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Golub and Associates, Inc v. State Farm Fire and Casualty Company

January 18, 2011

GOLUB AND ASSOCIATES, INC., PLAINTIFF-APPELLEE,
v.
STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANT-APPELLANT, AND ROSALIND CLAYTON, DEFENDANT.



Appeal from the Circuit Court of St. Clair County. Honorable Vincent J. Lopinot, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

NOTICE Decision filed 01/18/11. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e disposition of the same.

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Spomer and Wexstten concurred in the judgment and opinion.

OPINION

Plaintiff, Golub and Associates, Inc., a public insurance adjuster, filed suit in the circuit court of St. Clair County against defendants, State Farm Fire and Casualty Company (State Farm) and Rosalind Clayton, State Farm's insured, to recover fees plaintiff earned while assisting Clayton in adjusting her insurance claim with State Farm after her home was destroyed by fire. The action was dismissed with regard to Clayton, but the circuit court granted a summary judgment in favor of plaintiff and denied State Farm's motion for a summary judgment. State Farm now appeals, arguing the trial court erred in granting a summary judgment in favor of plaintiff. We affirm.

FACTS

Clayton's home, located at 2101 Jerome Lane in Cahokia, was insured by State Farm. On August 23, 2008, a fire destroyed her home, prompting Clayton to file a claim with State Farm. Clayton hired plaintiff to assist her in adjusting her claim. Clayton and plaintiff entered into a contract dated August 25, 2008. The contract states as follows:

"I [Clayton] hereby authorize Golub and Associates to assist me in the adjustment of my fire loss with the insurance companies insuring my property at 2101 Jerome Lane, Cahokia, IL, and which occurred on 8-23-08, for which I agree to pay them on the receipt of my drafts in payment of said loss the sum equal to 10% of the amount of the adjustment. I, hereby, assign to them all money becoming due to the extent of the fee for adjusting said loss. It is understood that no settlement is to be made without my approval."

Ace Hart, an agent employed by plaintiff, signed on behalf of plaintiff.

On August 26, 2008, Hart notified State Farm by facsimile and regular mail of plaintiff's contract with Clayton and plaintiff's lien on the insurance proceeds and asked that plaintiff's name be included on any payments made to Clayton. Plaintiff negotiated a settlement with State Farm to Clayton in the amount of $72,076.58. Initially, State Farm issued a check to both plaintiff and Clayton.

On November 14, 2008, Clayton gave oral notice to State Farm that she was terminating her contract with plaintiff and requested that plaintiff not be named on any checks State Farm paid to her. On November 21, 2008, Clayton gave written notice to State Farm that she terminated her contract with plaintiff. Thereafter, State Farm complied with Clayton's request not to include plaintiff as a payee and reissued a check with only Clayton as a payee.

On February 26, 2009, plaintiff filed suit against Clayton and State Farm. Count I was directed against Clayton and alleged that she breached her contract with plaintiff. Count II was directed against State Farm and alleged that State Farm was liable for plaintiff's claimed fees because plaintiff had a lien on Clayton's insurance proceeds which State Farm failed to honor. Plaintiff and State Farm filed cross-motions for a summary judgment on count II. On July 31, 2009, the trial court granted a summary judgment in favor of plaintiff and entered a judgment against State Farm in the amount of $7,562.85. State Farm now appeals.

ANALYSIS

State Farm argues that the trial court erred in granting a summary judgment in favor of plaintiff. State Farm first contends that plaintiff did not have a valid lien on Clayton's insurance proceeds because the Illinois Insurance Code (215 ILCS 5/1 et seq. (West 2008)) does not create a statutory lien in favor of public adjusters and State Farm's only duty was to its insured. Plaintiff replies that its contract with Clayton was an adequate basis for a lien and that section 512.52 of the ...


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