Melrose Park Sundries v. Carlin

• Court: Appellate Court of Illinois
• Decided: March 30, 2010
• Docket: 1-09-0162 Rel
• Status: Published

Opinion

SECOND DIVISION FILED: March 30, 2010

No. 1-09-0162

MELROSE PARK SUNDRIES, INC., ) Appeal from the Circuit ) Court of Cook County Plaintiff-Appellant, ) ) No. 07 L 1072 v. ) ) DON CARLINI, ) The Honorable ) Lee Preston, Defendant-Appellee. ) Judge Presiding.

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Melrose Park Sundries, Inc. (Melrose Park),

appeals from an order of the circuit court granting summary

judgment in favor of the defendant, Don Carlini (Carlini),1 on the

plaintiff’s claim of negligence. For the reasons that follow, we

affirm the judgment of the circuit court.

The pleadings, depositions, and written discovery established

the following relevant facts. Melrose Park was the corporate owner

of a packaged liquor and sundries store at 2318 West North Avenue

in Melrose Park, Illinois. Melrose Park and the commercial

1 Carlini died after the complaint was filed but before

service was accomplished. Pursuant to section 2-1008(b) of the

Code of Civil Procedure (735 ILCS 5/2-1008(b) (West 2006)) (the

Code), his widow, Barbara Carlini, was appointed special

representative of his estate for purposes of defending the

action. No. 1-09-0162

building in which it was located were owned by Faye Alport

(Alport), who was the sole officer, director, and shareholder.

Constantino A. Taddeo (Taddeo) was responsible for overseeing the

day-to-day operations of the store from its opening in

approximately February 2004 until it ceased operation in January

2008. Prior to the opening of the store, Alport and Taddeo met

with Carlini, a licensed insurance producer, and requested that he

obtain insurance for the store. Alport made the decision to

purchase insurance through Carlini because he had provided the

insurance to her husband and his previous businesses for many

years, but Taddeo was responsible for paying the insurance

premiums. The insurance policies obtained by Carlini for Melrose

Park provided coverage for “liquor liability” and various other

forms of coverage for the business and its premises, but did not

include workers’ compensation insurance coverage. These policies

were issued on January 23, 2004, and were subsequently renewed in

2005 for the policy period expiring January 23, 2006.

On October 9, 2005, Sharon Sullivan was injured while working

at the Melrose Park store. Melrose Park did not have workers’

compensation insurance at the time of Ms. Sullivan’s injury.

Initially, Alport and Taddeo jointly paid Sullivan’s medical

expenses. However, this arrangement eventually ceased, and

Sullivan subsequently filed a claim for workers’ compensation

benefits.

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Alport testified at her deposition that, prior to the

establishment of Melrose Park, her husband, who died in 2000, and

her son operated a business known as Melpark Drugs and Liquors in

the same location. According to Alport, her husband had been doing

business with Carlini for more than 20 years, and Carlini obtained

the insurance for Melpark Drugs and Liquors as well as for the

family’s other businesses and several commercial properties.

Alport also testified that she and Taddeo met with Carlini

once before Melrose Park opened to discuss the insurance for the

store. At that meeting, she asked Carlini to “make sure that all

of the requirements for insurance [were] taken out, including the

building, * * * the liquor, any type of liability policy.”

According to Alport, Carlini said that he would “handle it,” and

she did not have any further discussion with him about the

insurance policies that he obtained for Melrose Park. Alport

admitted that she never specifically requested that Carlini procure

workers’ compensation insurance for the business, nor did she

inquire as to whether workers’ compensation insurance was needed.

Alport also acknowledged that she did not read or review the

policies obtained by Carlini, and she did not discuss Melrose

Park’s insurance with him when the policies were renewed. Alport

further stated that she had more than 30 years of retail and

drugstore experience, and she owned a jewelry store, which was

located in the building adjacent to Melrose Park. In approximately

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2003, she specifically requested that Carlini procure workers’

compensation insurance for the jewelry store, and he did so.

However, she did not direct Carlini to obtain workers’ compensation

insurance for Melrose Park, as she had done for the jewelry

business. Alport also stated that Taddeo was responsible for

hiring the employees for the business, and she did not recall

whether any employees had been hired when she and Taddeo met with

Carlini to arrange for the purchase of insurance.

Taddeo testified at his deposition that he and Alport met with

Carlini once before Melrose Park opened to discuss the insurance

coverage for the store. According to Taddeo, his participation in

that discussion was limited to asking Carlini whether he was going

to take care of the insurance, and Carlini responded that he would.

Taddeo testified that the issue of workers’ compensation was not

specifically addressed, and neither he nor Alport explicitly

requested that Carlini obtain workers’ compensation insurance.

Taddeo also stated that Carlini came into the store after the

initial meeting, and he asked whether they were “covered on

everything.” Though Carlini responded in the affirmative, they did

not discuss what “everything” encompassed. Taddeo testified that

he did not read or review the insurance policies that were obtained

by Carlini.

In January 2007, Melrose Park brought suit against Carlini,

alleging that he was negligent in failing to obtain or offer to

4 No. 1-09-0162

obtain workers’ compensation insurance for Melrose Park and in

failing to advise that such insurance was required by law. The

complaint also alleged that Carlini’s negligent conduct proximately

caused Melrose Park to suffer damages in that it was required to

pay the lost wages and medical expenses of Sullivan and was subject

to fines and penalties imposed by the Illinois Workers’

Compensation Commission. Carlini moved for summary judgment,

contending that Melrose Park had failed to present evidence

establishing a duty to procure workers’ compensation insurance.

The circuit court granted the motion for summary judgment, and this

appeal followed.

On appeal, Melrose Park argues that the summary judgment

against it must be reversed because the circuit court erred in

determining that Carlini had no duty to obtain workers’

compensation insurance. We disagree.

Summary judgment is appropriate where the pleadings,

depositions, admissions, and affidavits on file, viewed in the

light most favorable to the nonmoving party, show there is no

genuine issue of material fact and that the moving party is

entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c)

(West 2006); Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228,

864 N.E.2d 176 (2007). Although a plaintiff need not prove his

case during a summary judgment proceeding, he must present some

evidentiary facts to support each element of his cause of action.

5 No. 1-09-0162

Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1069, 793 N.E.2d 68

(2003). This court reviews the grant or denial of summary judgment

de novo. Murray, 224 Ill. 2d at 228.

In order to recover on a claim for negligence, a plaintiff

must show a duty owed by the defendant to the plaintiff, a breach

of that duty, and an injury proximately caused by the breach.

First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256, 720

N.E.2d 1068 (1999). The determination of whether the defendant

owed the plaintiff a duty of care is a question of law to be

determined by the court. Marshall v. City of Centralia, 143 Ill.

2d 1, 6, 570 N.E.2d 315 (1991). Where no duty is owed, there is no

negligence, and the plaintiff is precluded from recovery as a

matter of law. Washington v. City of Chicago, 188 Ill. 2d 235,

239, 720 N.E.2d 1030 (1999). The question of whether a duty exists

turns in large part on public policy considerations. Bucheleres v.

Chicago Park District, 171 Ill. 2d 435, 457-58, 665 N.E.2d 826

(1996). Statutes enacted by the legislature are expressions of

public policy. State Farm Mutual Automobile Insurance Co. v.

Smith, 197 Ill. 2d 369, 372, 757 N.E.2d 881 (2001).

In 1996, the General Assembly enacted Public Act 89-638 (Pub.

Act 89-638, § 5, eff. January 1, 1997), which added section 2-2201

of the Code. Section 2-2201 provides, in relevant part, as

follows:

“(a) An insurance producer * * * shall exercise

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ordinary care and skill in renewing, procuring, binding,

or placing the coverage requested by the insured or

proposed insured.

(b) No cause of action * * * against any insurance

provider, * * * concerning the sale, placement,

procurement, renewal, * * * or failure to procure any

policy of insurance shall subject the insurance producer,

* * * to civil liability under standards governing the

conduct of a fiduciary or fiduciary relationship except

when the conduct upon which the cause of action is based

involves the wrongful retention or misappropriation by

the insurance producer * * * of any money that was

received as premiums, as a premium deposit, or as payment

of a claim.

* * *

(d) While limiting the scope of liability of an

insurance producer * * * under standards governing the

conduct of a fiduciary or a fiduciary relationship, the

provisions of this Section do not limit or release an

insurance producer * * * from liability for negligence

concerning the sale, placement, procurement, renewal,

binding, cancellation of, or failure to procure any

policy of insurance.” (Emphasis added.) 735 ILCS

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5/2-2201 (West 2006).

In construing a statute, our primary objective is to ascertain

and give effect to the intent of the legislature. Comprehensive

Community Solutions, Inc. v. Rockford School District No. 205, 216

Ill. 2d 455, 473, 837 N.E.2d 1 (2005). The most reliable

indication of legislative intent is the plain and ordinary meaning

of the statutory language. Hamilton v. Industrial Commission, 203

Ill. 2d 250, 255, 785 N.E.2d 839 (2003). Where the language of the

statute is clear and unambiguous, we must apply it as written

without reading into it exceptions, limitations, or conditions not

expressed by the legislature. People ex rel. Madigan v. Kinzer,

232 Ill. 2d 179, 184-85, 902 N.E.2d 667 (2009).

Pursuant to the clear and unambiguous language of section 2-

2201(a), Carlini had a duty to exercise ordinary care and skill in

procuring the coverage requested by Melrose Park. The evidentiary

material submitted in support of the motion for summary judgment

established that neither Alport nor Taddeo ever requested that

Carlini obtain workers’ compensation insurance for Melrose Park.

In addition, both Alport and Taddeo admitted that they did not

inquire about workers’ compensation insurance, and such coverage

was not particularly discussed, either at the initial meeting at

which the insurance for the store was addressed or thereafter. The

duty imposed by section 2-2201 does not obligate an insurance

8 No. 1-09-0162

producer to procure a policy for the insured which had not been

requested. 735 ILCS 5/2-2201(a) (West 2006). To hold Carlini

responsible for insurance coverage beyond that requested by Melrose

Park would extend the duty of ordinary care beyond that expressly

defined by the legislature. Consequently, we conclude that Carlini

did not have a duty to procure workers’ compensation insurance for

Melrose Park, nor was he obligated to offer advice regarding the

need for such insurance where neither Alport nor Taddeo ever

inquired as to that need.

In reaching this conclusion, we find that the cases cited by

the plaintiff do not compel a different result. In particular, we

note that Country Mutual Insurance Co. v. Carr, 366 Ill. App. 3d

758, 852 N.E.2d 907 (2006), on which the plaintiff places

substantial reliance, has been vacated by the supreme court (In re

Country Mutual Insurance Company, et al., ___ Ill. 2d ___, 889

N.E.2d 209 (2007)) and, therefore, carries no precedential weight.

See Mohanty v. St. John Heart Clinic, 225 Ill. 2d 52, 66, 866

N.E.2d 85 (2006); Provena Health v. Illinois Health Facilities

Planning Board, 382 Ill. App. 3d 34, 42, 886 N.E.2d 1054 (2008).

In addition, the plaintiff’s reliance on Golf v. Henderson, 376

Ill. App. 3d 271, 876 N.E.2d 105 (2007), is misplaced where the

cited language did not relate to a claim brought under section 2-

2201 of the Code but rather to a consumer fraud claim brought

pursuant to section 2 of the Illinois Consumer Fraud and Deceptive

9 No. 1-09-0162

Business Practices Act (815 ILCS 505/2 (West 2004)). See Golf, 376

Ill. App. 3d at 276-77. The other cases relied upon by the

plaintiff are not controlling here because they were decided or

based upon circumstances occurring prior to the enactment of

section 2-2201.

Melrose Park’s argument, distilled to its essence, is that

Carlini had a fiduciary duty to procure workers’ compensation

insurance despite the fact that no such coverage was requested by

either Alport or Taddeo. This argument necessarily fails because

section 2-2201(b) precludes claims against insurance producers for

breach of fiduciary duty, except where such claims are based on the

wrongful retention or misappropriation of any money that was

received as premiums, as a premium deposit, or as payment of a

claim. See 735 ILCS 5/2-2201(b) (West 2006); see also Moore ex

rel. Moore v. Johnson County Farm Bureau, 343 Ill. App. 3d 581,

585-86, 798 N.E.2d 790 (2003).

We also find unpersuasive Melrose Park’s assertion that,

notwithstanding the terms of section 2-2201, a duty arose based on

the long-standing course of dealing between Carlini and the

Alports. In rejecting this claim, we observe that Melrose Park

failed to provide any specific evidence regarding the nature and

extent of the course of dealings between Carlini and Alport and her

husband. To the contrary, Alport’s testimony merely indicated that

she and her husband had been doing business with Carlini for more

10 No. 1-09-0162

than 20 years, and Carlini obtained the insurance for Melpark Drugs

and Liquors as well as for the family’s other businesses and

several commercial properties. No evidence was presented to

indicate that, in the absence of a specific request, Carlini

routinely procured workers’ compensation insurance for the Alports’

businesses. Evidence that Carlini acted as the Alports’ insurance

broker over a number of years, in and of itself, is insufficient to

establish a course of dealing that would put an objectively

reasonable insurance broker on notice that he was obligated to

either procure workers’ compensation insurance or to offer advice

regarding the need for such insurance. In addition, Alport’s own

prior course of dealing with Carlini suggests the opposite

conclusion. In her deposition, Alport testified that in

approximately 2003 Carlini procured workers’ compensation for her

jewelry store because she had specifically requested it and made

sure that such coverage had been obtained. Viewing the pleadings

and evidentiary material in the light most favorable to Melrose

Park, we conclude that the trial court properly entered summary

judgment in favor of Carlini.

For the foregoing reasons, the judgment of the circuit court

of Cook County is affirmed.

Affirmed.

THEIS and KARNEZIS, JJ., concur.