Court of Appeals of Illinois, First District, Third Division
BRIDGEVIEW HEALTH CARE CENTER, LTD., Individually and on Behalf of a Class of Similarly Situated Persons, Plaintiff-Appellee,
STATE FARM FIRE and CASUALTY COMPANY, Defendant-Appellant (Jerry Clark, d/b/a Affordable Digital Hearing, Defendant).
The appellate court reversed the entry of summary judgment for plaintiff in an action seeking a declaratory judgment that defendant insurer was obligated under the commercial liability policy it issued to defend and indemnify the insured, an Indiana business, in the underlying suit alleging that the insured sent unsolicited faxes to plaintiff, since a potential conflict existed between Illinois and Indiana law as to whether the policy provided the coverage at issue, and the cause was remanded for a determination of whether Illinois or Indiana law governed the controversy.
Appeal from the Circuit Court of Cook County, No. 10-CH-28169; the Hon. Rita M. Novak, Judge, presiding.
Dykema Gossett, PLLC, of Chicago (Michael C. Borders and Rosa Tumialan, of counsel), for appellant.
Anderson & Wanca, of Rolling Meadows (Brian J. Wanca and David M. Oppenheim, of counsel), and Bock & Hatch, LLC (Phillip A. Bock, of counsel), and Gardner Koch & Weisberg (Vincent A. Lavieri, of counsel), both of Chicago, for appellee.
Meckler Bulger Tilson Marick & Pearson, of Chicago (Michael M. Marick, Karen M. Dixon, and Timothy H. Wright, of counsel), for amicus curiae.
Justices Sterba and Hyman concurred in the judgment and opinion.
NEVILLE PRESIDING JUSTICE
¶ 1 Bridgeview Health Care Center filed a complaint against Jerry Clark for sending it unsolicited faxes. Bridgeview then filed a declaratory judgment action against Clark's insurer, State Farm Fire and Casualty Company, seeking a declaration that State Farm had a duty to defend and indemnify Clark in the underlying lawsuit for the unsolicited faxes. Bridgeview filed a motion for summary judgment in the declaratory judgment action, relying on decisions of the Illinois courts to show that State Farm had a duty to defend Clark. State Farm filed a motion for summary judgment claiming that Indiana law applied and that decisions of the federal court sitting in Indiana established that State Farm had no duty to defend. The trial court found that the federal decisions did not prove a conflict between Indiana law and Illinois law, so Illinois law applied. Under Illinois law, State Farm had a duty to defend Clark. The trial court granted summary judgment in favor of Bridgeview.
¶ 2 In this appeal, we find that in the absence of controlling authority from Indiana's state courts on the question at issue in a case, this court should conduct a conflict analysis. We reverse the trial court's judgment and remand for the trial court to determine which state has the most significant contacts with the dispute, and for the application of that state's law to the dispute.
¶ 3 BACKGROUND
¶ 4 Jerry Clark, an Illinois resident, ran his own unincorporated business in Terre Haute, Indiana, selling and repairing hearing aids. In September 2005, Clark purchased comprehensive business liability insurance from State Farm, to cover his business activities in Indiana. Clark bought the policy through an insurance agency located in Terre Haute, Indiana, and State Farm's offices in West Lafayette, Indiana, issued the policy in exchange for a check Clark drew on his account in an Indiana bank.
¶ 5 In 2009, Bridgeview filed the underlying lawsuit against Clark in the United States District Court for the Northern District of Illinois, alleging that in 2006, Clark faxed an unsolicited advertisement to Bridgeview's business offices in Chicago. In the first count of the complaint, Bridgeview claimed that Clark violated the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2000)). The second count charged Clark with conversion of Bridgeview's toner, paper and employee time, and the third count charged Clark with violating the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 2006)).
¶ 6 Clark tendered defense of the lawsuit to State Farm. State Farm accepted the defense subject to a reservation of the right to deny coverage, and it paid Clark's independent counsel's fees to ...