{ "id": 4263953, "name": "GREAT WEST CASUALTY COMPANY, Plaintiff-Appellant, v. NANCY JEAN COTE et al., Defendants-Appellees", "name_abbreviation": "Great West Casualty Co. v. Cote", "decision_date": "2006-03-31", "docket_number": "No. 1-05-3122", "first_page": "100", "last_page": "108", "citations": [ { "type": "official", "cite": "365 Ill. App. 3d 100" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "429 N.E.2d 483", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "87 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031543 ], "year": 1981, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0167-01" ] }, { "cite": "698 N.E.2d 252", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073696 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "280-81" }, { "page": "283-84" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0278-01" ] }, { "cite": "527 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "123 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551167 ], "year": 1988, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0281-01" ] }, { "cite": "454 N.E.2d 706", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 4", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5659937 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "6" }, { "page": "6" }, { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0004-01" ] }, { "cite": "708 N.E.2d 1122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "186 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243917 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "157" }, { "page": "150-57" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0127-01" ] }, { "cite": "752 N.E.2d 1069", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "196 Ill. 2d 391", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351256 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "397" }, { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0391-01" ] }, { "cite": "619 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] }, { "cite": "98 L 13503", "category": "reporters:state", "reporter": "Lans. Ch.", "opinion_index": 0 } ], "analysis": { "cardinality": 742, "char_count": 22166, "ocr_confidence": 0.758, "pagerank": { "raw": 4.518461695170957e-08, "percentile": 0.2832342735039765 }, "sha256": "3d970d891228ea18f6965a66ac9f00e0d91ff15fd965908dadb91e43dafb5f31", "simhash": "1:5e3bc76c66d556bf", "word_count": 3664 }, "last_updated": "2023-07-14T16:12:10.332814+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GREAT WEST CASUALTY COMPANY, Plaintiff-Appellant, v. NANCY JEAN COTE et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe plaintiff, Great West Casualty Company (Great West), appeals from an order of the circuit court dismissing its declaratory judgment action as untimely and an earlier order entered in a consolidated case, finding that it failed to tender the full amount of monetary coverage remaining under its policy of insurance in partial satisfaction of a judgment entered against its insureds, For the reasons that follow, we reverse the circuit court\u2019s order dismissing the declaratory judgment action and remand this matter with directions and for further proceedings in conformity with the opinions expressed herein.\nThe facts necessary to an understanding of our disposition of this appeal are not in dispute. Nancy Jean Cote filed an action in the circuit court of Cook County seeking damages by reason of injuries she sustained on November 22, 1996, when the vehicle she was driving collided with a semi-tractor and trailer driven by John Johannes-son. Named as defendants in Cote\u2019s complaint were Johannesson and his employer, Walco Transport, Inc. (Walco). The case was docketed in the circuit court as No. 98 L 13503 (hereinafter referred to as the \u201cunderlying case\u201d). Following a trial, the jury returned a verdict in Cote\u2019s favor and against both Johannesson and Walco, fixing Cote\u2019s recoverable damages at $2,052,750. Thereafter, the trial court entered judgment on the verdict. The judgment was subsequently amended to include Walczynski Enterprises, Inc., in response to Cote\u2019s motion suggesting that Walco had changed its name to Walczynski Enterprises, Inc. (Walczynski).\nJohannesson and Walco filed posttrial motions which the trial court denied. In addition, the trial court imposed monetary sanctions against their attorneys for meritless pleading.\nJohannesson and Walco filed a notice of appeal, and Cote filed a timely notice of cross-appeal. On review, we reversed the order assessing sanctions against the attorneys representing Johannesson and Walco and affirmed the circuit court\u2019s judgment and orders in all other respects. Cote v. Walco Transport, No. 1\u201402\u20143857 (2004) (unpublished order under Supreme Court Rule 23).\nAt all times relevant, Walco was insured under a policy of commercial lines insurance issued by Great West which provides $1 million in liability coverage (hereinafter referred to as the \u201cPolicy\u201d). In its brief, Great West acknowledges that Johannesson and Walczynski are additional insureds under the Policy.\nOn October 14, 2004, Great West tendered two checks payable to Cote and her attorney. The first check was in the sum of $995,000, representing what Great West claimed was the remaining limit of liability coverage under the Policy. The second check was in the sum of $402,901.56, representing accrued interest on the entire judgment in favor of Cote in the underlying case through the date of tender. Cote refused the tendered sums, contending that Great West had failed to tender the Policy\u2019s full $1 million limit of liability coverage.\nOn November 11, 2004, Johannesson, Walco, and Walczynski (hereinafter collectively referred to as the \u201cdefendants\u201d) filed a motion in the underlying action seeking an order finding that the judgment in favor of Cote had been partially satisfied to the extent of $995,000 and that interest on the judgment had been paid to the extent of $402,901.56. Additionally, the defendants requested an order providing that, if Cote refused to accept the tender of the two checks from Great West, the sums be deposited with the court. On November 15, 2004, the trial court entered an order directing that the defendants deposit the sum of $1,397,901.56, the total sum tendered by Great West, with the Northern Trust Company as escrowee for the benefit of Cote and her attorney. The order also provided that the deposit would be without prejudice to Cote\u2019s right to contest the adequacy of the tender or to maintain that interest continued to run on the full amount of the judgment.\nOn December 1, 2004, Cote filed a motion in the underlying case requesting, inter alia, that the trial court find that the defendants\u2019 insurance carrier, Great West, had not made a \u201cperfect tender so as to stop the post judgment interest from running on the full amount\u201d and that the defendants and Great West still owe Cote interest on the full amount of the judgment. On February 4, 2005, the trial court entered an order finding that \u201cthere has been an improper tender of the judgment plus accrued interest\u201d and directing Cote\u2019s attorney to tender the amounts previously paid back to the defendants\u2019 attorneys within 30 days.\nOn February 25, 2005, Great West filed a declaratory judgment action in the circuit court of Cook County which was docketed as No. 05 CH 03731. Named as defendants in that action were Cote, Johannes-son, Walco, and Walczynski. Great West sought findings that: the maximum limit of its liability for indemnification under the Policy is $1 million; the limit of its liability for indemnification under the Policy was reduced by $2,000 paid to Cote for damage to her property and an additional $3,000 it paid to State Farm Insurance Company as reimbursement for Cote\u2019s medical expenses; and its October 14, 2004, tender to Cote of $995,000 plus $402,901.56 in accrued interest fulfilled its obligations under the Policy and it was not obligated to pay any additional sums to Cote. In addition, Great West sought an order directing Cote to execute a partial satisfaction of judgment reflecting the payment of $995,000 plus $402,901.56 in accrued interest through and including October 14, 2004.\nOn April 28, 2005, the circuit court entered an order consolidating Great West\u2019s declaratory judgment action and the underlying case. Thereafter, Cote filed a motion pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619 (West 2004)) seeking the dismissal of Great West\u2019s declaratory judgment action. In that motion, Cote asserted, inter alia, that: the declaratory judgment action is untimely because Great West never raised any issues of coverage prior to the entry of the judgment in the underlying case; no actual controversy exists between Great West and Cote, as all matters relating to the adequacy of the October 14, 2004, tender were resolved in the underlying action with the trial court\u2019s order of February 4, 2005; and Great West\u2019s request for a finding that the limit of its liability for indemnification under the Policy was reduced by the $3,000 it paid to State Farm Insurance Company as reimbursement for Cote\u2019s medical expenses is untimely pursuant to the provisions of section 2 \u2014 1205.1 of the Code (735 ILCS 5/2 \u2014 1205.1 (West 2004)).\nOn August 22, 2005, the trial court entered a memorandum decision and judgment order, dismissing Great West\u2019s declaratory judgment action, finding that the action was untimely and \u201can attempt to reduce Cote\u2019s recovery in violation of 735 ILCS 5/2 \u2014 1205.1.\u201d In addition, the trial court found that interest on Cote\u2019s judgment would continue to accrue \u201cuntil proper tender is attained.\u201d Thereafter, Great West initiated this appeal with the filing of a notice of appeal from the circuit court\u2019s orders of August 22, 2005, and February 4, 2005. In urging reversal of the circuit court\u2019s orders, Great West argues that: (1) the dismissal of its declaratory judgment action as untimely was error, as no case or controversy arose until Cote refused its October 14, 2004, tender; (2) the trial court erred in finding that it made an \u201cimproper tender\u201d of its policy limits to Cote; and (3) the trial court erred in finding that its declaratory judgment action violated section 2 \u2014 1205.1 of the Code.\nThe circuit court\u2019s memorandum decision and judgment order of August 22, 2005, states that it was entered in response to Cote\u2019s motion to dismiss which was brought pursuant to section 2 \u2014 619 of the Code. Section 2 \u2014 619 affords a defendant a means of obtaining a summary disposition of an action based upon issues of law or easily proven issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732 (1993). An appeal from a dismissal pursuant to this section of the Code is a matter given to a de novo review. Guzman v. C.R. Epperson Construction, Inc., 196 Ill. 2d 391, 397, 752 N.E.2d 1069 (2001). Our function on review is to \u201cdetermine whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.\u201d Guzman, 196 Ill. 2d at 397.\nFor its first assignment of error, Great West argues that the circuit court erred in dismissing its declaratory judgment action as untimely. We agree.\nCote argued, and the trial court agreed, that, when an insurance carrier waits to bring a declaratory judgment action until after the underlying case has been resolved, the declaratory judgment action is untimely as a matter of law. See Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 157, 708 N.E.2d 1122 (1999). Great West acknowledges the holding in Wausau, but argues that it has no application to the facts in this case. According to Great West, the proposition of law set forth in Wausau, and relied upon by the circuit court, is applicable only in situations where an insurer denies coverage for the underlying case and neither defends its insured under a reservation of rights nor brings a declaratory judgment action prior to or during the pendency of the underlying case to determine its obligations. Great West asserts that this case presents an entirely different fact situation as it never denied coverage and did, in fact, defend its insureds in Cote\u2019s underlying action. Great West contends that no actual controversy arose between the parties relating to the monetary limit of coverage remaining under the Policy until after there was a finding of liability on the part of its insureds in the underlying case and Cote refused its tender of October 14, 2004. Great West maintains that any declaratory judgment action filed prior to that time would have been premature. See Batteast v. Argonaut Insurance Co., 118 Ill. App. 3d 4, 6, 454 N.E.2d 706 (1983).\nAs Great West correctly notes, the holding in Wausau upon which the circuit court relied in dismissing its declaratory judgment action as untimely was promulgated in the context of a case involving an insurer that had denied that the underlying case fell within the coverage afforded under its policy of insurance and neither defended its insured under a reservation of rights nor sought a declaratory judgment prior to or during the pendency of the underlying action. Wau sau, 186 Ill. 2d at 150-57. The Wausau court specifically stated that its holding was based on an estoppel theory and was applicable only to an insurer that had breached its duty to defend. Wausau, 186 Ill. 2d at 151. In this case, Great West neither denied coverage nor declined to defend its insureds. To the contrary, Great West has always acknowledged that Cote\u2019s action fell within the coverage afforded under the Policy, and it discharged its contractual duty to defend its insureds.\nSimply put, the holding in Wausau upon which the circuit court relied to dismiss Great West\u2019s declaratory judgment action as untimely has no application to the facts of this case. However, our review is de novo, and we can affirm the trial court\u2019s dismissal of the action on any ground warranted, regardless of whether the reason given by the trial court was correct. See Beckman v. Freeman United Coal Mining Co., 123 Ill. 2d 281, 286, 527 N.E.2d 303 (1988). Consequently, we will address directly the question of whether Great West\u2019s declaratory judgment action was untimely.\nSection 2 \u2014 701(a) of the Code provides that the circuit \u201ccourt may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments.\u201d 735 ILCS 5/2 \u2014 701(a) (West 2004). By the very terms of the statute, a declaratory judgment action may not be maintained unless and until an actual controversy exists between the parties. As the court in Stokes v. Pekin Insurance Co., 298 Ill. App. 3d 278, 280-81, 698 N.E.2d 252 (1998), held: \u201c[A]n \u2018actual controversy\u2019 exists where there is a legitimate dispute admitting of an immediate and definite determination of the parties\u2019 rights, the resolution of which would help terminate all or part of the dispute.\u201d\nThe controversy in this case relates to the amount that Great West is required to pay Cote under the terms of the Policy. Great West never denied that Cote\u2019s action fell within the coverage afforded its insureds; rather, the parties\u2019 dispute relates only to the amount owed. Therefore, until Great West\u2019s insureds were found hable to Cote, any declaration as to the amount of coverage available under the Policy would have been purely advisory and premature. Stokes, 298 Ill. App. 3d at 283-84; Batteast, 118 Ill. App. 3d at 6. As the court in Batteast observed, if the issue of the amount of coverage available under a policy of insurance were ripe for resolution prior to a determination of the liability of the carrier\u2019s insured in the underlying action, every plaintiff, upon the filing of a personal injury action, could concomitantly file a declaratory judgment action to determine the amount of coverage available in the event that liability was subsequently established. Batteast, 118 Ill. App. 3d at 6.\nOur analysis leads us to conclude that, in cases such as this where an insurance carrier has not denied coverage and has undertaken the defense of its insured, a declaratory judgment action to determine the amount of insurance coverage available under the carrier\u2019s policy is not ripe for adjudication until the liability of the insured has been determined in the underlying action. Great West filed its declaratory judgment action after the liability of its insureds to Cote had been established and Cote had rejected its tender in partial satisfaction of her judgment. The dispute between Great West and Cote as to the adequacy of the tender was certainly ripe for adjudication, and no argument has been made that it is barred by any applicable statute of limitations. For these reasons, we find that Great West\u2019s declaratory judgment action was not untimely and the circuit court erred in dismissing it on that basis.\nNext, Great West argues that the trial court erred in finding that its declaratory judgment action violated section 2 \u2014 1205.1 of the Code. In support of its dismissal of Great West\u2019s action, the trial court found that Great West was not entitled to any reduction in' the sums owed to Cote by reason of the provisions of section 2 \u2014 1205.1, as no motion to reduce her judgment was made within 30 days of its entry. However, Great West disclaims any reliance upon section 2 \u2014 1205.1 in support of its contention that the tender of October 14, 2004, was a complete tender of the then-remaining liability coverage under the Policy. In point of fact, Great West\u2019s entire declaratory judgment action rests on the proposition that, under the terms of the Policy itself, the $1 million limit of the liability coverage had been reduced by the $5,000 it had previously paid to \u201creimburse for [Cote\u2019s] *** property damage and medical expenses.\u201d The issue of whether Great West is obligated to indemnify its insureds for postjudgment interest accruing on the full amount of Cote\u2019s judgment after October 14, 2004, rests on a construction of the Policy to ascertain whether Great West\u2019s tender of October 14, 2004, constituted a complete tender of the remaining balance of liability coverage available under the Policy, not on whether Cote\u2019s judgment has been reduced by $5,000 pursuant to the provisions of section 2 \u2014 1205.1 of the Code. As Great West correctly asserts, its declaratory judgment action has nothing whatever to do with an application of section 2 \u2014 1205.1. We conclude, therefore, that the trial court also erred in finding that Great West\u2019s declaratory judgment action is an attempt to reduce Cote\u2019s judgment contrary to section 2 \u2014 1205.1 of the Code and in dismissing the action on that basis.\nBased upon the foregoing analysis, we reverse the trial court\u2019s judgment of August 22, 2005, dismissing Great West\u2019s declaratory judgment action.\nFinally, Great West argues that the trial court erred when, in its February 4, 2005, order, it found that Great West made an \u201cimproper tender\u201d of the Policy\u2019s remaining limit of liability coverage. However, for the reasons that follow, we conclude that it would be inappropriate to address the merits of the issue at this time.\nIn its order of February 4, 2005, the trial court found that there had been \u201can improper tender of the judgment and accrued interest.\u201d The order was entered in Cote\u2019s underlying action in response to her motion requesting a finding that the defendants and their insurance carrier, Great West, had not made a \u201cperfect tender so as to stop the post judgment interest from running on the full amount\u201d of her judgment and that the defendants and Great West still owe her additional interest on the full amount of that judgment. The trial court\u2019s order of February 4, 2005, can hardly be termed a final order as it did not fully and finally resolve the dispute existing between the parties. See People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 171, 429 N.E.2d 483 (1981). It was not until the entry of the August 22, 2005, judgment that the trial court found that interest on Cote\u2019s judgment would continue to accrue until a proper tender is made. However, the August 22, 2005, judgment was entered in response to a section 2 \u2014 619 motion, requesting only that Great West\u2019s declaratory judgment action be dismissed as untimely, either because it was not filed until after her underlying case had been disposed of or because Great West was attempting to obtain a reduction in her judgment past the 30 days provided in section 2 \u2014 1205.1 of the Code. Had Cote desired a judicial determination of the issue of whether interest continues to accrue on her judgment in the underlying case, she could have filed a counterclaim for a declaratory judgment and, thereafter, moved for summary judgment on the issue, or she might have sought such a finding in the context of a section 2 \u2014 615 motion for judgment on the pleadings (735 ILCS 5/2 \u2014 615(e) (West 2004)) addressed to Great West\u2019s complaint for declaratory judgment. Cote did neither. Rather, in the reply memorandum that she filed in support of her section 2 \u2014 619 motion, Cote, for the first time, requested affirmative relief in the form of a judicial declaration that, \u201cas a matter of law, there has not been a tender to stop interest from continuing to run, either by the nature of the tender and/or the policy language.\u201d The procedure employed by Cote in this regard was wholly inappropriate and the affirmative relief she sought should not have been entertained, as a section 2 \u2014 619 motion is not a vehicle for obtaining affirmative relief in the form of a summary determination in favor of a defendant on one of several major issues raised in a plaintiffs complaint. However, Great West never objected to the request, the trial court ruled on the issues, and Great West has not claimed that it was prejudiced by the procedure. Nevertheless, we must decline to address the question of the propriety of the trial court\u2019s finding.\nThe question of whether Great West\u2019s tender of October 14, 2004, constituted a complete tender of the remaining balance of liability-coverage under the Policy rests entirely upon a construction of the terms of the Policy. The record reflects that both Cote and Great West addressed the coverage afforded under the provisions of the Policy, but the trial court declined to address their arguments and appears instead to have rested its conclusion that Great West\u2019s tender was not \u201clegally sufficient\u201d based upon its finding that Great West was attempting to receive a setoff contrary to the provisions of section 2 \u2014 1205.1 of the Code. As we have already concluded, however, an application of section 2 \u2014 1205.1 has nothing whatever to do with Great West\u2019s claim that it made a complete tender of the remaining balance of liability coverage under the Policy. Whether the October 14, 2004, tender was \u201clegally sufficient\u201d or \u201cimproper\u201d is an issue that can be decided only by construing the terms of the Policy, an inquiry that we are not inclined to conduct for the first time on appeal.\nAdditionally, the trial court\u2019s findings in its August 22, 2005, judgment provided the finality rendering its interlocutory order of February 4, 2005, appealable. Having reversed the August 22, 2005, judgment, the basis for the exercise of our jurisdiction to review the February 4, 2005, order may well have evaporated.\nWe believe that the prudent course of action, in light of our conclusion that the issue of the adequacy of Great West\u2019s tender of October 14, 2004, must be decided based upon a construction of the Policy and our misgivings as to whether we have jurisdiction to address the propriety of the February 4, 2005, order on the merits, is to remand the matter to the circuit court with directions to vacate that portion of its February 4, 2005, order finding that \u201cthere has been an improper tender of the judgment plus accrued interest\u201d and to resolve the issue based upon a construction of the terms of the Policy.\nFor the reasons stated, we reverse the trial court\u2019s judgment of August 22, 2005, and remand this cause with directions to vacate portions of the February 4, 2005, order and to conduct further proceedings in conformity with the opinions expressed herein.\nReversed and remanded with directions.\nKARNEZIS and ERICKSON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOFFMAN" } ], "attorneys": [ "LaBarge, Campbell & Lyon, LLC, of Chicago, for appellant.", "Sal Indomenico & Associates, P.C., of Chicago (Sal Indomenico, of counsel), for appellee Nancy Jean Cote." ], "corrections": "", "head_matter": "GREAT WEST CASUALTY COMPANY, Plaintiff-Appellant, v. NANCY JEAN COTE et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 1\u201405\u20143122\nOpinion filed March 31, 2006.\nLaBarge, Campbell & Lyon, LLC, of Chicago, for appellant.\nSal Indomenico & Associates, P.C., of Chicago (Sal Indomenico, of counsel), for appellee Nancy Jean Cote." }, "file_name": "0100-01", "first_page_order": 118, "last_page_order": 126 }