Find Legal Information

Amanda M. Adams owned a Doberman pinscher, which bit aseven-year-old boy, Christopher Marshall. Amanda had renter'sliability insurance from Pekin Insurance Company (Pekin), andChristopher's father, Nicholas Marshall, submitted a claim. Pekin denied the claim and filed a complaint against Amanda andNicholas, seeking rescission of Amanda's insurance policy on theground that she had falsely stated, in her application for theinsurance, that she had no "animals." The parties filed cross-motions for summary judgment. The trial court granted Pekin'smotion and denied defendants' motions.

Nicholas appealed the summary judgment in Pekin'sfavor. He argued that (1) Pekin, rather than Amanda, was responsible for the misrepresentation and (2) the misrepresentation wasnot material. On October 28, 2002, we filed an opinion reversingthe trial court's judgment and remanding the case for furtherproceedings. Pekin Insurance Co. v. Adams, 334 Ill. App. 3d1083, 778 N.E.2d 1240 (2002) (original opinion). On December 2,2002, we denied Pekin's petition for rehearing, and on April 2,2003, the supreme court denied Pekin's petition for leave toappeal. Pekin Insurance Co. v. Adams, 203 Ill. 2d 550, 788N.E.2d 730 (2003). On May 14, 2003, however, in the exercise ofits supervisory authority, the supreme court directed us tovacate our judgment and reconsider our decision in the light ofGolden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 786N.E.2d 1010 (2003). Pekin Insurance Co. v. Adams, No. 95501 (May14, 2003) (nonprecedential supervisory order directing FourthDistrict to vacate its original opinion and reconsider in lightof Schwartz), ___ Ill. 2d ___, ___ N.E.2d ___. Accordingly, wevacated our original opinion. After reconsidering the facts ofthis case in the light of Golden Rule, we still find genuineissues of material fact precluding summary judgment in Pekin'sfavor. Therefore, we again reverse the trial court's judgmentand remand this case for further proceedings.

Amanda testified in her deposition that she had boughtthe insurance policy through Bybee Insurance Agency, which wasPekin's agent. Linda Sade was an employee of the agency, and inthe course of purchasing the policy, Amanda spoke with herseveral times on the telephone. Linda asked Amanda questionsabout her eligibility for insurance but never asked her if shehad any animals. Afterward, the agency mailed Amanda an application for the insurance policy.

When Amanda received the application in the mail,answers to many of the questions were already typed in. QuestionNo. 9 read as follows: "Does applicant or any tenant haveanimals or exotic pets?" An "X" was typed in the box corresponding to "no." Amanda testified, however, that she did not readquestion No. 9 or any other part of the application except forthe parts she had to fill in, which the agency had highlighted. Having already been answered in the negative, question No. 9 wasnot highlighted. Amanda signed the application and mailed itback to the agent some five days after receiving it, withoutreading the following language above her signature:

"I have read the application[,] and I declarethat to the best of my knowledge and beliefall of the foregoing statements are true; andthat these statements are offered as an inducement to the company to issue the policyfor which I am applying."

When investigating Nicholas's claim, Pekin discoveredthat not only did Amanda have a dog on her premises when shesigned the application (a nine-year-old dog, which she had ownedsince it was a puppy), but the dog had bitten a girl three orfour years before biting Christopher.

Becky Weems was an underwriter for Pekin. In heraffidavit in support of Pekin's motion for summary judgment andin her deposition, she stated that ownership of a dog was amaterial fact, because dogs increased the risk of liability. When learning that an applicant owned a dog, the agent wassupposed to ask questions about the dog and enter the additionalinformation in the section of the application labeled "Remarks." If dissatisfied with the information, the underwriter couldeither deny the application or ask for more information. Weemstestified she "would [have] never issue[d] a policy with a priordog[-]bite history." Pekin also presented a copy of its underwriting guidelines stating that "any dog with a bite history [is]not acceptable."

In its order granting Pekin's motion for summaryjudgment and denying defendants' motions for summary judgment,the trial court concluded that (1) the insurance policy wasrescinded, (2) the insurance policy did not apply to Nicholas'sclaim, and (3) Pekin must refund to Amanda all of the premiumsshe has paid. This appeal followed.

We review summary judgments de novo. Warren v. Burris,325 Ill. App. 3d 599, 603, 758 N.E.2d 889, 892 (2001). Viewingthe pleadings, depositions, admissions, and affidavits in a lightmost favorable to the nonmoving party, we ask whether they revealany "genuine issue as to any material fact." 735 ILCS 5/2-1005(c) (West 2002); Warren, 325 Ill. App. 3d at 602, 758 N.E.2dat 892. "Genuine" means there is evidence to support the position of the nonmoving party. N.W. v. Amalgamated Trust & SavingsBank, 196 Ill. App. 3d 1066, 1075, 554 N.E.2d 629, 636 (1990). We also ask whether "the moving party is entitled to a judgmentas a matter of law"--in other words, whether the trial courtcorrectly interpreted and applied the law. 735 ILCS 5/2-1005(c)(West 2002); Farmers Automobile Insurance Ass'n v. Country MutualInsurance Co., 309 Ill. App. 3d 694, 698, 722 N.E.2d 1228, 1231(2000).

In Golden Rule, 203 Ill. 2d at 459, 786 N.E.2d at 1012,the defendant's father applied to Golden Rule Insurance Company(Golden Rule) for medical insurance for the defendant. One ofthe questions in the application was whether the proposed insuredwas covered by other insurance. Golden Rule, 203 Ill. 2d at 459,786 N.E.2d at 1012. The question was answered in the negative. Golden Rule, 203 Ill. 2d at 459, 786 N.E.2d at 1012. The application warned that a misrepresentation about other insurancecould cause Golden Rule to rescind the policy. Golden Rule, 203Ill. 2d at 459-60, 786 N.E.2d at 1013. The application alsostated, just above the signature line: "'I represent thatstatements and answers in this application are true and completeto the best of my knowledge and belief.'" (Emphasis added.) Golden Rule, 203 Ill. 2d at 460, 786 N.E.2d at 1013.

After Golden Rule issued a policy in the defendant'sname, the defendant was injured in an accident. Golden Rule, 203Ill. 2d at 460, 786 N.E.2d at 1013. The defendant's fatherreviewed his insurance policies and realized that the defendantwas covered as an "eligible dependent" under a policy other thanthe one Golden Rule had issued. Golden Rule, 203 Ill. 2d at 460,786 N.E.2d at 1013. Golden Rule made the same discovery in itsinvestigation of the defendant's claim, and, as a result, rescinded the policy. Golden Rule, 203 Ill. 2d at 460, 786 N.E.2dat 1013.

The supreme court held that the language in the application, "to the best of my knowledge and belief," "establishe[d]a lesser standard of accuracy" than that which section 154 of theIllinois Insurance Code (215 ILCS 5/154 (West 1998)) established. Golden Rule, 203 Ill. 2d at 466, 786 N.E.2d at 1016. Undersection 154, "a misrepresentation, even if innocently made,"could have been grounds for voiding a policy, if the misrepresentation had materially affected the insurer's risk. Golden Rule,203 Ill. 2d at 464, 786 N.E.2d at 1015. The "knowledge andbelief" language changed the inquiry, however, "from an inquiry into whether the facts asserted were true to whether, on thebasis of what he knew, the applicant believed them to be true. Thus, the response *** [in the application had to] be assessed inthe light of the applicant's actual knowledge and belief." Golden Rule, 203 Ill. 2d at 466, 786 N.E.2d at 1016-17. On thefacts of the case, the supreme court held "that this assessmentinvolve[d] a credibility determination that [could] only be madeby the jury." Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at1017.

The supreme court further held that even if the defendant's father had known and believed that the defendant wascovered by other insurance, the jury would have to determinewhether "the misstatement was material to the insurer's acceptance of the risk." Golden Rule, 203 Ill. 2d at 467, 786 N.E.2dat 1017. "[T]he issue of materiality" was "generally a questionof fact for a jury to decide." Golden Rule, 203 Ill. 2d at 467,786 N.E.2d at 1017.

In light of Golden Rule, the inquiry is not simplywhether the answer to question No. 9 of Amanda's application forinsurance was false but whether she actually knew and believed itwas false, i.e., whether she knew and believed she "had" an"animal." See Golden Rule, 203 Ill. 2d at 466, 786 N.E.2d at1016-17. Because no one has direct access to another person'smind, one can only infer, from circumstantial evidence, thatanother person has knowledge of a fact. Brock v. Police Board ofthe City of Chicago, 205 Ill. App. 3d 1035, 1042, 563 N.E.2d 970,975 (1990). That Amanda had a dog on her premises for nineyears, up through the date she signed the application, is, ofcourse, circumstantial evidence that she knew and believed shehad the dog. The record does not appear to contain any countervailing evidence that she was unaware of having the dog. Therefore, we find no genuine issue as to whether Amanda actually knewand believed she had a dog (a type of "animal") when she signedthe application.

A genuine issue of material fact precludes summaryjudgment for the plaintiff if the defendant has sworn to factsthat "constitute a legal defense." St. Charles National Bank v.Ford, 39 Ill. App. 3d 291, 296, 349 N.E.2d 430, 434 (1976). Nicholas argues that by his sworn facts, he has raised twodefenses: (1) estoppel and (2) a lack of materiality. GoldenRule does not address the issue of estoppel and is, therefore, inthat respect, distinguishable.

Citing Beck v. Capitol Life Insurance Co., 48 Ill. App.3d 937, 363 N.E.2d 170 (1977), among other authorities, Nicholasargues that Pekin, rather than Amanda, is responsible for themisrepresentation, and Pekin should be estopped from assertingthe misrepresentation as a defense.

In Beck, 48 Ill. App. 3d at 939, 363 N.E.2d at 171, theplaintiff brought an action to recover under a life insurancepolicy. The insurer contended that because the insured, ClarenceBeck, had falsely stated, in a "reinstatement application," thathe was "'now in good health and free from any symptom of disease,'" the insurer did not have to pay the claim after hisdeath. Beck, 48 Ill. App. 3d at 939-40, 363 N.E.2d at 171-72. Clarence was, in fact, in poor health and had heart disease anddiabetes when he signed the application, and the misrepresentation was material to the insurer's risk. Beck, 48 Ill. App. 3dat 939-40, 363 N.E.2d at 172.

After a bench trial, the trial court entered judgmentfor the plaintiff, thereby indicating that it accepted herversion of the facts. Beck, 48 Ill. App. 3d at 940, 363 N.E.2dat 172. The plaintiff, Clarence's wife, testified that the agentcompleted the application and brought it to her home for Clarence's signature. Beck, 48 Ill. App. 3d at 940, 363 N.E.2d at172. Before completing the application, the agent made noinquiries about Clarence's health. Beck, 48 Ill. App. 3d at 940,363 N.E.2d at 172.

The insurer argued that even if, as the plaintifftestified, the agent, rather than Clarence, had made the misrepresentation, "the policy [was] voidable because the deceased, insigning the application for reinstatement, was bound by itscontents and representations as his own." Beck, 48 Ill. App. 3dat 940, 363 N.E.2d at 172. The Fifth District disagreed. Itheld:

"[If] an agent of the insurer completes anapplication for insurance without propoundingthe questions therein to the insured, in theabsence of collusion with the insured, theinsurer is estopped from asserting any misrepresentations as a defense in an action forpayment under the policy." Beck, 48 Ill.App. 3d at 940-41, 363 N.E.2d at 172.

Pekin argues that Beck is distinguishable for tworeasons: (1) "the applicant [in Beck] did not have the opportunity to verify whether the information contained in the application was correct," whereas Amanda kept the application forapproximately five days before mailing it back to Pekin; and (2)unlike the application in the present case, the one in Beck didnot contain a certification by the applicant that he had actuallyread the application and verified the truth of its contents.

We find no indication, in the appellate court's recitation of the facts in Beck, that the applicant, Clarence Beck,lacked an opportunity to read the application before signing it. The agent brought the completed application to Beck's home forhis signature. Beck, 48 Ill. App. 3d at 940, 363 N.E.2d at 172. The opinion does not say that the agent hindered Beck in any wayfrom reading the application or denied him additional time toread it.

From an early date, Illinois courts have held that ifan insurance agent fills out an application for an applicant, andwithout any collusion between the agent and applicant, inserts afalse answer into the application, a provision that the applicanthas read the application and verified the answers before signingit will not save the insurer from being estopped from assertingthe false answer as a defense. Royal Neighbors of America v.Boman, 177 Ill. 27, 32, 52 N.E. 264, 266 (1898), cited in Beck,48 Ill. App. 3d at 941, 363 N.E.2d at 173; Niemann v. SecurityBenefit Ass'n, 350 Ill. 308, 315-16, 183 N.E. 223, 226-27 (1932).

There must be "no fraud or intent to deceive on the part of theapplicant." Royal Neighbors, 177 Ill. at 32, 52 N.E. at 266. "[If] the applicant has acted in bad faith, either on his own orin collusion with the insurer's agent, knowledge of the agentwill not be imputed to the insurer." Marionjoy RehabilitationHospital v. Lo, 180 Ill. App. 3d 49, 53, 535 N.E.2d 1061, 1064(1989).

In Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at1063, an insurance agent completed and signed an application forhealth insurance for Ceasar Lo's son. The agent answered "no" toall questions in the application, even though Lo's son hadundergone brain surgery. Marionjoy, 180 Ill. App. 3d at 51, 535N.E.2d at 1063. When Lo pointed out the omission to the agent,the agent told him "not to worry" because the insurer "was a veryhigh[-]risk insurance company." Marionjoy, 180 Ill. App. 3d at51, 535 N.E.2d at 1063. At or near the time the insurer issuedthe insurance policy, it sent Lo a copy of the application,asking him to verify, on an enclosed form, that all of theinformation in the application was correct. Marionjoy, 180 Ill.App. 3d at 51, 535 N.E.2d at 1063. Lo indicated on the form thatthe information was correct, signed it, and mailed it back to theinsurer. Marionjoy, 180 Ill. App. 3d at 51, 535 N.E.2d at 1063. Later, when Lo submitted a claim for medical treatment of hisson, the insurer denied the claim and rescinded the policybecause of the misrepresentation in the application. Marionjoy,180 Ill. App. 3d at 51, 535 N.E.2d at 1063.

The trial court entered summary judgment in the insurer's favor, and the Second District affirmed. Marionjoy, 180Ill. App. 3d at 52, 55, 535 N.E.2d at 1063, 1065. The appellatecourt held that Lo's representation to the insurer that all theinformation in the application was correct was "an affirmativeaction on the part of Lo independent of the agent[,] which showsbad faith." Marionjoy, 180 Ill. App. 3d at 53, 535 N.E.2d at1064. If the agent had filled out the application "while knowingthe true medical history of the Los' son" and nothing further hadhappened, the insurer could not have relied on the misrepresentation as a defense. Marionjoy, 180 Ill. App. 3d at 53, 535 N.E.2dat 1064. Because of two additional circumstances, however, theappellate court refused to impute the agent's knowledge to theinsurer: (1) the correspondence between the insurer and Lo wasindependent of the agent, and (2) Lo knew that his son's medicalhistory was important because the insurer had denied coverage onthat basis once before. Marionjoy, 180 Ill. App. 3d at 53, 535N.E.2d at 1064. In the present case, Amanda never verified theaccuracy of the application directly to Pekin, and Pekin neverasked her to do so. Marionjoy is, therefore, distinguishable.

In Johnson v. Royal Neighbors of America, 253 Ill. 570,574, 97 N.E. 1084, 1085 (1912), the insurance agent "wrote [the]answers," on the application, "contrary to the true answers madeby" the insured--or, according to some witnesses, without evenasking the insured what the correct answers were. The supremecourt held that the insurer had "waived its right to object tothe validity of the benefit certificate on the ground that [theinsured's] answers were warranties." Johnson, 253 Ill. at 574,97 N.E. at 1086. In language relevant to the present case, thesupreme court said:

"This rule is not affected by the fact that acopy of the application was attached to thebenefit certificate, and there was printed inthe certificate a request to the holder toread the application and if any of the answers were incorrect[,] to notify [the insurer's] recorder." Johnson, 253 Ill. at574, 97 N.E. at 1086.

Pekin has presented no evidence that Amanda acted incollusion with the agent. A reasonable trier of fact need notfind that she acted in bad faith. If, as the supreme court heldin Johnson, a request to verify the accuracy of the answers doesnot "affect" the "rule" of waiver, such a request, standingalone, cannot prove bad faith or fraud by the insured. The agenthighlighted only the uncompleted parts of the application. Amanda could have reasonably assumed that only the highlightedparts of the application needed her attention, and she could haveignored the rest of the application in the belief that Pekin'sagent had done a competent job filling in the answers.

Pekin compares question No. 9 of the application to a"leading question," arguing that Amanda should have answered ittruthfully. The analogy is flawed. A leading question is,despite its leading nature, a question awaiting an answer. Pekinprovided the answer. As the supreme court said in Andes Insurance Co. v. Fish, 71 Ill. 620, 623 (1874):

"It was competent to show by parol that theapplication was filled out by the agent of[the insurance company], with full knowledgeof all the facts, for, although afterwardssigned by the assured, it was then the act ofthe company as well as of the assured, andits representations became as conclusive uponit as they did upon her. All charge of fraudand deception on the part of the assuredmight thus be completely and properly refuted."

We see no reason why the outcome should be different ifthe insurance agent wrote the answers in the application withoutasking the applicant what the correct answer was. "When an agentfills out an application for insurance without inquiry, merelypresenting the application to the insured for his signature, theanswers to the questions in the application will not be warranties." Flenner v. Capital Live Stock Insurance Co., 217 Ill.App. 529, 531-32 (1920), cited in Beck, 48 Ill. App. 3d at 941,363 N.E.2d at 173. Regardless of whether the agent disregardsinformation from the applicant or does not seek information fromthe applicant, the agent (on behalf of the principal, the insurer) manifests an indifference to the information.

As the supreme court stated in Golden Rule, 203 Ill. 2dat 467, 786 N.E.2d at 1017, "the issue of materiality is generally a question of fact for a jury to decide." Summary judgmentis a drastic way to dispose of a case, and a trial court shouldgrant summary judgment only if the movant's right to the judgmentis clear and free from doubt. Golden Rule, 203 Ill. 2d at 467,786 N.E.2d at 1017. Pekin came forward with evidence thatownership of a dog--especially a dog that had bitten someone inthe past--was material to Pekin's acceptance of the risk. Areasonable trier of fact would not have to believe Pekin. IfPekin's agent filled in the answer to question No. 9 withoutbothering to ask Amanda whether she owned a dog, Pekin arguablydid not consider the ownership of a dog to be important.

We find genuine issues of material fact relating toestoppel and materiality. For the foregoing reasons, we reversethe trial court's award of summary judgment to Pekin and remandthis case for further proceedings not inconsistent with thisopinion.

Reversed.

STEIGMANN, J., concurs.

MYERSCOUGH, P.J., specially concurs in part and dissents in part.

PRESIDING JUSTICE MYERSCOUGH, specially concurring inpart and dissenting in part:

I respectfully concur in part and dissent in part. Iwould reverse, but on all grounds. Golden Rule does not mandatesummary judgment as to Amanda's actual knowledge and belief. Golden Rule merely mandates reconsideration in light of a lesserstandard of accuracy. Material issues remain as to Amanda'sbelief in the truth of the response concerning an animal. Thisassessment involves a credibility determination to be made by thejury. Golden Rule, 203 Ill. 2d at 467, 786 N.E.2d at 1017. Wedo not know whether Amanda read the question and response orwhether she thought "an animal" included a dog. I would reverseon this issue.