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08/14/97 CHAMPAIGN COUNTY FOREST PRESERVE DISTRICT

August 14, 1997

CHAMPAIGN COUNTY FOREST PRESERVE DISTRICT, PLAINTIFF-APPELLEE,
v.
ROBERT KING, DEFENDANT, AND INSURANCE RISK MANAGERS, LTD., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 95L1679. Honorable George S. Miller, Judge Presiding.

Released for Publication September 12, 1997.

Honorable Rita B. Garman, J., Honorable John T. McCullough, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Garman delivered the opinion of the court. McCULLOUGH and Cook, JJ., concur.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Plaintiff Champaign County Forest Preserve District (District), a public entity, filed a complaint in the circuit court of Champaign County against defendants Robert King (King) and Insurance Risk Managers, Ltd. (IRM). Plaintiff claimed it had been overcharged for insurance premiums obtained through defendants. IRM filed a motion to dismiss plaintiff's complaint, which the trial court denied. IRM now brings this interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). We are called upon to consider the following questions certified by the circuit court:

"1. Did the Plaintiff act in its public capacity by purchasing liability insurance?

2. Is the Plaintiff asserting a public right in claiming excessive billing in the approximate amount of $20,000 per year for insurance thus enjoying immunization from limitation defenses?"

We answer both questions in the negative.

On November 13, 1995, plaintiff filed a 32-count complaint against defendants, alleging breach of fiduciary duty and breach of agency. Plaintiff claimed it was overcharged for insurance premiums obtained through defendants from 1985 to 1992. Plaintiff further claimed defendants failed to disclose there was comparable coverage available at a lower cost and misled plaintiff into believing it was receiving appropriate insurance limits and coverage with appropriate companies at a fair cost. Plaintiff failed to obtain service of process over King.

On December 6, 1995, IRM filed a motion to dismiss plaintiff's complaint as being barred by the statute of limitations. Attached to IRM's motion was an affidavit of T.O. Dawson, chairman of the board and chief executive officer of IRM. Dawson testified that he reviewed the insurance files of plaintiff and discovered the last time a policy was sold to plaintiff was in 1989. That policy was to run for a period of three years. IRM's motion stated there was no written contract between plaintiff and IRM, and, therefore, the statute of limitations applicable to plaintiff's complaint was five years. See 735 ILCS 5/13-205 (West 1994). IRM asserted that because plaintiff's complaint was not filed until November 13, 1995, the lawsuit was barred.

Plaintiff's response to IRM's motion pointed out that it alleged two different theories in its complaint--breach of fiduciary duty and breach of agency. Plaintiff claimed the counts for breach of fiduciary duty are equitable actions governed by the doctrine of laches and that the breach of agency counts are governed by the statute of limitations. However, plaintiff averred that as a governmental body it is immune from the statute of limitations and the application of the doctrine of laches. Accompanying the response was an affidavit of John Potts, executive director of the District. Potts testified that insurance premiums were paid to IRM by plaintiff on an annual basis from 1985 to 1992.

IRM filed a reply, asserting that all counts of plaintiff's complaint are subject to the five-year statute of limitations because all counts sought money damages rather than equitable remedies. IRM further stated that plaintiff conceded the last time there were any negotiations between the parties was in 1989, with a three-year policy taking effect at that time.

On June 12, 1996, the trial court denied IRM's motion to dismiss, finding that under City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill. 2d 457, 451 N.E.2d 874, 71 Ill. Dec. 720 (1983), plaintiff acted in its public capacity by purchasing liability insurance and asserted a public right in claiming excessive billing for the insurance. Thus, plaintiff enjoyed immunity from limitation defenses. On June 17, 1996, IRM filed a motion to reconsider. In the alternative, IRM requested leave to file an interlocutory appeal pursuant to Rule 308. The court denied the ...


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