{ "id": 4266127, "name": "FOUNDERS INSURANCE COMPANY, Plaintiff-Appellee, v. TAMIETHA R. WHITE et al., Defendants-Appellants", "name_abbreviation": "Founders Insurance v. White", "decision_date": "2006-09-22", "docket_number": "No. 1\u201405\u20141921", "first_page": "883", "last_page": "889", "citations": [ { "type": "official", "cite": "367 Ill. App. 3d 883" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "258 Ill. App. 3d 588", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2882941 ], "year": 1994, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0588-01" ] }, { "cite": "344 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777537 ], "year": 2003, "pin_cites": [ { "page": "892" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0888-01" ] }, { "cite": "351 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083920 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "162" }, { "page": "162-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0151-01" ] }, { "cite": "216 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3827797 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "305" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0294-01" ] }, { "cite": "213 Ill. 2d 307", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448779 ], "year": 2004, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0307-01" ] } ], "analysis": { "cardinality": 576, "char_count": 14310, "ocr_confidence": 0.774, "pagerank": { "raw": 5.274756544287434e-08, "percentile": 0.3308847349787574 }, "sha256": "3895b7cccf565e15e504285c74744863f725a23aa15d1f52bfdfb10fd8ea6faa", "simhash": "1:3fbfd397bb4f7c4f", "word_count": 2160 }, "last_updated": "2023-07-14T20:55:49.400377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FOUNDERS INSURANCE COMPANY, Plaintiff-Appellee, v. TAMIETHA R. WHITE et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nIn this declaratory judgment action, the trial court entered summary judgment in favor of plaintiff Founders Insurance Company, finding that it had no duty to defend or indemnify defendant Tamietha White (White), who was the driver in a car-pedestrian accident. The sole issue on appeal is whether the trial court erred in finding that Great Northern Insurance Agency (Great Northern), the company from which White obtained insurance, was not an agent of plaintiff. We affirm.\nIn December 2002, White was driving her car when she was involved in an accident with a pedestrian, the minor defendant Kristina Williams. Defendant Roszetta Williams (defendant), as guardian and next friend of the minor, filed a personal injury action against White. Ultimately, plaintiff denied coverage to White under her insurance policy because at the time of the accident White was operating a vehicle that she owned, which was outside the coverage of her non-owners insurance policy.\nThe undisputed facts established that on September 12, 2002, White, with the assistance of Great Northern, obtained a nonowners vehicle insurance policy issued by plaintiff. The terms of the policy only provide coverage to White when she is operating a vehicle that she does not own.\nOn October 25, 2004, plaintiff filed a revised motion for summary judgment, which is the subject of this appeal. In this motion, plaintiff asserted that Great Northern was not its agent and if White had any dispute regarding the type of insurance coverage she applied for in September 2002, White would have to raise such a claim against Great Northern. Plaintiff further asserted that the terms of White\u2019s non-owners policy were clear and unambiguous and that White was not entitled to insurance coverage for the December 2002 accident because she was operating a vehicle that she owned at the time of the accident. Plaintiff also observed that an earlier default judgment had been entered against White related to this action.\nPlaintiff attached the affidavits of its senior claim/coverage analyst (Mauricio Valdivia), its vice president of underwriting (David Mirza), and Great Northern\u2019s underwriting manager (Richard Pepelea). Plaintiff also attached the transcript of the discovery deposition of White and White\u2019s application for insurance with plaintiff.\nValdivia averred that White operated a vehicle that she owned at the time of the accident and therefore was not covered by her non-owners policy. Mirza attested that Great Northern was an independent insurance broker and had never been plaintiffs agent. Mirza further attested that on September 12, 2002, and at all relevant times Great Northern had no fixed or permanent relationship with plaintiff.\nPepelea averred that on September 12, 2002, Great Northern offered insurance products to the public for approximately 15 to 20 different insurers, including plaintiff, and that Great Northern was an independent insurance broker. Pepelea further averred that: (1) neither plaintiff nor any insurer exercised any control over Great Northern\u2019s actions with the public; (2) Great Northern had no fixed or permanent relationship with any of those 15 to 20 insurers; (3) Great Northern possessed insurance applications for those 15 to 20 insurers; and (4) Great Northern, \u201cupon determining which of these 15 to 20 insurers would best suit our clients\u2019 specific needs, would, together with and with [sic] the assistance of the client, complete the [application from that insurer.\u201d\nIn particular, Pepelea attested that White was placed with plaintiff, as opposed to another insurer, because plaintiff \u201coffered the most competitive rates for a Non-Owners Policy for someone in Tamietha White\u2019s position at that time.\u201d Pepelea further attested that on September 12, 2002, Great Northern acted as White\u2019s agent and acted to protect and further her interests.\nPlaintiff requested the court to enter a finding that plaintiff had no duty to defend or indemnify White in connection with defendant\u2019s claim, that any issue in connection with the scope of coverage requested by White in September 2002 was not attributable to plaintiff, and that defendant was not entitled to recovery under White\u2019s nonowners policy.\nOn December 27, 2004, defendant filed a response to plaintiffs motion for summary judgment and a cross-motion for summary judgment, asserting that Great Northern acted as an agent of plaintiff when White obtained her nonowners policy on September 12, 2002. Specifically, defendant contended that White went to Great Northern, signed an application of insurance bearing plaintiff\u2019s name and identifying Great Northern as an agent of plaintiff, paid the required insurance premium, and left Great Northern\u2019s office with insurance coverage in effect. Defendant further contended that plaintiff exercised control over Great Northern through plaintiffs written guidelines in a document identified as \u201cProducer Agreement.\u201d\nDefendant attached the transcript of White\u2019s deposition, White\u2019s insurance application, and the \u201cProducer Agreement\u201d between plaintiff and Great Northern.\nOn February 23, 2005, defendant filed a supplemental response to plaintiff\u2019s motion for summary judgment, asserting primarily that Great Northern was an agent of plaintiff for the purposes of issuing and binding coverage. Defendant further asserted that Great Northern committed various errors and provided White with the incorrect coverage and that plaintiff was responsible for Great Northern\u2019s error. Consequently, defendant contended that plaintiff was obligated to provide insurance coverage to White.\nDefendant attached to the supplemental response, in pertinent part, the transcript of the discovery deposition of Richard Pepelea (underwriting manager at Great Northern). Pepelea testified that Great Northern financed White\u2019s premium that she owed to plaintiff for the nonowner\u2019s policy. When asked about the written guidelines provided by plaintiff, Pepelea stated that Great Northern received such underwriting guideline books from all insurance companies that Great Northern worked with. Pepelea further stated that Great Northern was obligated to comply with the producer agreements provided by all of the insurance companies. Pepelea was unaware of any circumstances in which Great Northern had the ability to bind insurance coverage for plaintiff.\nDefendant also attached the transcript of the discovery deposition of David Mirza (plaintiffs vice president of underwriting). Mirza testified that plaintiff provided Great Northern with an underwriting guidelines book, which describes specific underwriting rules, acceptable makes and models of vehicles, and insurance premium rates. Mirza stated that Great Northern did not have the ability to bind plaintiff to insurance coverage and that plaintiff had \u201cthe final say\u201d regarding binding coverage and acceptance of risk.\nIn regard to White\u2019s coverage, Mirza explained that when White left Great Northern\u2019s office on September 12, 2002, she had insurance coverage effective September 13, 2002. Mirza further explained that when plaintiff reviewed White\u2019s application at a later date, White\u2019s coverage was \u201cretroactive back to September 13th.\u201d\nOn March 8, 2005, plaintiff responded to defendant\u2019s pleadings and essentially repeated its earlier arguments. Specifically, plaintiff asserted that the evidence clearly demonstrated that Great Northern had no fixed and permanent relationship with plaintiff and that Great Northern did not have the power or authority to bind plaintiff for any risks.\nOn March 18, 2005, following a hearing and after reviewing the parties\u2019 pleadings, the circuit court granted plaintiffs motion for summary judgment. The court found that no question of material fact existed and that Great Northern was not an agent of plaintiff. The court further found that any issue regarding the scope or type of coverage initially requested by White could not be imputed to plaintiff. Accordingly, the court found that plaintiff had no duty to defend or indemnify White in connection with defendant\u2019s lawsuit regarding the December 2002 accident and that defendant was not entitled to any recovery under White\u2019s nonowners policy.\nOn appeal, defendant admits that the nonowners insurance policy purchased by White does not afford coverage for the underlying accident. To circumvent this undisputed result, defendant posits that White meant to purchase or should have purchased an owners policy and, therefore, Great Northern procured the wrong policy for White. In turn, the alleged mistake by Great Northern should be imputed to plaintiff, which then should cover White under a policy that she did not buy and, therefore, does not exist, i.e., an owners policy. Defendant\u2019s reasoning is based on the allegation that Great Northern is an agent of plaintiff. Accordingly, defendant only contests the trial court\u2019s findings that Great Northern was not an agent of plaintiff.\nWe review de novo a circuit court\u2019s entry of summary judgment. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). When conducting such a review, we may affirm a grant of summary judgment on any basis contained in the record, regardless of whether the lower court relied upon that basis. Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). An entry for summary judgment is proper where, \u201cwhen viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\u201d Northern Illinois Emergency Physicians, 216 Ill. 2d at 305.\nIn this case, we must determine whether there is a genuine question of material fact regarding defendant\u2019s assertion that Great Northern acted as plaintiffs agent when it assisted White in obtaining her nonowners policy. An insurance broker owes a duty to the insured, while an insurance agent owes a duty to the insurer. Young v. Allstate Insurance Co., 351 Ill. App. 3d 151, 162 (2004). To determine whether a certain individual acted as a broker or an agent, we must analyze the following four factors: (1) who first set that individual in motion; (2) who controlled that individual\u2019s action; (3) who paid that individual; and (4) whose interests that individual was protecting. Young, 351 Ill. App. 3d at 162-63; Farmers Automobile Insurance Ass\u2019n v. Gitelson, 344 Ill. App. 3d 888, 892 (2003).\nHere, we find that Great Northern did not act as plaintiffs agent, but instead served as White\u2019s agent. Notably, White indisputably set Great Northern in motion when White sought Great Northern\u2019s assistance in procuring automobile insurance. Moreover, as Pepelea testified, Great Northern worked with 15 to 20 insurance companies and White obtained an insurance policy from plaintiff because plaintiff offered the most competitive rates for a nonowners policy for someone in White\u2019s position. In accordance with White\u2019s request, Great Northern assisted her in acquiring the nonowners policy from plaintiff. Furthermore, for the benefit of White, Great Northern financed a portion of the premium owed by White to plaintiff. Moreover, both Pepelea and Mirza unequivocally attested that Great Northern was not plaintiffs agent and that Great Northern was an independent insurance broker. After reviewing this evidence in light of the relevant factors, we find that the circuit court properly concluded that Great Northern was not an agent of plaintiff.\nWe are not persuaded by defendant\u2019s interpretation of the evidence regarding the relationship between plaintiff and Great Northern. Defendant directs our attention to a variety of clauses in the underwriting guidelines issued by plaintiff to Great Northern regarding plaintiff\u2019s underwriting policies, wherein plaintiff establishes certain requirements that Great Northern must follow. Defendant further notes that, according to those guidelines, Great Northern was authorized to bind insurance coverage if it followed plaintiff\u2019s published underwriting guidelines. Defendant also directs our attention to the fact that Great Northern collected a premium from White on behalf of plaintiff.\nHowever, after reviewing the cited guidelines in conjunction with the other evidence, we find that these guidelines do not demonstrate that Great Northern was an agent of plaintiff. Notably, as Pepelea testified in his deposition, Great Northern received similar guideline books from all of the insurance companies that Great Northern worked with. Moreover, in regard to defendant\u2019s allegation that Great Northern could bind insurance coverage, we note that the referenced clause provides:\n\u201c[Great Northern] is specifically prohibited and not authorized to bind, execute, modify or issue insurance contracts, except as provided in [plaintiffs] published underwriting guidelines.\u201d\nThis clause, contrary to defendant\u2019s characterization of it, establishes that Great Northern was not expressly authorized to bind insurance coverage for plaintiff, but instead had that ability only in limited circumstances.\nWe acknowledge, as defendant observes, that Great Northern collected a premium from White on behalf of plaintiff and, under limited circumstances, may have had authority to bind insurance coverage for plaintiff. However, these facts are insufficient to establish that Great Northern was plaintiffs agent. Put simply, \u201c[t]he mere fact that business transactions occurred or that a contractual relationship existed [between two business entities] is insufficient to support\u201d a finding of a fiduciary relationship. State Security Insurance Co. v. Frank B. Hall & Co., 258 Ill. App. 3d 588, 597 (1994).\nFor the foregoing reasons, we affirm the judgment of the circuit court.\nAffirmed.\nMcNULTY, EJ., and O\u2019MALLEY, J., concur.\nThe default judgment against White was entered on September 25, 2003.", "type": "majority", "author": "JUSTICE TULLY" } ], "attorneys": [ "Pool, Leigh & Fabricius, of Ottawa (Raymond E Fabricius, of counsel), for appellants.", "Shari Shelmadine, of Chicago, for appellee." ], "corrections": "", "head_matter": "FOUNDERS INSURANCE COMPANY, Plaintiff-Appellee, v. TAMIETHA R. WHITE et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 1\u201405\u20141921\nOpinion filed September 22, 2006.\nPool, Leigh & Fabricius, of Ottawa (Raymond E Fabricius, of counsel), for appellants.\nShari Shelmadine, of Chicago, for appellee." }, "file_name": "0883-01", "first_page_order": 901, "last_page_order": 907 }