Opinion
No. 2-17-0081
08-21-2017
FACUNDO PEREZ, Plaintiff-Appellant, v. AMERICAN FREEDOM INSURANCE COMPANY, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County.
No. 14-MR-898
Honorable J. Edward Prochaska, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court.
Presiding Justice Hudson and Justice Schostok concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly granted defendant summary judgment on plaintiff's claim for insurance coverage on a truck that purportedly had been deleted from the policy at plaintiff's request: under the circumstances, plaintiff had the authority to have the truck deleted, defendant effectively returned the unearned premiums, and, because the policy remained in effect as to other vehicles, defendant did not necessarily have to prove its mailing of a notice of "cancellation."
¶ 2 Plaintiff, Facundo Perez, appeals the trial court's order granting summary judgment to defendant, American Freedom Insurance Company, on his claim for insurance coverage on a GMC pickup truck that he owned. He contends that the court erred in finding that defendant properly deleted the truck from coverage under its policy. We affirm.
¶ 3 On May 13, 2012, plaintiff was involved in an accident while driving a 1989 GMC S-15 truck. Plaintiff, through his independent agent, Rick's Insurance Agency (Rick's), sought coverage under a policy issued by defendant. However, defendant denied coverage, claiming that coverage for the truck had been cancelled at plaintiff's request. Plaintiff then filed this declaratory judgment action.
¶ 4 Defendant moved for summary judgment. It relied on the following facts, which, except as noted, are undisputed. In early 2012, plaintiff and his wife, Laura Garcia, submitted an insurance application through Rick's. Defendant issued a policy, effective from January 10, 2012, to July 10, 2012. Garcia was listed as the applicant, and plaintiff was listed as a driver. Plaintiff signed the application, but Garcia did not. The policy initially covered a 2000 Dodge Caravan, a 2002 Pontiac Grand Am, and a 1999 Mercury Villager. On February 15, 2012, at plaintiff's request, defendant added the GMC truck to the policy while deleting the Grand Am.
¶ 5 Later that month, defendant requested that plaintiff provide a signed mechanical statement. Because the truck was then about 23 years old, defendant wanted it inspected by a licensed body shop to ensure that it was safe. Defendant issued a notice stating that the policy would be cancelled as to the truck, effective April 1, 2012, if the truck was not inspected.
¶ 6 Matt Dewyer, an underwriting supervisor for defendant, averred that on March 31, 2012, defendant received a fax from Rick's asking defendant to delete the truck from the policy. Defendant did so, effective April 1, 2012.
¶ 7 Ricardo Carranza, an insurance broker with Rick's, averred that on February 28, 2012, he received defendant's request for a signed mechanical statement regarding the truck. He sent two letters—one in English and one in Spanish—to plaintiff and Garcia, with a copy of defendant's
request. He advised them that the completed mechanical statement should be returned to his office by March 25, 2012, or the policy would be cancelled.
¶ 8 On May 14, 2012, someone called Rick's to say that he or she had been in an automobile accident with a 1989 GMC S-15 driven by plaintiff. About a week later, plaintiff called the agency. Carranza told him that the truck had not been insured for the accident. He said that Rick's could help him set up a payment plan to repay the other driver's insurance company, and plaintiff agreed with this plan.
¶ 9 Milady Rodriguez, office manager of Rick's, averred that, after Rick's mailed the inspection notice, plaintiff called the office. Plaintiff said that he had not received the request for an inspection and asked Rodriguez to send the documents to him again. Plaintiff also asked Rodriguez to look for another insurance company. Rodriguez called plaintiff several times to tell him about different insurance policies, but plaintiff did not respond.
¶ 10 On March 31, 2012, plaintiff called Rick's and requested that the truck be deleted from the policy. Plaintiff said that he did not have time to have the vehicle inspected and he did not want the entire policy to be cancelled. Plaintiff was advised that the truck was no longer covered and that it should not be driven until a mechanical statement could be completed and the vehicle added back to the policy, and plaintiff agreed. That same day, Rick's notified defendant of plaintiff's request. On April 4, 2012, defendant issued an endorsement deleting the truck from the policy as of April 1, 2012.
¶ 11 Defendant argued that the truck was neither an "owned vehicle" covered by the policy nor a "temporary substitute" vehicle. As the truck had been deleted from the policy at plaintiff's request, it was not covered.
¶ 12 Plaintiff filed a response, as well as his own motion for summary judgment. He asserted that he had never received a refund of the portion of the premium attributable to the truck and, thus, the purported cancellation of the policy was ineffective. He further asserted that "nothing in writing nor any evidence" showed that either plaintiff or Garcia requested that the truck be deleted from the policy. Plaintiff noted Carranza's statement that plaintiff had requested the change, but argued that plaintiff was not the named insured on the policy and thus lacked the authority to make such changes. Plaintiff further cited his deposition testimony in which he denied requesting that the truck be dropped from the policy.
¶ 13 In his deposition, plaintiff denied receiving the inspection notice from defendant. He did not know whether Garcia received it, but he assumed that she did not, because otherwise she would have told him. He did not recall whether he called Rick's on March 31, 2012, or whether he was told that the policy would be cancelled unless he had the truck inspected. He did not ask to have the truck deleted from the policy. He did not have any reason to call Rick's in March 2012, but did not recall whether he did so. He did not recall whether Garcia did so. He did not recall how many times Garcia called Rick's about defendant's policy.
¶ 14 In its response, defendant asserted that, at Garcia's request, it returned the unearned premiums to Rick's. In an affidavit, Dewyer stated that defendant issued a refund of $64 to Rick's. A statement of policy activity issued in April 2012 reflected the credit. Rodriguez averred that, besides the $64 refund attributable to the truck, Garcia received a $6 refund in February for the deletion of the Grand Am from the policy. Rodriguez reminded Garcia in May 2012 that she had $70 in credits and Garcia requested that the refunds be held and used as premiums for a renewal policy.
¶ 15 The court granted defendant summary judgment. The court found that plaintiff was simply mistaken in his argument that defendant failed to return the unearned premiums. The affidavits of Dewyer and Rodriguez proved that defendant refunded $70 to Garcia, who asked that it be held and used to help pay for a renewal policy. The court also rejected plaintiff's argument that he lacked the authority to have the truck deleted from the policy. The court found that plaintiff acted as Garcia's agent with regard to the policy: he signed the application in three places, he helped pay for the policy, and he admittedly was the one who called Rick's to add the truck to the policy.
¶ 16 The court denied plaintiff's motion to reconsider. Plaintiff timely appeals.
¶ 17 Plaintiff contends that the court erred in granting defendant summary judgment. Summary judgment is proper where "the 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." 735 ILCS 5/2-1005(c) (West 2014). We review de novo the court's ruling on a motion for summary judgment. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
¶ 18 Plaintiff first contends that the trial court erred in finding that he had the authority to delete the truck from the policy. However, plaintiff's entire argument on this point contains two sentences and is devoid of citation to the record or to relevant authority, and is thus forfeited. See Ill. S. Ct. R. 341(h)((7) (eff. July 1, 2017) (appellant's argument shall include "citation of the authorities and the pages of the record relied on"). In any event, the trial court correctly found that plaintiff was Garcia's agent regarding the policy. He was listed as a driver, signed the application in three places (while his wife did not sign it), and helped pay the premium. Moreover, he admittedly was the one who requested that the truck be added to the policy. If
plaintiff lacked the authority to delete the truck from the policy, then he certainly lacked the authority to add it to the policy in the first place, and defendant would have been justified in removing it from the policy for that reason alone.
¶ 19 Plaintiff further contends that returning unearned premiums to the insured's agent to be applied to the purchase of a future policy does not constitute the return of the unearned premiums to the insured. The return of unearned premiums is a condition precedent to cancelling a policy. 215 ILCS 5/143.14(b) (West 2014); Central Illinois Public Service Co. v. Allianz Underwriters Insurance Co., 244 Ill. App. 3d 709, 715-16 (1993). Beyond establishing this general proposition, however, plaintiff cites no authority for his contention that defendant failed to do so here.
¶ 20 The evidence shows that defendant issued the refunds to Rick's, which unquestionably was Garcia's agent. See Horwitz v. Holabird & Root, 212 Ill. 2d 1, 28-29 (2004) (when two parties enter into an agency relationship, principal has the right to control agent's conduct and agent has power to affect the principal's legal relations). Rodriguez averred that she offered to send the money to Garcia, but the latter asked her to hold it to be used against premiums for the renewal policy. Plaintiff cites no authority for the proposition that defendant had to physically put the money in Garcia's hand before the cancellation would be effective.
¶ 21 Defendant argues that it did not actually cancel the policy, but merely amended it to delete the truck. In light of our conclusion that defendant properly refunded the premiums, we need not decide this question.
¶ 22 Finally, plaintiff contends that defendant failed to maintain proof of the mailing of the cancellation notice as required. See 215 ILCS 5/143.14(a) (West 2014). As he admits, he did
not raise this issue in the trial court and it is therefore forfeited. Had plaintiff raised the issue timely, it is possible that defendant could have produced the required proof.
¶ 23 In any event, although both parties use the term "cancelled" to describe the removal of the truck from the policy, defendant did not, strictly speaking, cancel the policy. It merely changed the policy to delete the truck. The policy remained in force as to the other insured vehicles. Plaintiff cites no authority for the proposition that section 143.14(a) applies in this situation. In Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342 (1998), on which plaintiff relies, there was no question that the defendant cancelled the policy entirely.
¶ 24 The judgment of the circuit court of Winnebago County is affirmed.
¶ 25 Affirmed.