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American Service Insurance v. Miller

Court of Appeals of Illinois, Fifth District

October 17, 2014

AMERICAN SERVICE INSURANCE, Plaintiff-Appellee and Cross-Appellant,
v.
DAVID MILLER, Defendant-Appellant and Cross-Appellee (Patricia Lynch, Defendant)

Appeal from the Circuit Court of St. Clair County. No. 06-MR-229. Honorable Brian Babka, Judge, presiding.

SYLLABUS

In a declaratory judgment action filed by plaintiff insurer alleging that its insured failed to comply with the requirements of her policy by giving plaintiff notice of the accident in which she struck the bicycle defendant was riding and of the suit filed by defendant for his damages, the trial court properly imposed sanctions on plaintiff under Supreme Court Rules 137 and 219(c) based on plaintiff's failure to produce a true and correct copy of its insured's policy, since the award of $20,000 plus attorney fees and litigation expenses of just over $63,000 was reasonable under the circumstances.

For Appellant: Rhonda D. Fiss, Michael A. Aguirre, The Law Office of Rhonda D. Fiss, P.C., Belleville, IL.

For Appellee: William J. Knapp, Heather Mueller-Jones, Knapp, Ohl & Green, Edwardsville, IL.

Honorable Stephen L. Spomer, J. Honorable Bruce D. Stewart, J., and Honorable Judy L. Cates, J., Concur.

OPINION

Honorable Stephen L. Spomer, J.

Page 477

[¶1] Defendant David Miller appeals the orders of the circuit court of St. Clair

Page 478

County that awarded Miller sanctions. The plaintiff, American Service Insurance, cross-appeals. For the following reasons, we affirm.

[¶2] FACTS

[¶3] The facts necessary to our disposition of this appeal are as follows. On August 15, 2006, the plaintiff filed a complaint for declaratory judgment against defendants Patricia Lynch and David Miller. Therein, the plaintiff alleged that Lynch was a former insured of the plaintiff, and that she was a named defendant in a lawsuit filed by Miller arising from damages Miller allegedly sustained when Lynch, then insured by the plaintiff, struck the bicycle he was riding with her automobile on February 12, 2003. The plaintiff further alleged that, in contravention of the requirements of the notice and cooperation clauses of her automobile insurance policy with the plaintiff, Lynch did not provide the plaintiff with notice of the accident in which she struck Miller and did not provide the plaintiff with notice of the lawsuit filed by Miller against her. The plaintiff asked the circuit court to, inter alia, find and declare that the plaintiff therefore had no obligation to defend or indemnify Lynch in the action brought by Miller. Paragraph 4 of the complaint stated that " [a] copy of the policy is attached hereto and incorporated herein as Exhibit A." Attached to the plaintiff's complaint was, inter alia, Exhibit A. The first page of Exhibit A included the signed certification of Veronica Maldonado, an underwriter for the plaintiff, that Exhibit A was " a true and correct copy" of the insurance policy issued by the plaintiff to Lynch and in effect at the time of Lynch's collision with Miller. Discovery and motion traffic not relevant to this appeal followed for the next several years.

[¶4] The case finally came to trial on March 19, 2013. On that date, during the direct examination of witness Scott St. John, a claims adjuster employed by the plaintiff, counsel for the plaintiff adduced testimony from St. John that on May 19, 2004, St. John requested a " certified copy" of Lynch's policy from the plaintiff's underwriting department, and that on May 24, 2004, St. John sent the policy he received from underwriting to counsel for Miller. St. John testified about discrepancies between the policy he initially sent to counsel for Miller and the policy attached to the complaint as Exhibit A, and to explain these discrepancies, described the standard process by which the plaintiff created certified copies of policies, which, according to St. John, was to take " the declarations page that was initially issued and [send] that along with the body of the policy that was current at the time of the request" for a certified copy. Counsel for the plaintiff then attempted to introduce into evidence, as Plaintiff's Exhibit 14, a copy of Exhibit A, which St. John described as " a certified copy of Patricia Lynch's policy." Counsel for Miller objected, stating " this is not the policy that was in effect at the time of this incident," because, as St. John's testimony about the plaintiff's standard process demonstrated, the only document that " existed" at the time of the incident was the declarations page: the policy itself was " a copy of a policy that was in effect at the time we requested a certified copy, rather than the policy that was in effect at the time of ...


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