Wausau Insurance v. All Chicagoland Moving & Storage Co.

777 N.E.2d 1062, 333 Ill. App. 3d 1116, 268 Ill. Dec. 139, 2002 Ill. App. LEXIS 907
CourtAppellate Court of Illinois
DecidedSeptember 27, 2002
Docket2-01-1317
StatusPublished
Cited by23 cases

This text of 777 N.E.2d 1062 (Wausau Insurance v. All Chicagoland Moving & Storage Co.) 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
Wausau Insurance v. All Chicagoland Moving & Storage Co., 777 N.E.2d 1062, 333 Ill. App. 3d 1116, 268 Ill. Dec. 139, 2002 Ill. App. LEXIS 907 (Ill. Ct. App. 2002).

Opinion

JUSTICE BYRNE

delivered the opinion of the court:

Plaintiff, Wausau Insurance Company (Wausau), initiated a subrogation action against All Chicagoland Moving & Storage Company (Chicagoland), alleging that Chicagoland dropped and damaged an electron microscope owned by the McCrone Group, Inc. (McCrone), and insured by Wausau. Wausau’s amended complaint alleged that Chicagoland acted negligently and breached a bailment agreement with McCrone. The trial court granted Wausau summary judgment and awarded $90,500 in damages, and Chicagoland appeals. We affirm the portion of the court’s order granting Wausau summary judgment, but we reverse the award of $90,500 and remand the cause for a new determination of Wausau’s damages.

FACTS

In June 1997, McCrone, a business which provides chemical analysis services, decided to replace a JEM200CX electron microscope (the microscope) with a more advanced microscope. McCrone had originally purchased the old microscope from JEOL, the microscope’s manufacturer, and intended to place the microscope with JEOL for resale. JEOL contacted McDonald Moving & Storage (McDonald) to transport the microscope. On June 26, 1997, McDonald retained Chicagoland to retrieve the microscope from McCrone’s Westmont facility, deliver it to Chicagoland’s Elmhurst warehouse, and await further instruction from McDonald.

Larry Illingworth, Jr., a Chicagoland employee, prepared a bill of lading and directed Mike Holt, an independent contractor, to retrieve the microscope and transport it to Chicagoland’s Elmhurst warehouse. The bill of lading identified Chicagoland’s warehouse as the microscope’s final destination. On June 30, 1997, Holt transported the microscope without incident. However, Kevin Illingworth, Chicago-land’s warehouse manager, dropped and damaged the microscope while he and an assistant were repackaging it within Chicagoland’s warehouse.

On appeal, Chicagoland contends that the damage occurred on the day Chicagoland accepted the microscope. However, Chicagoland’s answer to the complaint states that the accident occurred two days later, “on or about July 2, 1997.” Chicagoland concedes that its agents dropped the microscope but insists that they were not negligent in doing so.

Before the accident, McCrone had purchased from Wausau an insurance policy that purportedly covered the microscope. McCrone submitted a claim for the damaged microscope, and Wausau paid McCrone $90,250 after accounting for the $250 deductible. Wausau’s original and amended complaints each sought $90,500, which allegedly represented the aggregate loss of the insurer and the insured. After Wausau amended its complaint, the trial court permitted additional discovery but barred eight interrogatories and a deposition request submitted by Chicagoland that addressed Wausau’s damages. The trial court subsequently granted Wausau summary judgment on its subrogation claim against Chicagoland, and Chicagoland timely appeals.

ANALYSIS

In all appeals from the entry of summary judgment, we conduct a de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that 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 1998); Bier v. Leanna Lakeside Property Ass’n, 305 Ill. App. 3d 45, 50 (1999). “Summary judgment is a drastic means of resolving litigation and should be allowed only when the right of the moving party is clear and free from doubt.” Bier, 305 Ill. App. 3d at 50. “Therefore, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact.” Espinoza, 165 c. 2d at 114.

If a party moving for summary judgment introduces facts that, if not contradicted, would entitle him to a judgment as a matter of law, the opposing party may not rely on his pleadings alone to raise issues of material fact. Hermes v. Fischer, 226 Ill. App. 3d 820, 824 (1992).

In this case, Wausau and Chicagoland filed opposing motions for summary judgment to dispose of Wausau’s subrogation claim, and the trial court ruled for Wausau. Chicagoland asserts that questions of fact exist but nevertheless argues that it is entitled to summary judgment. Chicagoland contends that (1) Wausau did not establish a prima facie case of bailment; (2) Chicagoland exercised due care in handling the microscope; (3) Wausau’s subrogation claim is barred because McCrone’s insurance policy did not require Wausau to pay for the loss; (4) the damage award of $90,500 is not supported by competent evidence; (5) the bill of lading limited Chicagoland’s liability to “$2 times the weight of the subject microscope in pounds”; and (6) the trial court abused its discretion in barring Chicagoland’s discovery requests regarding Wausau’s damages.

Subrogation has been defined as the substitution of another person in the place of a claimant whose rights he succeeds to in relation to the debt or claim asserted, which he has paid involuntarily. North American Insurance Co. v. Kemper National Insurance Co., 325 Ill. App. 3d 477, 481 (2001). The right of subrogation may be grounded in equity or based on an express or implied agreement. To establish its status as a subrogee, an insurer must prove that (1) a third party is primarily liable to the insured for the loss; (2) the insurer is secondarily liable to the insured for the loss pursuant to an insurance policy; and (3) the insurer paid the insured under the policy, thereby extinguishing the debt of the third party. North American, 325 Ill. App. 3d at 481. Chicagoland disputes whether Wausau established the first two elements of subrogation.

1. Chicagoland’s Liability to Wausau

We initially consider whether Chicagoland is primarily hable to McCrone for the damage to the microscope. The trial court decided that Wausau proved Chicagoland’s liability by establishing a prima facie case of bailment. “ ‘A bailment is the delivery of property for some purpose upon a contract, express or implied, that after the purpose has been fulfilled, the property shall be redelivered to the bailor, or otherwise dealt with according to his directions, or kept until he reclaims it.’ ” American Ambassador Casualty Co. v. Jackson, 295 Ill. App. 3d 485, 490 (1998), quoting American Ambassador Casualty Co. v. City of Chicago, 205 Ill. App. 3d 879, 881 (1990). To recover under a bailment theory, a plaintiff must establish (1) an express or implied agreement to create a bailment; (2) a delivery of the property in good condition; (3) the bailee’s acceptance of the property; and (4) the bailee’s failure to return the property or the bailee’s redelivery of the property in a damaged condition. Jackson, 295 Ill. App. 3d at 490.

A prima facie case of bailment creates a rebuttable presumption that the defendant acted negligently. Jackson, 295 Ill. App. 3d at 490.

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777 N.E.2d 1062, 333 Ill. App. 3d 1116, 268 Ill. Dec. 139, 2002 Ill. App. LEXIS 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wausau-insurance-v-all-chicagoland-moving-storage-co-illappct-2002.