action where, because of delay in
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No. 1-17-0862
bringing suit, a party has been misled or prejudiced or has taken a course of action different from
what the party otherwise would have taken.” (Internal quotation marks omitted.) Osler Institute,
Inc. v. Miller, 2015 IL App (1st) 133899, ¶ 23. We agree with the trial court that, with respect to
the claim of laches, “neither party here is innocent” of the delay in this case. It is true that
Safeway did not file a declaratory judgment action when it denied coverage, after the initial
demand and denial, but both parties sat on their hands for roughly five years and waited for the
other to pursue a ruling clarifying the coverage issue. Either party could have filed suit at any
time, and the Ebijimis apparently could have, as they finally did, paid both arbitration fees and
proceeded to arbitration without Safeway. The Ebijimis point to no way in which they were
prejudiced or induced to take a different course of action due to Safeway’s delay in bringing suit.
¶ 60 D. Dismissal of the Counterclaim and Third-Party Complaint
¶ 61 1. The Counterclaim
¶ 62 In its September 17, 2014, order, the trial court granted Beatrice “leave to withdraw her
counter claim and to file an amended counter claim on or before October 14, 2014,” as well a
leave “to add [an] additional party.” Instead of withdrawing that counterclaim, the Ebijimis filed
their third-party complaint against PWO on October 14, 2014. They moved for clarification on
March 12, 2015, seeking an order stating that their original counterclaim was still pending
because they never superseded it with an amended version. That motion was not ruled on until it
was brought to the court’s attention in 2017.
¶ 63 On December 12, 2016, the trial court denied the Ebijimis leave to file an amended
counterclaim. The trial court found that when the Ebijimis did not file an amended counterclaim
after the September 17, 2014, order granted them leave, they had in effect withdrawn their initial
counterclaim. On February 28, 2017, the court noted that it was not previously aware of the long
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No. 1-17-0862
pending motion to clarify whether the counterclaim was pending but that, in any event, each of
the six counts in the counterclaim was mooted by the summary judgment ruling. The Ebijimis
ask this court, if we remand, to do so with an instruction that they be allowed to proceed with
and to amend their counterclaim.
¶ 64 Since we have reversed the summary judgment finding, that is no longer a basis for
dismissing the counterclaim. We also disagree with the trial court’s declaration that no
counterclaim remained pending because the Ebijimis had never acted on the order allowing them
to file an amended counterclaim. It is the filing of an amended pleading that withdraws the
previous pleading. Barnett v. Zion Park District, 171 Ill. 2d 378, 384 (1996). Thus, the
counterclaim is pending. While we are mindful that the decision whether to allow amendments to
pleadings rests within the sound discretion of the trial court and will not be reversed absent an
abuse of that discretion (O’Brien v. City of Chicago, 285 Ill. App. 3d 864, 872 (1996)), it appears
that the denial of the request to amend in this case rested on the incorrect premise that no
counterclaim was pending. Upon remand, any amendment to that pleading should be reviewed
and allowed if sought on “ ‘just and reasonable terms.’ ” Id. (quoting 735 ILCS 5/2-616(a) (West
1994)). The parties have not briefed and we express no opinion on the merits of any of the
Ebijimis’ counterclaims other than their claims for estoppel, waiver, and laches.
¶ 65 2. The Third-Party Complaint
¶ 66 The trial court granted Safeway’s combined motion to dismiss the Ebijimis’ third-party
complaint under section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2006)). The trial court
found that the summary judgment ruling for Safeway was an affirmative matter defeating
coverage and the section 155 claims against PWO did not state a claim because “aiding and
abetting” in the “bad faith” conduct of an insurer by that insurer’s attorney does not give rise to a
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No. 1-17-0862
cause of action in Illinois.
¶ 67 It is clear that the summary judgment ruling in favor of Safeway is no longer a basis for
dismissing this claim. However, we agree with Safeway and PWO that section 155 of the
Insurance Code provides only for claims against an insurance company. The Ebijimis alleged in
their third-party complaint that Robert J. Parrillo was a founding attorney and managing partner
at PWO and the majority shareholder of Safeway, meaning that these two companies are one and
the same. Neither party really addresses this argument. In addition, the Ebijimis’ third-party
complaint is not limited to allegations that PWO conspired with Safeway to violate section 155.
Rather, it appears that the Ebijimis are also attempting to allege a claim for consumer fraud. On
remand, the trial court should address the merits of the third-party complaint if the Ebijimis wish
to pursue it and allow for amendment if appropriate.
¶ 68 IV. CONCLUSION
¶ 69 For the reasons stated in this opinion, we (1) affirm the denial of the motion for
substitution of judge; (2) reverse, in part, the trial court’s ruling striking the affidavit of counsel
for the Ebijimis; (3) reverse the trial court’s grant of summary judgment for Safeway and find
that there are genuine issues of material fact as to the Ebijimis’ affirmative defenses of estoppel
and waiver; and (4) reverse the dismissal of the Ebijimis’ counterclaim and the dismissal of the
Ebijimis’ third-party complaint against PWO. We remand for further proceedings consistent with
this opinion.
¶ 70 Affirmed in part, reversed in part, and remanded.
22
Safeway Insurance Co. v. Ebijimi
Court: Appellate Court of Illinois
Date filed: 2018-09-10
Citations: 2018 IL App (1st) 170862, 117 N.E.3d 1227, 427 Ill. Dec. 290
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