{ "id": 3187899, "name": "LYN DEVERS, Plaintiff-Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Third-Party PlaintiffAppellee. - (FRANCIS W. BARROW et al., Third-Party Defendants.)", "name_abbreviation": "Devers v. Prudential Property & Casualty Insurance", "decision_date": "1980-07-29", "docket_number": "No. 79-504", "first_page": "542", "last_page": "547", "citations": [ { "type": "official", "cite": "86 Ill. App. 3d 542" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "297 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. 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App.", "case_ids": [ 3042757 ], "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-app/223/0077-01" ] }, { "cite": "54 N.E. 914", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1921, "opinion_index": 0 }, { "cite": "181 Ill. 158", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5548844 ], "year": 1921, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/ill/181/0158-01" ] }, { "cite": "94 U.S. 621", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5644905 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/us/94/0621-01" ] }, { "cite": "104 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "345 Ill. App. 540", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2432638 ], "opinion_index": 0, "case_paths": [ "/ill-app/345/0540-01" ] }, { "cite": "101 Ill. 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App. 2d", "case_ids": [ 2601895 ], "weight": 2, "year": 1948, "pin_cites": [ { "page": "382-83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/58/0372-01" ] }, { "cite": "124 N.E. 822", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "pin_cites": [ { "page": "825" }, { "page": "825" } ], "opinion_index": 0 }, { "cite": "290 Ill. 26", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2420260 ], "weight": 2, "pin_cites": [ { "page": "32" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill/290/0026-01" ] } ], "analysis": { "cardinality": 672, "char_count": 12144, "ocr_confidence": 0.886, "pagerank": { "raw": 2.859571965000924e-07, "percentile": 0.8412992417704661 }, "sha256": "26f654e2fe7f96a2309f38b6edb6c5947d7b2d35690955c773f10a961c25d752", "simhash": "1:73c6f89207cfb0ad", "word_count": 2020 }, "last_updated": "2023-07-14T21:36:08.867369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LYN DEVERS, Plaintiff-Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Third-Party PlaintiffAppellee. \u2014 (FRANCIS W. BARROW et al., Third-Party Defendants.)" ], "opinions": [ { "text": "Mr. JUSTICE KARNS\ndelivered the opinion of the court:\nPlaintiff, Lyn Devers, brought this action for a declaratory judgment in the Circuit Court of Jackson County against defendant, Prudential Property and Casualty Company (Prudential), to establish defendant\u2019s obligations under an oral contract to insure. At the close of plaintiff\u2019s evidence, defendant\u2019s motion for judgment was granted by the court, sitting without a jury. This appeal followed.\nPlaintiff was the sole witness in the proceedings below. She testified that she called Prudential\u2019s office in Granite City to obtain insurance on her new automobile. She asked to speak to a particular agent who had written her father\u2019s auto policy, but was told that he had left Prudential and that another man had taken his place. She was connected to a Mr. Moscoff, who questioned her about the type of policy she wanted. Plaintiff told him she wanted the same coverage she had through Prudential on an earlier vehicle, although she could not recall any specific provisions they discussed. Moscoff asked several questions about her new car, including its serial number. Plaintiff did not have the number with her and asked if she could call back later in the day. She also asked whether she was covered, and according to her testimony, Moscoff replied in the affirmative to both questions.\nAbout an hour later, plaintiff called back and spoke with Moscoff again. She gave him the serial number of the car and they discussed the price of the policy. She recalled him quoting a premium of $103, either quarterly or semi-annually. She gave him her billing address and he told her he would mail the policy and statement to her. Later that day, plaintiff and her car were involved in an accident. Defendant refused to pay plaintiff\u2019s claims arising from the accident and in its answer and third-party complaint against the other drivers involved, defendant denied that the policy was in effect and that plaintiff was covered at the time of the accident.\nAt the close of plaintiff\u2019s evidence, the court gave two reasons for granting defendant\u2019s motion for judgment, although neither ground was incorporated in the court\u2019s written order. The court found that plaintiff had not proved the essential elements of an insurance contract and that plaintiff had not proved Moscoff\u2019s authority as an agent of Prudential. We reverse.\nIt is sufficient to form a contract for insurance \u201cif one of the parties to such a contract proposes to be insured and the other party agrees to insure, and the subject, the amount, and the rate of insurance are ascertained or understood and the premium paid if demanded.\u201d (Cottingham v. National Mutual Church Insurance Co. (1919), 290 Ill. 26, 32, 124 N.E. 822, 825.) The agreement may be oral (Gothberg v. Nemerovski (1965), 58 Ill. App. 2d 372, 208 N.E.2d 12; Rensselaer v. Mid-States Insurance Co. (1948), 334 Ill. App. 389, 79 N.E.2d 530 (abstract)), and its essential elements can be established by implication if they are not stated explicitly. So long as the parties manifest a common understanding of the policy\u2019s provisions, a meeting of the minds will be presumed and the contract is considered complete upon the insured\u2019s agreement to pay the premium. (Barlow v. Farmers Mutual Fire Insurance Co. (1906), 128 Ill. App. 580, 583.) \u201cIn a preliminary contract it will be presumed that the parties contemplate such form of policy containing such conditions and limitations as are usual in such cases or have been used before between the parties.\u201d Cottingham v. National Mutual Church Insurance Co. (1919), 290 Ill. 26, 33, 124 N.E. 822, 825.\nThe terms are stated sufficiently if the parties agree on \u201cthe same coverage as before.\u201d (Security Insurance Co. v. Mato (1969), 108 Ill. App. 2d 203, 246 N.E.2d 685, appeal on remand (1973), 13 Ill. App. 3d 11, 298 N.E.2d 725; Continental Insurance Co. v. Roller (1901), 101 Ill. App. 77.) In Mato the insured spoke to an agent by telephone and requested the same coverage for his new car that he had on his former auto through the agent\u2019s company. The court held that \u201c[o]n the record before us there can be no doubt that the parties agreed upon the essential elements of a contract of insurance. Defendant specifically requested the same coverage he had had before. He was orally assured he would have such coverage. \u201c \u00b0 \u201d It is sufficient if the elements are understood or can be ascertained. [Citations.]\u201d 108 Ill. App. 2d 203, 207, 246 N.E.2d 685, 687-88.\nIn a similar vein, Roller held that a binding oral contract to insure was formed even though the duration and price of coverage were not mentioned during the conversation, because those terms had been addressed in prior policies between the parties and both the insurer and the insured knew the custom and practices. Oral binders for automobile insurance are common practice. (Marino v. Fireman's Insurance Co. (1952), 345 Ill. App. 540, 104 N.E.2d 317.)\n\u2018If no preliminary contract would be valid unless it specified minutely the terms to be contained in the policy to be issued, no such contract could ever be made, or would ever be of any use. The very reason of sustaining such contracts is, that the parties may have the benefit of them during that incipient period when the papers are being perfected and transmitted. 6 \u201d \u00b0 It will be presumed that they contemplate such form of policy, containing such conditions and limitations as are usual in such cases, or have been used before between the parties. 6 0 (Eames v. Home Insurance Co., 94 U.S. 621.)\u2019 \u201d Continental Insurance Co. v. Roller (1901), 101 Ill. App. 77, 79.\nThe price of the policy is an essential element of a contract to insure (Milwaukee Mechanics\u2019 Ins. Co. v. Graham (1899), 181 Ill. 158, 160, 54 N.E. 914), but even if the amount of the premium is not fixed, the contract is enforceable if the insured simply agrees to pay the amount to be charged by the insurer. Welch v. National Assurance Co. (1921), 223 Ill. App. 77, 85.\nIn the case at bar, plaintiff explicitly inquired about'the price and a definite amount was stated by Moscoff. Plaintiff\u2019s action in furnishing her billing address and Moscoff\u2019s assurance that he would send a statement and the policy certainly could be considered evidence of the parties\u2019 agreement on price. Plaintiff also told Moscoff her name, the type of car she wanted insured and the type of insurance she desired. From both parties\u2019 references to plaintiff\u2019s earlier policy, the inference could stand that there was a mutual understanding as to the other provisions. In like manner, it could also be inferred from the questions and answers about the features and serial number of plaintiff\u2019s car that the subject to be insured was also agreed upon. In short, we find ample evidence in the record to support a judgment for plaintiff. Cf. Pimentil v. Milo Brooke, Inc. (1956), 11 Ill. App. 2d 201, 136 N.E.2d 608; Barlow v. Farmer\u2019s Mutual Fire Insurance Co. (1906), 128 Ill. App. 580.\nPrudential contends that there was no proof of Moscoff\u2019s actual authority as a Prudential agent and no evidence of his apparent or implied authority to bind the insurance company. This argument is not well taken.\n\u201cApparent authority\u201d flows from the acts of a principal and is distinguished in the case law from \u201cimplied authority,\u201d which derives from circumstantial evidence. \u201cApparent authority,\u201d or \u201cauthority by estoppel,\u201d arises when a principal, through words or conduct, creates a reasonable impression that the agent has authority to perform a certain act. (Crawford Savings & Loan Association v. Dvorak (1976), 40 Ill. App. 3d 288, 292, 352 N.E.2d 261, 264; (Restatement (Second) of Agency \u00a78 (1958).) Implied authority, on the other hand, is defined as \u201c \u2018actual authority circumstantially proved,\u2019 [citation]\u201d (Alterman v. Lydick (7th Cir. 1957), 241 F.2d 50, 53) and is regarded as authority implied by facts and circumstances (Indemnity Ins. Co. of North America v. Midwest Transfer Co. (7th Cir. 1950), 184 F.2d 633).\nWhile it is generally true that authority cannot be proved by declarations of the alleged agent (Sommerio v. Prudential Insurance Co. (1937), 289 Ill. App. 520, 7 N.E.2d 631), the case law is settled that a member of the public who telephones a business concern may presume that the person answering the telephone has authority to speak for the business firm. (Gothberg v. Nemerovski (1965), 58 Ill. App. 2d 372, 382-83, 208 N.E.2d 12, 18; Korch v. Indemnity Insurance Co. (1946), 329 Ill. App. 96, 101, 67 N.E.2d 298, 301.) Plaintiff telephoned the listed number for Prudential and was connected with Moscoff, who entered into a detailed conversation about plaintiff\u2019s coverage, inquired about the type of automobile involved, and assured plaintiff that she was covered. We believe that these acts and circumstances are sufficient proof of Moscoff\u2019s implied authority as defendant\u2019s agent.\nWhether he was an employee of Prudential, or an agent or employee of an agent of Prudential, plaintiff could assume that the person to whom she spoke on the telephone at the number listed as defendant\u2019s business telephone in Granite City had the authority to transact business for defendant. Moscoff\u2019s alleged assertions and conduct were all evidence of his authority to bind Prudential. Furthermore, as was noted in Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 459, 161 N.E.2d 339, 341, \u201cif the evidence with respect to an issue is within the control of an adverse party, it is he who has the burden of proof \u00ae * \u00ae.\u201d Applying this principle, we believe plaintiff\u2019s evidence was sufficient to establish a prima facie case of Moscoff\u2019s authority; it was defendant\u2019s burden to produce evidence of Moscoff\u2019s want of power to bind the defendant.\nWe believe that the trial court was incorrect in the reasons it assigned for ruling for defendant at the close of plaintiff\u2019s case. Plaintiff\u2019s evidence was sufficient to establish a prima facie case that an oral contract of insurance was entered into by Moscoff and that he had the authority to bind the defendant as its employee or agent. We do not understand the trial court\u2019s decision to be based on a weighing of the evidence as mandated by section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 64(3); City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399), or on an assessment of plaintiff\u2019s credibility, but rather on a determination that plaintiff\u2019s proof failed as a matter of law to establish an oral contract to insure or Moscoff\u2019s authority to bind the defendant, or both. To this extent, the decision of the trial court was contrary to the manifest weight of the evidence.\nIf we were to assume that the decision of the trial court was that plaintiff\u2019s testimony was inherently improbable or unworthy of belief, again we conclude that the decision of the court was against the manifest weight of the evidence as we find nothing inherently improbable or unbelievable in plaintiff\u2019s testimony which stood uncontradicted. De Bello v. Checker Taxi Co. (1972), 8 Ill. App. 3d 401, 290 N.E.2d 367; Jackson v. Navik (1976), 37 Ill. App. 3d 88, 346 N.E.2d 116; cf. Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg (1973), 11 Ill. App. 3d 739, 744, 297 N.E.2d 649, 653.\nOur review of the record persuades us that plaintiff presented sufficient evidence to support a judgment in her favor. Whether or not a contract for insurance was formed in the instant case is a factual determination that should be made in light of all the evidence to be presented by both parties and the trial court\u2019s assessment of the credibility of the witnesses. We reverse the order of the Circuit Court of Jackson County and remand this cause for proceedings consistent with this opinion.\nReversed and remanded.\nJONES, P. J., and SPOMER, J., concur.", "type": "majority", "author": "Mr. JUSTICE KARNS" } ], "attorneys": [ "C. Robert Hall, of Carbondale, for appellant.", "James B. Bleyer, of Marion, for appellee." ], "corrections": "", "head_matter": "LYN DEVERS, Plaintiff-Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Third-Party PlaintiffAppellee. \u2014 (FRANCIS W. BARROW et al., Third-Party Defendants.)\nFifth District\nNo. 79-504\nOpinion filed July 29, 1980.\nC. Robert Hall, of Carbondale, for appellant.\nJames B. Bleyer, of Marion, for appellee." }, "file_name": "0542-01", "first_page_order": 564, "last_page_order": 569 }