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No. 1-02-1996  

FIRST DIVISION
June 30, 2003

PRESIDING JUSTICE GORDON delivered the opinion of the court:

Plaintiff James McGath (plaintiff) appeals certain orders entered by the trial court in thiscause originating from a motor vehicle accident in which defendant Kimberly Price (Price), whiledriving a vehicle leased by defendant Gladys Griffin (Griffin) from defendant Enterprise LeasingCompany of Chicago (Enterprise), struck and hit plaintiff's vehicle, injuring him and his family. The orders plaintiff presents for our review include a March 6, 2001, order dismissing his claimagainst Price based upon the court's finding that plaintiff settled with her, a June 6, 2001, orderdismissing his third-party beneficiary claim against Enterprise, and a June 12, 2002, ordergranting summary judgment in favor of Griffin based on plaintiff's failure to prove that Griffinnegligently entrusted the vehicle to Price. Plaintiff argues that he did not settle his claims againstPrice, that Enterprise is contractually liable for his claims, and that there remains a genuine issueof material fact as to whether Griffin negligently entrusted the vehicle to Price. For their part,defendants argue that our court does not have jurisdiction to review the March 6, 2001, orderdismissing Price or the June 6, 2001, order dismissing Enterprise, and alternatively, that theseorders were proper. Defendants further argue that summary judgment entered in favor of Griffinwas also proper based on the facts presented to the court at that time. For the following reasons,we affirm.

BACKGROUND

On April 1, 1997, plaintiff was driving his Suburban on the highway, along with his wifeDiane and three children, Sarah, Robin and Kelly. Price, who was in a vehicle that her motherGriffin had rented from Enterprise, was driving on the shoulder of the highway and attempting tomerge back into a traffic lane. Price's vehicle hit plaintiff's vehicle, sending plaintiff's vehicleinto a concrete barrier and causing it to roll over several times.⁽¹⁾ Plaintiff's vehicle came to restupside down, and Price left the scene. Plaintiff, his wife and children all sustained multipleinjuries, including whiplash and back pain. Plaintiff also sustained a concussion and injuries tohis hands and wrists. Further investigation revealed that Price's mother, Griffin, had permittedPrice to drive the vehicle, which Griffin had rented from Enterprise, and that at the time of theaccident, Price's driver's license had been suspended. Price was insured by State Farm InsuranceCompany (State Farm) for a policy limit of $25,000.

Plaintiff, his wife and children filed a complaint at law, and later an amended complaint,against Price, Griffin and Enterprise in 25 counts based on the following theories against therespective defendants: (1) against Price predicated on the theory of liability alleging that shenegligently operated the vehicle; (2) against Griffin predicated on the theory of vicarious liabilityalleging that she had an agency relationship with Price, and predicated on the theory of directliability alleging that she negligently entrusted the vehicle to Price; and (3) against Enterprisepredicated on the theory of vicarious liability alleging that it owned the vehicle, and predicatedon a theory of contractual liability alleging that plaintiff, his wife and children were third-partybeneficiaries to Enterprise's insurance contract with Griffin as indicated in the rental agreement,which stated that Enterprise would provide "liability insurance or coverage to [the] renter *** forbodily injury *** to *** any third party."

Griffin and Enterprise each filed a motion for summary judgment. Before these motionswere heard by the trial court, plaintiff's wife and children settled their claims with Griffin andEnterprise. Counsel for Griffin and Enterprise prepared, and counsel for plaintiff's wife andchildren signed, a document entitled "stipulation to dismiss action," stating that Diane, plaintiff'swife, and Sarah, Robin and Kelly, plaintiff's children, agreed to dismiss their action againstGriffin and Enterprise with prejudice. Counsel for Griffin and Enterprise then prepared anagreed order to present to the court based on this stipulation, dismissing Diane, Sarah, Robin andKelly from the suit against Griffin and Enterprise and stating that plaintiff's claims againstGriffin and Enterprise remained pending. On March 6, 2001, the trial court entered this agreedorder and dismissed Diane, Sarah, Robin and Kelly's claims against Griffin and Enterprise withprejudice. On this same date, the trial court entered another order submitted by counsel forplaintiff stating that, pursuant to the stipulation to dismiss, the suit

"is dismissed with prejudice pursuant to settlement with regard to Plaintiffs, DIANE, KELLY, SARA [sic] and ROBYN [sic], and James McGATH, and Defendants KIMBERLY PRICE and STATE FARM INSURANCE COMPANY only. The *** matter continues with regard to JAMES McGATH and GLADYS GRIFFIN and ENTERPRISE LEASING COMPANY OF CHICAGO only." (Emphasis added.)

While this order was entered by the trial court on March 6, 2001, and bore that court-stampeddate, it also bore the handwritten date of "February 27, 2001." The portion stating "and James"was also handwritten, and there is no attorney name, address or number on this order. The orderwas signed by the trial court. On March 14, 2001, counsel for plaintiff sent a copy of this orderdismissing Price from the cause to Price's attorney. Soon thereafter, plaintiff received $25,000,the full policy limit, from Price's insurer, State Farm.

Officer Michael Pignatiello testified in a deposition that he was the officer that respondedto the accident involving plaintiff and Price. Officer Pignatiello testified that Price left the sceneand that, from statements by witnesses, he was able to trace the vehicle Price was driving toGriffin. Officer Pignatiello stated that he spoke to Price's husband who, though he told officerPignatiello that Price had a general problem with cocaine, did not indicate that Price was oncocaine at the time of the accident. Officer Pignatiello found Price a few days after the accident,but did not charge her with driving while under the influence of drugs or alcohol. OfficerPignatiello reviewed Price's driver's license abstract, which indicated that Price's license wassuspended and not valid at the time of the accident. Officer Pignatiello stated that the reason forthis suspension was not because of the magnitude of the driving violations for which she wascited but, rather, because Price failed to appear in traffic court and pay fines related to those priordriving citations. Officer Pignatiello testified that had Price appeared in court on the requiredday, her driver's license would not have been suspended and would have been valid on the day ofthe accident.

Plaintiff filed responses to Griffin's and Enterprise's motions for summary judgment. Inher reply to plaintiff's response, Griffin asserted that the vicarious liability count against hershould be dismissed because her alleged agent, Price, had settled with plaintiff and thissettlement extinguished any purported liability she may have had as Price's principal. In its replyto plaintiff's response, Enterprise asserted that the vicarious liability counts against it should bedismissed because, based on the attached affidavit of its employee-representative, it was clearthat neither Griffin nor Price was an agent of Enterprise. On June 6, 2001, the trial court grantedEnterprise's motion for summary judgment thereby dismissing Enterprise from the cause and setruling on Griffin's motion for summary judgment for August 8, 2001.

On August 8, 2001, the trial court entered Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)) language with respect to its order granting summary judgment for Enterprise, stating thatthere was no just reason to delay the enforcement or appeal of the June 6, 2001, order. Also onAugust 8, 2001, the trial court entered summary judgment in favor of Griffin, dismissing thatportion of plaintiff's claim against her based on her alleged agency relationship with Price. Thecourt stated that because plaintiff and Price had settled any alleged liability on Price's part asexhibited by the order entered by the court on March 6, 2001, the claim against Griffin based onthis vicarious liability as a principal must be dismissed. The court then set the only remainingcount, namely, plaintiff's claim of direct liability against Griffin for negligent entrustment, forstatus.

Before any argument was had on the remaining count, the parties took Griffin'sdeposition. Griffin testified that she had a close relationship with Price and that they had livedtogether until 1991, when Price got married. After 1991, Price lived next door to Griffin for atime, and the two saw each other almost every day. Griffin stated that Price has never lived morethan a mile from her and that they currently saw each other several times a week. On themorning of the accident, Griffin loaned the vehicle she rented from Enterprise to Price to runsome errands. Griffin testified that Price was "calm" and "normal" and did not appearintoxicated from drugs or alcohol that day. Griffin stated that before she turned the vehicle overto Price, she asked whether she had a driver's license, which Price then produced. Griffin furthertestified that, as of that day, she did not know that Price had been involved in any prior autoaccidents or had received any prior traffic tickets. To her knowledge, Price never used drugs oralcohol, never had trouble with the police, and had a "clean" driving record.

Price's deposition was also taken. Price testified that she had not lived with Griffin since1991, when she was 21 years old. Price stated that on the morning of the accident, she had nottaken any drugs or alcohol. Price also testified that she believed her driver's license was valid onthat day. She had been stopped by police before for traffic violations, involving running a stopand yield sign and making an illegal U-turn. She believed, however, that she had paid therequired fines and was never notified by any traffic court that her license was suspended. Pricefurther testified that she never told Griffin about any of her traffic violations or tickets.

On June 12, 2002, the trial court entered an order granting summary judgment in favor ofGriffin on the negligent entrustment count. The court recognized that there was an entrustmentof the rented vehicle from Griffin to Price. The court also acknowledged that there was evidencethat Price had incurred at least four motor vehicle citations in the past, including disregarding astop and yield sign and making an illegal U-turn, and that her license was not valid on the day ofthe accident because she had failed to appear in traffic court. The court concluded, however, thatthere was "absolutely no evidence in this record with regard to any particular incompetence,inexperience, or recklessness on the part of Defendant Price which was known by DefendantGriffin prior to the entrustment," and thus, there was no basis for liability against Griffin on thiscount.

On July 10, 2002, plaintiff filed his notice of appeal. This notice stated that plaintiff wasappealing "from each and every order and judgment in this action, whether written or oral,including but not limited to" the June 12, 2002, entry of summary judgment in favor Griffin onthe negligent entrustment count, the June 6, 2001, entry of summary judgment in favor ofEnterprise on the breach of contract count, and the "February 27, 2001," order dismissing hisclaim of negligence against Price.

ANALYSIS

Plaintiff presents three main arguments on appeal, centering on the three orders enteredby the trial court as noted above. We address each in turn.

A. Enterprise and the June 6, 2001, Order

Plaintiff's first contention in its brief on appeal is that the trial court erred in entering itsJune 6, 2001, order granting summary judgment in favor of Enterprise. Plaintiff argues thatEnterprise is contractually liable for his claims because Enterprise entered into a rental agreementwith Griffin which stated that Griffin was purchasing "supplemental liability protection,"pursuant to which Enterprise agreed to provide "bodily injury *** liability insurance or coverageto [the] renter *** for bodily injury *** to [the] renter *** or any third party." Plaintiff claimsthat he qualifies as a "third party" who was to be protected under this contract, notwithstandingthat it was Price, and not Griffin, who was driving the vehicle. Alternatively, plaintiff argues thatcertain sections of the Illinois Vehicle Code (625 ILCS 5/9-101, 9-105 (West 1998)) imposeliability on Enterprise in this cause based on its status as an insurer, and that, even were this notso, a direct action would still lie against Enterprise as the owner of the vehicle.

Enterprise and Griffin, while addressing the merits of plaintiff's contentions, initiallypoint out in their brief on appeal that our court does not have jurisdiction over this issue becauseplaintiff did not timely file a notice of appeal of the order dismissing Enterprise from the cause. We note that in his reply brief, as well as at the outset of oral argument before this court, plaintiffconceded that, pursuant to the mandates of Supreme Court Rules 303 and 304(a), he failed totimely file a notice of appeal preserving any claim of liability against Enterprise for our reviewand, thus, was not now appealing the June 6, 2001, order granting summary judgment in favor ofEnterprise. See 155 Ill. 2d Rs. 303, 304(a). Indeed, the record remains undisputed that the trialcourt entered summary judgment in favor of Enterprise on June 6, 2001, dismissing it from thiscause with prejudice. Although this order did not dispose of all the claims and parties involvedin this action, it was made final and appealable on August 8, 2001, when the court found "no justreason to delay enforcement or appeal" of the June 6, 2001, order. Therefore, plaintiff had 30days from the entry of this language in which to file a notice of appeal. See 155 Ill. 2d Rs. 303,304(a). Upon the trial court's express written finding that there is no just reason from delayingenforcement or appeal, the court's order becomes final and notice of appeal must be filed within30 days. See R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998) (appellatecourt loses jurisdiction over an order which contains final and appealable language pursuant toRule 304(a) after 30 days, even if that order does not dispose of all claims or parties involved inaction). Plaintiff concedes, and the record on appeal is clear, that he did not file his notice toappeal this order until July 10, 2002, almost a year later. Accordingly, we do not havejurisdiction to review the trial court's order of June 6, 2001, granting summary judgment in favorof Enterprise and dismissing it from this cause. See R.W. Dunteman Co., 181 Ill. 2d at 159. Therefore, that order stands and Enterprise is dismissed from this appeal.

B. Griffin and the June 12, 2002, Order

Plaintiff's next contention on appeal is that the trial court erred in entering the June 12,2002, order granting summary judgment in favor of Griffin on the negligent entrustment count. Plaintiff argues that a genuine issue of material fact exists as to whether Griffin knew or shouldhave known of Price's incompetence, inexperience or recklessness with respect to drivingautomobiles. Plaintiff claims that there were facts presented to the trial court that would clearlypermit a jury to conclude that Griffin knew or should have known that Price would use thevehicle in a manner that would pose unreasonable risk to others. In response, Griffin argues thatsummary judgment was proper on this count because, based on the record presented to the trialcourt at the time of the summary judgment motion, there was no evidence to create a genuineissue of material fact in this regard. We agree with Griffin.

"The purpose of summary judgment is to determine whether a question of fact exists." West v. Northeastern Illinois R.R. Corp., 180 Ill. App. 3d 307, 311, 535 N.E.2d 987, 990 (1989);see also Addison v. Whittenberg, 124 Ill. 2d 287, 294 (1988). Therefore, summary judgment isproper only when the pleadings, depositions and admissions on record, together with anyaffidavits, show that there is no genuine issue as to any material fact and the moving party isentitled to judgment as a matter of law. See Purtill v. Hess, 111 Ill. 2d 229, 240-44 (1986). While we agree with plaintiff that summary judgment has been called a "drastic measure," it is anappropriate tool to employ in the expeditious disposition of a lawsuit in which " 'the right of themoving party is clear and free from doubt.' " Morris v. Margulis, 197 Ill. 2d 28, 35 (2001),quoting Purtill, 111 Ill. 2d at 240. In reviewing a trial court's grant of this relief, we do not assessthe credibility of the testimony presented but, rather, only determine whether the evidencepresented was sufficient to create an issue of fact. See Jackson v. Graham, 323 Ill. App. 3d 766,779, 753 N.E.2d 525, 535-36 (2001). We review the grant of summary judgment under a denovo standard (see Morris, 197 Ill. 2d at 35), and reversal will occur if we find that a genuineissue of material fact exists (see Addison, 124 Ill. 2d at 294). However, "[m]ere speculation,conjecture, or guess is insufficient to withstand summary judgment." Sorce v. Naperville JeepEagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 237 (1999); accord People ex rel. theDepartment of Professional Regulation v. Manos, 326 Ill. App. 3d 698, 704, 761 N.E.2d 208, 213(2001) (on motion for summary judgment, mere suggestion that issue of material fact exists,without supporting evidence, is insufficient to create one); Billman v. Frenzel Construction Co.,262 Ill. App. 3d 681, 635 N.E.2d 435 (1993) (summary judgment proper where speculationwould be required to prove element of cause of action alleged); Kimbrough v. Jewel Cos., 92 Ill.App. 3d 813, 817-19, 416 N.E.2d 328, 332-33 (1981).

An action for negligent entrustment requires "entrusting a dangerous article to anotherwhom the lender knows, or should know, is likely to use it in a manner involving anunreasonable risk of harm to others." Zedella v. Gibson, 165 Ill. 2d 181, 186 (1995), quotingTeter v. Clemens, 112 Ill. 2d 252, 257 (1986), quoting 1 J. Dooley, Modern Tort Law