{ "id": 3719292, "name": "PEKIN INSURANCE COMPANY, Plaintiff-Appellee, v. AMANDA M. ADAMS, Defendant (Nicholas Marshall, as Father and Next Friend of Christopher Marshall, a Minor, Defendant-Appellant)", "name_abbreviation": "Pekin Insurance v. Adams", "decision_date": "2003-08-26", "docket_number": "No. 4\u201401\u20141056", "first_page": "272", "last_page": "281", "citations": [ { "type": "official", "cite": "343 Ill. App. 3d 272" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "217 Ill. App. 529", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2989089 ], "year": 1920, "pin_cites": [ { "page": "531-32" } ], "opinion_index": 0, "case_paths": [ "/ill-app/217/0529-01" ] }, { "cite": "71 Ill. 620", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5309518 ], "year": 1874, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/ill/71/0620-01" ] }, { "cite": "97 N.E. 1084", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "year": 1912, "pin_cites": [ { "page": "1085" }, { "page": "1086" }, { "page": "1086" } ], "opinion_index": 0 }, { "cite": "253 Ill. 570", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3443239 ], "weight": 3, "year": 1912, "pin_cites": [ { "page": "574" }, { "page": "574" }, { "page": "574-75" } ], "opinion_index": 0, "case_paths": [ "/ill/253/0570-01" ] }, { "cite": "535 N.E.2d 1061", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 11, "year": 1989, "pin_cites": [ { "page": "1064" }, { "page": "1063" }, { "page": "1063" }, { "page": "1063" }, { "page": "1063" }, { "page": "1063" }, { "page": "1063" }, { "page": "1063, 1065" }, { "page": "1064" }, { "page": "1064" }, { "page": "1064" } ], "opinion_index": 0 }, { "cite": "180 Ill. 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App. 3d", "case_ids": [ 2616337 ], "weight": 11, "year": 1989, "pin_cites": [ { "page": "53" }, { "page": "51" }, { "page": "51" }, { "page": "51" }, { "page": "51" }, { "page": "51" }, { "page": "51" }, { "page": "52, 55" }, { "page": "53" }, { "page": "53" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0049-01" ] }, { "cite": "183 N.E. 223", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1932, "pin_cites": [ { "page": "226-27" } ], "opinion_index": 0 }, { "cite": "350 Ill. 308", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5302707 ], "year": 1932, "pin_cites": [ { "page": "315-16" } ], "opinion_index": 0, "case_paths": [ "/ill/350/0308-01" ] }, { "cite": "52 N.E. 264", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1898, "pin_cites": [ { "page": "266" }, { "page": "266" } ], "opinion_index": 0 }, { "cite": "177 Ill. 27", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3152485 ], "weight": 2, "year": 1898, "pin_cites": [ { "page": "32" }, { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/ill/177/0027-01" ] }, { "cite": "363 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 12, "year": 1977, "pin_cites": [ { "page": "171" }, { "page": "171-72" }, { "page": "172" }, { "page": "172" }, { "page": "172" }, { "page": "172" }, { "page": "172" }, { "page": "172" }, { "page": "172" }, { "page": "173" }, { "page": "173" } ], "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3372377 ], "weight": 12, "year": 1977, "pin_cites": [ { "page": "939" }, { "page": "939-40" }, { "page": "939-40" }, { "page": "940" }, { "page": "940" }, { "page": "940" }, { "page": "940" }, { "page": "940-41" }, { "page": "940" }, { "page": "941" }, { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0937-01" ] }, { "cite": "349 N.E.2d 430", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 291", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5380319 ], "year": 1976, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0291-01" ] }, { "cite": "563 N.E.2d 970", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "975" } ], "opinion_index": 0 }, { "cite": "205 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2569048 ], "year": 1990, "pin_cites": [ { "page": "1042" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/1035-01" ] }, { "cite": "722 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1231" } ], "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349582 ], "year": 2000, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0694-01" ] }, { "cite": "554 N.E.2d 629", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "636" } ], "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488082 ], "year": 1990, "pin_cites": [ { "page": "1075" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/1066-01" ] }, { "cite": "758 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "892" }, { "page": "892" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570788 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "603" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0599-01" ] }, { "cite": "786 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 18, "year": 2003, "pin_cites": [ { "page": "1012" }, { "page": "1012" }, { "page": "1012" }, { "page": "1013" }, { "page": "1013" }, { "page": "1013" }, { "page": "1013" }, { "page": "1013" }, { "page": "1016" }, { "page": "1015" }, { "page": "1016-17" }, { "page": "1017" }, { "page": "1017" }, { "page": "1017" }, { "page": "1016-17" }, { "page": "1017" }, { "page": "1017" } ], "opinion_index": 0 }, { "cite": "203 Ill. 2d 456", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799381 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/203/0456-01" ] }, { "cite": "788 N.E.2d 730", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "203 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "778 N.E.2d 1240", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "original opinion" } ], "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 1083", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 522044 ], "year": 2002, "pin_cites": [ { "parenthetical": "original opinion" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/1083-01" ] }, { "cite": "786 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1017" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 907, "char_count": 22142, "ocr_confidence": 0.751, "pagerank": { "raw": 8.283159945918396e-08, "percentile": 0.4791298643279975 }, "sha256": "f24222c4d310e8fd848323d064965be3c0379a78de4a78fe0a8ee224d3d82c86", "simhash": "1:31b8bcde2d94f4cc", "word_count": 3742 }, "last_updated": "2023-07-14T15:02:30.760533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "STEIGMANN, J., concurs." ], "parties": [ "PEKIN INSURANCE COMPANY, Plaintiff-Appellee, v. AMANDA M. ADAMS, Defendant (Nicholas Marshall, as Father and Next Friend of Christopher Marshall, a Minor, Defendant-Appellant)." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nAmanda M. Adams owned a Doberman pinscher, which bit a seven-year-old boy, Christopher Marshall. Amanda had renter\u2019s liability insurance from Pekin Insurance Company (Pekin), and Christopher\u2019s father, Nicholas Marshall, submitted a claim. Pekin denied the claim and filed a complaint against Amanda and Nicholas, seeking rescission of Amanda\u2019s insurance policy on the ground that she had falsely stated, in her application for the insurance, that she had no \u201canimals.\u201d The parties filed cross-motions for summary judgment. The trial court granted Pekin\u2019s motion and denied defendants\u2019 motions.\nNicholas appealed the summary judgment in Pekin\u2019s favor. He argued that (1) Pekin, rather than Amanda, was responsible for the misrepresentation and (2) the misrepresentation was not material. On October 28, 2002, we filed an opinion reversing the trial court\u2019s judgment and remanding the case for further proceedings. Pekin Insurance Co. v. Adams, 334 Ill. App. 3d 1083, 778 N.E.2d 1240 (2002) (original opinion). On December 2, 2002, we denied Pekin\u2019s petition for rehearing, and on April 2, 2003, the supreme court denied Pekin\u2019s petition for leave to appeal. Pekin Insurance Co. v. Adams, 203 Ill. 2d 550, 788 N.E.2d 730 (2003). On May 14, 2003, however, in the exercise of its supervisory authority, the supreme court directed us to vacate our judgment and reconsider our decision in the light of Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 786 N.E.2d 1010 (2003). Pekin Insurance Co. v. Adams, No. 95501 (May 14, 2003) (nonprecedential supervisory order directing Fourth District to vacate its original opinion and reconsider in light of Golden Rule). Accordingly, we vacated our original opinion. After reconsidering the facts of this case in the light of Golden Rule, we still find genuine issues of material fact precluding summary judgment in Pekin\u2019s favor. Therefore, we again reverse the trial court\u2019s judgment and remand this case for further proceedings.\nI. BACKGROUND\nAmanda testified in her deposition that she had bought the insuranee policy through Bybee Insurance Agency, which was Pekin\u2019s agent. Linda Sade was an employee of the agency, and in the course of purchasing the policy, Amanda spoke with her several times on the telephone. Linda asked Amanda questions about her eligibility for insurance but never asked her if she had any animals. Afterward, the agency mailed Amanda an application for the insurance policy.\nWhen Amanda received the application in the mail, answers to many of the questions were already typed in. Question No. 9 read as follows: \u201cDoes applicant or any tenant have animals or exotic pets?\u201d An \u201cX\u201d was typed in the box corresponding to \u201cno.\u201d Amanda testified, however, that she did not read question No. 9 or any other part of the application except for the parts she had to fill in, which the agency had highlighted. Having already been answered in the negative, question No. 9 was not highlighted. Amanda signed the application and mailed it back to the agent some five days after receiving it, without reading the following language above her signature:\n\u201cI have read the application[,] and I declare that to the best of my knowledge and belief all of the foregoing statements are true; and that these statements are offered as an inducement to the company to issue the policy for which I am applying.\u201d\nWhen investigating Nicholas\u2019s claim, Pekin discovered that not only did Amanda have a dog on her premises when she signed the application (a nine-year-old dog, which she had owned since it was a puppy), but the dog had bitten a girl three or four years before biting Christopher.\nBecky Weems was an underwriter for Pekin. In her affidavit in support of Pekin\u2019s motion for summary judgment and in her deposition, she stated that ownership of a dog was a material fact, because dogs increased the risk of liability. When learning that an applicant owned a dog, the agent was supposed to ask questions about the dog and enter the additional information in the section of the application labeled \u201cRemarks.\u201d If dissatisfied with the information, the underwriter could either deny the application or ask for more information. Weems testified she \u201cwould [have] never issue[d] a policy with a prior dog[-]bite history.\u201d Pekin also presented a copy of its underwriting guidelines stating that \u201cany dog with a bite history [is] not acceptable.\u201d\nIn its order granting Pekin\u2019s motion for summary judgment and denying defendants\u2019 motions for summary judgment, the trial court concluded that (1) the insurance policy was rescinded, (2) the insurance policy did not apply to Nicholas\u2019s claim, and (3) Pekin must refund to Amanda all of the premiums she has paid. This appeal followed.\nII. ANALYSIS\nA. Standard of Review\nWe review summary judgments de novo. Warren v. Burris, 325 Ill. App. 3d 599, 603, 758 N.E.2d 889, 892 (2001). Viewing the pleadings, depositions, admissions, and affidavits in a light most favorable to the nonmoving party, we ask whether they reveal any \u201cgenuine issue as to any material fact.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 2002); Warren, 325 Ill. App. 3d at 602, 758 N.E.2d at 892. \u201cGenuine\u201d means there is evidence to support the position of the nonmoving party. N.W. v. Amalgamated Trust & Savings Bank, 196 Ill. App. 3d 1066, 1075, 554 N.E.2d 629, 636 (1990). We also ask whether \u201cthe moving party is entitled to a judgment as a matter of law\u201d \u2014 in other words, whether the trial court correctly interpreted and applied the law. 735 ILCS 5/2 \u2014 1005(c) (West 2002); Farmers Automobile Insurance Ass\u2019n v. Country Mutual Insurance Co., 309 Ill. App. 3d 694, 698, 722 N.E.2d 1228, 1231 (2000).\nB. Amanda\u2019s Actual \u201cKnowledge and Belief\u2019\nIn Golden Rule, 203 Ill. 2d at 459, 786 N.E.2d at 1012, the defendant\u2019s father applied to Golden Rule Insurance Company (Golden Rule) for medical insurance for the defendant. One of the questions in the application was whether the proposed insured was covered by other insurance. Golden Rule, 203 Ill. 2d at 459, 786 N.E.2d at 1012. The question was answered in the negative. Golden Rule, 203 Ill. 2d at 459, 786 N.E.2d at 1012. The application warned that a misrepresentation about other insurance could cause Golden Rule to rescind the policy. Golden Rule, 203 Ill. 2d at 459-60, 786 N.E.2d at 1013. The application also stated, just above the signature line: \u201c T represent that the statements and answers in this application are true and complete to the best of my knowledge and belief.\u2019 \u201d (Emphasis added.) Golden Rule, 203 Ill. 2d at 460, 786 N.E.2d at 1013.\nAfter Golden Rule issued a policy in the defendant\u2019s name, the defendant was injured in an accident. Golden Rule, 203 Ill. 2d at 460, 786 N.E.2d at 1013. The defendant\u2019s father reviewed his insurance policies and realized that the defendant was covered as an \u201celigible dependent\u201d under a policy other than the one Golden Rule had issued. Golden Rule, 203 Ill. 2d at 460, 786 N.E.2d at 1013. Golden Rule made the same discovery in its investigation of the defendant\u2019s claim and, as a result, rescinded the policy. Golden Rule, 203 Ill. 2d at 460, 786 N.E.2d at 1013.\nThe supreme court held that the language in the application, \u201cto the best of my knowledge and belief,\u201d \u201cestablished] a lesser standard of accuracy\u201d than that which section 154 of the Illinois Insurance Code (215 ILCS 5/154 (West 1998)) established. Golden Rule, 203 Ill. 2d at 466, 786 N.E.2d at 1016. Under section 154, \u201ca misrepresentation, even if innocently made,\u201d could have been grounds for voiding a policy, if the misrepresentation had materially affected the insurer\u2019s risk. Golden Rule, 203 Ill. 2d at 464, 786 N.E.2d at 1015. The \u201cknowledge and belief\u2019 language changed the inquiry, however, \u201cfrom an inquiry into whether the facts asserted were true to whether, on the basis of what he knew, the applicant believed them to be true. Thus, the response [in the application had to] be assessed in the light of the applicant\u2019s actual knowledge and belief.\u201d Golden Rule, 203 Ill. 2d at 466, 786 N.E.2d at 1016-17. On the facts of the case, the supreme court held \u201cthat this assessment involve[d] a credibility determination that [could] only be made by the jury.\u201d Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at 1017.\nThe supreme court further held that even if the defendant\u2019s father had known and believed that the defendant was covered by other insurance, the jury would have to determine whether \u201cthe misstatement was material to the insurer\u2019s acceptance of the risk.\u201d Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at 1017. \u201c[T]he issue of materiality\u201d was \u201cgenerally a question of fact for a jury to decide.\u201d Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at 1017.\nIn light of Golden Rule, the inquiry is not simply whether the answer to question No. 9 of Amanda\u2019s application for insurance was false but whether she actually knew and believed it was false, i.e., whether she knew and believed she \u201chad\u201d an \u201canimal.\u201d See Golden Rule, 203 Ill. 2d at 466, 786 N.E.2d at 1016-17. Because no one has direct access to another person\u2019s mind, one can only infer, from circumstantial evidence, that another person has knowledge of a fact. Brock v. Police Board of the City of Chicago, 205 Ill. App. 3d 1035, 1042, 563 N.E.2d 970, 975 (1990). That Amanda had a dog on her premises for nine years, up through the date she signed the application, is, of course, circumstantial evidence that she knew and believed she had the dog. The record does not appear to contain any countervailing evidence that she was unaware of having the dog. Therefore, we find no genuine issue as to whether Amanda actually knew and believed she had a dog (a type of \u201canimal\u201d) when she signed the application.\nC. Estoppel\nA genuine issue of material fact precludes summary judgment for the plaintiff if the defendant has sworn to facts that \u201cconstitute a legal defense.\u201d St. Charles National Bank v. Ford, 39 Ill. App. 3d 291, 296, 349 N.E.2d 430, 434 (1976). Nicholas argues that by his sworn facts, he has raised two defenses: (1) estoppel and (2) a lack of materiality. Golden Rule does not address the issue of estoppel and is, therefore, in that respect, distinguishable.\nCiting Beck v. Capitol Life Insurance Co., 48 Ill. App. 3d 937, 363 N.E.2d 170 (1977), among other authorities, Nicholas argues that Pekin, rather than Amanda, is responsible for the misrepresentation, and Pekin should be estopped from asserting the misrepresentation as a defense.\nIn Beck, 48 Ill. App. 3d at 939, 363 N.E.2d at 171, the plaintiff brought an action to recover under a life insurance policy. The insurer contended that because the insured, Clarence Beck, had falsely stated, in a \u201creinstatement application,\u201d that he was \u201c \u2018now in good health and free from any symptom of disease,\u2019 \u201d the insurer did not have to pay the claim after his death. Beck, 48 Ill. App. 3d at 939-40, 363 N.E.2d at 171-72. Clarence was, in fact, in poor health and had heart disease and diabetes when he signed the application, and the misrepresentation was material to the insurer\u2019s risk. Beck, 48 Ill. App. 3d at 939-40, 363 N.E.2d at 172.\nAfter a bench trial, the trial court entered judgment for the plaintiff, thereby indicating that it accepted her version of the facts. Beck, 48 Ill. App. 3d at 940, 363 N.E.2d at 172. The plaintiff, Clarence\u2019s wife, testified that the agent completed the application and brought it to her home for Clarence\u2019s signature. Beck, 48 Ill. App. 3d at 940, 363 N.E.2d at 172. Before completing the application, the agent made no inquiries about Clarence\u2019s health. Beck, 48 Ill. App. 3d at 940, 363 N.E.2d at 172.\nThe insurer argued that even if, as the plaintiff testified, the agent, rather than Clarence, had made the misrepresentation, \u201cthe policy [was] voidable because the deceased, in signing the application for reinstatement, was bound by its contents and representations as his own.\u201d Beck, 48 Ill. App. 3d at 940, 363 N.E.2d at 172. The Fifth District disagreed. It held:\n\u201c[If] an agent of the insurer completes an application for insurance without propounding the questions therein to the insured, in the absence of collusion with the insured, the insurer is estopped from asserting any misrepresentations as a defense in an action for payment under the policy.\u201d Beck, 48 Ill. App. 3d at 940-41, 363 N.E.2d at 172.\nPekin argues that Beck is distinguishable for two reasons: (1) \u201cthe applicant [in Beck] did not have the opportunity to verify whether the information contained in the application was correct,\u201d whereas Amanda kept the application for approximately five days before mailing it back to Pekin; and (2) unlike the application in the present case, the one in Beck did not contain a certification by the applicant that he had actually read the application and verified the truth of its contents.\nWe find no indication, in the appellate court\u2019s recitation of the facts in Beck, that the applicant, Clarence Beck, lacked an opportunity to read the application before signing it. The agent brought the completed application to Beck\u2019s home for his signature. Beck, 48 Ill. App. 3d at 940, 363 N.E.2d at 172. The opinion does not say that the agent hindered Beck in any way from reading the application or denied him additional time to read it.\nFrom an early date, Illinois courts have held that if an insurance agent fills out an application for an applicant, and without any collusion between the agent and applicant inserts a false answer into the application, a provision that the applicant has read the application and verified the answers before signing it will not save the insurer from being estopped from asserting the false answer as a defense. Royal Neighbors of America v. Boman, 177 Ill. 27, 32, 52 N.E. 264, 266 (1898), cited in Beck, 48 Ill. App. 3d at 941, 363 N.E.2d at 173; Niemann v. Security Benefit Ass\u2019n, 350 Ill. 308, 315-16, 183 N.E. 223, 226-27 (1932). There must be \u201cno fraud or intent to deceive on the part of the applicant.\u201d Royal Neighbors, 177 Ill. at 32, 52 N.E. at 266. \u201c[If] the applicant has acted in bad faith, either on his own or in collusion with the insurer\u2019s agent, knowledge of the agent will not be imputed to the insurer.\u201d Marionjoy Rehabilitation Hospital v. Lo, 180 Ill. App. 3d 49, 53, 535 N.E.2d 1061, 1064 (1989).\nIn Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at 1063, an insurance agent completed and signed an application for health insurance for Ceasar Lo\u2019s son. The agent answered \u201cno\u201d to all questions in the application, even though Lo\u2019s son had undergone brain surgery. Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at 1063. When Lo pointed out the omission to the agent, the agent told him \u201cnot to worry\u201d because the insurer \u201cwas a very high[-]risk insurance company.\u201d Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at 1063. At or near the time the insurer issued the insurance policy, it sent Lo a copy of the application, asking him to verify, on an enclosed form, that all of the information in the application was correct. Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at 1063. Lo indicated on the form that the information was correct, signed it, and mailed it back to the insurer. Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at 1063. Later, when Lo submitted a claim for medical treatment of his son, the insurer denied the claim and rescinded the policy because of the misrepresentation in the application. Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at 1063.\nThe trial court entered summary judgment in the insurer\u2019s favor, and the Second District affirmed. Marionjoy, 180 Ill. App. 3d at 52, 55, 535 N.E.2d at 1063, 1065. The appellate court held that Lo\u2019s representation to the insurer that all the information in the application was correct was \u201can affirmative action on the part of Lo independent of the agent[,] which shows bad faith.\u201d Marionjoy, 180 Ill. App. 3d at 53, 535 N.E.2d at 1064. If the agent had filled out the application \u201cwhile knowing the true medical history of the Los\u2019 son\u201d and nothing further had happened, the insurer could not have relied on the misrepresentation as a defense. Marionjoy, 180 Ill. App. 3d at 53, 535 N.E.2d at 1064. Because of two additional circumstances, however, the appellate court refused to impute the agent\u2019s knowledge to the insurer: (1) the correspondence between the insurer and Lo was independent of the agent, and (2) Lo knew that his son\u2019s medical history was important because the insurer had denied coverage on that basis once before. Marionjoy, 180 Ill. App. 3d at 53, 535 N.E.2d at 1064. In the present case, Amanda never verified the accuracy of the application directly to Pekin, and Pekin never asked her to do so. Marionjoy is, therefore, distinguishable.\nIn Johnson v. Royal Neighbors of America, 253 Ill. 570, 574, 97 N.E. 1084, 1085 (1912), the insurance agent \u201cwrote [the] answers,\u201d on the application, \u201ccontrary to the true answers made by\u201d the insured\u2014 or, according to some witnesses, without even asking the insured what the correct answers were. The supreme court held that the insurer had \u201cwaived its right to object to the validity of the benefit certificate on the ground that [the insured\u2019s] answers were warranties.\u201d Johnson, 253 Ill. at 574, 97 N.E. at 1086. In language relevant to the present case, the supreme court said:\n\u201cThis rule is not affected by the fact that a copy of the application was attached to the benefit certificate, and there was printed in the certificate a request to the holder to read the application and if any of the answers were incorrectf,] to notify [the insurer\u2019s] recorder.\u201d Johnson, 253 Ill. at 574-75, 97 N.E. at 1086.\nPekin has presented no evidence that Amanda acted in collusion with the agent. A reasonable trier of fact need not find that she acted in bad faith. If, as the supreme court held in Johnson, a request to verify the accuracy of the answers does not \u201caffect\u201d the \u201crule\u201d of waiver, such a request, standing alone, cannot prove bad faith or fraud by the insured. The agent highlighted only the uncompleted parts of the application. Amanda could have reasonably assumed that only the highlighted parts of the application needed her attention, and she could have ignored the rest of the application in the belief that Pekin\u2019s agent had done a competent job filling in the answers.\nPekin compares question No. 9 of the application to a \u201cleading question,\u201d arguing that Amanda should have answered it truthfully. The analogy is flawed. A leading question is, despite its leading nature, a question awaiting an answer. Pekin provided the answer. As the supreme court said in Andes Insurance Co. v. Fish, 71 Ill. 620, 623 (1874):\n\u201cIt was competent to show by parol that the application was filled out by the agent of [the insurance company], with full knowledge of all the facts, for, although afterwards signed by the assured, it was then the act of the company as well as of the assured, and its representations became as conclusive upon it as they did upon her. All charge of fraud and deception on the part of the assured might thus be completely and properly refuted.\u201d\nWe see no reason why the outcome should be different if the insurance agent wrote the answers in the application without asking the applicant what the correct answer was. \u201cWhen an agent fills out an application for insurance without inquiry, merely presenting the application to the insured for his signature, the answers to the questions in the application will not be warranties.\u201d Flenner v. Capital Live Stock Insurance Co., 217 Ill. App. 529, 531-32 (1920), cited in Beck, 48 Ill. App. 3d at 941, 363 N.E.2d at 173. Regardless of whether the agent disregards information from the applicant or does not seek information from the applicant, the agent (on behalf of the principal, the insurer) manifests an indifference to the information.\nD. Materiality\nAs the supreme court stated in Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at 1017, \u201cthe issue of materiality is generally a question of fact for a jury to decide.\u201d Summary judgment is a drastic way to dispose of a case, and a trial court should grant summary judgment only if the movant\u2019s right to the judgment is clear and free from doubt. Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at 1017. Pekin came forward with evidence that ownership of a dog \u2014 especially a dog that had bitten someone in the past \u2014 was material to Pekin\u2019s acceptance of the risk. A reasonable trier of fact would not have to believe Pekin. If Pekin\u2019s agent filled in the answer to question No. 9 without bothering to ask Amanda whether she owned a dog, Pekin arguably did not consider the ownership of a dog to be important.\nIII. CONCLUSION\nWe find genuine issues of material fact relating to estoppel and materiality. For the foregoing reasons, we reverse the trial court\u2019s award of summary judgment to Pekin and remand this case for further proceedings not inconsistent with this opinion.\nReversed.\nSTEIGMANN, J., concurs.", "type": "majority", "author": "JUSTICE APPLETON" }, { "text": "PRESIDING JUSTICE MYERSCOUGH,\nspecially concurring in part and dissenting in part:\nI respectfully concur in part and dissent in part. I would reverse, but on all grounds. Golden Rule does not mandate summary judgment as to Amanda\u2019s actual knowledge and belief. Golden Rule merely mandates reconsideration in light of a lesser standard of accuracy. Material issues remain as to Amanda\u2019s belief in the truth of the response concerning an animal. This assessment involves a credibility determination to be made by the jury. Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at 1017. We do not know whether Amanda read the question and response or whether she thought \u201can animal\u201d included a dog. I would reverse on this issue.", "type": "concurring-in-part-and-dissenting-in-part", "author": "PRESIDING JUSTICE MYERSCOUGH," } ], "attorneys": [ "Dennis G. Woodworth, of Blickhan, Woodworth & Timmerwilke, of Quincy, for appellant.", "Robert Marc Chemers and Amanda J. Banner, both of Fretzel & Stouffer, Chtrd., of Chicago, for appellee." ], "corrections": "", "head_matter": "PEKIN INSURANCE COMPANY, Plaintiff-Appellee, v. AMANDA M. ADAMS, Defendant (Nicholas Marshall, as Father and Next Friend of Christopher Marshall, a Minor, Defendant-Appellant).\nFourth District\nNo. 4\u201401\u20141056\nOpinion filed August 26, 2003.\nDennis G. Woodworth, of Blickhan, Woodworth & Timmerwilke, of Quincy, for appellant.\nRobert Marc Chemers and Amanda J. Banner, both of Fretzel & Stouffer, Chtrd., of Chicago, for appellee." }, "file_name": "0272-01", "first_page_order": 290, "last_page_order": 299 }