Purdy Co. v. Transportation Insurance

568 N.E.2d 318, 209 Ill. App. 3d 519, 154 Ill. Dec. 318, 1991 Ill. App. LEXIS 136
CourtAppellate Court of Illinois
DecidedFebruary 1, 1991
Docket1-88-2306
StatusPublished
Cited by11 cases

This text of 568 N.E.2d 318 (Purdy Co. v. Transportation Insurance) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Purdy Co. v. Transportation Insurance, 568 N.E.2d 318, 209 Ill. App. 3d 519, 154 Ill. Dec. 318, 1991 Ill. App. LEXIS 136 (Ill. Ct. App. 1991).

Opinion

JUSTICE GORDON

delivered the opinion of the court;

Plaintiffs, The Purdy Company of Illinois (Purdy), and its wholly owned subsidiary, A.D. Schader Co. (Schader), filed a complaint for declaratory judgment in two counts against the defendant, Transportation Insurance Company, seeking a determination of their rights under the terms of an insurance policy issued by the defendant that insured against losses caused by employee dishonesty. Count I alleged that the defendant had breached the terms of the policy when it refused to indemnify the plaintiffs for the full amount of the losses caused by the defalcations of two of its former employees. Count II sought attorney fees and costs, under section 155 of the Illinois Insurance Code, alleging that the defendant’s refusal to pay the total amount of the plaintiffs’ actual loss was vexatious and unreasonable. (Ill. Rev. Stat. 1985, ch. 73, par. 767.) On its own motion, the trial court transferred this case to the law division, stating that although the plaintiffs filed a complaint for declaratory judgment, the allegation contained in count I was actually one asserting breach of contract and that count II sought damages caused by the alleged breach. Thereafter, the defendant filed a motion for summary judgment, which was granted by the trial court pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). Plaintiffs now appeal. We affirm the trial court’s entry of summary judgment on both counts.

The uncontroverted submissions in support of the defendant’s motion for summary judgment disclosed that in October of 1980, the defendant issued to the plaintiffs a comprehensive crime insurance policy. The insuring clause provided:

“1A EMPLOYEE DISHONESTY COMMERCIAL BLANKET COVERAGE
Loss of Money, Securities and other property which the Insured shall sustain, to an amount not exceeding in the aggregate the amount stated in the Table of Limits of Liability applicable to this Insuring Agreement 1A through any fraudulent or dishonest act or acts committed by any of the Employees, acting alone or in collusion with others.”

The limit of liability for coverage under insuring agreement 1A was $250,000. Section 11 of the policy provided:

“RECOVERIES
Section 11. Payment of loss under Insuring Agreement 1A *** shall not reduce the Company’s liability for other losses under [any of the Insuring Agreements] whenever sustained. The Company’s total liability (a) under Insuring Agreement 1A for all loss caused by an employee or in which such employee is concerned or implicated *** is limited to the applicable amount of insurance specified in the Table of Limits of Liability ***.”

In 1984, the plaintiffs submitted an insurance claim to the defendant in excess of $340,000 representing losses caused by the defalcations of two Schader employees, John Duffy, a vice-president, and John Fonesca, general manager, during the period from January 1, 1981, to November 27, 1984. Both men worked in Schader’s office, which is located in Hayward, California.

The record disclosed that each employee rented post office boxes and opened checking accounts under the auspices of nonexistent companies and then submitted fraudulent invoices on behalf of these fictitious companies to plaintiffs for payment of equipment rental, materials and services. Duffy had established various fictitious companies, including one company called Steelco. In total, he diverted approximately $145,000 to these companies for his personal use, of which over $100,000 was diverted to Steelco. Fonesca established a fictitious company called Mass Trans to which he diverted approximately $12,000 for his personal use. Each employee by virtue of his position with Schader was authorized to approve payment of invoices.

The second method by which the two employees diverted plaintiffs’ funds was through the submission of personal expenses for payment by plaintiffs. As conceded by plaintiffs, this scheme was accomplished by the two employees’ mutual approval of each other’s expense reports in contravention of known company policy requiring that all expenses be supported by proper documentation. It was estimated that over $85,000 was diverted for Duffy’s personal expenses, and over $55,000 for Fonesca’s personal expenses. It was further estimated that over $25,000 was diverted for the remodeling of one or both of the two employees’ private residences.

After proofs of these losses were filed with the defendant, it retained Surety Service Corporation (Surety) to further investigate plaintiffs’ claim. In January 1985, after the investigation was completed, the defendant notified the plaintiffs that its maximum liability on the entire claim would be $250,000, an amount which it promptly paid. Defendant, therefore, denied payment for the balance of the plaintiffs’ claim in excess of $250,000 on the ground that Duffy and Fonesca had acted in collusion.

The undisputed record established that of the many Schader checks made payable to Steelco, during 1982, more than 10 checks were co-signed by Duffy and Fonesca jointly. And at least one other Schader check made payable to Steelco was signed by Fonesca only. With respect to Mass Trans, the record does not disclose whether any Schader checks made payable to Mass Trans were co-signed by Fonesca and Duffy jointly. It was established, however, that at least one check dated in 1984 and made payable to Mass Trans was signed by Duffy only.

As previously noted, it was further shown that Fonesca and Duffy co-signed Schader checks in excess of $25,000 made payable to a construction and a lumber company for labor and materials used to remodel one or both of their private residences. One of the invoices issued by the construction company and paid by a Schader check co-signed by both Duffy and Fonesca bore Fonesca’s home address.

Among the submissions in support of defendant’s motion were two letters. One letter was written by plaintiffs’ president, John P. Purdy, to Duffy in which he states that Duffy “admitted” to Purdy and other Purdy executives that Duffy and Fonesca “had conspired to divert finds illegally” through Steelco and Mass Trans. The letter stated further: “In addition, by your own admission, this same situation applied to expense accounts which were for non-business expenses and not supported by receipts or other evidence of being business related.” The second letter was written by plaintiffs’ vice-president, Robin Purdy, to notify the defendant that company funds had been diverted into fictitious companies established by two employees, “acting in collusion,” and that both employees “would knowingly approve each other’s expense accounts,” an action that Robin Purdy stated was admitted by Duffy subsequent to his resignation.

In an interoffice memorandum dated March 30, 1984, Duffy, in response to Purdy’s inquiry of the propriety of a Mass Trans invoice, advised Purdy that Mass Trans was a Canadian company that sold equipment to plaintiffs and required payment on a cash-on-delivery basis. Duffy stated further that he was enclosing with the memo photographs “taken by” him of Mass Trans’ equipment. The photographs were not a part of the record.

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Bluebook (online)
568 N.E.2d 318, 209 Ill. App. 3d 519, 154 Ill. Dec. 318, 1991 Ill. App. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/purdy-co-v-transportation-insurance-illappct-1991.