{ "id": 4282592, "name": "WESTPORT INSURANCE CORPORATION, Plaintiff and Counterdefendant-Appellee, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant and Counterplaintiff (Stonecrafters, Inc., Defendant and Counterplaintiff-Appellant; Handleman Insurance Agency, Inc., Defendant)", "name_abbreviation": "Westport Insurance v. Jackson National Life Insurance", "decision_date": "2008-12-19", "docket_number": "No. 2-07-1205", "first_page": "408", "last_page": "414", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 408" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "836 F.2d 508", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10544320 ], "year": 1987, "pin_cites": [ { "page": "509", "parenthetical": "the words \"Pepper Man\" used in contests to promote a soft drink could not be registered as a service mark" } ], "opinion_index": 0, "case_paths": [ "/f2d/836/0508-01" ] }, { "cite": "982 S.W.2d 472", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11784889 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "476-77" }, { "page": "477" }, { "page": "477-78" } ], "opinion_index": 0, "case_paths": [ "/sw2d/982/0472-01" ] }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "year": 1993, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "223 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604958 ], "year": 2006, "pin_cites": [ { "page": "416-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0407-01" ] }, { "cite": "191 Ill. 2d 278", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229716 ], "year": 2000, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0278-01" ] }, { "cite": "215 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060088 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-2d/215/0427-01" ] } ], "analysis": { "cardinality": 703, "char_count": 13615, "ocr_confidence": 0.779, "pagerank": { "raw": 5.11916696051111e-08, "percentile": 0.3210337745559683 }, "sha256": "3affe94ce4f521e1fd90cd1c1bc7f3f1506949b69f26c0a570880c3bd02aa2f7", "simhash": "1:164007e732888478", "word_count": 2110 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WESTPORT INSURANCE CORPORATION, Plaintiff and Counterdefendant-Appellee, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant and Counterplaintiff (Stonecrafters, Inc., Defendant and Counterplaintiff-Appellant; Handleman Insurance Agency, Inc., Defendant)." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant, Stonecrafters, Inc. (Stonecrafters), appeals from an order of the circuit court of McHenry County entering summary judgment for plaintiff, Westport Insurance Corporation (Westport), in an action for a declaratory judgment. Westport sought a declaration that coverage under an insurance policy issued to Jackson National Life Insurance Company (Jackson) did not extend to the liability of the Handleman Insurance Agency, Inc. (Handleman), arising from the transmission of unsolicited faxes advertising group health insurance. We affirm.\nThe declaratory judgment action underlying this appeal is related to a class action lawsuit filed by Stonecrafters against Handleman. Stonecrafters alleged that the transmission of unsolicited faxes to it and to other businesses violated federal law and gave rise to a private cause of action for damages. The advertisement faxed to the plaintiff class promoted \u201cGroup Health Insurance With Affordable Premiums!\u201d It touted various benefits of the insurance, such as \u201cPPO with Freedom of Choice,\u201d \u201cMaternity Care,\u201d and \u201cInpatient Hospital Services.\u201d It also set forth a table of premiums based on age and gender. The table was accompanied by the following legend:\n\u201cIllustrated Monthly premiums represent one of our many group health insurance plans, and are based on the maximum allowable good-health discount, suburban residence, [sic] & favorable nature of business. Eligible employers with 2-50 employees cannot be rejected due to medical history, but final premiums may vary based on the overall composition of your group. Once issued, premium tables are guaranteed for a one year period.\u201d (Emphases in original.)\nThe advertisement invited potential customers to request a quotation.\nThe parties settled the class action lawsuit and entered into an agreed order entering judgment for $2 million in favor of the plaintiff class. As part of the settlement, Handleman assigned to the plaintiff class all of its rights to indemnity from its insurers, including West-port. Westport had issued to Jackson an insurance policy entitled:\n\u201cInsurance Company Coverage for Insurance Agents and Brokers Professional Liability\u201d\nHandleman is insured under the policy as one of Jackson\u2019s agents.\nThe policy provides, in pertinent part, as follows:\n\u201c[Westport] agrees to pay on behalf of the Insured such loss *** sustained by the Insured by reason of liability imposed by law for damages caused by any negligent act, error or omission by the insured agent or for damages caused by libel or slander or invasion of privacy by the insured agent, arising out of the conduct of the business of the insured agent in rendering services for others as a licensed life, accident and health insurance agent, a licensed life, accident and health insurance general agent or a licensed life, accident and health insurance broker while there is in effect a contract between the Named Insured and the licensed insured agent.\u201d\nIn the declaratory judgment action giving rise to this appeal, West-port named Stonecrafters, Handleman, and Jackson as defendants. Westport maintained that Handleman\u2019s liability in the class action lawsuit did not arise from the conduct of Handleman\u2019s business in rendering services for others as a licensed insurance agent. Stonecrafters filed a counterclaim seeking a declaration that Westport was obligated to pay the proceeds of the policy to the plaintiff class in the lawsuit against Handleman. Stonecrafters moved for judgment on the pleadings, and Westport, in turn, moved for summary judgment. The trial court granted Westport\u2019s motion and denied Stonecrafters\u2019. Stonecrafters brought this appeal.\nBefore proceeding, we note that, on our own motion, we directed the parties to submit supplemental briefs addressing the applicability of an endorsement to the policy excluding coverage for \u201cany \u2018claim\u2019 or suit in which a court certifies a class action against the Named Insured or any of its subsidiaries or related entities.\u201d Jackson is the \u201cNamed Insured.\u201d Upon review of the supplemental briefs, we conclude that Westport has waived any coverage defense based on this endorsement. We use the word \u201cwaive\u201d in its preferred sense as referring to the voluntary relinquishment of a known right. People v. Blair, 215 Ill. 2d 427, 444 n.2 (2005). It is evident that Westport made a deliberate choice not to pursue an argument based on the endorsement. We see no reason not to honor that choice, and we will therefore consider the matter no further.\nSummary judgment is appropriate where \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 2006). We review de novo the trial court\u2019s ruling on a summary judgment motion. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000). Here, the material facts are not in dispute. Whether the policy issued by Westport covers Handleman\u2019s liability is a question of law.\nStonecrafters argues that the distribution of its advertisement was part of the conduct of its business and constituted a service for others. According to Stonecrafters, the word \u201cservices\u201d in the policy issued should be given its ordinary meaning. Citing the Random House College Dictionary, Stonecrafters contends that a service is any \u201cact of assistance.\u201d Random House College Dictionary 1203 (rev. ed. 1984). Stonecrafters contends that providing information to potential customers about the availability of group health insurance coverage was an act of assistance and was therefore within the scope of the coverage provided by the policy.\nOur supreme court has offered the following summary of the principles governing the construction of language in an insurance policy:\n\u201cInsurance policies are subject to the same rules of construction applicable to other types of contracts. [Citation.] A court\u2019s primary objective is to ascertain and give effect to the intention of the parties as expressed in the agreement. [Citation.] In performing that task, the court must construe the policy as a whole, taking into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. [Citation.]\nThe words of a policy should be accorded their plain and ordinary meaning. [Citation.] Where the provisions of a policy are clear and unambiguous, they will be applied as written [citation] unless doing so would violate public policy [citation].\u201d Nicor, Inc. v. Associated Electric & Gas Services Ltd., 223 Ill. 2d 407, 416-17 (2006).\nApplying these principles here, we first note that the title of the policy clearly indicates that the policy provides coverage for \u201cprofessional liability.\u201d Although it may not be an operative term of the policy, the title clearly indicates the type of insurance that Jackson purchased to cover its agents (including Handleman). And, as seen, the type of insurance purchased is germane to determining the meaning of policy language. Thus we read the phrase, \u201crendering services for others as a licensed life, accident and health insurance agent, a licensed life, accident and health insurance general agent or a licensed life, accident and insurance broker,\u201d to signify the agent or broker\u2019s professional services.\nReferring to what it labeled \u201cprofessional liability policies\u201d issued to real estate professionals, our supreme court has stated:\n\u201c[T]he risks undertaken by the insurers are those which are inherent in the practice of the real estate profession. Although there may be a myriad of risks to which one performing services in a real estate professional capacity may be exposed, covered risks are only those which inherently arise out of the rendering of the real estate services.\u201d Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 393 (1993).\nStonecrafters is correct to note that it is the actual language of a policy that ultimately controls the determination of what risks are covered. The policy language at issue in this case is similar but not identical to the language in Crum & Forster Managers Corp., and the risks at issue in that case \u2014 liability for intentional business torts and unfair competitive practices \u2014 were considerably different from the risk at issue here. Thus, Crum & Forster Managers Corp. is of only limited value in determining whether Handleman\u2019s marketing activities are the types of professional services contemplated by the language of the policy. However, we find a more useful analogy, as well as a cogent analysis, in a decision from another jurisdiction \u2014 Atlantic Lloyd\u2019s Insurance Co. of Texas v. Susman Godfrey, L.L.P., 982 S.W.2d 472 (Tex. App. 1998). The issue in that case was whether an insurance policy covered a law firm\u2019s liability for statements in a letter soliciting a potential client with a possible medical malpractice claim. The letter allegedly defamed Larry Likover, the physician who had treated the potential client. The policy excluded liability arising from \u201cprofessional services.\u201d In concluding that the solicitation did not constitute professional services, the court observed:\n\u201c[I]t is clear that a professional must perform more than an ordinary task to perform a professional service. To qualify as a professional service, the task must arise out of acts particular to the individual\u2019s specialized vocation. We do not deem an act a professional service merely because it is performed by a professional. Rather, it must be necessary for the professional to use his specialized knowledge or training.\u201d Atlantic Lloyd\u2019s Insurance Co. of Texas, 982 S.W.2d at 476-77.\nThe insurer argued that the solicitation letter contained statements that reflected \u201cspecialized knowledge inherent to the legal profession.\u201d Atlantic Lloyd\u2019s Insurance Co. of Texas, 982 S.W.2d at 477. The court disagreed:\n\u201cThe Firm did not render professional services in the letter. None of the opinions or language in the letter provided legal services. The Firm did not advise Likover\u2019s former patient, but rather invited him to contact the Firm. The letter offered no legal opinion with respect to the patient\u2019s particular case. The letter simply acknowledged that he was a former patient of Likover and that Likover previously had been the subject of litigation. The letter then concluded by offering the possibility of representation. The Firm merely engaged in a practice designed to acquire new business.\nThe Firm outlined the possibility for representation. If the recipient of the solicitation letter chose to pursue representation, then the Firm would have the opportunity to offer professional services. The letter itself does not provide any professional services. It is merely a medium for attracting new clients, and thus is incidental to the profession. The decision to send a solicitation letter to Likover\u2019s former patient *** was not the rendering of professional services. The solicitation letter was rather an invitation to pursue the opportunity to render professional services. The Firm\u2019s potential liability did not arise from acts in rendering professional services. Instead, the Firm\u2019s potential liability arose from allegedly defamatory statements contained in the solicitation letter, the sending of which was incidental to professional services.\u201d Atlantic Lloyd\u2019s Insurance Co. of Texas, 982 S.W2d at 477-78.\nSimilar observations apply here. Insurance sales professionals use special knowledge and training about insurance products to help customers select products that are best suited to their particular needs. Handleman merely sent out an advertisement describing general features of a plan or plans for \u201cGroup Health Insurance With Affordable Premiums.\u201d The advertisement set forth a table of illustrated monthly premiums, but made clear that actual premiums would depend on the \u201coverall composition\u201d of the insured group. Thus, the advertisement was merely an overture to potential customers. Even if Stonecrafters is correct that the delivery of this general information was an \u201cact of assistance\u201d and thus, in very broad terms, \u201ca service,\u201d it did not amount to rendering a service as an insurance professional within the contemplation of the policy. No expertise was employed to help a particular customer purchase a particular product. The mere offer to perform a professional service is not a professional service in its own right.\nFor the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.\nAffirmed.\nBOWMAN and BURKE, JJ., concur.\ninterestingly, in the realm of intellectual property law, the informational aspect of advertising for a product or service does not make the advertisement a service in its own right. See In re Dr. Pepper Co., 836 F.2d 508, 509 (Fed. Cir. 1987) (the words \u201cPepper Man\u201d used in contests to promote a soft drink could not be registered as a service mark).", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Brian J. Wanca and Steven A. Smith, both of Anderson & Wanca, of Rolling Meadows, and Phillip A. Bock and Robert M. Hatch, both of Bock & Hatch, LLC, of Chicago, for appellant.", "Michael P. Tone and Kimberly E. Blair, both of Gordon & Rees LLE of Chicago, for appellee." ], "corrections": "", "head_matter": "WESTPORT INSURANCE CORPORATION, Plaintiff and Counterdefendant-Appellee, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant and Counterplaintiff (Stonecrafters, Inc., Defendant and Counterplaintiff-Appellant; Handleman Insurance Agency, Inc., Defendant).\nSecond District\nNo. 2 \u2014 07\u20141205\nOpinion filed December 19, 2008.\nBrian J. Wanca and Steven A. Smith, both of Anderson & Wanca, of Rolling Meadows, and Phillip A. Bock and Robert M. Hatch, both of Bock & Hatch, LLC, of Chicago, for appellant.\nMichael P. Tone and Kimberly E. Blair, both of Gordon & Rees LLE of Chicago, for appellee." }, "file_name": "0408-01", "first_page_order": 424, "last_page_order": 430 }