AMERICAN FAMILY MUTUAL INSURANCE COMPANY, as Subrogee of Michael Gaffney, Plaintiffs-Appellants,
DAVID L. TYLER, CITY OF CHICAGO, and AIMAN R. ORTHMAN, Defendants, (City of Chicago, Defendant-Appellee).
from the Circuit Court of Cook County No. 09 L 1068 Honorable
Edward S. Harmening, Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with
opinion. Justices Neville and Pierce concurred in the
judgment and opinion.
1 American Family Mutual Insurance Company (American Family),
as subrogee of its insured, Michael Gaffney, asserted claims
against the City of Chicago and others arising out of the
theft by fraud and ultimate recovery of Gaffney's
vehicle. The trial court dismissed American Family's
complaint as it pertained to the City, on the ground that the
City was immune from suit under the Local Governmental and
Governmental Employees Tort Immunity Act (Act) (745 ILCS
10/2-101 (West 2012)). We agree with the trial court and
2 On April 19, 2011, Gaffney agreed to sell his vehicle, a
2006 BMW 650i, to an individual named David Tyler. Tyler paid
for the car with two cashier's checks written on Fifth
Third Bank: one payable to the lienholder on the vehicle, BMW
Financial Services Remarketing, Inc., and the other payable
to TRKAM, LLC, a business owned by Gaffney that held title to
the car. After receipt of the checks, Gaffney gave Tyler the
keys to the car and on April 21, 2011, faxed Tyler a copy of
the vehicle's registration.
3 The following day, Gaffney was informed by First Merit
Bank, where he had deposited the check payable to TRKAM, that
the check was counterfeit. Gaffney then contacted the Chicago
police department to report his vehicle stolen and likewise
advised American Family of the theft. His efforts to contact
Tyler were unsuccessful.
4 On some later date unspecified in the record, Gaffney
called the Chicago police department, presumably to determine
if his vehicle had been recovered. Gaffney was informed that
the car had been recovered, undamaged, and that the police
had called the vehicle's "owner." When Gaffney
indicated that he was the owner and had not received a call,
he was referred to the 18th precinct. Gaffney went to the
station and was told that the car had already been returned
to the "owner."
5 Gaffney's car was ultimately recovered on January 4,
2012, during a routine traffic stop. At the time, the car was
being driven by defendant Aiman Othman.
6 American Family filed suit on July 10, 2014. In its first
amended complaint, in addition to claims against Tyler and
Othman, American Family asserted a claim labeled "breach
of bailment contract" against the City. American Family
alleged that the City (i) "voluntarily received"
Gaffney's vehicle, (ii) "intended to create a
bailment, when it accepted and maintained exclusive control
and possession" of the vehicle, and (iii) despite
Gaffney's demand, failed to return to vehicle to its
proper owner. American Family sought damages consisting of
the amount it paid Gaffney for the loss ($11, 670) as well as
the amount of Gaffney's deductible ($1000).
7 The City filed a motion to dismiss the complaint in which
it asserted that the gist of American Family's claim was
the City's negligence in failing to provide
"adequate police protection or service" or a
failure to "prevent, detect or solve
crimes"-conduct for which the City is immune under the
Act. In response, American Family insisted that its claim
against the City was a "bailment contract claim"
excluded from the Act's scope under section 2-101, which
preserves claims asserting a public entity's liability
based on contract. 745 ILCS 10/2-101(a) (West 2012). The City
denied that a bailment existed, given the lack of mutual
assent between it and Gaffney and that, at most, the
complaint asserted a constructive bailment-a contract implied
in law-which did not fall under the Act's exemption for
8 The trial court agreed that a fair reading of American
Family's claim against the City asserted the existence of
a quasi-contract or a contract implied in law, but concluded
that under Village of Bloomingdale v. CDG Enterprises,
Inc., 196 Ill.2d 484, 500 (2001), the claim was not
based on a "contract" for purposes of the Act's
exemption for liability under a contract. The court
concluded, therefore, that American Family's claim fell
under the Act's immunity provisions and was barred.
Following its ruling, given the pendency of claims against
other defendants, the court entered a finding pursuant to
Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), and
this appeal followed.
9 A motion pursuant to section 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-619 (West 2012)) "admits the
legal sufficiency of the plaintiff's complaint, but
asserts an affirmative defense or other matter that avoids or
defeats the plaintiff's claim." Relf v.
Shatayeva, 2013 IL 114925, ¶ 20; DeLuna v.
Burciaga, 223 Ill.2d 49, 59 (2006). "Affirmative
matter" includes any defense other than a negation of an
essential allegation of plaintiff's cause of action.
Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
156 Ill.2d 112, 115 (1993). A municipality's assertion
that it is immune from suit is an appropriate subject of a
motion under section 2-619. Smith v. Waukegan Park
District, 231 Ill.2d 111, 115 (2008); Brooks v.
Daley, 2015 IL App (1st) 140392, ¶ 14. We review
the trial court's ruling on a section 2-619 motion de
novo. Smith, 231 Ill.2d at 115;
DeLuna, 223 Ill.2d at 59.
10 The evolution of the Act was discussed by our supreme
court in Village of Bloomingdale. In response to the
judicial abolition of sovereign immunity, the legislature
enacted the Act in 1965. Village of Bloomingdale,
196 Ill.2d at 489. The Act reflects the general principle
that governmental entities are liable in tort, but that
liability is limited by an "extensive list" of
immunities defined by specific government functions.
Id. The Illinois Constitution of 1970 again
abolished sovereign immunity, "[e]xcept as the General
Assembly may provide by law." Ill. Const. 1970, art.
XIII, § 4. "Today, therefore, the tort liability of
a local public entity or employee is expressly controlled
both by the constitutional provision and by legislative
prerogative as embodied in the [Act]." Village of
Bloomingdale, 196 Ill.2d at 489. ¶ 11 As noted, the
Act preserves a public entity's contractual liability:
"Nothing in this Act affects the liability, if any, of a
local public entity or public employee, based on: a) Contract
***." 745 ILCS 10/2-101(a) (West 2012).
12 American Family asserts here that its constructive
bailment claim falls under the Act's exception for claims
against governmental entities based on contract.
Notwithstanding our supreme court's decision in
Village of Bloomingdale, American Family, citing
American Ambassador Casualty Co. v. City of Chicago,
205 Ill.App.3d 879 (1990), contends that its constructive
bailment claim is the type of claim for ...