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American Service Insurance Company v. Olszewski

August 20, 2001

AMERICAN SERVICE INSURANCE COMPANY, PLAINTIFF-APPELLANT
v.
LESLAW OLSZEWSKI, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice O'mara Frossard

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable Ellis Reid and Nancy Jo Arnold, Judges Presiding.

Plaintiff, American Service Insurance Company, appeals the trial court's finding that it owed defendant, Leslaw Olszewski, a duty to defend and to indemnify him in two lawsuits. On December 31, 1997, defendant was involved in a motor vehicle accident. Defendant had purchased motor vehicle insurance from plaintiff and sought coverage under that policy. Plaintiff responded that the policy had lapsed, without renewal, prior to the accident. Plaintiff denied coverage and brought this declaratory action. Following a bench trial, the trial court found that defendant had renewed the insurance policy prior to the accident and that plaintiff's agent had received notice of this renewal. On appeal, plaintiff argues that the trial court erred in: (1) allowing defendant to call a witness that he had not disclosed; (2) finding an agency relationship between plaintiff and an insurance producer or broker with which plaintiff did business; (3) asking the attorneys questions during closing argument; and (4) denying plaintiff's posttrial motion. We reverse and remand.

I. BACKGROUND

Defendant purchased motor vehicle insurance with plaintiff through an insurance broker. The insurance broker, Midwest Competent & Insurance Agency, Inc. (Midwest), placed defendant with an insurance producer, M.E. Pritikin, that directly dealt with plaintiff. Erica Cwan, a senior litigation specialist for plaintiff, testified that in 1997, M.E. Pritikin was an independent producer that solicited business for defendant. According to Cwan, an insurance policy becomes effective or "bound" on the date and time that plaintiff receives the policy from M.E. Pritikin. Cwan testified that in June 1997, defendant purchased a six-month insurance policy that expired on December 8, 1997. Defendant paid his premiums to Midwest, which, in turn, paid M.E. Pritikin. Plaintiff then received the premium from M.E. Pritikin. Cwan testified that M.E. Pritikin was its "producer" and that Midwest was defendant's agent. Cwan testified that plaintiff did not receive notice that defendant intended to renew his insurance until January 5, 1998, when plaintiff received a fax notice from Pritikin of a renewal. Therefore, plaintiff argues that defendant's policy was not in effect between December 8, 1997, the date defendant's insurance policy expired, and January 5, 1998. When plaintiff received notice that defendant was involved in a motor vehicle accident on December 31, 1997, plaintiff determined that defendant was not insured at the time of the accident because of defendant's failure to renew the policy until January 5, 1998.

Defendant testified that, through Midwest, he first purchased insurance with plaintiff in June 1996. He then renewed the policy every six months, including December 1997. Each time defendant renewed the policy, he paid Midwest a down payment and then made three installment payments to Midwest to satisfy the premium. Midwest provided him with insurance cards. After the accident on December 31, 1997, defendant went to Midwest's office the following Monday and informed them that he had been in an accident.

Defendant additionally called as a witness Robert Mikolajczyk, who worked for Midwest as an insurance broker. Plaintiff moved to bar this witness, citing defendant's failure to disclose this witness in his answer to Rule 213 interrogatories. 177 Ill. 2d R. 213. Denying this motion, the trial court noted that Mikolajczyk would only testify to facts and that, because of the nature of the case, plaintiff could not claim any surprise.

Mikolajczyk testified that on June 7 or 8, 1997, he met with defendant and that defendant renewed his motor vehicle insurance with plaintiff for an additional six months. Mikolajczyk received the premium payments from plaintiff, forwarded this money to M.E. Pritikin, and issued defendant an insurance card. Mikolajczyk met with defendant again in December 1997 for the purpose of another six-month renewal. Plaintiff made a down payment and Mikolajczyk issued him another insurance card. Mikolajczyk sent the payment to M.E. Pritikin and faxed notice of renewal to M.E. Pritikin on December 6, 1997. Defendant eventually paid the entire premium for the insurance and Mikolajczyk sent this money to M.E. Pritikin. When defendant reported the motor vehicle accident in January 1998, Mikolajczyk notified both M.E. Pritikin and plaintiff of the claim. Mikolajczyk testified that he "usually" helps his customers with "setting up the claims" and "filling out the policy parts." With respect to defendant's claim, the owner of M.E. Pritikin told Mikolajczyk that M.E. Pritikin would handle the claim. At the time of the trial in 2000, Mikolajczyk testified that defendant continued to be insured with plaintiff.

The trial court found significant the December 6, 1997, fax from Midwest to M.E. Pritikin, notifying it of a renewal. The court believed that this fax was "sufficient to bind and estop the carrier from denying renewal." The court determined that, as a matter of law, the insurance policy was in effect on the date of the accident and entered judgment in favor of the defendant. Following trial, a different judge was assigned to this case and denied plaintiff's posttrial motion. This appeal followed.

Defendant initially requests that we dismiss the appeal because plaintiff's brief contains an incomplete statement of facts. Supreme Court Rule 341(e)(6) requires the appellant's brief to include a statement of facts, which should recite "the facts necessary to an understanding of the case." 177 Ill. 2d R. 341(e)(6). Here, plaintiff's statement of facts mainly focuses on the procedural history of the case, i.e., when the lawsuit was filed, the proceedings before the trial court, and the positions of the parties during the lawsuit. In articulating the parties' contentions, plaintiff's statement of facts identifies the relevant and necessary facts that underlie the insurance coverage dispute. We therefore find compliance with Rule 341(e)(6) and deny defendant's request to dismiss the appeal.

II. RULE 213(f) VIOLATION

We now turn to plaintiff's argument that defendant violated the disclosure requirements of Supreme Court Rule 213. 177 Ill. 2d R. 213(f). Subsections (f) and (i) of Supreme Court Rule 213 provide as follows:

"(f) Identity and Testimony of Witnesses. Upon written interrogatory, a party must furnish the identity and location of witnesses who will testify at trial, together with the subject of their testimony. ***

(i) Duty to Supplement. A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that ...


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