{ "id": 3716419, "name": "JONATHAN H. PISER, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Piser v. State Farm Mutual Automobile Insurance", "decision_date": "2010-11-12", "docket_number": "No. 1\u201409\u20143379", "first_page": "341", "last_page": "353", "citations": [ { "type": "official", "cite": "405 Ill. App. 3d 341" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "682 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "371-72", "parenthetical": "held the criminal right to remain silent about his crime did not excuse his failure to cooperate and communicate with the insurer" } ], "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351011 ], "year": 1997, "pin_cites": [ { "page": "249", "parenthetical": "held the criminal right to remain silent about his crime did not excuse his failure to cooperate and communicate with the insurer" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0241-01" ] }, { "cite": "929 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "67" }, { "page": "67" }, { "page": "67" } ], "opinion_index": 0 }, { "cite": "401 Ill. App. 3d 287", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4301401 ], "weight": 3, "year": 2010, "pin_cites": [ { "page": "290-91" }, { "page": "291" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/401/0287-01" ] }, { "cite": "920 N.E.2d 1254", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "1260" } ], "opinion_index": 0 }, { "cite": "396 Ill. 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App. 3d", "case_ids": [ 4300791 ], "year": 2010, "pin_cites": [ { "page": "941" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/399/0927-01" ] }, { "cite": "675 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "169 Ill. 2d 563", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "669 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1163" } ], "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. 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PISER, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE TOOMIN\ndelivered the opinion of the court:\nIn this appeal, we determine whether breach of an insurance cooperation clause is a valid defense constituting \u201cother affirmative matter\u201d barring a claim pursuant to section 2 \u2014 619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 2008)). We also consider whether defendant complied with foundational and evidentiary requirements for supporting affidavits and whether plaintiffs failure to respond with a counteraffidavit entitles defendant to dismissal as a matter of law.\nPlaintiff, Jonathan H. Piser, brought claims against his insurer, State Farm Mutual Automobile Insurance Company (State Farm), for breach of contract and vexatious and unreasonable delay pursuant to section 155 of the Insurance Code (215 ILCS 5/155 (West 2006)). State Farm moved to dismiss pursuant to section 2 \u2014 619(a)(9) based on its policy\u2019s cooperation clause, relying on its adjustor\u2019s affidavit and materials attached thereto requesting production of documentation to which plaintiff never responded. The circuit court granted the motion. For the following reasons, we affirm.\nBACKGROUND\nPlaintiff insured his 2003 Harley Davidson with defendant, State Farm. Piser had purchased his motorcycle in 2003 and had it customized at a cost of more than $60,000. Plaintiff claimed his vehicle was stolen on September 23, 2006. He filed a police report and notified State Farm of the loss. State Farm\u2019s claim representative, Ronald Gottardo, investigated the claim, which included an unsworn interview of plaintiff that encompassed approximately three hours. Gottardo also requested plaintiff to execute a financial authorization to enable State Farm to obtain a copy of plaintiffs credit report, a routine procedure employed to determine whether the insured has a financial motive to file a false claim. Gottardo followed up with a second request in writing on October 26, 2006. Plaintiff did not comply, and State Farm was unable to obtain the credit report. Pursuant to its policy provisions, State Farm also requested that plaintiff appear for an examination under oath by a State Farm attorney. Although several notices were directed to plaintiff, he failed to respond to the request.\nState Farm further requested documentation regarding plaintiffs financial status, including his income tax returns for the previous three years, a list of all credit and charge accounts, loans, and personal and business bank account statements for the year leading up to the date of the loss (September 2005 through September 2006). Three letters were sent by State Farm requesting these materials, and Gottardo also requested that plaintiff provide the documentation before and after his interview with him. Despite these requests, the materials were never received. In turn, State Farm denied plaintiffs claim.\nPlaintiff filed the instant cause of action for breach of contract on September 3, 2008. In response, State Farm moved to dismiss pursuant to sections 2 \u2014 615 and 2 \u2014 619 of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 2008)). The section 2 \u2014 615 motion was based on \u201ccommingled relief,\u201d whereas the section 2 \u2014 619 motion was based on plaintiffs failure to cooperate. The court denied State Farm\u2019s section 2 \u2014 619 motion and granted the section 2 \u2014 615 motion without prejudice.\nPlaintiff amended his complaint to add a count for vexatious and unreasonable delay in refusing to pay the claim, pursuant to section 155 of the Insurance Code (215 ILCS 5/155 (West 2006)), in addition to a count for breach of contract. State Farm again filed a motion to dismiss pursuant to section 2 \u2014 619, alleging plaintiff\u2019s failure to cooperate barred his claim. State Farm asserted that under its policy, plaintiff was required to cooperate and provide requested documentation. The circuit court granted the motion and dismissed the amended complaint with prejudice. Plaintiff timely appealed.\nANALYSIS\nPlaintiff contends that the circuit court erred in granting State Farm\u2019s motion to dismiss because breach of its policy\u2019s cooperation clause is not a defense constituting \u201cother affirmative matter\u201d necessary to defeat plaintiffs claim pursuant to section 2 \u2014 619(a)(9) (735 ILCS 5/2 \u2014 619(a)(9) (West 2008)). According to plaintiff, the section 2 \u2014 619 motion merely constituted an attempt to negate the allegations in plaintiffs complaint with arguments and evidence presenting State Farm\u2019s version of the facts. Plaintiff maintains that the court made a premature factual determination and improperly weighed State Farm\u2019s materials in dismissing his complaint pursuant to section 2 \u2014 619(a)(9) of the Illinois Code of Civil Procedure. 735 ILCS 5/2\u2014 619(a)(9) (West 2008).\n\u201cA section 2 \u2014 619 motion admits as true all well-pleaded facts, along with reasonable inferences that can be gleaned from those facts.\u201d Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352, 882 N.E.2d 583, 588 (2008). The motion admits the legal sufficiency of the plaintiffs complaint but asserts affirmative defenses or other matter that avoids or defeats the plaintiffs claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 236 (2006). \u201cThe phrase \u2018affirmative matter\u2019 encompasses any defense other than a negation of the essential allegations of the plaintiffs cause of action.\u201d Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). An \u201c \u2018[a]ffirmative matter\u2019 is something in the nature of a defense that completely negates the cause of action or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint.\u201d Golden v. Mullen, 295 Ill. App. 3d 865, 869, 693 N.E.2d 385, 389 (1997), citing Fancher v. Central Illinois Public Service Co., 279 Ill. App. 3d 530, 534, 664 N.E.2d 692, 695 (1996). \u201cThe trial court must construe the motion and supporting documents in the light most favorable to the nonmovant.\u201d Tolan & Son, Inc. v. KLLM Architects, Inc., 308 Ill. App. 3d 18, 24, 719 N.E.2d 288, 293 (1999). We review the trial court\u2019s rulings on section 2 \u2014 619 motions de nova. DeLuna, 223 Ill. 2d at 59, 857 N.E.2d at 236.\nIn addressing plaintiff\u2019s first argument, we abide by longstanding Illinois precedent that an insured\u2019s failure to cooperate is indeed a valid defense and thus can be set forth as other affirmative matter barring a claim. \u201cWith regard to cooperation clauses, the Illinois Supreme Court has noted that \u2018[a]ny condition in the policy requiring cooperation on the part of the insured is one of great importance [citation], and its purpose should be observed [citation].\u2019 \u201d Employers Reinsurance Corp. v. E. Miller Insurance Agency, Inc., 332 Ill. App. 3d 326, 337-38, 773 N.E.2d 707, 715-16 (2002), quoting Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 191-92, 579 N.E.2d 322, 327 (1991). \u201cTypically the insurer has little or no knowledge of the facts surrounding a claimed loss, while the insured has exclusive knowledge of such facts. The insurer is, therefore, dependent on its insured for fair and complete disclosure; hence, the duty to cooperate.\u201d Waste Management, Inc., 144 Ill. 2d at 204, 579 N.E.2d at 333. The cooperation clause obligates the insured to \u201cdisclose all of the facts within his knowledge and otherwise to aid the insurer in its determination of coverage under the policy.\u201d Waste Management, Inc., 144 Ill. 2d at 204, 579 N.E.2d at 333. See also Jordan v. Standard Mutual Insurance Co., 50 Ill. App. 2d 12, 18, 199 N.E.2d 423, 427 (1964). The insurer is entitled \u201cto gain as much knowledge and information as may aid it in its investigation, or as may otherwise be significant to the insurer in determining its liability under the policy and in protecting against fraudulent claims.\u201d Waste Management, Inc., 144 Ill. 2d at 204, 579 N.E.2d at 333.\nWe likewise determine that the affidavit and supporting materials submitted by State Farm in support of the motion to dismiss did not simply constitute a denial of plaintiffs allegations; rather, they raised additional affirmative matter barring his claim \u2014 breach of the cooperation clause. Plaintiffs citation to Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699, 703, 501 N.E.2d 156, 159 (1986), for the proposition that \u201cwhere the affirmative matter is merely evidence upon which defendant expects to contest an ultimate fact stated in the complaint, section 2 \u2014 619(a)(9) should not be used\u201d is of no avail. Although plaintiff generally pied in his amended complaint that he \u201csatisfied all of his obligations under the insurance policy,\u201d State Farm raised the affirmative matter of plaintiffs breach of the cooperation clause in its policy. \u201cWhile a section 2 \u2014 619 motion admits all well-pied facts, it does not admit conclusions of law.\u201d Klopfer v. Court of Claims, 286 Ill. App. 3d 499, 508, 676 N.E.2d 679, 686 (1997).\nFurther, \u201cthe very principles of law which govern contracts generally apply with equal force to contracts of insurance.\u201d Waste Management, Inc., 144 Ill. 2d at 191, 579 N.E.2d at 327, citing Zitnik v. Burik, 395 Ill. 182, 186, 69 N.E.2d 888, 890 (1946). The scope of the duties imposed upon an insurer and its insured is defined and controlled by the terms of the insurance contract. Waste Management, Inc., 144 Ill. 2d at 191, 579 N.E.2d at 327.\nThe \u201cduty to cooperate\u201d clause in the policy at issue here provides the following:\n\u201ca. The insured shall cooperate with us and, when asked assist us in:\n(1) making settlements;\n(2) securing and giving evidence;\n(3) attending, and getting witnesses to attend, hearings and trials.\u201d\nState Farm\u2019s policy further required that the insured \u201cprovide all records, receipts and invoices,\u201d \u201canswer questions under oath when asked by anyone we name, as often as we reasonably ask,\u201d and \u201ccooperate with us and, when asked, assist us in *** securing and giving evidence.\u201d Thus, the material sought by State Farm was clearly encompassed within its policy\u2019s conditions and terms. Further, under the policy, plaintiff does not have the right to bring a cause of action until all policy terms are met. The policy clearly states: \u201cThere is no right of action against us *** until all the terms of this policy have been met ***.\u201d \u201c[W]here the provisions of the policy are clear and unambiguous, it is the duty of the court to enforce them according to their plain meaning.\u201d Waste Management, Inc., 144 Ill. 2d at 191-92, 579 N.E.2d at 327, citing Thornton v. Illinois Founders Insurance Co., 84 Ill. 2d 365, 371, 418 N.E.2d 744, 747 (1981).\nNonetheless, it is well settled that \u201cunless the alleged breach of the cooperation clause substantially prejudices the insurer in defending the primary action, it is not a defense under the contract. This is the test to be employed in our courts in cases where the issue is a breach of the cooperation clause.\u201d M.F.A. Mutual Insurance Co. v. Cheek, 66 Ill. 2d 492, 499-500, 363 N.E.2d 809, 813 (1977). Proof of substantial prejudice requires an insurer to demonstrate that it was actually hampered in its defense by the violation of the cooperation clause. Cheek, 66 Ill. 2d at 500, 363 N.E.2d at 813; State Farm Mutual Automobile Insurance Co. v. McSpadden, 88 Ill. App. 3d 1135, 1138, 411 N.E.2d 121, 123 (1980).\nPlaintiff maintains that the trial court improperly considered State Farm\u2019s assertion of prejudice in granting State Farm\u2019s motion to dismiss and, at the very least, this is a factual issue. Plaintiff argues that whether any of the documents sought by State Farm are relevant and whether State Farm was prejudiced requires discovery. An insured\u2019s compliance with an insurer\u2019s request made pursuant to a cooperation clause is a condition precedent to recovery under a policy, and the insured\u2019s noncompliance bars its claim. See Horton v. Allstate Insurance Co., 125 Ill. App. 3d 1034, 1036-37, 467 N.E.2d 284, 285 (1984). The question whether an insured has breached a cooperation clause in a policy has generally been held to be a question of fact. See State Farm Fire & Casualty Co. v. First National Bank & Trust Co. of Pekin, 2 Ill. App. 3d 768, 772, 277 N.E.2d 536, 539 (1972). However, where an insured \u201cmake[s] virtually no effort to produce relevant information and the insurer relies on a cooperation clause to deny coverage,\u201d the insurer is entitled to judgment. Hartshorn v. State Farm Insurance Co., 361 Ill. App. 3d 731, 734, 838 N.E.2d 211, 214 (2005), citing Horton, 125 Ill. App. 3d at 1037-38, 467 N.E.2d at 286.\nPlaintiff\u2019s efforts to cooperate here were negligible. State Farm\u2019s affidavit and exhibits set forth the following instances of plaintiffs failure to cooperate: (1) plaintiff failed to sign a financial authorization allowing State Farm to check his credit; (2) plaintiff failed to submit to an examination under oath; and (3) plaintiff failed to provide all the requested tax returns, bank records, and other financial documentation. Although plaintiff claims he submitted some unspecified financial documentation, he did not comply with repeated requests by State Farm for documentation regarding his financial status for the year of the loss, notwithstanding State Farm\u2019s correspondence expressly stating it would deny plaintiffs claim if the documents were not received. Thus, we find the evidence marshaled by State Farm manifestly satisfied the test established by our supreme court in Cheek. State Farm\u2019s showing of prejudice clearly set forth a defense barring plaintiffs claim.\nIn his second argument plaintiff contends that State Farm\u2019s materials attached to its motion to dismiss and Gottardo\u2019s affidavit lacked evidentiary foundation. State Farm, however, maintains: (1) the court could consider the affidavit of its claim representative, Ronald Gottardo, and all of the incorporated materials based on Gottardo\u2019s personal knowledge and the business exception to the hearsay rule; and (2) plaintiff failed to rebut Gottardo\u2019s affidavit, thereby fatally admitting the facts therein. We agree with State Farm. Plaintiff\u2019s failure to file a counteraffidavit admitted the facts set forth by State Farm, including the fact that State Farm was prejudiced by plaintiffs failure to cooperate, thereby establishing a complete defense barring plaintiffs claim.\nFirst, plaintiff argues that State Farm failed to lay a proper foundation for the admission of the materials attached to Gottardo\u2019s affidavit, including the letters from State Farm\u2019s attorney requesting documentation, and that Gottardo\u2019s averment that the attorney was authorized to issue the demand letters lacked foundation. Plaintiff further argues that Gottardo\u2019s averments that a sworn statement is qualitatively different from an unsworn recorded statement and that plaintiff\u2019s claim was denied because he failed to cooperate lacked foundation are improper opinion testimony.\nAs a threshold matter, we recognize that basic rules of evidence require that a party must lay the proper foundation for the introduction of a document into evidence. Financial Freedom v. Kirgis, 377 Ill. App. 3d 107, 134, 877 N.E.2d 24, 47 (2007), citing Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 247, 571 N.E.2d 1107, 1110 (1991). To properly authenticate a document, a party must present evidence which demonstrates that the document is what the party claims it to be. Kirgis, 377 Ill. App. 3d at 134, 877 N.E.2d at 47, citing Gardner, 213 Ill. App. 3d at 247-48, 571 N.E.2d at 1110. Authentication can be made by either direct or circumstantial evidence. CCP Ltd. Partnership v. First Source Financial, Inc., 368 Ill. App. 3d 476, 484, 856 N.E.2d 492, 498 (2006), citing People v. Downin, 357 Ill. App. 3d 193, 203, 828 N.E.2d 341, 350 (2005). Routinely, the proponent establishes the identity of the document \u201cthrough the testimony of a witness who has sufficient personal knowledge to satisfy the trial court that a particular item is, in fact, what its proponent claims it to be.\u201d Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 415, 830 N.E.2d 814, 828 (2005).\nIf the \u201caffirmative matter\u201d asserted is not apparent on the face of the complaint, a section 2 \u2014 619 motion must be supported by affidavit. Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116, 619 N.E.2d at 735. Moreover, an affidavit may provide the authentication needed to make a document admissible. CCP Ltd. Partnership v. First Source Financial, Inc., 368 Ill. App. 3d at 484, 856 N.E.2d at 498-99, citing North American Old Roman Catholic Church v. Bernadette, 253 Ill. App. 3d 278, 286, 627 N.E.2d 1094, 1099 (1992). Affidavits in support of motions under section 2 \u2014 619 are controlled by Supreme Court Rule 191 (210 Ill. 2d R. 191). Elliott v. LRSL Enterprises, Inc., 226 Ill. App. 3d 724, 732, 589 N.E.2d 1074, 1079 (1992). Supreme Court Rule 191 provides the following:\n\u201c[A]ffidavits submitted in connection with a motion for involuntary dismissal under section 2 \u2014 619 of the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify \u2022 competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.\u201d 210 Ill. 2d R. 191(a).\n\u201c \u2018[I]f, from the document as a whole, it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial, Rule 191 is satisfied.\u2019 \u201d Doria v. Village of Downers Grove, 397 Ill. App. 3d 752, 756, 921 N.E.2d 478, 481 (2009), quoting Kugler v. Southmark Realty Partners III, 309 Ill. App. 3d 790, 795, 723 N.E.2d 710, 714 (1999). Prima facie authorship of a document may include a showing that the writing contains knowledge of a matter sufficiently obscure so as to be known to only a small group of individuals. Downin, 357 Ill. App. 3d at 203, 828 N.E.2d at 350, citing People v. Munoz, 70 Ill. App. 3d 76, 87-88, 388 N.E.2d 133, 141 (1979). It is the function of a trial court to determine the admissibility of evidence, and its rulings will not be disturbed absent an abuse of discretion. Independent Trust Corp. v. Hurwick, 351 Ill. App. 3d 941, 952, 814 N.E.2d 895, 905 (2004).\nHere, Gottardo\u2019s affidavit established his personal knowledge of State Farm\u2019s correspondence with plaintiff, including its attorney\u2019s requests, as Gottardo attested he was the authorized representative for the claim, personally interviewed plaintiff, and had \u201cpersonal knowledge of this matter as a result of [his] own investigation of the claim.\u201d See U.S. Bank National Ass\u2019n v. Sauer, 392 Ill. App. 3d 942, 947, 913 N.E.2d 70, 73-74 (2009), appeal denied, 234 Ill. 2d 554, 920 N.E.2d 1082 (2009) (affidavit in mortgage foreclosure action was based on the personal knowledge of the affiant; affiant stated that she was servicing agent for lender, was assigned to manage the loan, and had firsthand knowledge of the transaction); Allerion, Inc. v. Nueva Icacos, 283 Ill. App. 3d 40, 46, 669 N.E.2d 1158, 1163 (1996), appeal denied, 169 Ill. 2d 563, 675 N.E.2d 631 (1996) (affidavits submitted by plaintiff in support of personal jurisdiction, which showed that each of the affiants was employed by plaintiff and that each had been closely involved in disputed contract, were sufficient to allow trial court to infer that affiants possessed personal knowledge and could competently testify to facts alleged in their affidavits, and thus complied with Supreme Court Rule 191). Thus, Gottardo laid the proper foundation in his affidavit based on his personal knowledge.\nState Farm also asserted in its motion to dismiss that the court could consider Gottardo\u2019s affidavit and the incorporated materials based on the business exception to the hearsay rule. The trial court has discretion in deciding whether statements are, in fact, hearsay and, if so, whether they nonetheless are admissible under an exception to the hearsay rule. People v. Hammonds, 399 Ill. App. 3d 927, 941, 927 N.E.2d 649, 662 (2010), citing People v. Dunmore, 389 Ill. App. 3d 1095, 1106, 906 N.E.2d 1233, 1244 (2009). We do not have the benefit of a transcript of the report of proceedings below, and it is not clear from the summary order in the record which argument the circuit court accepted or if it found the documents admissible on some alternate grounds. Further, plaintiffs objection to the materials, both in the proceedings below as well as before us, is based on a lack of foundation generally and is not specifically bottomed on hearsay. A party is required to make specific objections to evidence, based on particular grounds, and the failure to do so results in a waiver of objections as to all other grounds not specified or relied on. Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 130, 478 N.E.2d 581, 589 (1985). However, any forfeiture of the issue is a limitation on the parties and not this court. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514, 639 N.E.2d 1273, 1276 (1994). Further, our review is de nova (DeLuna, 223 Ill. 2d at 59, 857 N.E.2d at 236), and we may affirm the judgment of the circuit court on any basis in the record (Liberty Mutual Insurance Co. v. American Home Assurance Co., 368 Ill. App. 3d 948, 955, 858 N.E.2d 530, 536 (2006)).\nWe determine that the documentation incorporated in Gottardo\u2019s affidavit is not hearsay, as the materials were not offered for the truth of the matter asserted therein, but rather to show that plaintiff had notice that State Farm was requesting documents and invoking the policy\u2019s cooperation clause. \u201c \u2018Hearsay evidence, an out-of-court statement offered to prove the truth of the matter asserted, is generally inadmissible unless an exception applies.\u2019 [Citation.]\u201d People v. Shaw, 386 Ill. App. 3d 704, 709, 898 N.E.2d 755, 761 (2008). Where an out-of-court statement is offered for some purpose other than to establish the truth of the matter asserted, the statement is not hearsay and is admissible. People v. Shoultz, 289 Ill. App. 3d 392, 395, 682 N.E.2d 446, 449 (1997), citing People v. Albanese, 102 Ill. 2d 54, 70, 464 N.E.2d 206, 214 (1984). \u201cA statement that is offered to prove that a listener had notice of the information contained therein, rather than to prove the truth of the matter asserted, is not hearsay.\u201d Shoultz, 289 Ill. App. 3d at 395-96, 682 N.E.2d at 449, citing Kochan v. Owens-Coming Fiberglass Corp., 242 Ill. App. 3d 781, 806, 610 N.E.2d 683, 699 (1993). \u201c \u2018The fact that the statement was made is relevant for its effect on the listener without regard to the truth of the matter asserted.\u2019 \u201d Shoultz, 289 Ill. App. 3d at 396, 682 N.E.2d at 449, quoting M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7801.5, at 648 (6th ed. 1994).\nHere, the letters sent by Peter Alfieri, State Farm\u2019s attorney, on December 22, 2006, January 10, 2007, and January 24, 2007, were admissible to show that plaintiff had notice that State Farm was seeking documentation pursuant to its cooperation clause in plaintiff\u2019s policy. Further, the letters of January 10, 2007, and January 24, 2007, show that plaintiff had notice that refusal to cooperate and furnish the requested information would result in a denial of liability for the loss. Thus, the letters show that plaintiff in fact had notice he was not in compliance with the policy terms and did not fulfill the policy conditions required to maintain a cause of action against State Farm. As such, the exhibits referenced and incorporated in Gottardo\u2019s affidavit are not hearsay, and were admissible in deciding the motion to dismiss.\nEven assuming arguendo the exhibits were hearsay, they would nonetheless qualify for admission into evidence under the business records exception. Supreme Court Rule 236 provides, in pertinent part:\n\u201cAny writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility.\u201d 145 Ill. 2d R. 236(a).\nFor the admission of a business record, only proof that the records were made in the regular course of business and that it was in the regular course of business to prepare such records is necessary. Hurwick, 351 Ill. App. 3d at 950, 814 N.E.2d at 903. In addition to the above recited facts in his affidavit, Gottardo further attested that as a State Farm adjuster, he\n\u201cauthorized] legal counsel to issue examination under oath demand letters on behalf of State Farm in the regular course of [his] duties as a State Farm claims representative, and true and correct copies of the demand letters [were] incorporated into the State Farm claim file in the ordinary course of the adjustment of claims. True and correct copies of the letters are attached to State Farm\u2019s Motion to Dismiss.\u201d\nThus, even if one were to treat the materials attached to Gottardo\u2019s affidavit as hearsay, Gottardo laid a proper foundation for admission under Supreme Court Rule 236\u2019s exception to the hearsay rule. However, we find that the materials incorporated as part of Gottardo\u2019s affidavit are nonhearsay, as they were offered to show notice and not for the truth of the matter asserted. Thus, State Farm\u2019s motion to dismiss was based on a valid defense and admissible evidence properly setting forth \u201cother affirmative matter\u201d under section 2 \u2014 619(a)(9).\nMoreover, though we have determined that under the facts of this case, there is no question of fact that plaintiff failed to cooperate and State Farm was thereby prejudiced, even assuming arguendo an issue of fact exists, under well-established statutory procedure for section 2 \u2014 619 motion practice, plaintiff\u2019s failure to properly contest State Farm\u2019s affidavit by submitting a counteraffidavit is fatal to his cause of action. The failure to challenge or contradict supporting affidavits filed with a section 2 \u2014 619 motion results in an admission of the facts stated therein. Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002 (1995). Nor may a plaintiff simply rely on the allegations in his own complaint to refute a section 2 \u2014 619 affidavit. Hollingshead v. A.G. Edwards & Sons, Inc., 396 Ill. App. 3d 1095, 1101-02, 920 N.E.2d 1254, 1260 (2009). If the defendant satisfies its initial burden of proof on a motion to dismiss based on affirmative matter avoiding the legal effect of a claim, the burden shifts to the plaintiff to show that the defense is unfounded or requires the resolution of an essential element of material fact before it is proven. Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287, 290-91, 929 N.E.2d 61, 67 (2010). In order to refute evidentiary facts contained in the defendant\u2019s supporting affidavits, the plaintiff must provide a counteraffidavit. Callaghan, 401 Ill. App. 3d at 291, 929 N.E.2d at 67, citing Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116, 619 N.E.2d at 735. If the plaintiff fails to do so, the facts of the defendant\u2019s affidavits are deemed admitted. Callaghan, 401 Ill. App. 3d at 291, 929 N.E.2d at 67, citing Zedella, 165 Ill. 2d at 185, 650 N.E.2d at 1002.\nIn a last attempt to save his claim, plaintiff argues that State Farm\u2019s exhibits actually show he cooperated, thus negating State Farm\u2019s affirmative defense, and that State Farm should not be allowed to rely on plaintiff\u2019s failure to submit to a statement under oath because State Farm failed to conduct plaintiff\u2019s lengthy interview under oath. We find no merit to either assertion. We fail to follow plaintiff\u2019s circular logic in asserting that State Farm was at fault for not making his initial interview under oath. Moreover, Gottardo\u2019s affidavit and the numerous letters sent to plaintiff plainly asking for his financial documents, with no counter-affidavit response by plaintiff, clearly establish that plaintiff did not cooperate. Under the policy, plaintiff is thus foreclosed from bringing any action against State Farm for this loss.\nCONCLUSION\nFor the foregoing reasons, we affirm the circuit court\u2019s judgment. Affirmed.\nFITZGERALD SMITH, EJ., and HOWSE, J., concur.\nWe previously filed a Rule 23 order (166 Ill. 2d R. 23) but, subsequent to State Farm\u2019s motion to publish, withdrew our order and filed this opinion to clarify Illinois law regarding the scope of an insured\u2019s duty to cooperate in the context of insurance coverage. Additionally, we endeavor to provide guidance on foundational and evidentiary requirements for supporting affidavits and the consequences of failure to file counteraffidavits in section 2 \u2014 619 motion practice.\nWe note that cooperation clauses have been enforced even in situations where a party has invoked the attorney/client privilege (Waste Management, Inc., 144 Ill. 2d at 192-93, 579 N.E.2d at 328 (held that, in light of the broad unqualified duty of cooperation, the insureds were required to disclose contents of any communications they had with defense counsel representing them on a claim for which insurers had the ultimate duty to satisfy)), and where a party argued his noncooperation was protected by the fifth amendment right to remain silent (American Country Insurance Co. v. Bruhn, 289 Ill. App. 3d 241, 249, 682 N.E.2d 366, 371-72 (1997) (held the criminal right to remain silent about his crime did not excuse his failure to cooperate and communicate with the insurer)).", "type": "majority", "author": "JUSTICE TOOMIN" } ], "attorneys": [ "Eugene E. Murphy, Jr., John N. Hourihane, Jr., and John H. Scheid, Jr., all of Murphy & Hourihane, L.L.C., of Chicago, for appellant.", "Rick L. Hammond and Eric W. Moch, both of Johnson & Bell, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "JONATHAN H. PISER, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201409\u20143379\nOpinion filed November 12, 2010.\nEugene E. Murphy, Jr., John N. Hourihane, Jr., and John H. Scheid, Jr., all of Murphy & Hourihane, L.L.C., of Chicago, for appellant.\nRick L. Hammond and Eric W. Moch, both of Johnson & Bell, Ltd., of Chicago, for appellee." }, "file_name": "0341-01", "first_page_order": 357, "last_page_order": 369 }