Appeal from the Circuit Court of Du Page County. No. 97--AR--343 Honorable Edmund P. Bart, Judge, Presiding.
The opinion of the court was delivered by: Justice Colwell
JUSTICE COLWELL delivered the opinion of the court:
Defendant and third party plaintiff, Jim Guccione, d/b/a Du Page Carpet, appeals the trial court's grant of summary judgment in favor of third party defendant, Christopher L. DeCaigny. He argues that (1) the existence of genuine issues of material fact precluded the grant of summary judgment; and (2) DeCaigny's motion for summary judgment was untimely according to local court rule and should not have been considered. We reverse the trial court's judgment and remand the cause for further proceedings.
Plaintiff, Cincinnati Insurance Company (CIC), alleged the following in its amended complaint against Guccione. CIC provided workers' compensation and employers' liability insurance to Guccione's business for two one-year terms. For the first term, Guccione paid a "deposit premium" of $850 but failed to pay an additional premium, as determined by an audit, of $12,503. For the second term, Guccione paid a deposit premium of $850 and owed an additional premium of $10,747. Therefore, CIC sought the recovery of $23,250.
Guccione filed a third party complaint against DeCaigny. In count I, he alleged that DeCaigny, an insurance agent, informed Guccione of the nature and cost of various workers' compensation insurance policies. He told Guccione that the cost of the policy at issue here was "modest" and would approximate an "initial premium" paid upon application. Relying upon those statements, Guccione applied for the policy and paid an initial premium. In fact, however, the policy was far more expensive than DeCaigny had predicted, and it was not appropriate for Guccione's needs. Guccione alleged that DeCaigny breached his obligation to provide the coverage that Guccione requested at the price that he was promised, causing Guccione to suffer damages in the amount of $22,500.
Guccione incorporated the same allegations in counts II and III. In count II, he sought recovery on the theory that DeCaigny was negligent in the statements and conduct by which he procured Guccione's policy. In count III, he alleged that DeCaigny committed common-law fraud by making statements that he knew to be false with the intent to mislead Guccione into purchasing the policy.
Guccione attached to his complaint a copy of the policy at issue. According to its terms, the insured must pay an "estimated premium" at the beginning of the covered period. After the period ends, CIC performs an audit to determine the "final premium." If the final premium is greater than the estimated premium, the insured is liable for the difference. The record confirms that Guccione's estimated premium was $850 for each one-year term.
Pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1998)), DeCaigny moved to dismiss Guccione's complaint. The court denied that motion. DeCaigny then answered the complaint, acknowledging that he was a licensed insurance producer but stating that he properly procured the policy in dispute. He denied all of Guccione's material allegations. As an affirmative defense, DeCaigny alleged that Guccione's own misstatements in his application for the policy caused the variance between the estimated and the actual premiums. The case was set for trial before a jury.
Pursuant to section 2--1005 of the Code (735 ILCS 5/2--1005 (West 1998)), DeCaigny moved for summary judgment against Guccione. He alleged that the following facts were undisputed and required the grant of summary judgment. Guccione asked DeCaigny to procure workers' compensation and employers' liability insurance. DeCaigny did so, and Guccione paid his initial estimated premium. Guccione received a copy of the policy but did not read it, and he therefore did not learn that the actual premium would be determined later by an audit. DeCaigny concluded that he discharged his duty to Guccione when he procured the coverage that Guccione requested. Guccione's claimed damages were the result of his own ignorance of his potential liability, which in turn was caused by his failure to discharge his duty to read his policy. Attached to the motion as exhibits were various insurance documents and transcripts of the parties' depositions.
We granted Guccione's motion to supplement the record on appeal with his response to DeCaigny's motion for summary judgment. In that response, Guccione admitted that he did not read the policy. However, he relied upon DeCaigny's statement that the total cost of the insurance would be "approximately $750." This statement, made without any explanation of the potential for a dramatic increase upon the performance of an audit, constituted a breach of a fiduciary duty that DeCaigny was bound to perform. Guccione further claimed, as he did in his complaint, that DeCaigny did not procure the coverage that he requested. Additional transcripts of depositions were attached as exhibits.
In his reply, DeCaigny alleged that he informed Guccione that the final premium would approximate the estimated premium only if he did not employ uninsured workers. Guccione did employ such workers, however, and his final premium was substantially higher as a result. Again, supporting transcripts of depositions were attached.
The trial court granted DeCaigny's motion for summary judgment on all counts of Guccione's complaint. The court found no just reason to delay the enforcement or appeal of its order (155 Ill. 2d R. 304(a)). Guccione timely appealed.
Initially, we note that Guccione failed to cite authority in his brief, in violation of Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)). We may dismiss an appeal when the appellant's brief fails to comply with applicable rules. In re A.H., 215 Ill. App. 3d 522, 529 (1991). However, the decision whether to do so is within this court's discretion. Geers v. Brichta, 248 Ill. App. 3d 398, 400 (1993). Because of the drastic nature of summary judgment, we admonish Guccione for his violation but will reach the merits of his appeal.
Guccione first argues that the record does not support the entry of summary judgment. Summary judgment is properly granted if the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the non-movant, reveal that there exists no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998); Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374 (1998). Summary judgment is a drastic and extraordinary remedy that may be granted only when the movant's right is absolutely clear. ...