First Chicago Insurance Company v. Molda

2015 IL App (1st) 140548, 36 N.E.3d 400

• Court: Appellate Court of Illinois
• Decided: June 26, 2015
• Docket: 1-14-0548
• Status: Unpublished

Opinion

2015 IL App (1st) 140548 No. 1-14-0548 Fifth Division June 26, 2015 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) FIRST CHICAGO INSURANCE COMPANY, ) f/k/a Chicago Mutual Insurance Company, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) No. 08 CH 15285 v. ) ) The Honorable MICHAEL MOLDA and NOLA WILSON, ) John Griffin, ) Judge Presiding. Defendants-Appellees. ) ) ______________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Reyes concurred in the judgment and opinion.

OPINION

¶1 The instant appeal arises from the trial court’s finding, after a bench trial, that plaintiff

First Chicago Insurance Company (First Chicago) owed a duty to defend defendant Michael

Molda in a personal injury lawsuit filed by Nola Wilson concerning an automobile collision

between Molda and Wilson. 1 First Chicago appeals, arguing that Molda was not covered by

the insurance policy at issue because he was not a covered party and that Molda failed to

provide timely notice of his accident. For the reasons that follow, we affirm.

1 Molda did not file a separate brief on appeal but adopted Wilson’s brief. No. 1-14-0548

¶2 BACKGROUND

¶3 On May 24, 2008, First Chicago filed a complaint for declaratory judgment against

Molda; Wilson; and Metrolift, Inc. (Metrolift), Molda’s employer. 2 The complaint alleged

that Molda was an employee of Metrolift and was involved in an automobile collision with

Wilson on August 17, 2005, at the intersection of Roosevelt Road and 11th Avenue in

Broadview. As a result of the collision, Wilson filed a lawsuit against Molda, later amending

her complaint to name Metrolift as an additional defendant. At the time of Molda’s accident,

Metrolift was insured under an automobile liability insurance policy issued by First Chicago.

¶4 Count I of the complaint was entitled “Late Notice of Lawsuit,” and alleged that, “[t]o the

extent it is determined that MOLDA is an insured” under the First Chicago insurance policy,

Molda was contractually obligated to forward any lawsuit papers to First Chicago

“ ‘immediately.’ ” Count I alleged that Molda was served with the Wilson lawsuit on October

11, 2007, but First Chicago did not receive notice of the lawsuit until March 26, 2008. Count

I further alleged that “[b]y failing to provide notice to [First Chicago] of the WILSON

lawsuit immediately, MOLDA breached and violated the terms and conditions precedent to

coverage under the [First Chicago] Policy.” Accordingly, count I alleged that First Chicago

owed no duty to defend or indemnify Molda in connection with the Wilson litigation and

owed Wilson no monetary compensation under the First Chicago policy.

¶5 Count II of the complaint was entitled “Late Notice of Loss” and alleged that First

Chicago’s first notice of the August 17, 2005, accident was on March 26, 2008, and that

“[b]y failing to provide notice to [First Chicago] of the August 17, 2005 accident promptly,

MTEROLIFT and MOLDA breached and violated the terms and conditions precedent to

2 Metrolift was voluntarily dismissed on September 30, 2009, after agreeing to be bound by any final judgment in the matter.

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coverage under the [First Chicago] Policy,” which required prompt notice of any accidents.

Accordingly, count II alleged that First Chicago owed no duty to defend or indemnify

Metrolift or Molda in connection with the Wilson lawsuit and owed Wilson no monetary

compensation under the First Chicago policy.

¶6 Attached to First Chicago’s complaint was a copy of the insurance policy at issue. The

policy contained a list of nine categories of “covered autos,” and the declarations page

indicated that Metrolift had purchased liability insurance coverage for categories 7, 8, and 9.

Category 7 was described as: “SPECIFICALLY DESCRIBED AUTOS. Only those autos

described in ITEM FOUR for which a premium charge is shown (and for liability coverage

for any trailers you don’t own while attached to any power unit described in ITEM FOUR).”

Category 8 was described as: “HIRED AUTOS ONLY. Only those autos you lease, hire, rent

or borrow. This does not include any auto you lease, hire, rent, or borrow from any of your

employees or members of their households.” Category 9 was described as: “NONOWNED

AUTOS ONLY. Only those autos you do not own, lease, hire or borrow which are used in

connection with your business. This includes autos owned by your employees or members of

their house-holds but only while used in your business or your personal affairs.” The policy

stated that the terms “ ‘you’ and ‘your’ ” referred to the named insured, in this case,

Metrolift.

¶7 The policy stated that “[t]he following are ‘insureds’ ” under the policy:

“a. You for any covered ‘auto’.

b. Anyone else while using with your permission a covered ‘auto’ you own, hire

or borrow except:

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(1) The owner or anyone else from whom you borrow a covered ‘auto’. This

exception does not apply if the covered ‘auto’ is a ‘trailer’ connected to a covered

‘auto’ you own.

(2) Your employee if the covered ‘auto’ is owned by that employee or a

member of his or her household.

(3) Someone using a covered ‘auto’ while he or she is working in a business

of selling, servicing, repairing, parking or storing ‘autos’ unless that business is

yours.

(4) Anyone other than your employees, partners, a lessee or borrower or any

of their employees, while moving property to or from a covered ‘auto’.

(5) A partner of yours for a covered ‘auto’ owned by him or her or a member

of his or her household.

c. Anyone liable for the conduct of an ‘insured’ described above but only to the

extent of that liability.”

¶8 The policy also provided for “Duties in the Event of Accident, Claim, Suit or Loss”:

“a. In the event of ‘accident’, claim, ‘suit’ or ‘loss’, you must give us or our

authorized representative prompt notice of the ‘accident’ or ‘loss’. Include:

(1) How, when and where the ‘accident’ or ‘loss’ occurred;

(2) The ‘insured’s’ name and address; and

(3) To the extent possible, the names and addresses of any injured persons and

witnesses.

b. Additionally, you and any other involved ‘insured’ must:

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(1) Assume no obligation, make no payment or incur no expense without our

consent, except at the ‘insured’s’ own cost.

(2) Immediately send us copies of any request, demand, order, notice,

summons or legal paper received concerning the claim or ‘suit’.

(3) Cooperate with us in the investigation, settlement or defense of the claim

or ‘suit’.

(4) Authorize us to obtain medical records or other pertinent information.

(5) Submit to examination, at our expense, by physicians of our choice, as

often as we reasonably require.”

¶9 On October 13, 2009, Molda filed a counterclaim and third-party complaint for

declaratory judgment. Count I was for “express indemnification” against First Chicago and

requested, in the event that Wilson should prevail in her lawsuit against Molda, that judgment

be entered against First Chicago “for the full amount of any such judgment plus costs,

expenses and attorneys fees incurred by MICHAEL MOLDA.” Count II was for “express

and implied indemnification” against Metrolift and requested, in the event that Wilson should

prevail in her lawsuit against Molda, that judgment be entered against Metrolift “for the full

amount of any such judgment, plus costs, expenses and attorneys fees incurred by

MICHAEL MOLDA.” 3

¶ 10 On February 26, 2010, the trial court granted summary judgment in favor of First

Chicago, finding that Metrolift did not provide notice of the accident as required by the

policy and, therefore, First Chicago did not have a duty to defend or indemnify Molda.

Wilson and Molda appealed, and we reversed, finding that there were factual questions as to

3 Molda voluntarily dismissed count II as to Metrolift on February 9, 2010.

5 No. 1-14-0548

the adequacy of the notice. First Chicago Insurance Co. v. Molda, 408 Ill. App. 3d 839, 852-

53 (2011).

¶ 11 On October 16, 2012, Molda filed a motion for summary judgment, and on October 23,

2012, Wilson also filed a motion for summary judgment. On February 8, 2013, the trial court

denied all motions for summary judgment.

¶ 12 On January 13, 2014, the first day of trial, First Chicago filed an amended complaint for

declaratory judgment. In addition to the late notice of loss and late notice of lawsuit counts

that were included in the initial complaint, First Chicago’s amended complaint also included

a third count, alleging that “Molda Is Not an Insured as Defined by the FCIC Policy of

Insurance.” The amended complaint alleges that Molda was not operating a covered auto

under the policy and was only an insured to the extent of Metrolift’s liability; since there

could be no liability against Metrolift, Molda was not an insured under the policy.

¶ 13 The parties proceeded to a bench trial on January 13, 2014. Stephen Harrison testified

that he worked at Metrolift until 2011, where he was treasurer but “was basically CFO” and

had “some operational responsibilities.” Harrison testified that his daily responsibilities

included “[a]ll administrative, banking, insurance, financial, accounting, and assist[ing] the

president of the company, the owner with his day-to-day operations.” Along with Richard

Dahl, the owner of Metrolift, Harrison was in charge of insurance matters for Metrolift.

Harrison testified that Metrolift had a number of insurance policies, including general

liability, auto, and workers’ compensation policies, through different insurance carriers.

¶ 14 Harrison testified that in procuring insurance for Metrolift, Metrolift often worked with

an insurance broker, Mark Baskiewicz of Associated Specialty Insurance (Associated), who

Harrison considered a “social friend[].” If there was an accident involving bodily injury that

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occurred and it involved a policy Metrolift had procured through Associated, Harrison

“would call Mark and discuss with him whatever [Harrison] knew about it”; Harrison

testified that he “had no experience in automobile accidents” and would rely on Associated.

Harrison would then complete an accident report and send Baskiewicz the accident report,

police report, and any statements from the driver of the vehicle. After sending the

information to Baskiewicz, “[d]epending on what I reviewed, if we thought a claim was

going to evolve, I guess we would notify the insurance company. If not, we would just wait.”

¶ 15 With regard to Molda’s accident in 2005, Harrison recalled receiving notice of the

accident “relatively quick[ly].” Harrison called Baskiewicz and discussed the accident with

him, informing him of the details of the accident and that he believed Molda had his own

insurance coverage since he was not driving a Metrolift vehicle. After speaking with

Baskiewicz, “we decided jointly to wait to see whether or not a lawsuit was going to be filed

against us, because it was happening during his lunch hour, and also because he had his own

private insurance.”

¶ 16 Harrison testified that at the time he spoke with Baskiewicz, he “believe[d] we were

following the requirements of the policy, because he was our agent or broker. It was his job

to let me know what was going on.” He did not expect Baskiewicz to contact First Chicago

as a result of their conversation.

¶ 17 Harrison testified that he was unaware at the time that First Chicago paid Associated

bonus commissions based on claims and that, had he known, “[i]t surely would have seemed

to affect [Baskiewicz’s] judgment, it wouldn’t have been quite as impartial where I would

have been concerned.”

7 No. 1-14-0548

¶ 18 One of the documents admitted into evidence at trial was a chain of emails between

Harrison and Baskiewicz. The first email was a draft of a letter prepared by Harrison, which

was sent to Bakiewicz. The letter was addressed to First Chicago’s claims department and

provided, in relevant part:

“I, Stephen J. Harrison, corporate treasurer[,] notified Mark Baskiewicz of the

incident involving Nola Wilson and Michael Molda on or near the date of the incident

(August 17, 2005[)].

Notification was via phone conversation. This statement is verified and confirmed

by Mark Baskiewicz on the attached letter dated May 21, 2008.

This notification procedure is consistent with Metrolift’s course of dealing with

Associated Specialty Insurance, both before and since the Wilson/Molda accident. I

would notify Mark Baskiewicz of all accidents, incidents, claims, or losses covered

under the insurance coverage provided through his agency. As the insurance

company’s authorized representative, I would convey to him the proper information

as known to me at the time.

Metrolift, Inc. has never had any direct contact with [First Chicago] with

regarding [sic] applications for coverage, underwriting of coverage, issuance and

delivery of policies and notification of accidents, claims, suits or losses. Mark

Baskiewicz was the authorized representative of [First Chicago] for all these

purposes. Thus all of our communications with [First Chicago] went through him.”

¶ 19 The second email in the email chain was from Baskiewicz to Harrison, in response to the

draft letter, and provided:

8 No. 1-14-0548

“Everything looks good except you should leave off the part that you had no

direct dealings with [First Chicago] auto as they billed you direct as well as for any

endorsements and sent you the policies direct. There were even times when you guys

called them direct to make a payment. Everything else looks good !! When Kenny

gets in, I will give him a copy of the letter as well.”

¶ 20 John Gettemans testified at trial that he served as First Chicago’s president from May

1989 to September 2013. He was also president of Insurance Concepts Enterprises, Inc., also

known as the ICE Agency, from 1991 through April 2005. The ICE Agency was First

Chicago’s “marketing arm,” and Associated was one of the ICE Agency’s subproducers. The

ICE Agency contracted to pay Associated bonus commissions contingent on First Chicago’s

profits; “[t]he more First Chicago made on its insurance business with Associated, the more

it would pay Associated in commissions.” Associated would lose its right to earn bonus

commissions if the profitability of its book of business with First Chicago fell below a certain

level. Additionally, Associated had a limited right to issue binding insurance on behalf of

First Chicago; eligibility for binding authority was conditioned on maintaining a certain level

of profitability on the insurance for First Chicago, referred to as the “loss ratio.” Under the

loss ratio, Associated could not keep its limited authority to bind First Chicago policies

unless it maintained a loss ratio of less than 50%, nor would it receive bonus commissions

unless the loss ratio was less than 50%. 4 First Chicago and the ICE Agency used an agent

number to identify producers in order to calculate whether bonuses were earned;

Associated’s agent number, which appeared on Metrolift’s insurance policy documents, was

“001 ICE 015 Associate.”

4 Under the producer contingency agreement, the loss ratio was calculated by dividing the loss and loss adjustment expense incurred by the net earned premiums.

9 No. 1-14-0548

¶ 21 Gettemans testified that First Chicago “encouraged people to report [claims] to us, but if

they felt more comfortable reporting to their agent, we encourage them to do so so it would

be reported and their agent could report it to our people.” On cross-examination, Gettemans

admitted that “[i]f they do not report it directly,” First Chicago “expressly authorized

Metrolift to give notice of loss and notice of lawsuit to its agent Associated” at the time of

Molda’s accident in 2005. However, Gettemans testified that “it’s still the duty of the agent

to report the claim to the company. The company is the only authorized representative.”

¶ 22 Molda testified that on August 17, 2005, at the time of the accident with Wilson, he was

on his way to a construction site and was “performing [his] job duties for Metrolift.” At the

time of the accident, he was driving a 2001 Ford Taurus owned by his mother, Margo

Clemmons; Molda did not reside with his mother. Molda testified that he was not offered a

company vehicle to drive and was expected to use his own vehicle as part of his job duties as

a salesman. Molda had insurance on the vehicle through State Farm, which had a $20,000

policy limit. Molda notified both State Farm and Metrolift after the accident. When Molda

was served with Wilson’s suit on October 11, 2007, he forwarded the papers to State Farm,

which retained an attorney to represent him. Molda never had any communications with First

Chicago. On cross-examination, Molda testified that he first learned of the existence of First

Chicago and Metrolift’s insurance coverage in 2008.

¶ 23 Mark Zintak testified at trial that he managed the special investigative unit and

subrogation unit for First Chicago and had been employed by First Chicago since May 2005.

Zintak testified that First Chicago first received notice of Molda’s accident on March 26,

2008, when it received notice of Wilson’s lawsuit. First Chicago received notice of the

lawsuit from Associated; Molda never submitted anything to First Chicago. Zintak testified

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that insurance cards issued by First Chicago would have First Chicago’s name and contact

information printed on the cards.

¶ 24 Zintak testified that it was important to receive prompt notice of an accident so that First

Chicago would be able to conduct an “accurate investigation” of the claim, including

speaking to all of the witnesses and parties involved and observing the “proximity of the

damage,” which could involve an accident reconstruction; in Molda’s case, both vehicles

were taken to a salvage yard, so observing the vehicles was not possible. Zintak further

testified that “[m]ost important[ly],” Molda’s vehicle contained an electronic data recovery

system that could have provided information such as the speed of the vehicle at the time of

the accident, whether Molda was wearing a seatbelt, and whether the brakes were engaged,

“which would give us some documentation as to the cause of the accident and what

happened.” Zintak also testified that it was “very, very difficult” to examine the scene of the

loss three years later and that “[i]n this case we wanted to talk to the owner of the vehicle to

see if he had permission to drive the car, and if he was somehow using it in relation to

business or on a personal matter.”

¶ 25 Zintak testified that the only investigation he could perform as a result of the late notice

was obtaining part of a police report indicating that the vehicle appeared to be owned by a

“Marco Clemmons” residing at the same address as Molda, as well as checking insurance

databases to discover any information available there. On cross-examination, Zintak admitted

that he had never attempted to contact either Molda or Wilson to take their statements

regarding the accident, nor did he attempt to contact the witness and police officer listed in

the police report. Zintak further admitted that he did not attempt to obtain a copy of the title

11 No. 1-14-0548

to the vehicle, which listed Margo Clemmons as the owner, but assumed that Marco

Clemmons was the owner based on the police report.

¶ 26 On January 31, 2014, the trial court entered judgment in favor of defendants and against

First Chicago and further “declare[d] that the applicable [First Chicago] policy of insurance

entitles Molda to defense and indemnification relative to any and all claims of Wilson.” The

court found that, while Molda’s vehicle was not a specifically described auto or a borrowed

auto, it was a non-owned auto as defined by category 9 of the insurance policy. Additionally,

the court found that “[t]he complaint filed by Wilson contained allegations which would

trigger coverage of Molda, if said complaint was timely filed within the statute of

limitations,” and, accordingly, found that Molda was an insured under the policy.

¶ 27 The court found that, with respect to notice of the loss, “the evidence produced, including

[First Chicago’s] acquiescence under prior circumstances, the parties’ practice of

communication, and the declaration page of the policy, is sufficient to establish Associated’s

apparent authority” and further found that “the notice to Associated complied with the terms

of the policy.” The court also found that “[t]he failure of Associated to forward the notice to

[First Chicago] does not amount to concealment or collusion as [to] notice to [First

Chicago],” noting that “[t]here is no evidence of fraud.” The court found that “[t]he evidence

of Associated’s ‘bonus program’ is insufficient to establish that it would be against the

agent’s interest to reveal the information to the principal,” and also noted that Harrison

testified that the reason that notice was not forwarded “was because they were not sure

Molda was working or was at lunch at the time of the accident and Molda had his own

insurance”; the court further noted that “Harrison believed he was following the terms of the

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policy and was relying on Associated.” Consequently, the court found that the notice of the

loss given under the policy “was prompt and reasonable.”

¶ 28 With respect to notice of the lawsuit, the court found that “prompt notice of the

occurrence was given. The insured was reasonably diligent in ascertaining whether coverage

was available. Molda relied on Harrison who, in turn, relied on Baskiewicz. Finally, it cannot

be said that [First Chicago] suffered any prejudice because the underlying case, Wilson v.

Molda[,] has not advanced and [First Chicago] has not made any serious attempt to

investigate this matter.” The court also found that “while Harrison had some level of

sophistication, he testified that he was ‘not strong’ in auto coverage, was more

knowledgeable in general liability and relied on Baskiewicz. Molda was not sophisticated.”

¶ 29 This appeal follows.

¶ 30 ANALYSIS

¶ 31 On appeal, First Chicago argues that (1) Molda was not an insured under the insurance

policy; (2) Associated was not the agent of First Chicago for purposes of providing notice;

and (3) Molda did not provide timely notice of the loss. 5

¶ 32 I. Whether Molda Was an Insured

¶ 33 First Chicago first argues that the trial court erred in finding that Molda was an insured

under the First Chicago insurance policy because (1) Molda’s vehicle was not a covered auto

under the policy and (2) Molda was not an insured as defined by the policy. The construction

of a provision of an insurance policy is a question of law that we review de novo. Addison

Insurance Co. v. Fay, 232 Ill. 2d 446, 451 (2009). De novo consideration means we perform

the same analysis that a trial judge would perform. Erie Insurance Exchange v. Compeve

5 We note that First Chicago does not argue on appeal that Molda failed to provide timely notice of the lawsuit.

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Corp., 2015 IL App (1st) 142508, ¶ 14. “A court’s primary objective in construing an

insurance contract is to ascertain and give effect to the intention of the parties as expressed in

the agreement.” Addison, 232 Ill. 2d at 455. “An insurance contract will be liberally

construed in favor of the insured.” Addison, 232 Ill. 2d at 455.

¶ 34 As an initial matter, we must address defendants’ argument that this issue has already

been decided by this court and, therefore, the law of the case doctrine bars relitigation of the

issue. “[T]he law of the case doctrine bars relitigation of an issue previously decided in the

same case.” Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006). However, the issue of

whether Molda was an insured under the First Chicago policy was not decided by this court

in the earlier appeal. In our previous consideration of the instant case, when we were

reviewing the trial court’s grant of summary judgment in First Chicago’s favor, our recitation

of the facts included the statement that “[u]nbeknownst to Molda, as a Metrolift employee, he

was also covered under Metrolift’s insurance policy with First Chicago.” First Chicago, 408

Ill. App. 3d at 840. We also noted, in a footnote, that “Molda’s automobile was owned by

Margo Clements, his mother, but the ownership of the vehicle does not affect Molda’s

coverage under the First Chicago policy.” First Chicago, 408 Ill. App. 3d at 840 n.3. These

statements do not reflect a decision on the issue of whether Molda was an insured under the

policy. The case at that point was focused solely on the issue of notice; in fact, First Chicago

did not amend its complaint to include an allegation that Molda was not an insured under the

policy until January 13, 2014, the first day of trial. We cannot find that two passing

references concerning something that would not become an issue in the case until nearly

three years after our decision in any way reflects that the issue was “previously decided” by

this court.

14 No. 1-14-0548

¶ 35 Turning to the merits of First Chicago’s argument, under the First Chicago policy, First

Chicago agreed to “pay all sums an ‘insured’ legally must pay as damages because of ‘bodily

injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and

resulting from the ownership, maintenance or use of a covered ‘auto,’ ” and also owed the

“right and duty to defend any ‘insured’ against a ‘suit’ asking for such damages.” Thus, to be

eligible for coverage, Molda must have been considered an insured and must have been using

a covered auto at the time of his accident.

¶ 36 A. Whether the Vehicle Was a Covered Auto

¶ 37 With respect to the question of whether Molda’s vehicle was a covered auto, Metrolift

purchased insurance coverage for three categories of autos—categories 7, 8, and 9. The

parties agree that categories 7 and 8 do not apply, but disagree as to whether Molda’s vehicle

was included in category 9. Category 9 was described as: “NONOWNED AUTOS ONLY.

Only those autos you do not own, lease, hire or borrow which are used in connection with

your business. This includes autos owned by your employees or members of their house-

holds but only while used in your business or your personal affairs.”

¶ 38 Molda testified at trial that at the time of the accident, he was driving a 2001 Ford Taurus

owned by his mother, Margo Clemmons, and further testified that he did not reside with

Clemmons. First Chicago argues that Molda’s vehicle would have been covered only if the

vehicle was owned by Molda or someone in his household and also argues that there was no

evidence that the vehicle was being used in Metrolift’s business. We do not find this

argument persuasive.

¶ 39 First Chicago argues that in order to give effect to all provisions of the policy, category 9

must be read to limit nonowned autos to only those vehicles owned by an employee or

15 No. 1-14-0548

member of the household and that “[i]f Non Owned auto was meant to be so broad to include

any automobile not owned by METROLIFT (as defendants suggest), then other provisions of

the policy would be improperly rendered superfluous.” (Emphasis in original.) However,

First Chicago’s interpretation of the definition of nonowned autos is overly restrictive. Under

the plain language of the definition of nonowned auto, a vehicle is covered if (1) it is not

owned, leased, hired or borrowed by Metrolift and (2) it is used in connection with

Metrolift’s business. After that basic definition, the policy makes clear that vehicles not

owned, leased, hired or borrowed by Metrolift but owned by its employees would be entitled

to coverage if used in connection with Metrolift’s business. The limitation of the definition to

those autos used in connection with Metrolift’s business prevents the category from being so

broad as to render other provisions superfluous, as First Chicago suggests. 6

¶ 40 We do not find persuasive First Chicago’s attempt to invoke “the ‘well-known maxim of

construction, inclusio unius est exclusio alterius, or the inclusion of one is the exclusion of

the other.’ ” In re Marriage of Hendry, 409 Ill. App. 3d 1012, 1018 (2011) (quoting

Schanowitz v. State Farm Mutual Automobile Insurance Co., 299 Ill. App. 3d 843, 848

(1998)). Despite First Chicago’s contention that the last sentence of the definition “clearly

limits” the category to only those vehicles owned by the employee or member of his or her

household, the last sentence does not contain any language of limitation, other than the

requirement that the vehicle be used in connection with Metrolift’s business, which is a

limitation applicable to the category as a whole. Instead, the last sentence makes explicit the

inclusion of a category of vehicles that otherwise could have been questionable.

6 We note that this limitation distinguishes it from category 1, which provides coverage for “any ‘auto’,” which appears to be the provision that First Chicago argues would be rendered superfluous. Category 1 does not require that the auto be used in connection with Metrolift’s business in order to be covered.

16 No. 1-14-0548

¶ 41 We also note that, although not cited by either party, we have reached this same

conclusion before in Pekin Insurance Co. v. Benson, 306 Ill. App. 3d 367 (1999), under

remarkably similar circumstances. In that case, the defendant was involved in an accident

while driving a vehicle owned by her mother, who did not reside with the defendant. Pekin,

306 Ill. App. 3d at 371. The plaintiff insurance company denied coverage, claiming that the

defendant’s vehicle was not a “ ‘nonowned auto,’ ” which was defined as “ ‘[a]ny “auto” you

do not own, lease, hire, rent, or borrow used in connection with your garage business

described in the Declarations. This includes “autos” owned by your employees or partners or

members of their households while used in your garage business.’ ” Pekin, 306 Ill. App. 3d at

371. On appeal, the insurer contended that “the second sentence of the definition limits its

coverage to autos owned by the insured’s employees, partners, or members of their

households used in connection with the insured’s business.” Pekin, 306 Ill. App. 3d at 372.

¶ 42 We rejected the insurer’s arguments, noting that “a commonsense reading of the language

‘any auto’ in the first sentence of the definition combined with the insurance contract’s

purpose of extending coverage to anyone occupying a ‘covered auto’ support[ed] the trial

court’s interpretation” of “ ‘nonowned auto’ ” as including any auto the insured did not own,

lease, hire, rent, or borrow. Pekin, 306 Ill. App. 3d at 372. Furthermore, we agreed with the

trial court that “the second sentence of the ‘nonowned auto’ definition constitute[d] an

amplification or illustration of the general definition.” Pekin, 306 Ill. App. 3d at 372. See also

Pekin, 306 Ill. App. 3d at 373 (stating that “the second sentence does not contain any

meaningless phrases but provides guidance as to what may constitute a ‘nonowned auto’ ”).

We did not find persuasive the insurer’s arguments that the word “ ‘includes’ ” was intended

to be a limitation of coverage, finding that, at most, there were competing interpretations of

17 No. 1-14-0548

the word, and pointing out that “the second sentence of the definition does not state, ‘This

only includes employees or partners, or members of their household.’ ” (Emphasis in

original.) Pekin, 306 Ill. App. 3d at 373. Accordingly, we found that the trial court properly

found that the defendant’s vehicle was a “ ‘nonowned auto’ ” under the insurance policy.

Pekin, 306 Ill. App. 3d at 374.

¶ 43 The language interpreted by the court in Pekin is almost identical to that at issue in the

present case with respect to the issue of whether the vehicle was a covered auto under the

policy. There, a “ ‘nonowned auto’ ” was defined as “ ‘[a]ny “auto” you do not own, lease,

hire, rent, or borrow used in connection with your garage business described in the

Declarations. This includes “autos” owned by your employees or partners or members of

their households while used in your garage business.’ ” Pekin, 306 Ill. App. 3d at 371.

Similarly, here, category 9 was described as: “NONOWNED AUTOS ONLY. Only those

autos you do not own, lease, hire or borrow which are used in connection with your business.

This includes autos owned by your employees or members of their house-holds but only

while used in your business or your personal affairs.” The Pekin court’s reading of that

language as including the employee’s mother’s vehicle provides support for our reaching of a

similar conclusion in the instant case.

¶ 44 In the case at bar, Molda’s vehicle was not owned, leased, hired or borrowed by

Metrolift. Accordingly, if it was used in connection with Metrolift’s business, then it would

be a covered auto under category 9.

¶ 45 First Chicago argues that there was no evidence that Molda’s vehicle was used in

connection with Metrolift’s business. However, Molda testified that on August 17, 2005, at

the time of the accident with Wilson, he was on his way to a construction site and was

18 No. 1-14-0548

“performing [his] job duties for Metrolift.” Molda further testified that in his capacity as a

sales representative, he was never given a company vehicle to drive and it was his

understanding that as part of his job duties, he needed to drive his own vehicle and Metrolift

was aware that he was driving his own vehicle. First Chicago argues that this evidence “is

nothing but a conclusion and proves nothing, and thus has no evidentiary value.” However, it

is for the trial court to determine the weight a witness’ testimony should receive. Bazydlo v.

Volant, 164 Ill. 2d 207, 214-15 (1995). Additionally, the vehicle was only required to be used

“in connection with” Metrolift’s business, a term that has been construed as being broad as

well as vague, meaning that it must be construed strictly against the insurer. Hartford Fire

Insurance Co. v. Whitehall Convalescent & Nursing Home, Inc., 321 Ill. App. 3d 879, 889

(2001). In the case at bar, through Molda’s testimony, defendants provided evidence that

Molda was operating the vehicle in connection with First Chicago’s business, and

accordingly, Molda’s vehicle was properly considered to be a “nonowned auto” under the

First Chicago policy.

¶ 46 We find unpersuasive First Chicago’s reliance on Kinney v. Continental Assurance Co.,

42 Ill. App. 3d 263 (1976), as support for its argument that the evidence presented at trial

through Molda’s testimony is insufficient to demonstrate that he was operating the vehicle in

connection with Metrolift’s business. Kinney involves quite different issues than those

present in the case at bar, as well as different factual circumstances. In that case, the court

was considering the question of whether the defendant was acting within the scope of his

employment at the time of the accident at issue so as to give rise to vicarious liability. The

court noted that “the general rule of law is that accidents which occur while an employee is

going to or from his employment do not arise out of or in the course of his employment”

19 No. 1-14-0548

(Kinney, 42 Ill. App. 3d at 266 (citing Burmeister v. Industrial Comm’n, 52 Ill. 2d 84, 86

(1972)), and found that the defendant “was on his own time, on his own errand, in his own

automobile” (Kinney, 42 Ill. App. 3d at 266). Consequently, the Kinney court found that the

trial court correctly determined that the defendant’s employer was not vicariously liable for

the defendant, since the defendant was not acting within the scope of his employment at the

time of the accident. Kinney, 42 Ill. App. 3d at 266-67.

¶ 47 In the case at bar, the trial court was not asked to determine whether Metrolift would be

vicariously liable for Molda’s actions. Instead, the insurance policy merely required Molda to

be operating the vehicle “in connection with” Metrolift’s business. As we noted, this is a

term that has been construed as being broad as well as vague, meaning that it must be

construed strictly against the insurer. Hartford, 321 Ill. App. 3d at 889. Furthermore, unlike

the defendant in Kinney, who “was on his own time, on his own errand, in his own

automobile” (Kinney, 42 Ill. App. 3d at 266), Molda testified that he was traveling to a job

site as part of his job duties as a salesman for Metrolift, duties that required him to drive his

own vehicle. Accordingly, we cannot find that it was against the manifest weight of the

evidence for the trial court to find that the vehicle Molda was operating was a “nonowned

auto” under the First Chicago policy.

¶ 48 B. Whether Molda Was an “Insured” Under the Policy Language

¶ 49 First Chicago also argues that Molda was not an insured as defined by the First Chicago

policy. Metrolift was the named insured under the policy and the policy further provided that

“[t]he following are ‘insureds’ ” under the policy:

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b. Anyone else while using with your permission a covered ‘auto’ you own, hire

(1) The owner or anyone else from whom you borrow a covered ‘auto’. This

exception does not apply if the covered ‘auto’ is a ‘trailer’ connected to a covered

(2) Your employee if the covered ‘auto’ is owned by that employee or a

(3) Someone using a covered ‘auto’ while he or she is working in a business

of selling, servicing, repairing, parking or storing ‘autos’ unless that business is

(4) Anyone other than your employees, partners, a lessee or borrower or any

of their employees, while moving property to or from a covered ‘auto’.

(5) A partner of yours for a covered ‘auto’ owned by him or her or a member

c. Anyone liable for the conduct of an ‘insured’ described above but only to the

Molda does not qualify as an insured under either paragraph (a) or (b), since he was not the

named insured and the vehicle he was driving was not owned, hired or borrowed by

Metrolift. Accordingly, the only way that Molda would be covered by the policy would be if

paragraph (c) applied.

¶ 50 We agree with the trial court that Molda qualifies as an insured under paragraph (c).

Under that paragraph, Molda would be considered an insured if he was liable for the conduct

of Metrolift, but only to the extent of that liability. First Chicago argues that since all of the

21 No. 1-14-0548

claims against Metrolift were dismissed, Metrolift has no liability for the accident and,

consequently, Molda cannot be considered an insured since he would be an insured “only to

the extent of [Metrolift’s] liability.” However, First Chicago’s argument overlooks the fact

that “ ‘[q]uestions of applicable coverage can be determined only as of the time of the

accident creating potential liability.’ ” Gaudina v. State Farm Mutual Automobile Insurance

Co., 2014 IL App (1st) 131264, ¶ 26 (quoting Coley v. State Farm Mutual Automobile

Insurance Co., 178 Ill. App. 3d 1077, 1081 (1989)). See also Hawkeye Security Insurance

Co. v. Sanchez, 122 Ill. App. 3d 183, 186 (1984). At the time of the accident, Metrolift had

potential liability under the doctrine of respondeat superior, and, in fact, was included as a

defendant in Wilson’s case on that basis. 7 If Wilson obtained a judgment against Metrolift

under the theory of respondeat superior, Metrolift would be entitled to indemnification from

Molda under the common law theory of quasi-contractual implied indemnity. Gibbs v. Top

Gun Delivery & Moving Services, Inc., 399 Ill. App. 3d 765, 772 (2010); American National

Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 353-54

(1992). Consequently, at the time of the accident, Molda was “liable for the conduct of an

‘insured’ described above but only to the extent of that liability,” and, therefore, qualified as

an insured under the First Chicago policy.

¶ 51 II. Whether Associated Was First Chicago’s Agent

¶ 52 First Chicago next argues that the trial court erred in finding that Associated was First

Chicago’s agent for purposes of accepting notice. “Generally, the question of whether an

agency relationship exists and the scope of the purported agent’s authority are questions of

fact.” Kaporovskiy v. Grecian Delight Foods, Inc., 338 Ill. App. 3d 206, 210 (2003). “A

7 The count against Metrolift was dismissed on statute of limitations grounds, a decision that was affirmed on appeal. Wilson v. Molda, 396 Ill. App. 3d 100 (2009).

22 No. 1-14-0548

reviewing court should not overturn a trial court’s findings merely because it does not agree

with the lower court or because it might have reached a different conclusion had it been the

fact finder.” Bazydlo, 164 Ill. 2d at 214. “The trial judge, as the trier of fact, is in a position

superior to a reviewing court to observe witnesses while testifying, to judge their credibility,

and to determine the weight their testimony should receive.” Bazydlo, 164 Ill. 2d at 214-15.

Consequently, we will not reverse the trial court’s judgment unless it is against the manifest

weight of the evidence. Farmers Automobile Insurance Ass’n v. Gitelson, 344 Ill. App. 3d

888, 891-92 (2003). “A judgment is against the manifest weight of the evidence only when

an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or

not based on evidence.” Bazydlo, 164 Ill. 2d at 215.

¶ 53 In the case at bar, the trial court found that “the evidence produced, including [First

Chicago’s] acquiescence under prior circumstances, the parties’ practice of communication,

and the declaration page of the policy, is sufficient to establish Associated’s apparent

authority.” We cannot find this conclusion to be against the manifest weight of the evidence.

¶ 54 As we noted in our prior decision, defendants’ argument that proper notice was given

relies on the theory that notice to an agent is imputed to its principal. In the insurance

context, an insurance broker is generally considered to be the agent of the insured and not the

insurance company unless the agent is a general agent of the insurance company. State

Security Insurance Co. v. Burgos, 145 Ill. 2d 423, 431 (1991); Founders Insurance Co. v.

White, 367 Ill. App. 3d 883, 888 (2006); Young v. Allstate Insurance Co., 351 Ill. App. 3d

151, 162 (2004); Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc.,

138 Ill. App. 3d 574, 582 (1985). However, there are situations in which an insurance broker

can act as the agent of the insurance company or even as the agent of both the insured and the

23 No. 1-14-0548

insurance company. Burgos, 145 Ill. 2d at 431; Empire Fire & Marine Insurance Co. v. Faith

Truck Lines, Inc., 178 Ill. App. 3d 356, 359 (1988). Additionally, even if the broker does not

have the actual authority to act as the insurer’s agent for notice, it may have apparent

authority to do so. Burgos, 145 Ill. 2d at 431. See also Long v. Great Central Insurance Co.,

190 Ill. App. 3d 159, 165-66 (1989); Empire, 178 Ill. App. 3d at 359-60; Mitchell Buick, 138

Ill. App. 3d at 583; American Home Assurance Co. v. City of Granite City, 59 Ill. App. 3d

656, 663 (1978); State Security Insurance Co. v. Goodman, 6 Ill. App. 3d 1008, 1011-12

(1972); Boston Store of Chicago v. Hartford Accident & Indemnity Co., 227 Ill. App. 192,

203-04 (1922); 13 Couch on Insurance 3d § 187:73 (West 1999); 11 Eric Mills Holmes,

Holmes’ Appleman on Insurance 2d § 68.8 (Lexis 1996).

¶ 55 Apparent authority is that authority which a reasonably prudent person would naturally

suppose the agent to possess, given the words or conduct of the principal. Burgos, 145 Ill. 2d

at 431-32. “It is a well-established precept of agency law that a principal will be bound by the

authority he appears to give to another, as well as that authority which he actually gives.”

(Emphasis in original.) Burgos, 145 Ill. 2d at 431 (citing Lynch v. Board of Education of

Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 426 (1980)). Once the principal

has created the appearance of authority, he is estopped from denying it to the detriment of a

third party. Burgos, 145 Ill. 2d at 432. To establish apparent agency, the party alleging the

existence of the agency must prove that (1) the principal or its agent acted in a manner that

would lead a reasonable person to believe that the individual allegedly at fault was an

employee or agent of the principal; (2) the principal had knowledge of and acquiesced in the

acts of the agent; and (3) the injured party acted in reliance upon the conduct of the principal

24 No. 1-14-0548

or its agent, consistent with ordinary care and prudence. Wilson v. Edward Hospital, 2012 IL

112898, ¶ 18.

¶ 56 The apparent authority of an insurance broker to act as an agent of the insurance

company for notice can be established through the course of dealings between the broker and

the insurance company. Burgos, 145 Ill. 2d at 432. “Where an insurer’s manner of dealing

with the broker in regard to the insured would lead the insured to believe that the broker had

the authority to perform the acts in question, the insurer is estopped to deny the broker’s

authority to perform those acts.” Burgos, 145 Ill. 2d at 432. Moreover, acquiescence in the

insurance broker’s conduct by the insurance company under prior circumstances is sufficient

to establish the broker’s apparent authority. Burgos, 145 Ill. 2d at 432.

¶ 57 In the case at bar, there was evidence presented at trial supporting the trial court’s

conclusion that Associated was First Chicago’s agent for purposes of accepting notice.

Examining the policy itself, as we noted in our prior case, the policy required that, “[i]n the

event of ‘accident’, claim, ‘suit’ or ‘loss’, you must give us or our authorized representative

prompt notice of the ‘accident’ or ‘loss’.” The First Chicago policy included Associated’s

name, address, and telephone number on its declarations page as the producer. It did not

provide any other contact information, nor was any individual or business other than

Metrolift named anywhere within the policy. If a claim was to be made, there was no

reference to a phone number or person in his representative capacity to contact other than

“our authorized representative.” Additionally, in payment schedules admitted into evidence,

Associated’s information is listed under the underlined heading “Agent” and an “Agent

Number” is provided under Associated’s information.

25 No. 1-14-0548

¶ 58 Gettemans, president of First Chicago at the time of Molda’s accident, testified that First

Chicago “encouraged people to report [claims] to us, but if they felt more comfortable

reporting to their agent, we encourage them to do so so it would be reported and their agent

could report it to our people.” On cross-examination, Gettemans admitted that “[i]f they do

not report it directly,” First Chicago “expressly authorized Metrolift to give notice of loss and

notice of lawsuit to its agent Associated” at the time of Molda’s accident in 2005. However,

Gettemans testified that “it’s still the duty of the agent to report the claim to the company.

The company is the only authorized representative.”

¶ 59 Harrison, who was responsible for Metrolift’s insurance, testified that if there was an

accident involving bodily injury that occurred and it implicated a policy Metrolift had

procured through Associated, Harrison “would call Mark [Baskiewicz] and discuss with him

whatever [Harrison] knew about it”; Harrison testified that he “had no experience in

automobile accidents” and would rely on Associated. Harrison would then complete an

accident report and send Baskiewicz the accident report, police report, and any statements

from the driver of the vehicle. After sending the information to Baskiewicz, “[d]epending on

what I reviewed, if we thought a claim was going to evolve, I guess we would notify the

insurance company. If not, we would just wait.” With regard to Molda’s accident in 2005,

Harrison recalled receiving notice of the accident “relatively quick[ly].” Harrison called

Baskiewicz and discussed the accident with him, informing him of the details of the accident

and that he believed Molda had his own insurance coverage since he was not driving a

Metrolift vehicle. After speaking with Baskiewicz, “we decided jointly to wait to see whether

or not a lawsuit was going to be filed against us, because it was happening during his lunch

hour, and also because he had his own private insurance.” Harrison testified that at the time

26 No. 1-14-0548

he spoke with Baskiewicz, he “believe[d] we were following the requirements of the policy,

because he was our agent or broker. It was his job to let me know what was going on.”

¶ 60 The chain of emails between Harrison and Baskiewicz that was admitted at trial also

supported Harrison’s testimony that he communicated solely with Baskiewicz concerning

claims. The first email was a draft of a letter prepared by Harrison, which was sent to

Bakiewicz. The letter was addressed to First Chicago’s claims department and provided, in

relevant part:

“I, Stephen J. Harrison, corporate treasurer[,] notified Mark Baskiewicz of the

incident involving Nola Wilson and Michael Molda on or near the date of the incident

Notification was via phone conversation. This statement is verified and confirmed

by Mark Baskiewicz on the attached letter dated May 21, 2008.

This notification procedure is consistent with Metrolift’s course of dealing with

Associated Specialty Insurance, both before and since the Wilson/Molda accident. I

would notify Mark Baskiewicz of all accidents, incidents, claims, or losses covered

under the insurance coverage provided through his agency. As the insurance

company’s authorized representative, I would convey to him the proper information

Metrolift, Inc. has never had any direct contact with [First Chicago] with

regarding [sic] applications for coverage, underwriting of coverage, issuance and

delivery of policies and notification of accidents, claims, suits or losses. Mark

Baskiewicz was the authorized representative of [First Chicago] for all these

purposes. Thus all of our communications with [First Chicago] went through him.”

27 No. 1-14-0548

Upon receiving the draft letter, Baskiewicz emailed Harrison with his approval.

¶ 61 In summary, the evidence at trial demonstrated that (1) First Chicago admittedly

encouraged policyholders to report claims to their insurance agent if they felt more

comfortable doing so; (2) First Chicago’s policy documents and payment schedules either

provided only Associated’s contact information or expressly referred to Associated as

“Agent”; and (3) Metrolift’s course of dealings with Associated and First Chicago involved

contacting Associated, not First Chicago, whenever there was a potential insurance claim.

We cannot find that it was against the manifest weight of the evidence for the trial court to

conclude that this evidence gave rise to apparent agency for the purpose of accepting notice.

¶ 62 We find First Chicago’s arguments to the contrary to be unpersuasive. First Chicago

argues that there was no reliance on Molda’s or Wilson’s behalf, which is necessary for a

finding of apparent agency. However, as will be further discussed below, it is Metrolift that

was responsible for providing notice to First Chicago, and Harrison testified that Metrolift

relied on Associated to ensure compliance with the First Chicago policy. First Chicago

further argues that there must be evidence that First Chicago “ ‘had knowledge of and

acquiesced in the acts of the agent (Associated),’ ” and identifies the “ ‘act’ ” at issue as

Associated’s failure to inform First Chicago of the accident. However, the “acts of the agent”

for our purposes are the acts of purportedly accepting notice on behalf of First Chicago. As

explained above, there was evidence presented that First Chicago was aware that Associated

was accepting notice on its behalf and in fact encouraged that behavior for policyholders that

did not wish to notify First Chicago directly. Finally, First Chicago points to statements of

Harrison indicating that Metrolift considered Associated to be Metrolift’s agent, not First

Chicago’s. However, as noted, there are situations in which an insurance broker can act as

28 No. 1-14-0548

the agent of the insurance company or even as the agent of both the insured and the insurance

company. Burgos, 145 Ill. 2d at 431; Empire Fire & Marine Insurance Co., 178 Ill. App. 3d

at 359. Thus, references to Associated as Metrolift’s agent do not preclude the trial court’s

finding that it was also acting as First Chicago’s apparent agent.

¶ 63 III. Whether Notice Was Timely

¶ 64 Finally, First Chicago argues that the trial court erred in finding that the notice of the

accident was timely and also argues that defendants breached the notice of loss provision by

conspiring to withhold information from First Chicago. We note that First Chicago does not

argue on appeal that notice of the lawsuit was untimely, but solely focuses on notice of the

accident itself. Generally, the timeliness of notice given pursuant to an insurance policy is a

question of fact for the trier of fact. University of Illinois v. Continental Casualty Co., 234 Ill.

App. 3d 340, 363 (1992). “Where, as here, the trial court heard witness testimony and made a

factual determination, its decision will not be reversed unless it is against the manifest weight

of the evidence.” Illinois Founders Insurance Co. v. Barnett, 304 Ill. App. 3d 602, 607

(1999). As noted, “[a] judgment is against the manifest weight of the evidence only when an

opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not

based on evidence.” Bazydlo, 164 Ill. 2d at 215.

¶ 65 A notice provision in an insurance contract is a “valid prerequisite[]” to coverage under

the policy. Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311

(2006); Berglind v. Paintball Business Ass’n, 402 Ill. App. 3d 76, 85 (2010) (“notice

provisions are not merely technical requirements but, rather, conditions precedent to the

triggering of the insurer’s contractual duties”). “Provisions in policies stating when the

insurer must be notified of a covered occurrence have generally been interpreted to require

29 No. 1-14-0548

notification of the company within a reasonable time, considering all the facts and

circumstances of the particular case.” American Family Mutual Insurance Co. v. Blackburn,

208 Ill. App. 3d 281, 288 (1991); Barrington Consolidated High School v. American

Insurance Co., 58 Ill. 2d 278, 281 (1974). “Whether notice has been given within a

reasonable time depends on the facts and circumstances of each case.” Livorsi Marine, 222

Ill. 2d at 311-12.

¶ 66 In the case at bar, First Chicago argues that it did not receive notice from Metrolift until

March 2008, approximately 31 months after the accident, which it claims violates the notice

provision of the policy as a matter of law. We rejected this exact argument in our earlier

decision, and First Chicago has provided no reasons why we should depart from our earlier

holding, even citing the same cases that we found unpersuasive in their previous case. First

Chicago, 408 Ill. App. 3d at 851-52.

¶ 67 Moreover, as noted, the reasonableness of notice is a fact-specific inquiry. Livorsi

Marine, 222 Ill. 2d at 311-12. “Factors the courts may consider in determining reasonable

notice include: (1) the specific language of the policy’s notice provisions; (2) the degree of

the insured’s sophistication in the world of commerce and insurance; (3) the insured’s

awareness that an occurrence as defined under the terms of the policy has taken place; (4) the

insured’s diligence and reasonable care in ascertaining whether policy coverage is available

once the event has occurred; and (5) any prejudice to the insurance company.” Berglind v.

Paintball Business Ass’n, 402 Ill. App. 3d 76, 86 (2010) (citing Livorsi Marine, 222 Ill. 2d at

313).

¶ 68 First Chicago argues that defendants cannot argue that Metrolift was an unsophisticated

insured because Metrolift knew it was required to provide notice to First Chicago and chose

30 No. 1-14-0548

not to do so. However, Harrison testified that he had no experience in the area of automobile

insurance and relied on Associated to ensure Metrolift was complying with the First Chicago

policy. First Chicago also argues that it was not required to show prejudice in a late notice of

loss defense, but that it nevertheless demonstrated that it had been prejudiced by the delay by

the inability to conduct the investigation it otherwise would have. First Chicago is correct

that “once it is determined that the insurer did not receive reasonable notice of an occurrence

or a lawsuit, the policyholder may not recover under the policy, regardless of whether the

lack of reasonable notice prejudiced the insurer.” (Emphasis added.) Livorsi Marine, 222 Ill.

2d at 317. However, while our supreme court has expressly rejected the notion that prejudice

is a dispositive requirement in determining whether reasonable notice was provided (see

Livorsi Marine, 222 Ill. 2d at 316-17 (“even if there is no prejudice to the insurer, a

policyholder still must give reasonable notice according to the terms of the insurance

policy”)), it has instructed that in making the determination of whether a policyholder’s

notice is reasonable, “the presence or absence of prejudice to the insurer is one factor to

consider.” Livorsi Marine, 222 Ill. 2d at 317. Thus, First Chicago’s contention that it was not

required to show prejudice is incorrect in this situation, where the reasonableness of the

notice is to be determined. First Chicago’s reliance on the appellate decision in Livorsi

Marine is inapplicable, because there, the parties agreed that the notice provided by the

insureds was unreasonable. Country Mutual Insurance Co. v. Livorsi Marine, Inc., 358 Ill.

App. 3d 880, 884 (2004).

¶ 69 In the case at bar, the trial court found that “it cannot be said that [First Chicago] suffered

any prejudice because the underlying case, Wilson v. Molda[,] has not advanced and [First

Chicago] has not made any serious attempt to investigate this matter.” First Chicago argues

31 No. 1-14-0548

that the “undisputed evidence” showed that “[b]ecause of the late notice, [First Chicago] was

not able to inspect the vehicle, talk to witnesses when the facts were fresh, or really conduct

any meaningful investigation at all.” However, Zintak testified that he had not obtained the

entire police report, did not attempt to obtain a copy of the vehicle’s title, did not interview

either Wilson or Molda, and did not attempt to interview either the witness or the police

officer listed in the police report. In addition, there is no showing whether Zintak contacted

State Farm to learn what their investigation discovered. We agree with the trial court that this

demonstrates that First Chicago “has not made any serious attempt to investigate this matter,”

and does not show that First Chicago was prejudiced. Thus, the trial court’s finding that

notice was reasonable was not against the manifest weight of the evidence.

¶ 70 Furthermore, we have concluded above that the trial court properly determined that

Associated was First Chicago’s apparent agent for purposes of accepting notice of the loss.

Associated was notified of the loss almost immediately, and First Chicago does not argue

that the notice provided to Associated was unreasonable. Accordingly, the trial court’s

conclusion that notice was timely was not against the manifest weight of the evidence.

¶ 71 First Chicago argues that the notice to Associated cannot be imputed to First Chicago

because both Metrolift and Associated agreed not to provide the notice to First Chicago.

Again, this is an argument that we considered and rejected in our earlier decision, and First

Chicago does not provide any reason for us to depart from our earlier holding. First Chicago,

408 Ill. App. 3d at 849-50. There, we noted that the cases First Chicago relied on to support

its argument that notice to an agent is not imputed to a principal when the facts support the

inference that the agent will conceal the information from the principal were all cases in

which the agent was concealing information due to fraud or because it would be against the

32 No. 1-14-0548

agent’s interest to reveal the information to the principal. First Chicago, 408 Ill. App. 3d at

850 (citing Neagle v. McMullen, 334 Ill. 168, 181 (1929), Merchants’ National Bank of

Peoria v. Nichols & Shepard Co., 223 Ill. 41, 53 (1906), Tesluk v. Metropolitan Life

Insurance Co., 130 Ill. App. 2d 290, 294-95 (1970), and Woodlawn Farm Co. v. Farmers &

Breeders Livestock Insurance Co., 227 Ill. App. 577, 583-84 (1923)). We further noted that

the facts present in those cases cited indicated that the concealment occurred at the time of

the application for the insurance policy. First Chicago, 408 Ill. App. 3d at 850 (citing Tesluk,

130 Ill. App. 2d at 295 (notice was not imputed to principal when insured was aware that

agent did not include information regarding nervous breakdown on application because it

would “ ‘confuse the matter’ ”)). As we noted there, these cited cases do not include the

situation that occurred here; Associated did not have an adverse interest to First Chicago that

would result in its being in Associated’s best interest not to provide notice, nor was there any

fraud in the Metrolift’s application for the policy or in their conduct.

¶ 72 Furthermore, all of the evidence was presented to the trial court as the trier of fact, and

the trial court determined that there was no evidence of fraud and that there was insufficient

evidence that it would be against Associated’s interest to reveal the information to First

Chicago. We cannot find that this decision was against the manifest weight of the evidence,

and, accordingly, affirm the trial court’s judgment in favor of defendants.

¶ 73 CONCLUSION

¶ 74 For the reasons set forth above, we find that (1) Molda was an insured under the terms of

the First Chicago insurance policy, (2) the trial court did not err in finding Associated to be

33 No. 1-14-0548

the apparent agent of First Chicago for purposes of accepting notice, and (3) the trial court

did not err in finding notice of Molda’s accident to be timely.

¶ 75 Affirmed.