Westport Insurance v. Jackson National Life Insurance

900 N.E.2d 377, 387 Ill. App. 3d 408, 326 Ill. Dec. 741, 2008 Ill. App. LEXIS 1302
CourtAppellate Court of Illinois
DecidedDecember 19, 2008
Docket2-07-1205
StatusPublished
Cited by9 cases

This text of 900 N.E.2d 377 (Westport Insurance v. Jackson National Life 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
Westport Insurance v. Jackson National Life Insurance, 900 N.E.2d 377, 387 Ill. App. 3d 408, 326 Ill. Dec. 741, 2008 Ill. App. LEXIS 1302 (Ill. Ct. App. 2008).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Stonecrafters, Inc. (Stonecrafters), appeals from an order of the circuit court of McHenry County entering summary judgment for plaintiff, Westport Insurance Corporation (Westport), in an action for a declaratory judgment. Westport sought a declaration that coverage under an insurance policy issued to Jackson National Life Insurance Company (Jackson) did not extend to the liability of the Handleman Insurance Agency, Inc. (Handleman), arising from the transmission of unsolicited faxes advertising group health insurance. We affirm.

The declaratory judgment action underlying this appeal is related to a class action lawsuit filed by Stonecrafters against Handleman. Stonecrafters alleged that the transmission of unsolicited faxes to it and to other businesses violated federal law and gave rise to a private cause of action for damages. The advertisement faxed to the plaintiff class promoted “Group Health Insurance With Affordable Premiums!” It touted various benefits of the insurance, such as “PPO with Freedom of Choice,” “Maternity Care,” and “Inpatient Hospital Services.” It also set forth a table of premiums based on age and gender. The table was accompanied by the following legend:

“Illustrated Monthly premiums represent one of our many group health insurance plans, and are based on the maximum allowable good-health discount, suburban residence, [sic] & favorable nature of business. Eligible employers with 2-50 employees cannot be rejected due to medical history, but final premiums may vary based on the overall composition of your group. Once issued, premium tables are guaranteed for a one year period.” (Emphases in original.)

The advertisement invited potential customers to request a quotation.

The parties settled the class action lawsuit and entered into an agreed order entering judgment for $2 million in favor of the plaintiff class. As part of the settlement, Handleman assigned to the plaintiff class all of its rights to indemnity from its insurers, including West-port. Westport had issued to Jackson an insurance policy entitled:

“Insurance Company Coverage for Insurance Agents and Brokers Professional Liability”

Handleman is insured under the policy as one of Jackson’s agents.

The policy provides, in pertinent part, as follows:

“[Westport] agrees to pay on behalf of the Insured such loss *** sustained by the Insured by reason of liability imposed by law for damages caused by any negligent act, error or omission by the insured agent or for damages caused by libel or slander or invasion of privacy by the insured agent, arising out of the conduct of the business of the insured agent in rendering services for others as a licensed life, accident and health insurance agent, a licensed life, accident and health insurance general agent or a licensed life, accident and health insurance broker while there is in effect a contract between the Named Insured and the licensed insured agent.”

In the declaratory judgment action giving rise to this appeal, West-port named Stonecrafters, Handleman, and Jackson as defendants. Westport maintained that Handleman’s liability in the class action lawsuit did not arise from the conduct of Handleman’s business in rendering services for others as a licensed insurance agent. Stonecrafters filed a counterclaim seeking a declaration that Westport was obligated to pay the proceeds of the policy to the plaintiff class in the lawsuit against Handleman. Stonecrafters moved for judgment on the pleadings, and Westport, in turn, moved for summary judgment. The trial court granted Westport’s motion and denied Stonecrafters’. Stonecrafters brought this appeal.

Before proceeding, we note that, on our own motion, we directed the parties to submit supplemental briefs addressing the applicability of an endorsement to the policy excluding coverage for “any ‘claim’ or suit in which a court certifies a class action against the Named Insured or any of its subsidiaries or related entities.” Jackson is the “Named Insured.” Upon review of the supplemental briefs, we conclude that Westport has waived any coverage defense based on this endorsement. We use the word “waive” in its preferred sense as referring to the voluntary relinquishment of a known right. People v. Blair, 215 Ill. 2d 427, 444 n.2 (2005). It is evident that Westport made a deliberate choice not to pursue an argument based on the endorsement. We see no reason not to honor that choice, and we will therefore consider the matter no further.

Summary judgment is appropriate where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any 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). We review de novo the trial court’s ruling on a summary judgment motion. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000). Here, the material facts are not in dispute. Whether the policy issued by Westport covers Handleman’s liability is a question of law.

Stonecrafters argues that the distribution of its advertisement was part of the conduct of its business and constituted a service for others. According to Stonecrafters, the word “services” in the policy issued should be given its ordinary meaning. Citing the Random House College Dictionary, Stonecrafters contends that a service is any “act of assistance.” Random House College Dictionary 1203 (rev. ed. 1984). Stonecrafters contends that providing information to potential customers about the availability of group health insurance coverage was an act of assistance and was therefore within the scope of the coverage provided by the policy. 1

Our supreme court has offered the following summary of the principles governing the construction of language in an insurance policy:

“Insurance policies are subject to the same rules of construction applicable to other types of contracts. [Citation.] A court’s primary objective is to ascertain and give effect to the intention of the parties as expressed in the agreement. [Citation.] In performing that task, the court must construe the policy as a whole, taking into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. [Citation.]
The words of a policy should be accorded their plain and ordinary meaning. [Citation.] Where the provisions of a policy are clear and unambiguous, they will be applied as written [citation] unless doing so would violate public policy [citation].” Nicor, Inc. v. Associated Electric & Gas Services Ltd., 223 Ill. 2d 407, 416-17 (2006).

Applying these principles here, we first note that the title of the policy clearly indicates that the policy provides coverage for “professional liability.” Although it may not be an operative term of the policy, the title clearly indicates the type of insurance that Jackson purchased to cover its agents (including Handleman).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Beazley Insurance Co. v. ACE American Insurance Co.
197 F. Supp. 3d 616 (S.D. New York, 2016)
Margulis v. BCS Insurance Company
2014 IL App (1st) 140286 (Appellate Court of Illinois, 2014)
Standard Mutual Insurance Co. v. Lay
2014 IL App (4th) 110527-B (Appellate Court of Illinois, 2014)
Standard Mutual Insurance Company v. Lay
2014 IL App (4th) 110527-B (Appellate Court of Illinois, 2014)
Landmark Insurance Company v. NIP Group
2011 IL App (1st) 101155 (Appellate Court of Illinois, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
900 N.E.2d 377, 387 Ill. App. 3d 408, 326 Ill. Dec. 741, 2008 Ill. App. LEXIS 1302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westport-insurance-v-jackson-national-life-insurance-illappct-2008.