Filed 8/13/08 NO. 4-07-0658
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ECONOMY FIRE & CASUALTY COMPANY; ) Appeal from ST. PAUL FIRE & MARINE INSURANCE ) Circuit Court of COMPANY; METLIFE AUTO & HOME; and ) Champaign County METROPOLITAN PROPERTY & CASUALTY ) No. 00CH118 INSURANCE COMPANY and Its Affiliates, ) Warwrick, Rhode Island, ) Plaintiffs and ) Counterdefendants- ) Appellees and Cross- ) Appellants, ) v. ) HOLLIS L. BRUMFIELD, ) Defendant and ) Counterplaintiff- ) Appellant and Cross- ) Appellee, ) and ) MICHAEL J. DREWES; CONSTANCE DREWES; ) BEAU DREWES; ZACHARY FITZPATRICK; DAN ) FITZPATRICK; CINDY FITZPATRICK; ) STEVE MILLER, Trustee in Bankruptcy ) for the Estate of BEAU DREWES and ) MICHAEL J. DREWES; AMERICAN FAMILY ) INSURANCE COMPANY; and PERSONALCARE ) Honorable HEALTH MANAGEMENT, INC., ) Harry E. Clem, Defendants. ) Judge Presiding. _________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
This litigation arises from an October 1999 car acci-
dent, in which defendant Beau Drewes, who was driving a vehicle
owned by his father and defendant Michael Drewes, struck a
vehicle driven by defendant and counterplaintiff-appellant and
cross-appellee Hollis L. Brumfield. Michael's car was insured by
plaintiff and counterdefendant-appellee and cross-appellant Economy Fire and Casualty Company (Economy Fire), a subsidiary of
St. Paul Fire and Marine Insurance Company (St. Paul). St. Paul
was sold to Metlife Auto and Home (Metlife), a branch of Metro-
politan Property and Casualty Insurance Company and its affili-
ates (Metropolitan) (St. Paul, Metlife, and Metropolitan are
collectively referred to as counterdefendants). Brumfield
brought suit and obtained a judgment against Beau. Economy Fire
had declined to defend Beau and had filed this declaratory-
judgment action. Beau assigned any cause of action he had
against Economy Fire to Brumfield, who filed a counterclaim in
this case, asserting Economy Fire breached its duty to defend
Beau.
Brumfield appeals several orders of the Champaign
County circuit court that resulted in him being denied damages
after the court had found Economy Fire breached its duty to
defend Beau. On appeal, he contends Economy Fire's breach of the
duty to defend Beau caused Beau damages because (1) Beau lost the
opportunity to settle Brumfield's claim against him and (2) the
judgment against Beau would have been less if he had been repre-
sented by counsel. We affirm.
I. BACKGROUND
At the time of the October 1999 accident, one of Beau's
passengers was defendant Zachary Fitzpatrick, whose parents are
defendants Dan and Cindy Fitzpatrick. The Fiztpatricks' suit
- 2 - against Beau and Michael is not raised by the parties in this
appeal. Additionally, we note defendant Constance Drewes is
Beau's mother and Michael's wife and was a named insured on the
insurance policy with Economy Fire.
On January 18, 2000, Brumfield filed a negligence
complaint against Beau based on the October 1999 accident. The
complaint did list Michael as a respondent in discovery but did
not raise any allegations against him. Beau's permission to use
Michael's vehicle was not raised by the complaint. In a January
27, 2000, letter, an insurance agent of St. Paul informed Beau
that, based on his and Michael's statements, it was clear Beau
was not a permissive driver at the time of the October 1999
accident. Thus, the insurer denied coverage to Beau under his
parents' policy, and the agent informed Beau that "any claims
which may be made against you will be your personal responsibil-
ity."
In July 2000, Economy Fire filed a declaratory-judgment
action, seeking a judgment that Beau was entitled to neither a
defense nor indemnity in Brumfield's suit because Beau did not
have Michael's permission to drive the vehicle involved in the
accident. In August 2000, Brumfield filed an amended complaint,
raising negligent-entrustment and spoliation-of-evidence claims
against Michael. The negligent-entrustment count alleged that
Michael entrusted his vehicle to Beau, "who was, therefore,
- 3 - operating said vehicle with the permission of [Michael] at the
time of the collision." Brumfield attached his amended complaint
to his answer in the declaratory-judgment case.
In September 2000, Economy Fire and the other
counterdefendants filed a motion for a default judgment against
Michael, Constance, and Beau in the declaratory-judgment action.
Brumfield filed an objection to the default-judgment motion. In
November 2000, a default judgment was entered against Beau in the
Brumfield suit. In December 2000, the trial court held a hearing
on Economy Fire's default-judgment motion. Beau did not appear
at the hearing, but Brumfield did. The court granted Economy
Fire's motion.
In January 2002, a jury found in favor of Brumfield on
the negligent-entrustment count and awarded him a $468,958.24
judgment. Economy Fire paid Brumfield the $100,000 bodily-injury
limit.
In April 2002, Michael and Beau individually filed for
bankruptcy under chapter 7 of the United States Bankruptcy Code
(11 U.S.C. §§701 through 784 (2000)). In July 2002, defendant
Steve Miller, the trustee in bankruptcy for Michael's and Beau's
estates, filed a motion for substitution of parties, seeking to
be substituted as a defendant in place of Michael and Beau. The
parties did not object to the motion, and the trial court allowed
it. Miller also filed a motion to set aside the default judgment
- 4 - against Michael and Beau, which the court granted after a Septem-
ber 2002 hearing.
In October 2002, Miller filed, inter alia, a counter-
claim against Economy Fire and the other counterdefendants. The
counterclaim alleged Economy Fire had a duty to provide a defense
for Beau in the Brumfield suit. That same month, Miller entered
into an agreement with Brumfield, under which Miller assigned any
cause of action the bankruptcy estates may have against Economy
Fire and the other counterdefendants. In January 2003, the trial
court granted Miller's motion to substitute Brumfield in his
place as counterplaintiff.
In September 2003, Brumfield filed a first-amended
counterclaim, asserting breach of contract. Brumfield contended,
inter alia, (1) Economy Fire had a duty to defend Beau, (2)
Economy Fire had a conflict in representing and defending both
Beau and Michael in Brumfield's suit, (3) Economy Fire had a duty
to notify Beau of the conflict and his right to independent
counsel, (4) Economy Fire negligently or in bad faith informed
Beau any claims against him were his personal responsibility, and
(5) Economy Fire had the opportunity to settle the claim against
Beau for $100,000, and thus Beau suffered damages in the amount
of the judgment over $100,000. That same month, Economy Fire and
the other counterdefendants filed a motion to dismiss the first-
amended counterclaim.
- 5 - In January 2004, the trial court granted the motion to
dismiss with prejudice, finding Brumfield needed to prove Economy
Fire acted in bad faith with Beau in this matter and under no set
of circumstances could Brumfield plead facts constituting bad
faith. Brumfield appealed, and this court concluded Brumfield
did not need to plead facts alleging Economy Fire acted in bad
faith to recover damages in excess of the policy limits. Thus,
we reversed the trial court's order on the motion to dismiss and
remanded the cause for further proceedings. Economy Fire &
Casualty Co. v. Brumfield, No. 4-04-0142 (December 13, 2004)
(unpublished order under Supreme Court Rule 23).
In January 2006, Economy Fire and the other
counterdefendants filed a motion for summary judgment on
Brumfield's first-amended counterclaim. That same month,
Brumfield also filed a motion for summary judgment on his coun-
terclaim, asserting Economy Fire breached its duty to defend Beau
because it did not defend Beau or offer to pay for an independent
defense. In August 2006, the trial court entered a written
judgment on the cross-motions for summary judgment, finding a
conflict of interest existed between Beau and Michael and thus
Economy Fire was obligated to notify Beau and offer to pay for
independent counsel to represent his interests. The court found
Economy Fire had breached its duty to defend Beau and granted
Brumfield's motion for summary judgment as to that liability
- 6 - issue. It denied (1) the remainder of Brumfield's motion for
summary judgment and (2) Economy Fire and the other
counterdefendants' motion for summary judgment.
In September 2006, Brumfield filed a motion for summary
determination of major issues, seeking to have the trial court
determine whether he would be permitted to meet his burden of
proving proximate causation of damages by showing Economy Fire's
breach of the duty to defend caused Beau to lose a settlement
opportunity prior to trial. That same month, counterdefendants
filed a motion for reconsideration of summary judgment. On
February 27, 2007, the court denied both motions. Brumfield
filed a motion to reconsider the denial of his motion for summary
determination of major issues, which the court also denied. In
June 2007, the court held a hearing on the issue of damages. At
the close of Brumfield's case, Economy Fire and the other
counterdefendants made a motion for a directed verdict, which the
court granted. On July 6, 2007, the court entered a written
order memorializing the directed-verdict finding.
On August 2, 2007, Brumfield filed a timely notice of
appeal from the trial court's July 6, 2007, and February 27,
2007, orders.
II. ANALYSIS
A. Breach of the Duty To Defend
We first address Economy Fire and the other
- 7 - counterdefendants' argument the trial court erred by granting
Brumfield a partial summary judgment on the issue of breach of
the duty to defend Beau because (1) if the court's ruling was
erroneous, the damages issues would be moot and (2) we may affirm
the trial court's judgment on any basis the record supports
(Stoll v. United Way of Champaign County, Illinois, Inc., 378
Ill. App. 3d 1048, 1051, 883 N.E.2d 575, 578 (2008)). We review
de novo the trial court's ruling on a motion for summary judg-
ment. See Governmental Interinsurance Exchange v. Judge, 221
Ill. 2d 195, 215, 850 N.E.2d 183, 195 (2006).
When determining whether an insurer owes its insured a
duty to defend, courts compare the allegations contained in the
complaint against the insured to the relevant language of the
insurance policy. General Agents Insurance Co. of America, Inc.
v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 154-55, 828
N.E.2d 1092, 1098 (2005). In doing so, courts liberally construe
the complaint's allegations in favor of the insured. Midwest
Sporting Goods, 215 Ill. 2d at 155, 828 N.E.2d at 1098. If the
facts alleged in the complaint against the insured fall within or
potentially fall within the policy's coverage, the insurer has a
duty to defend the insured "even if the allegations are ground-
less, false[,] or fraudulent." Midwest Sporting Goods, 215 Ill.
2d at 155, 828 N.E.2d at 1098. Thus, "[a]n insurer may not
justifiably refuse to defend an action against its insured unless
- 8 - it is clear from the face of the underlying complaint that the
allegations set forth in that complaint fail to state facts that
bring the case within or potentially within the insured's policy
coverage." Midwest Sporting Goods, 215 Ill. 2d at 154, 828
N.E.2d at 1098.
When an insurer takes the position a complaint poten-
tially alleging coverage is not covered by a policy that provides
the insurer has the right and duty to defend any claims brought
against the insured, the insurer cannot simply refuse to defend
the insured but must either (1) defend the suit under a reserva-
tion of rights or (2) seek a declaratory judgment that no cover-
age exists. Murphy v. Urso, 88 Ill. 2d 444, 451, 430 N.E.2d
1079, 1082 (1981); see also State Farm Fire & Casualty Co. v.
Martin, 186 Ill. 2d 367, 371, 710 N.E.2d 1228, 1230-31 (1999);
Midwest Sporting Goods, 215 Ill. 2d at 155, 828 N.E.2d at 1098.
Our supreme court has emphasized those "are separate and distinct
options." Martin, 186 Ill. 2d at 373, 710 N.E.2d at 1231. If
the insurer does not take one of the aforementioned actions, "it
will be estopped from later raising policy defenses to coverage."
Martin, 186 Ill. 2d at 371, 710 N.E.2d at 1231; see also Employ-
ers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d
127, 150-51, 708 N.E.2d 1122, 1134-35 (1999).
The estoppel doctrine "arose out of the recognition
that an insurer's duty to defend under a liability[-]insurance
- 9 - policy is so fundamental an obligation that a breach of that duty
constitutes a repudiation of the contract." Ehlco Liquidating
Trust, 186 Ill. 2d at 151, 708 N.E.2d at 1135. "This estoppel
doctrine applies only where an insurer has breached its duty to
defend." Ehlco Liquidating Trust, 186 Ill. 2d at 151, 708 N.E.2d
at 1135.
Our supreme court has recognized a narrow exception to
the estoppel doctrine for "a serious conflict of interest that
precludes the insurer from assuming the insured's defense."
Ehlco Liquidating Trust, 186 Ill. 2d at 156, 708 N.E.2d at 1137,
citing Murphy, 88 Ill.2d at 451-58, 430 N.E.2d at 1082-86;
Thornton v. Paul, 74 Ill. 2d 132, 152, 159, 384 N.E.2d 335, 343,
346 (1978), overruled on other grounds by American Family Mutual
Insurance Co. v. Savickas, 193 Ill. 2d 378, 387, 739 N.E.2d 445,
450-51 (2000). The reason for this exception is that, in certain
circumstances, the insurer's defense of the insured or putative
insured raises serious ethical problems. Murphy, 88 Ill. 2d at
453-54, 430 N.E.2d at 1083-84. When a conflict exists, the
insurer's only option is to decline to defend the putative
insured. See Murphy, 88 Ill. 2d at 457-58, 430 N.E.2d at 1085.
The insurer remains liable for the costs of whatever defense the
putative insured chooses but is not estopped from denying cover-
age in a later suit on the policy. See Murphy, 88 Ill. 2d at
457-58, 430 N.E.2d at 1085.
- 10 - Here, Economy Fire argued no duty to defend based on
statements from the Drewes and not because the allegations in
Brumfield's complaint fell outside of Michael and Constance's
policy coverage. Thus, Economy Fire could not "justifiably
refuse" to defend Beau (Midwest Sporting Goods, 215 Ill. 2d at
154, 828 N.E.2d at 1098), unless the conflict-of-interest excep-
tion prevented it from defending him (see Ehlco Liquidating
Trust, 186 Ill. 2d at 156, 708 N.E.2d at 1137). In Brumfield's
January 2000 complaint, Beau was the only named defendant, and
the allegations were all against him. Michael was noted only as
a respondent in discovery. "[T]he duty to defend arises as soon
as damages are sought." Midwest Sporting Goods, 215 Ill. 2d at
165, 828 N.E.2d at 1103. Since Brumfield did not seek damages
against Michael, Economy Fire did not owe a duty to defend
Michael on Brumfield's original complaint. Thus, as to the
original complaint, Economy Fire did not have an actual conflict
of interest in defending Beau because it did not owe a duty to
defend Michael at that time. Accordingly, the conflict-of-
interest exception was not an issue with the original complaint
since the estoppel rule is only relaxed when "actual conflicts of
interest appear." Murphy, 88 Ill. 2d at 458, 430 N.E.2d at 1086.
Based on the aforementioned conclusions, if Economy
Fire wanted to question its duty to defend Beau without breaching
the contract, Economy Fire had to defend Beau under a reservation
- 11 - of rights or seek a declaratory judgment to avoid a breach of the
duty to defend and the application of the estoppel doctrine. See
Murphy, 88 Ill. 2d at 451, 430 N.E.2d at 1082. In July 2000,
Economy Fire did file a declaratory-judgment action, seeking a
declaration it did not have the duty to defend or indemnify Beau.
Therefore, Economy Fire did not breach its duty to defend Beau in
regard to Brumfield's original complaint.
However, our inquiry does not end there because, in
August 2000, Brumfield filed an amended complaint, asserting
causes of action against both Beau and Michael. Brumfield
asserts a conflict of interest existed based on the negligent-
entrustment claim against Michael, and thus (1) the declaratory
action was not an appropriate means to address the duty to defend
Beau and (2) Economy Fire was required to give Beau notice of the
conflict and his right to independent counsel. Economy Fire
contends a conflict of interest did not exist because it had
already declined to defend Beau and filed its declaratory judg-
ment suit. We agree with Economy Fire.
Here, Economy Fire had already properly declined to
provide Beau with a defense in the underlying action, and thus
Beau already needed to obtain independent counsel in the underly-
ing action. Brumfield notes "the duty to defend arises as soon
as damages are sought." Midwest Sporting Goods, 215 Ill. 2d at
165, 828 N.E.2d at 1103. That duty remains until the issue of
- 12 - coverage is determined. Midwest Sporting Goods, 215 Ill. 2d at
165-66, 828 N.E.2d at 1103-04. While Economy Fire still had a
duty to defend Beau, it was not involved in Beau's defense and
thus did not control Beau's interests. In other words, its duty
to defend was then purely a financial one. See Eclipse Manufac-
turing Co. v. United States Compliance Co., 381 Ill. App. 3d 127,
135-36, 886 N.E.2d 349, 357 (2007) (noting that, when an insurer
questions its duty to defend by filing a declaratory judgment,
the insurer does not have to act on its duty until the declara-
tory judgment is resolved, at which time it may be liable to
reimburse the insured for any costs of defense the insurer should
have paid).
We do recognize that, after the amended complaint was
filed, Beau's interests in the underlying suit were in conflict
with both Economy Fire's and Michael's interests. However, since
Economy Fire was not defending or controlling Beau's interests,
Economy Fire did not have any actual conflicts of interest. Cf.
Murphy, 88 Ill. 2d at 453, 430 N.E.2d at 1083 (finding conflicts
of interest where the insurer was responsible for the putative
insured's defense and the putative insured's interests were in
opposition to the insurer's as well the insured's, for whose
defense the insurer was also responsible).
However, Brumfield is correct a problem existed with
the declaratory-judgment action since whether Beau had permission
- 13 - to use his father's vehicle was now at issue in both the
declaratory-judgment action and the underlying suit. In Murphy,
88 Ill. 2d at 455, 430 N.E.2d at 1084-85, our supreme court noted
that, when the issues in the underlying suit and the declaratory-
judgment action are the same, the question of coverage cannot be
decided in a collateral proceeding because (1) the collateral-
estoppel doctrine would apply, which would result in the declara-
tory judgment controlling the underlying suit, and (2) such a
procedure would be prejudicial to the insurer by forcing upon it,
as plaintiff, the burden of proof. More recently, the supreme
court has reiterated the aforementioned rule, noting "it is
inappropriate to resolve a declaratory[-]judgment action in such
a manner as would bind the parties in the underlying litigation
on any issues therein." Savickas, 193 Ill. 2d at 387, 739 N.E.2d
at 451.
The aforementioned cases simply mean Economy Fire's
declaratory-judgment action should have been stayed until the
permissive-use issue was resolved in the Brumfield matter. Our
supreme court has recognized an insurer does not breach its duty
to defend because the underlying case proceeded to judgment
before the declaratory judgment action was resolved. Martin, 186
Ill. 2d at 374, 710 N.E.2d at 1232. Since a declaratory judgment
may be decided after the underlying suit is resolved without a
breach of the duty to defend, a stay of the declaratory-judgment
- 14 - proceedings until the resolution of Brumfield's case would not
have resulted in a breach of the duty to defend. Thus, we
decline to find Economy Fire had to do something extra to avoid a
breach of the duty to defend Beau because Brumfield's amended
complaint required a stay of the declaratory-judgment proceed-
ings.
Accordingly, we find Economy Fire properly declined to
defend Beau by a filing a declaratory-judgment action and
Brumfield's subsequent amended compliant did not create a con-
flict of interest because Economy Fire's duty to defend at that
time was only reimbursement of defense costs, not involvement in
the defense. Thus, the trial court erred by finding Economy Fire
breached its duty to defend Beau. However, since the court
entered judgment in counterdefendants' favor, we need not reverse
the cause and may affirm the court's judgment based on the lack
of breach of the duty to defend.
B. Damages
Since we have found Economy Fire did not breach its
duty to defend, Brumfield's damages issues are now moot, and we
decline to address them. See Condon v. American Telephone &
Telegraph Co., 136 Ill. 2d 95, 100, 554 N.E.2d 206, 208 (1990)
(noting any issue regarding damages was moot after the trial
court granted a directed verdict in the defendant's favor and
refusing to address any such issues).
- 15 - III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
COOK and STEIGMANN, JJ., concur.
- 16 -