SIXTH DIVISION SEPTEM BER 17, 2010
No. 1-09-1693
AMERICAN SERVICE INSURANCE ) Appeal from the COMPANY, ) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) ) ) v. ) No. 07 CH 06955 ) THE CITY OF CHICAGO, ) ) Defendant-Appellee. ) ) (Medmarc Casualty Insurance Company, Plaintiff; ) Honorable David Carrillo, Sylvia Vargas, and Josue Lamontagne, ) Sophia Hall, Defendants.) ) Judge Presiding.
. JUSTICE ROBERT E. GORDON delivered the opinion of the court:
This is an interlocutory appeal. The trial court dismissed the two claims
which plaintiff American Service Insurance Company (ASI) had brought against
defendant City of Chicago, on the ground that these two claims were now moot. In
this interlocutory appeal, plaintiff ASI appeals the dismissal of these two claims.
For the reasons discussed below, we reverse the partial dismissal order and remand No. 1-09-1693
for proceedings consistent with this opinion.
BACKGROUND
1. Overview
This appeal involves two separate types of actions. First, the City of Chicago
(City) filed administrative actions against David Carrillo, Sylvia Vargas and Josue
Lamontagne, who were all involved in separate motor vehicle accidents that resulted
in damage to City property. The automobile liability insurance policies belonging to
Carrillo and Vargas were issued by ASI; and Lamontagne’s policy was issued by
Medmarc Casualty Insurance Company (Medmarc).
The second type of action was a suit filed in the circuit court of Cook County
by ASI and M edmarc in which the insurance companies sought to defeat any
liability by them for coverage for these administrative judgments. It is this suit
which is the subject of this appeal. In this circuit court suit, the defendants were:
the City, which had sought administrative judgments from the policyholders; and the
policyholders themselves.
In the circuit court action, plaintiff ASI sought and obtained default orders
against the ASI policyholders. As a result, defendant City moved to dismiss ASI’s
claims against it on the grounds that, since plaintiff ASI had already obtained default
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orders against the policyholder defendants, it lacked standing to pursue the
policyholders’ claims, and that ASI’s claims were now moot. The trial court
granted the motion, which resulted in a partial dismissal of the case.
The only claims that were dismissed by the trial court were the claims of
plaintiff ASI against defendant City. The claims that were not dismissed were: (1)
plaintiff Medmarc’s claims against the City; (2) plaintiff Medmarc’s claims against
the sole Medmarc policyholder, Josue Lamontagne; and (3) plaintiff ASI’s claims
against the two ASI policyholders, David Carrillo and Sylvia Vargas. Even though
the dismissal was only partial, the trial court found no reason to delay the appeal of
its order and this interlocutory appeal followed.
2. The Plaintiffs
Plaintiffs ASI and Medmarc are insurance companies that are doing business
in Illinois and that provide policies of automobile liability insurance to Illinois
residents.
The sole appellant is plaintiff ASI, and it appeals the trial court’s order
dismissing, with respect to ASI only, counts I and II. These two counts are the
counts of the complaint against the City. Plaintiff M edmarc is not a party to this
appeal, because the trial court stayed counts I and II with respect to plaintiff
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Medmarc, and stayed counts III, IV and V with respect to both plaintiffs, pending
the outcome of this appeal.
3. The Defendants
The sole appellee is defendant City of Chicago (City). None of the
policyholder defendants filed appearances or chose to file briefs in this appeal.
There appears to be some confusion concerning who the policyholder defendants
are. In its notice of appeal, plaintiff ASI listed the policyholder defendants as David
Carrillo, Sylvia Vargas and Josue Lamontagne. These are also the same
policyholder defendants listed in the caption of both the trial court’s dismissal order
and plaintiffs’ third amended complaint, which was the subject of the dismissal
order. However, in the caption on its appellate briefs, plaintiff ASI listed the
policyholder defendants as Jan Kisielewski,1 David Carrillo, Sylvia Vargas and
Stanislaw Brzeszcz.2 By contrast, in the caption to its appellate brief, defendant
1 ASI named Jan Kisielewski as a defendant in its original complaint and in its
first amended complaint, but not in its subsequent complaints. On August 15, 2007,
the circuit court issued a written order which stated that “Jan Kisielewski is
nonsuited as a party defendant by Plaintiff [ASI] without costs.” 2 ASI moved to amend its complaint on May 2, 2007, because it claimed that
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City listed the individual defendants as provided in plaintiff’s notice of appeal. In
this opinion, for the purpose of determining the appropriate policyholder defendants,
we have relied on the notice of appeal, as well as the dismissal order and plaintiffs’
own complaint.
As explained above, there are only three policyholder defendants: Carrillo
and Vargas, who owned vehicles insured by plaintiff ASI; and Lamontagne, who
owned a vehicle insured by plaintiff Medmarc. While operating their respective
vehicles, Carrillo, Vargas and Lamontagne were all involved in separate motor
vehicle collisions which resulted in damage to City property.
Defendant City filed administrative complaints in which it alleged that the
policyholder defendants violated several sections of the Chicago Municipal Code.
two new claims had come to its attention. Those claims involved Sylvia Vargas and
Stanislaw Brzeszcz, who were then added as defendants in ASI’s first amended
complaint. On April 9, 2007, defendant City nonsuited its administrative action
against Brzeszcz. On July 5, 2007, ASI moved to default Brzeszcz, and that motion
was granted by the circuit court in a written order dated July 19, 2007. ASI
subsequently dropped Brzeszcz as a defendant from its third amended complaint
filed on March 5, 2009.
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In these complaints, defendant City sought money for property damage repairs,
statutory penalties, attorney fees and administrative costs. The administrative
complaints were brought before administrative hearing officers, in the City’s
Department of Administrative Hearings.
For example, the administrative complaint against defendant Carrillo
contained three counts, and all three counts sought money pursuant to specific
provisions of the Chicago M unicipal Code. The first count was brought pursuant to
section 8-4-120 of the Chicago Municipal Code, (Chicago Municipal Code, §8-4-
120 amended July 29, 1998)), which provides that any person injuring city property
shall be fined between $200 and $500. The second count was brought pursuant to
section 1-20-020 (Chicago Municipal Code, §1-20-020 (amended July 21, 2004)),
which permitted the City to recover costs; and the third count was brought pursuant
to section 1-20-060 (Chicago Municipal Code, §1-20-060 (amended July 21,
2004)), which authorized the City to recover attorney fees and collection costs.
Although the complaint’s prefatory paragraphs alleged that defendant’s actions had
violated provisions of the Illinois Vehicle Code, the three counts sought monies only
pursuant to specific Municipal Code sections.
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4. The Circuit Court Complaint
The third amended complaint, filed March 5, 2009, is the subject of the trial
court’s dismissal order. In counts I and II, plaintiffs sought relief against defendant
City. Plaintiffs sought injunctive relief in count I and declaratory relief in count II.
In these counts, plaintiffs allege that the City’s administrative tribunals lacked
subject matter jurisdiction over motor vehicle collisions; that the City’s
administrative complaints violated the Illinois Constitution’s guarantee of a jury trial
for tort claims; and that statutory law also did not permit recovery for automobile
collisions in administrative tribunals.
In counts III, IV and V, plaintiffs sought relief against the policyholder
defendants. In count III, plaintiffs sought a declaration that the damages alleged by
defendant City were not covered under the policies issued by plaintiffs. In count IV,
plaintiff ASI claimed a policy defense of late notice against policyholder defendant
Carrillo; and in count V, plaintiff Medmarc also claimed late notice against
defendant Lamontagne..
5. Nonsuits and Default Judgements
As noted above, there are two different types of actions involved on this
appeal, and default orders occurred in both types. First, there are the underlying
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administrative actions by the City against the policyholders, in which the City is the
plaintiff and the policyholders are the defendants. Second, there is this suit, filed by
the plaintiff insurance companies in the circuit court of Cook County, in which the
City is now a defendant, as are the policyholders.
In one of the underlying administrative actions, the City nonsuited the action.
On December 17, 2007, the City nonsuited its administrative complaint against
policyholder David Carrillo. On April 5, 2007, the City had previously obtained a
default judgment against Carrillo in the amount of $12,518.08. The notice of the
default judgement informed Carrillo that he had 21 days to file a petition to vacate
with the Department of Administrative Hearings (DOAH). In its complaint, ASI
admits that it received notice of the claim from Carrillo on February 15, 2007, long
before the entry of the default judgment. The City states in its appellate brief that
Carrillo subsequently filed a motion before DOAH to set aside the judgment, and
that the City then nonsuited its adminstrative suit on December 17, 2007.3
3 In support of this statement in its appellate brief, the City cites its own
summary judgment motion, dated March 17, 2008. The City does not state in either
its summary judgement motion or in its appellate brief whether Carrillo’s motion to
vacate, filed with DOAH, was granted or denied.
8 No. 1-09-1693
In the other underlying administrative action against an ASI policy holder, the
City obtained a default judgment against policyholder Sylvia Vargas on April 23,
2007, in the amount of $9,979.18.
In the circuit court action, plaintiff ASI moved for and obtained default orders
against both ASI policyholder defendants, Carrillo and Vargas. The trial court
granted plaintiff ASI a default order against Carrillo on January 7, 2008, and against
Vargas on January 7, 2008.4
4 In its appellate brief, defendant City claims that plaintiff ASI “sought and
obtained default judgments” against the ASI policyholders. However, the orders
that ASI sought and obtained were merely default orders, not final judgments.
ASI’s motion with respect to Carrillo stated that it “moved this Honorable Court to
Enter an Order of Default against” Carrillo. ASI’s motion with respect to Vargas
said the same thing. Nowhere in its motions did ASI use the word “judgment.”
Similarly, the trial court’s orders also never used the word “judgment.” The trial
court’s order with respect to Carrillo stated simply that “Defendant David Carrillo is
hereby defaulted”; and its order with respect to Vargas stated that “Defendant
Sylvia Vargas is hereby found to be in default.” Thus, they were default orders, not
entries of a final judgment. That these were not final judgments becomes more
9 No. 1-09-1693
The appellate record does not indicate that plaintiff Medmarc moved for a
default order against Lamontagne, the sole M edmarc policyholder named in the
complaint; and the City did not move to dismiss plaintiff Medmarc on that ground.
6. Revised Administrative Complaint
Defendant City claimed that, in December 2007, it stopped using the
administrative complaint at issue in this suit and replaced it with a new complaint.
In its appellate brief, defendant City stated: “Although the City pursues
administrative hearings in these types of cases based on damage to City property in
violation of Municipal Code of Chicago, III. §§ 8-4-120, 1-20-020, 1-20-060
(2009), the old complaint also made reference to violations of the Illinois Vehicle
Code when such violations were part of the factual background leading to the
property damage. [Citation.] The new complaint has removed any reference to
violations of the Vehicle Code and clarifies that the sole basis for the hearing is the
Municipal Code violation.”
clear, when one considers that the trial court subsequently stayed ASI’s count
against policyholder Carrillo for late notice. If the trial court had previously entered
a final judgment against Carrillo, there would have been no need to stay this count
pending the outcome of this appeal.
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7. Motion to Dismiss
In the circuit court action, defendant City moved to dismiss counts I and II,
with respect to plaintiff ASI only. Specifically, on April 9, 2009, defendant City
moved to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (735
ILCS 5/2-619 (W est 2008)), on several grounds. Defendant City claimed: (1) that,
since plaintiff ASI had already obtained default orders against the policyholder
defendants, it lacked standing to pursue the policyholders’ claims; (2) that the
default orders rendered ASI’s claims moot; (3) that plaintiff ASI’s claims were also
rendered moot because defendant City was no longer using the same administrative
complaint that it used in connection with the policyholders at issue; and (4) that
plaintiff may not pursue injunctive and declaratory relief to prevent defendant City
from seeking administrative judgments against unidentified ASI policyholders in the
future.
8. Orders Appealed From
On May 20, 2009, the trial court issued a written order stating: “City’s
motion to dismiss counts I & II against Plaintiff ASI only of Plaintiff’s Third
Amended Complaint is granted for the reasons indicated in the City’s motion.” No
record of proceedings or bystander’s report was provided in the appellate record.
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On June 2, 2009, the trial court issued a written order in which it found no
reason to delay enforcement and appeal, pursuant to Supreme Court Rule 304(a).
210 Ill. 2d R. 304(a) (“If multiple parties or multiple claims for relief are involved in
an action, an appeal may be taken from a final judgment as to one or more but fewer
than all of the parties or claims only if the trial court has made an express written
finding that there is no just reason for delaying either enforcement or appeal or
both.”)
In the order dated June 2, 2009, the trial court also ruled that: “Counts I and
II of [plaintiff] MEDM ARC’s complaint, and Counts III, IV and V of Plaintiff ASI
and MEDMARC’s complaint are hereby stayed until further order of this Court
pending appeal by [plaintiff] ASI of the Dismissal of Counts I and II of [plaintiff]
ASI’s complaint.”
ANALYSIS
1. Standard of Review
On appeal, plaintiff asks us to reverse the trial court’s partial dismissal order,
issued pursuant to section 2-619 of the Code of Civil Procedure. (Code). 735 ILCS
5/2-619 (West 2008). “A motion to dismiss, pursuant to section 2-619 of the Code,
admits the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative
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defense or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v.
Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia Technology, LLC v. Specialty Publishing
Co., 221 Ill. 2d 558, 579 (2006). For a section 2-619 dismissal, our standard of
review is de novo. Solaia Technology, 221 Ill. 2d at 579; Morr-Fitz, Inc. v.
Blagojevich, 231 Ill. 2d 474, 488 (2008).
When reviewing “a motion to dismiss under section 2-619, a court must
accept as true all well-pleaded facts in plaintiffs’ complaint and all inferences that
can reasonably be drawn in plaintiffs’ favor.” Morr-Fitz, 231 Ill. 2d at 488. “In
ruling on a motion to dismiss under section 2-619, the trial court may consider
pleadings, depositions, and affidavits.” Raintree Homes, Inc. v. Village of Long
Grove, 209 Ill. 2d 248, 262 (2004). Even if the trial court dismissed on an improper
ground, a reviewing court may affirm the dismissal, if the record supports a proper
ground for dismissal. Raintree, 209 Ill. 2d at 261 (when reviewing a section 2-619
dismissal, we can affirm “on any basis present in the record”); In re Marriage of
Gary, 384 Ill. App. 3d 979, 987 (2008) (“we may affirm on any basis supported by
the record, regardless of whether the trial court based its decision on the proper
ground”).
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2. Timeliness of Section 2-619 Motion
“For a motion to be properly brought under section 2-619, the motion (1)
must be filed ‘within the time for pleading,’ and (2) must concern one of nine listed
grounds.” River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268, 275
(2009), quoting 735 ILCS 5/2-619(a) (W est 2006). In the case at bar, the third
amended complaint was filed on March 5, 2009. On March 12, 2009, the circuit
court issued a written order directing defendant City to “answer or otherwise plead
to Plaintiffs’ Third Amended Complaint on or before April 9, 2009.” Following
this order, defendant City moved to dismiss on April 9, 2009. Thus defendant
City’s section 2-619 motion was timely.
3. Subject Matter of Section 2-619 Motion
The second requirement for a section 2-619 motion is that it must concern one
of the nine grounds listed in section 2-619. River Plaza, 389 Ill. App. 3d at 275. A
section 2-619 motion is permitted only on the following grounds:
“(1) That the court does not have jurisdiction of the
subject matter of the action, provided the defect cannot be
removed by a transfer of the case to a court having
jurisdiction.
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(2) That the plaintiff does not have legal capacity
to sue or that the defendant does not have legal capacity
to be sued.
(3) That there is another action pending between
the same parties for the same cause.
(4) That the cause of action is barred by a prior
judgment.
(5) That the action was not commenced within the
time limited by law.
(6) That the claim set forth in the plaintiff’s
pleading has been released, satisfied of record, or
discharged in bankruptcy.
(7) That the claim asserted is unenforceable under
the provisions of the Statute of Frauds.
(8) That the claim asserted against defendant is
unenforceable because of his or her minority or other
disability.
(9) That the claim asserted against defendant is
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barred by other affirmative matter avoiding the legal effect
of or defeating the claim.” 735 ILCS 5/2-619(a) (West
2008).
We have previously held that a claim of mootness is properly considered under the
last ground of section 2-619, as an affirmative matter avoiding the legal effect of or
defeating the claim. Barber v. American Airlines, Inc., 398 Ill. App. 3d 868, 879
(2010); Chicorp, Inc. v. Bower, 336 Ill. App. 3d 132, 136-37 (2002) . See also
Akinyemi v. JP Morgan Chase Bank, N.A., 391 Ill. App. 3d 334, 339 (2009)
(“regarding section 2-619 of the Code, we hold that dismissal under this section was
proper as well, since plaintiff’s claim is moot”); Sadler v. Creekmur, 354 Ill. App.
3d 1029, 1039-40 (2004). Thus, defendant City’s motion satisfied the second
requirement of a section 2-619 motion, that the motion concern one or more of the
listed grounds. Having determined that, procedurally, this motion was properly
brought under section 2-619, we must next determine whether, substantively, it was
properly granted.
4. Substance of Section 2-619 Dismissal
As noted in the Background section above, defendant City moved to dismiss
on several grounds. It claimed: (1) that, since plaintiff ASI had already obtained
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default orders against the policyholder defendants, it lacked standing to pursue the
policyholders’ claims; (2) that the default orders rendered ASI’s claims moot; (3)
that plaintiff ASI’s claims were also rendered moot because defendant City was no
longer using the same administrative complaint that it used in connection with the
policyholders at issue; and (4) that plaintiff may not pursue injunctive and
declaratory relief to prevent defendant City from seeking administrative judgments
against unidentified ASI policyholders in the future. The trial court stated only that
the City’s motion was “granted for the reasons indicated in the City’s motion.”
Since we may affirm on any ground present in the record, we may reverse only if
none of these grounds are supported by the record. Raintree, 209 Ill. 2d at 261
(when reviewing a section 2-619 dismissal, we can affirm “on any basis present in
the record”); In re Marriage of Gary, 384 Ill. App. 3d at 987 (“we may affirm on
any basis supported by the record, regardless of whether the trial court based its
decision on the proper ground”).
a. Standing
First, defendant City claimed in its motion to dismiss that “ASI does not have
standing to pursue its Insureds’ claims because ASI’s Insureds have been defaulted
by” the trial court. As previously discussed in footnote 4 above, although plaintiff
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ASI obtained default orders against its policyholders, no final declaratory judgment
has been entered by the trial court in this case. Thus, plaintiff still has standing to
pursue its policyholder’s claims.
A default order and a default judgment are two different things. If a
defendant is served with process and fails to enter an appearance, file pleadings or
make any other response to plaintiff’s complaint, the plaintiff may move for entry of
a default judgment pursuant to section 2-1301 of the Code (735 ILCS 5/2-1301
(West 2008)). Saichek v. Lupa, 204 Ill. 2d 127, 129 (2003). If the trial court grants
the motion, then it will first enter an order of default in favor of plaintiff and against
defendant. Saichek, 204 Ill. 2d at 129. The Code then requires that the defendant
be notified of the default order. 735 ILCS 5/2-1302(a) (West 2008) (“Upon the
entry of an order of default, the attorney for the moving party shall immediately give
notice thereof *** against whom the order was entered”); Saichek, 204 Ill. 2d at
129. The trial court may set aside any default order, in its discretion, before entry of
the final judgment. 735 ILCS 5/2-1301(e) (West 2008).
After a default order is entered, the trial court may hold a “ ‘prove-up’
hearing.” Saichek, 204 Ill. 2d at 129-30. Although a default may be deemed an
admission of the material facts stated in the complaint, a trial court also has the
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discretion to require a plaintiff to present proof of the factual allegations in its
complaint. Universal Casualty Co. v. Lopez, 376 Ill. App. 3d 459, 465,464 (2007)
(although “a default is regarded as an admission of the material facts stated in the
complaint,” a trial court also has “discretion to require proof of the allegations in the
complaint”); 735 ILCS 5/2-1301(d) (West 2008) (“Judgment by default may be
entered for want of an appearance or for failure to plead, but the court may in either
case, require proof of the allegations of the pleadings upon which relief is sought”).
If the plaintiff fails to meet its burden of proof at a prove-up, the trial court may
refuse to enter a default judgement. Universal Casualty, 376 Ill. App. 3d at 464
(“Where an insurer is not prepared to meet its burden of proof ***, a court may
properly refuse to enter a default judgment in the insurer’s favor”). In addition, a
default is not deemed an admission of the legal “conclusions in the complaint.”
Universal Casualty, 376 Ill. App. 3d at 466 (“A default does not admit the
conclusions in the complaint” (emphasis in original)). Thus, even after the entry of
a default order, a plaintiff might not be able to secure a favorable final judgment, if
(1) the trial court requires proof of the factual allegations and the plaintiff fails to
satisfy its burden, or (2) the trial court finds that the legal conclusions in the
complaint are not valid, or (3) the trial court exercises its discretion to set aside a
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default order, as it may do anytime before entry of the final judgment. 735 ILCS
5/2-1301(e) (West 2008).
Since a default order is no guarantee of ultimate success, a plaintiff must be
permitted to pursue alternate theories of recovery, until a final judgment is secured.
Cf. Saichek, 204 Ill. 2d at 131-32 (after plaintiff received a final judgment, she
could not pursue an alternate theory of recovery for the same injury). Since the
issues between the insurance company and its policyholders are still unresolved, the
insurance company has no less standing after the default orders than it did before.
In addition, it is unpersuasive for the City to argue that the insurance carrier
lacks standing, when a default judgment would not necessarily terminate the City’s
rights against the insurance company. Insurance Co. of North America (ICNA) v.
Cape Industries, Ltd., 138 Ill. App. 3d 720, 725 (1985) (“the default against the
insured and the termination of his rights did not terminate the rights of the injured
party” against the insurance company). Under Illinois public policy, an insurance
policy is not necessarily a private matter between an insurer and its insured: the
rights of an injured party, such as the City, against a liability insurer, such as ASI,
vest at the moment of the accident giving rise to the underlying claim against the
insured, such as Carrillo and Vargas. State Farm Fire & Casualty Co. v. Perez, 387
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Ill. App. 3d 549, 552 (2008); Record-A-Hit, Inc. v. National Fire Insurance Co. of
Hartford, 377 Ill. App. 3d 642, 645 (2007); Reagor v. Travelers Insurance Co., 92
Ill. App. 3d 99, 102-03 (1980). Illinois courts have held that a liability insurance
carrier, such as ASI, cannot cut off the rights of an injured third party, such as the
City, merely by obtaining a default judgment against the insured. ICNA, 138 Ill.
App. 3d at 725 (“a liability insurance carrier cannot cut off the rights of a third
[party] who has filed suit against the insured merely by obtaining a judgment against
the insured declaring that a policy defense is operative”). Conversely, it must then
be the case that the insurance company also has standing to litigate issues with an
injured third party who has sued its insured. Cf. ICNA, 138 Ill. App. 3d at 725 (an
injured “party having brought suit against an alleged tortfeasor had standing to seek
a declaration as to the validity of the alleged tortfeasor’s liability insurance policy”).
The City is well aware of its ability to pursue an insurance company, since on
July 29, 2008, the City filed a citation to discover assets against plaintiff Medmarc
as a result of a judgment that the City obtained against Lamontagne in its
administrative tribunal. Although the City nonsuited its administrative complaint
against one of the ASI policyholders (Carrillo), it still has an outstanding default
judgement against the other ASI policyholder (Vargas), which it may similarly try to
21 No. 1-09-1693
pursue against ASI.
For the foregoing reasons, we find the that the default orders did not strip the
insurance company of its standing to pursue its claims against defendant City.
b. Mootness Due to Default Orders
Second, defendant City claimed in its motion to dismiss that the default
orders rendered ASI’s claims moot.
As a general rule, Illinois appellate courts will not review moot cases. In re
Barbara H., 183 Ill. 2d 482, 491 (1998). A case on appeal becomes moot, when
“ ‘the issues involved in the trial court no longer exist,’ ” and it is “impossible for
the appellate court to grant the complaining party effectual relief.” In re A Minor,
127 Ill. 2d 247, 255 (1989), quoting and citing LaSalle National Bank v. City of
Chicago, 3 Ill. 2d 375, 378-79, 380 (1954); In re Barbara H., 183 Ill. 2d 482, 490-
91 (1998) (consideration of the issues will not affect the result and “a decision on
the merits cannot result in appropriate relief to the prevailing party”). The goal of
the rule is for courts to avoid hearing cases where the parties no longer have “ ‘ “a
personal stake in the outcome.” ’ ” In re A Minor, 127 Ill. 2d at 255, quoting People
ex rel. Black v. Dukes, 96 Ill. 2d 273, 276-77 (1983), quoting Baker v. Carr, 369
U.S. 186, 204, 7 L. Ed. 2d 663, 678, 82 S. Ct. 691, 703 (1962). Without a personal
22 No. 1-09-1693
stake, parties lack the incentive to “ ‘ “sharpen[]” ’ ” their arguments or to illustrate
the issues with the “ ‘ “concrete” ’ ” facts of their problems; and reviewing courts
depend on the parties’ sharp and concrete presentation for the fullest
“ ‘ “illumination” ’ ” of the issues. In re A Minor, 127 Ill. 2d at 255, quoting Black,
96 Ill. 2d at 276-77, quoting Baker, 369 U.S. at 204, 7 L. Ed. 2d at 678, 82 S. Ct. at
703. In short, “[m]ootness occurs once the plaintiff has secured what he basically
sought.” Hanna v. City of Chicago, 382 Ill. App. 3d 672, 677 (2008).
For the reasons discussed above in the section on standing, we find that the
issues between ASI and the City of Chicago are not moot.
In addition, plaintiff ASI has claimed that the following two exceptions to the
mootness doctrine apply: (1) the “ ‘ “capable of repetition yet evading review” ’ ”
exception; and (2) the public interest exception. In re A Minor, 127 Ill. 2d at 257-
58, quoting Madison Park Bank v. Zagel, 91 Ill. 2d 231, 236 (1982), quoting Sansa
v. Iowa, 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540, 95 S.Ct. 553, 557 (1975).
To receive the benefit of the “ ‘capable of repetition yet evading review’ ”
exception, the complainant must “demonstrate that: (1) the challenged action is in its
duration too short to be fully litigated prior to its cessation and (2) there is a
reasonable expectation that the same complaining party would be subjected to the
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same action again.” In re Barbara H., 183 Ill. 2d at 491, quoting and citing In re A
Minor, 127 Ill. 2d at 258. Since we find below that the public interest exception
applies, we need not consider the “capable of repetition yet evading review”
exception.
“ ‘In order to fall into the public interest exception (1) the question must be of
a public nature; (2) an authoritative determination of the question must be desirable
for the purpose of guiding public officers; and (3) the question must be likely to
recur.’ ” Filliung v. Adams, 387 Ill. App. 3d 40, 56 (2008), quoting Brown v.
Duncan, 361 Ill. App. 3d 125, 134 (2005). “A clear showing of each factor is
necessary to bring a case within this exception, and the exception is invoked only on
rare occasions.” Hanna, 382 Ill. App. 3d at 683.
This is one of the rare occasions. First, the question in this case is whether a
municipal corporation as the City can pursue damages for motor vehicle accidents in
an administrative proceeding, and that is a public question. Second, a decision by
the court will guide public officers, namely the administrative judges and other city
employees who are processing these complaints. Third, the question is likely to
recur. The question is likely to recur, despite the fact that the City has revised its
administrative complaint, as we discuss in the next section. Thus, we find both that
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the default orders did not render the claims between ASI and the City moot, and that
even if were to find the issues moot, we would then find that the public interest
exception applies.
c. M ootness Due to New Adminsitrative Complaint
Third, defendant City claimed in its motion to dismiss that plaintiff ASI’s
claims were also rendered moot by the fact that defendant City was no longer using
the same administrative complaint that it had filed against the policyholders at issue
here.
The change was merely cosmetic. Both the old and new complaints state that
the City seeks judgments “for costs incurred by Petitioner reasonably related to
Respondent’s violation of State law and the Municipal Code of Chicago.”
(Emphasis added.) The old complaint in prefatory paragraphs also noted that the
respondent had violated specific sections of the state’s motor vehicle code. The
new complaint eliminated the prefatory paragraphs. However, both complaints seek
administrative resolutions for fees, costs and damages caused by motor vehicles to
City property. Thus, they are essentially the same.
Thus, we find that ASI’s claims against the City were not rendered moot by
either the default orders or by the City’s changes to the administrative complaint.
25 No. 1-09-1693
d. Injunctive Relief
Fourth, the City claimed in its motion to dismiss that, without the existence
of a live case or controversy, plaintiff ASI could not pursue injunctive and
declaratory relief simply “to prevent defendant City from seeking administrative
judgments against unidentified ASI insureds in the future.” Since we have already
held in the sections above that there is a live case and controversy, this claim must
also fall.
Thus, we find that none of the grounds listed in defendant’s motion to dismiss
had merit; and the trial court’s order, which simply adopted these grounds, must be
reversed.
The underlying statutory and constitutional issues are not before us on this
interlocutory appeal. Obviously, the City did not challenge its own statutory or
constitutional authority in its own motion to dismiss. Since the trial court simply
adopted the grounds stated in the City’s motion, the statutory and constitutional
issues were not part of the dismissal order, which is the subject of this interlocutory
appeal. The only issues in the dismissal order were mootness and standing, which
we have already decided.
The Illinois Municipal Code states that: “Any municipality may provide by
26 No. 1-09-1693
ordinance for a system of administrative adjudication of municipal code violations to
the extent permitted by the Illinois Constitution.” 65 ILCS 5/1-2.1-2 (West 2008).
This same section specifically excludes motor vehicle offenses. The very next
sentence states: “A ‘system of administrative adjudication’ means the adjudication
of any violation of a municipal ordinance, except for *** any offense under the
Illinois Vehicle Code or a similar offense that is a traffic regulation governing the
movement of vehicles.” 65 ILCS 5/1-2.1-2 (West 2008). However, this issue was
not the basis of the City’s dismissal motion or the resulting dismissal order, and thus
is not an issue on this interlocutory appeal. In remanding for further proceedings,
we follow the precedent set by this division in State Farm Mutual Automobile
Insurance Co. v. City of Chicago, 398 Ill. App. 3d 832, 836 (2010). In State Farm,
after finding that the insurance company’s action against the City of Chicago did
allege an actual controversy, this division reversed the trial court’s dismissal order
and remanded to the trial court for further proceedings consistent with its opinion.
State Farm, 398 Ill. App. 3d at 836.
CONCLUSION
For the foregoing reasons, we reverse the trial court’s partial dismissal order
which dismissed plaintiff ASI’s two counts against defendant City, and we remand
27 No. 1-09-1693
for further proceedings consistent with this opinion.
Reversed and remanded.
CAHILL and McBRIDE, JJ., concur.