{ "id": 4290506, "name": "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. D AND M TILE, INC., et al., Defendants-Appellants", "name_abbreviation": "Country Mutual Insurance v. D & M Tile, Inc.", "decision_date": "2009-09-29", "docket_number": "No. 3-08-0753", "first_page": "729", "last_page": "740", "citations": [ { "type": "official", "cite": "394 Ill. App. 3d 729" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "586 N.E.2d 1211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1215-16" } ], "opinion_index": 0 }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "year": 1992, "pin_cites": [ { "page": "272-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "632 N.E.2d 1064", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "1067" }, { "page": "1067" } ], "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5872517 ], "year": 2003, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0669-01" ] }, { "cite": "860 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "440" } ], "opinion_index": 0 }, { "cite": "369 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266960 ], "year": 2006, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0517-01" ] }, { "cite": "644 N.E.2d 1163", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "1165-66" }, { "page": "1165" }, { "page": "1166" } ], "opinion_index": 0 }, { "cite": "163 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477850 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "286-90" }, { "page": "287" }, { "page": "289-90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0284-01" ] }, { "cite": "872 N.E.2d 495", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "497" } ], "opinion_index": 0 }, { "cite": "374 Ill. App. 3d 1079", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7329001 ], "year": 2007, "pin_cites": [ { "page": "1081" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/1079-01" ] }, { "cite": "767 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "825" }, { "page": "825" } ], "opinion_index": 0 }, { "cite": "328 Ill. App. 3d 853", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183280 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "858" }, { "page": "858" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0853-01" ] }, { "cite": "585 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "57" }, { "page": "57" } ], "opinion_index": 0 }, { "cite": "146 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597145 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "15" }, { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0001-01" ] }, { "cite": "563 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "138 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5577212 ], "year": 1990, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0533-01" ] }, { "cite": "818 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "394" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "353 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3364347 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "273" }, { "page": "274-75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0268-01" ] }, { "cite": "865 N.E.2d 985", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2007, "pin_cites": [ { "page": "989" }, { "page": "989" }, { "page": "990-91" } ], "opinion_index": 0 }, { "cite": "372 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268747 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "599-600" }, { "page": "600" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0595-01" ] }, { "cite": "342 Ill. App. 3d 883", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473282 ], "year": 2003, "pin_cites": [ { "page": "892-93", "parenthetical": "a corporate officer who withdraws from the protection of the Act cannot file a claim for workers' compensation benefits" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/342/0883-01" ] }, { "cite": "352 U.S. 59", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159339 ], "weight": 3, "year": 1956, "pin_cites": [ { "page": "63" }, { "page": "132" }, { "page": "165" } ], "opinion_index": 1, "case_paths": [ "/us/352/0059-01" ] }, { "cite": "112 Ill. 2d 428", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5537948 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "444" }, { "page": "445" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/112/0428-01" ] }, { "cite": "163 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477850 ], "weight": 7, "year": 1994, "pin_cites": [ { "page": "285-86" }, { "page": "288" }, { "page": "288" }, { "page": "288-89" }, { "page": "289" }, { "page": "288-89" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/163/0284-01" ] }, { "cite": "328 Ill. App. 3d 853", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183280 ], "year": 2002, "pin_cites": [ { "page": "858-59", "parenthetical": "statutory exclusion controls the nature of the exclusion under the insurance policy" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/328/0853-01" ] }, { "cite": "372 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268747 ], "year": 2007, "pin_cites": [ { "parenthetical": "no statutory exclusions over the insurance policy" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/372/0595-01" ] } ], "analysis": { "cardinality": 907, "char_count": 25173, "ocr_confidence": 0.768, "pagerank": { "raw": 7.630153458757504e-08, "percentile": 0.45080176489053997 }, "sha256": "e4a70491eeb9280d56c03ae74d7a02b3c6966a22911888c20f59a7260b99cfee", "simhash": "1:023756149641b0a5", "word_count": 4157 }, "last_updated": "2023-07-14T19:46:22.265343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. D AND M TILE, INC., et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE CARTER\ndelivered the opinion of the court:\nThe plaintiff, Country Mutual Insurance Co. (Country Mutual), filed the instant action for a declaratory judgment, seeking a ruling that it had no obligation under an insurance policy to defend and indemnify defendant D and M Tile for a worker\u2019s compensation claim filed by defendant Dan Walenga (collectively, the defendants). Country Mutual filed a motion for summary judgment, claiming that it was entitled to judgment as a matter of law because Walenga had elected to opt out of coverage under the Illinois Workers\u2019 Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). The trial court granted summary judgment in favor of Country Mutual and denied the defendants\u2019 joint motion to strike under section 2 \u2014 615(a) of the Code of Civil Procedure (the Code), motion to dismiss under section 2 \u2014 619(a)(1) of the Code, and motion to vacate the summary judgment order and allow the defendants to amend their answers. 735 ILCS 5/2 \u2014 615(a), 2 \u2014 619(a)(1) (West 2006). The defendants appeal. We affirm.\nFACTS\nCountry Mutual filed a complaint for declaratory judgment, seeking a ruling that it had no obligation under an insurance policy to defend and indemnify D and M Tile for a worker\u2019s compensation claim filed by Walenga, because (1) Walenga had elected to withdraw himself from coverage under the Act and (2) D and M had allegedly not reported the injury in a timely manner. Only the argument that Walenga withdrew from coverage under the Act is at issue in this case. In its complaint, Country Mutual alleged that it issued a worker\u2019s compensation policy to D and M with a policy term of June 28, 2007, through June 28, 2008. Walenga allegedly was hurt in a job-related accident on July 12, 2007, while in the employment of D and M. Country Mutual received notice of the accident on February 21, 2008.\nA copy of the policy and D and M\u2019s application was attached to the complaint. The application provides in part: \u201cIf entity is corporation, do corporate officers (Pres., Vice Pres., Sec., Treas.) elect to withdraw from coverage under the Illinois Workers\u2019 Compensation Act?\u201d There is an \u201cx\u201d in the box marked \u201cyes\u201d and the box is circled. The application then lists Walenga as president of the corporation and as the person electing to withdraw from coverage, accompanied by Walenga\u2019s signature. Attached to the policy is an endorsement entitled, \u201cExclusion of Executive Officers Endorsement.\u201d The endorsement states that the policy does not cover bodily injury to the persons listed, who have elected not to be subject to the Illinois workers\u2019 compensation law. The endorsement also states that the policy premium does not include the remuneration for such persons and that the insured shall indemnify and hold Country Mutual harmless against all loss and expense on account of injury sustained by such persons. The endorsement then lists Walenga as excluded from the policy.\nOn May 23, 2008, each defendant filed an answer to the complaint. The defendants admitted that the policy in question existed, Walenga was listed as an excluded person, and Walenga filled in his name and signed that portion of the policy application electing withdrawal from coverage. The defendants also admitted that Walenga\u2019s wages were excluded from the calculation of the premium paid by D and M for the policy.\nOn June 6, 2008, Country Mutual filed a motion for summary judgment. Country Mutual argued that it had no duty to defend and indemnify D and M because Walenga had elected to withdraw himself from workers\u2019 compensation insurance coverage. Another copy of the policy and application was attached to the motion.\nIn response, Walenga filed a memorandum opposing Country Mutual\u2019s motion for summary judgment. Walenga also moved to dismiss a portion of the complaint under section 2 \u2014 619(a)(1) of the Code and moved to strike portions of the complaint under section 2 \u2014 615(a) of the Code. 735 ILCS 5/2 \u2014 619(a)(1), 2 \u2014 615(a) (West 2006). D and M joined Walenga\u2019s memorandum and motions. On August 4, 2008, a hearing was held on all pending motions, and the parties argued their positions on all of the motions.\nOn August 20, 2008, the court granted Country Mutual\u2019s motion for summary judgment. The court found that Walenga was an officer of D and M and that he elected to withdraw himself from the operation of the Act. The court also rejected the defendants\u2019 argument that a withdrawal by an officer who was also an active employee of the corporation was inconsistent with the intent of the Act and found that this withdrawal was allowed under the Act. The court did not rule on the defendants\u2019 pending motions at that time.\nOn September 2, 2008, Walenga filed a motion to vacate the court\u2019s order granting summary judgment to Country Mutual and requested leave to file an amended answer to the complaint. Walenga also requested rulings on the previously filed motions under sections 2 \u2014 615(a) and 2 \u2014 619(a)(1) of the Code. Following a hearing, the court denied the defendants\u2019 motions to strike under section 2 \u2014 615(a) of the Code and motions to dismiss under section 2 \u2014 619(a)(1) of the Code. 735 ILCS 5/2 \u2014 615(a), 2 \u2014 619(a)(1) (West 2006). The court also denied Walenga\u2019s motion to vacate the order granting summary judgment and his request to file an amended answer. The defendants appeal.\nANALYSIS\nWe address the defendants\u2019 arguments in the order in which they were ruled upon by the trial court, as the trial court ruled upon the motion for summary judgment before it eventually ruled upon the defendants\u2019 also-pending motions. Each of the parties\u2019 assorted motions centers on the same legal issue, whether Walenga was a bona fide officer who voluntarily elected to withdraw from coverage under the Act.\nFirst, we address the defendants\u2019 contention that the trial court erred by granting summary judgment to Country Mutual. \u201cSummary judgment is proper where, when 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 the moving party is entitled to judgment as a matter of law.\u201d Virginia Surety Co. v. Bill\u2019s Builders, Inc., 372 Ill. App. 3d 595, 599-600, 865 N.E.2d 985, 989 (2007); 735 ILCS 5/2 \u2014 1005(c) (West 2006). Our review is de novo. Virginia Surety Co., 372 Ill. App. 3d at 600, 865 N.E.2d at 989.\n\u201cA declaratory judgment action requires (1) a plaintiff with a tangible, legal interest; (2) a defendant with an opposing interest; and (3) an actual controversy between the parties concerning such interests.\u201d Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 273, 818 N.E.2d 389, 394 (2004), citing 735 ILCS 5/2 \u2014 701 (West 2002). In this case, the undisputed facts show that Country Mutual issued a workers\u2019, compensation policy to D and M with a policy term of June 28, 2007, through June 28, 2008. Walenga filed a claim with the Illinois Workers\u2019 Compensation Commission (Commission) alleging he had been injured on the job on July 12, 2007. The parties dispute whether Country Mutual has an obligation to defend and indemnify D and M against Walenga\u2019s claim.\nThe defendants argue that summary judgment was not appropriate in this case because the undisputed facts do not prove as a matter of law that Walenga was a bona fide officer who voluntarily elected to withdraw from coverage under the Act, as required by section 3(17)(b) of the Act. 820 ILCS 305/3(17)(b) (West 2006). Under section 3(17)(b), the corporate officers of any corporation may elect to withdraw themselves as individuals from the operation of the Act. 820 ILCS 305/3(17)(b) (West 2006). \u201c[A] \u2018corporate officer\u2019 is defined as a bona fide President, Vice President, Secretary or Treasurer of a corporation who voluntarily elects to withdraw.\u201d 820 ILCS 305/3(17)(b) (West 2006). The Act does not define \u201cbona fide\u201d or \u201cvoluntarily.\u201d\nThe defendants contend that \u201cbona fide\u201d should be interpreted to mean \u201cthose officers whose job duties are so far removed from the hazardous activities and risks that call for the automatic application of the act as to justify empowering them to make an election to opt out from coverage.\u201d The defendants also contend that this interpretation is consistent with the purposes of the Act. Country Mutual maintains that section 3(17)(b) should be construed according to its plain language and that \u201cbona fide\u201d and \u201cvoluntarily\u201d should be accorded their plain meanings. 820 ILCS 305/3(17)(b) (West 2006).\n\u201cWhen interpreting a statute, we must give the language of the statute its plain and ordinary meaning.\u201d Henry v. St. John\u2019s Hospital, 138 Ill. 2d 533, 541, 563 N.E.2d 410, 414 (1990). In the absence of a statutory definition of a term, words in a statute should be given their ordinary and popularly understood meanings. People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 15, 585 N.E.2d 51, 57 (1991). To ascertain the ordinary meaning of a word, it is appropriate to employ a dictionary. Datacom Systems Corp., 146 Ill. 2d at 15, 585 N.E.2d at 57.\n\u201cBona fide\u201d is defined as \u201cIn or with good faith; honestly, openly, and sincerely; without deceit or fraud. *** Truly; actually; without simulation or pretense. Innocently; in the attitude of trust and confidence; without notice of fraud, etc. Real, actual, genuine, and not feigned.\u201d Black\u2019s Law Dictionary 177 (6th ed. 1990). Thus, the plain and ordinary meaning of \u201cbona fide\u201d in this context means a person who is genuinely an officer of a corporation, rather than someone who holds such a title in pretense or fraud. In this case, it is undisputed that Walenga was the president of D and M. The defendants admitted in their answers that Walenga was the president of the company. In addition, the defendants admitted that Walenga listed himself as president of D and M on the application for workers\u2019 compensation insurance and signed the application as president.\nThe defendants do not offer a definition of \u201cvoluntarily\u201d but claim that it should be interpreted consistently with their proffered definition of \u201cbona fide.\u201d Black\u2019s Law Dictionary defines \u201cvoluntarily\u201d as \u201cnot accidental\u201d and \u201cwithout coercion.\u201d Black\u2019s Law Dictionary 1575 (6th ed. 1990). The undisputed facts in this case show that Walenga filled out the policy application, listed his name and position as president in that portion of the application electing to withdraw company officers from coverage under the Act and signed the application. Further, Walenga\u2019s salary was not included in the policy\u2019s premium calculation. These undisputed facts are sufficient to prove that Walenga was a bona fide officer who had opted out of coverage. See Virginia Surety Co., 372 Ill. App. 3d at 602, 865 N.E.2d at 990-91; see also D. Mayer Landscaping, Inc. v. Industrial Comm\u2019n, 328 Ill. App. 3d 853, 858, 767 N.E.2d 821, 825 (2002). Thus, we find that Country Mutual was properly granted summary judgment.\nNext, the defendants contend that the trial court erred by denying their motion to dismiss brought under section 2 \u2014 619(a)(1) of the Code. 735 ILCS 5/2 \u2014 619(a)(1) (West 2006). The defendants argue that the court lacked jurisdiction to consider the question of whether Walenga elected to withdraw himself from coverage under the Act, claiming that this portion of Country Mutual\u2019s complaint raises a mixed question of fact and law. Further, the defendants maintain that under section 18 of the Act, the Commission has exclusive jurisdiction over this question. 820 ILCS 305/18 (West 2006). Country Mutual disagrees, arguing that the issue of whether Walenga elected to opt out of coverage under the Act is a question of law, which was properly before the circuit court.\nSection 2 \u2014 619(a)(1) of the Code allows for the involuntary dismissal of an action if the court lacks subject matter jurisdiction. 735 ILCS 5/2 \u2014 619(a)(1) (West 2006). We review de novo the court\u2019s decision to grant or deny a section 2 \u2014 619(a)(1) motion to dismiss. Siakpere v. City of Chicago, 374 Ill. App. 3d 1079, 1081, 872 N.E.2d 495, 497 (2007).\nSection 18 of the Act states, \u201cAll questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission.\u201d 820 ILCS 305/18 (West 2006). In Employers Mutual Cos. v. Skilling, 163 Ill. 2d 284, 286-90, 644 N.E.2d 1163, 1165-66 (1994), the Illinois Supreme Court construed this section of the Act and determined that this language did not divest the circuit courts of jurisdiction over matters arising under the Act. Rather, the Commission and the circuit courts have concurrent jurisdiction to hear disputes over insurance coverage. Employers Mutual Cos., 163 Ill. 2d at 287, 644 N.E.2d at 1165. Further, the court concluded that the circuit court\u2019s jurisdiction was paramount in that declaratory judgment action, which sought a determination of the parties\u2019 obligations under an insurance policy and, thus, presented a question of law. Employers Mutual Cos., 163 Ill. 2d at 289-90, 644 N.E.2d at 1166.\nIn this case, the relevant portions of Country Mutual\u2019s declaratory judgment complaint seek a ruling that Country Mutual is not obligated to defend or indemnify D and M because Walenga elected to withdraw himself from coverage under the Act. This question involves an interpretation of the insurance policy and an interpretation of section 3(17)(b) of the Act. 820 ILCS 305/3(17)(b) (West 2006). These interpretations are questions of law. American Family Mutual Insurance Co. v. Niebuhr, 369 Ill. App. 3d 517, 521, 860 N.E.2d 436, 440 (2006). The circuit court correctly determined that it had jurisdiction over this matter and correctly denied the defendants\u2019 section 2 \u2014 619 motion to dismiss. 735 ILCS 5/2 \u2014 619(a)(1) (West 2006).\nThe defendants also claim that the trial court erred by denying their motions to strike portions of the complaint pursuant to section 2 \u2014 615(a) of the Code of Civil Procedure. 735 ILCS 5/2 \u2014 615(a) (West 2006). \u201cA section 2 \u2014 615 motion admits all well-pleaded facts and attacks the legal sufficiency of the complaint ***.\u201d Jenkins v. Concorde Acceptance Corp., 345 Ill. App. 3d 669, 674, 802 N.E.2d 1270, 1275 (2003). We review de novo the trial court\u2019s decision to deny a motion under section 2 \u2014 615 of the Code of Civil Procedure. Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 274-75, 818 N.E.2d 389, 395 (2004).\nThe defendants claim that portions of Country Mutual\u2019s complaint should have been stricken because the complaint does not allege sufficient facts showing that Walenga was a \u201cbona fide\u201d officer who \u201cvoluntarily\u201d elected to withdraw himself from the Act. We have previously rejected the defendants\u2019 definitions of the terms \u201cbona fide\u201d and \u201cvoluntarily.\u201d We find that Country Mutual alleged facts sufficient to support its claim that Walenga was a bona fide officer of D and M who voluntarily elected to withdraw from coverage under the Act. Therefore, the trial court did not err by denying the defendants\u2019 motions to strike.\nFinally, the defendants claim that the trial court abused its discretion by denying Walenga\u2019s motion to vacate the order granting summary judgment to Country Mutual and allow him to amend his answer to assert as an affirmative defense that Walenga was not a bona fide officer within the meaning of the Act. The motion to vacate the summary judgment was in the nature of a motion to reconsider, where a new approach to the defendants\u2019 theory was suggested but not new evidence that would help justify a reconsideration. See Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195, 545 N.E.2d 689, 695 (1989); Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248-49, 571 N.E.2d 1107, 1111 (1991). Section 2 \u2014 1005(g) of the Code of Civil Procedure provides that after the entry of summary judgment the court shall permit pleadings to be amended upon just and reasonable terms. 735 ILCS 5/2 \u2014 1005(g) (West 2006). \u201cThis provision has been interpreted as requiring the trial court to permit amendment if it will further the ends of justice.\u201d Stefanich, McGarry, Wols & Okrei, Ltd. v. Hoeflich, 260 Ill. App. 3d 758, 762, 632 N.E.2d 1064, 1067 (1994). \u201cIn determining whether the trial court abused its discretion in denying a motion to amend, a reviewing court must look at four factors.\u201d Stefanich, 260 Ill. App. 3d at 762, 632 N.E.2d at 1067. These factors are: \u201c(1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified.\u201d Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 272-73, 586 N.E.2d 1211, 1215-16 (1992).\nIn this case, the defendants requested leave to amend their answer to include an affirmative defense that Walenga was not a bona fide officer of D and M because he spent most of his time working at construction sites. As previously discussed, the trial court correctly rejected the defendants\u2019 definition of \u201cbona fide.\u201d Walenga\u2019s position as an officer of the company does not depend upon the amount of time that Walenga spent working at constructions sites. See D. Mayer Landscaping, 328 Ill. App. 3d at 858, 767 N.E.2d at 825. The proposed amendment would not have cured the defendants\u2019 answers or rendered summary judgment inappropriate in this case. Thus, the court did not abuse its discretion by denying the defendants\u2019 motion to vacate its order and allow the defendants to file amended answers.\nCONCLUSION\nBased upon the above analysis, we find that the trial court properly granted Country Mutual\u2019s motion for summary judgment and properly denied the defendants\u2019 motions. Accordingly, the judgment of the Will County circuit court is affirmed.\nAffirmed.\nO\u2019BRIEN, J., concurs.", "type": "majority", "author": "JUSTICE CARTER" }, { "text": "JUSTICE HOLDRIDGE,\ndissenting:\nI would find that the trial court lacked jurisdiction to consider whether Walenga elected to withdraw himself from coverage under the Workers\u2019 Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). I would further find that, under section 18 of the Act, the Workers\u2019 Compensation Commission (the Commission) should have exclusive jurisdiction over this question. 820 ILCS 305/18 (West 2006). I therefore respectfully dissent.\nAt issue in the instant matter is whether Walenga was a bona fide officer who voluntarily elected to withdraw from coverage under the Act pursuant to section 3(17)(b). 820 ILCS 305/3(17)(b) (West 2006). Under section 3(17)(b), corporate officers of any corporation may elect to withdraw themselves as individuals from the operation of the Act. 820 ILCS 305/3(17)(b) (West 2006). \u201c[A] \u2018corporate officer\u2019 is defined as a bona fide President, Vice President, Secretary or Treasurer of a corporation who voluntarily elects to withdraw.\u201d 820 ILCS 305/3(17)(b) (West 2006). The Act does not define \u201cbona fide\u201d or \u201cvoluntarily,\u201d nor is there any case law interpreting this section of the Act.\nSection 18 of the Act states, \u201cAll questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission.\u201d 820 ILCS 305/18 (West 2006). Here, the issue is whether Walenga is in compliance with section 3(17) (b) of the Act. Compliance with section 3(17) (b) of the Act is a question which, under the Act, should be determined by the Commission. I would hold that interpretation of section 3(17)(b) of the Act should be within the exclusive jurisdiction of the Commission.\nAs with the majority, I would begin with Employers Mutual Cos. v. Skilling, 163 Ill. 2d 284 (1994). In that case, George Skilling filed two workers\u2019 compensation claims against his employer, Kirkpatrick Trucking Company, for two accidents that occurred in Illinois. The employer\u2019s workers\u2019 compensation carrier, Employers Mutual, filed a declaratory judgment action in the circuit court maintaining that since its policy provided coverage only for injuries occurring in Wisconsin, it had no obligation to defend or indemnify Kirkpatrick or to pay workers\u2019 compensation benefits to Skilling for injuries occurring in Illinois. Employers Mutual Cos., 163 Ill. 2d at 285-86. Skilling moved for dismissal of the insurance carrier\u2019s declaratory action, maintaining that section 18 of the Act bestowed exclusive jurisdiction upon the Commission. Our supreme court rejected the argument that the Commission had exclusive jurisdiction. However, it found that the circuit court and the Commission had \u201cconcurrent\u201d jurisdiction. Employers Mutual Cos., 163 Ill. 2d at 288. The court then proceeded to determine which tribunal had \u201cprimary\u201d jurisdiction, which the court noted was \u201c \u2018 \u201cconcerned with promoting proper relationships between the courts and the administrative agencies charged with particular regulatory duties.\u201d \u2019 \u201d Employers Mutual Cos., 163 Ill. 2d at 288, quoting Kellerman v. MCI Telecommunications, 112 Ill. 2d 428, 444 (1986), quoting United States v. Western Pacific R.R. Co., 352 U.S. 59, 63, 1 L. Ed. 2d 126, 132, 77 S. Ct. 161, 165 (1956). The court further noted that, \u201c[ujnder this doctrine, a matter should be referred to an administrative agency when it has specialized or technical expertise that would help resolve the controversy, or when there is a need for uniform administrative standards.\u201d Employers Mutual Cos., 163 Ill. 2d at 288-89, citing Kellerman, 112 Ill. 2d at 445. The supreme court then held that the circuit court was in a better position than the Commission to address whether the scope of coverage afforded by specific provisions of the insurance contract between Kilpatrick and its insurance company included defending and paying claims for alleged injuries occurring within Illinois. Employers Mutual Cos., 163 Ill. 2d at 289.\nThe contrast between the interpretation of provisions of the insurance contract in Employers Mutual Cos. and the question of whether Dan Walenga is barred by section 3(17)(b) of the Act from filing a claim for workers\u2019 compensation benefits is crucial. In Employers Mutual Cos., the issue was whether the contract between the employer and its insurance carrier excluded certain claims from coverage. The resolution of that question involved only the insurance contract and did not arise under the Act. Simply put, the question in the instant matter arises under the Act; the question in Employers Mutual Cos. arose under the terms of an insurance contract. Thus, under the analytical scheme articulated by our supreme court in Employers Mutual Cos., the Commission would have primary jurisdiction if either the Commission has \u201cspecialized or technical expertise that would help resolve the controversy\u201d or \u201cthere is a need for uniform administrative standards.\u201d Employers Mutual Cos., 163 Ill. 2d at 288-89. I would find that the instant matter, whether section 3(17)(b) of the Act applies to Dan Walenga\u2019s claim for benefits under the Act, is one where there is a clear need for uniform administrative standards.\nUnlike Employers Mutual Cos., where the issue involved only the interpretation of an insurance contract, at issue here is whether section 3(17)(b) of the Act precludes the plaintiff from filing a claim under the Act. See General Casualty Co. of Illinois v. Carroll Tiling Service, Inc., 342 Ill. App. 3d 883, 892-93 (2003) (a corporate officer who withdraws from the protection of the Act cannot file a claim for workers\u2019 compensation benefits). Whether a claimant can file a claim under the Act is, I would hold, the quintessential issue in need of uniform standards. We need look no further than the conflict between the inconsistent holdings in D. Mayer Landscaping, Inc. v. Industrial Comm\u2019n, 328 Ill. App. 3d 853, 858-59 (2002) (statutory exclusion controls the nature of the exclusion under the insurance policy), and Virginia Surety Co. v. Bill\u2019s Builders, Inc., 372 Ill. App. 3d 595 (2007) (no statutory exclusions over the insurance policy).\nI would also note that the need for uniformity of decision involving the Act is made paramount by the fact that all appeals from the decisions of the Commission are filed with a five-judge panel of the appellate court under Supreme Court Rule 22(g). 210 Ill. 2d R. 22(g).\nBecause I would find that the Commission has exclusive jurisdiction to resolve a question arising under section 3(17(b) of the Act (820 ILCS 305/3(17)(b) (West 2006)), I would reverse the decision of the circuit court of Will County and would remand the matter for further proceedings consistent therewith.", "type": "dissent", "author": "JUSTICE HOLDRIDGE," } ], "attorneys": [ "Frank A. Celani (argued), of Mokena Professional Centre, of Mokena, for appellant Dan Walenga.", "Gino P. Naughton, of Tinley Park, for appellant D and M Tile, Inc.", "D. William Porter (argued) and Joseph Stockman, both of Chilton, Yambert, Porter & Young, L.L.P., of Geneva, for appellee." ], "corrections": "", "head_matter": "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. D AND M TILE, INC., et al., Defendants-Appellants.\nThird District\nNo. 3\u201408\u20140753\nOpinion filed September 29, 2009.\nHOLDRIDGE, J., dissenting.\nFrank A. Celani (argued), of Mokena Professional Centre, of Mokena, for appellant Dan Walenga.\nGino P. Naughton, of Tinley Park, for appellant D and M Tile, Inc.\nD. William Porter (argued) and Joseph Stockman, both of Chilton, Yambert, Porter & Young, L.L.P., of Geneva, for appellee." }, "file_name": "0729-01", "first_page_order": 747, "last_page_order": 758 }