                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




         Farmers Automobile Insurance Ass’n v. Burton, 2012 IL App (4th) 110289




Appellate Court            FARMERS AUTOMOBILE INSURANCE ASSOCIATION, Plaintiff-
Caption                    Appellee, v. RODNEY L. BURTON; and CARRIE BUCKLEY, as
                           Administratrix of the Estate of TIMOTHY A. BUCKLEY, Deceased,
                           Defendants-Appellants.



District & No.             Fourth District
                           Docket Nos. 4-11-0289, 4-11-0330 cons.


Rule 23 Order filed        March 1, 2012
Rule 23 Order
withdrawn                  March 22, 2012
Opinion filed              March 1, 2012
Held                       Summary judgment was properly entered for plaintiff insurer in its
(Note: This syllabus       declaratory judgment action alleging that defendant did not provide
constitutes no part of     reasonable notice of the accident which caused the death of the other
the opinion of the court   defendant’s decedent, since the record showed defendant failed to provide
but has been prepared      notice of the automobile accident for over 11 months after he knew the
by the Reporter of         State believed he killed the victim in a hit and run accident and that was
Decisions for the          clearly not reasonable notice under the terms of the policy.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Macon County, No. 10-MR-375; the
Review                     Hon. Albert G. Webber, Judge, presiding.



Judgment                   No. 4-11-0289, Affirmed.
                           No. 4-11-0330, Affirmed.
Counsel on                 Frank H. Byers II (argued), of Frank H. Byers II, Ltd., of Decatur, for
Appeal                     appellant Carrie Buckley.

                           Michael J. Costello (argued), of Costello Law Office, of Springfield, for
                           appellant Rodney L. Burton.

                           Robert Marc Chemers (argued) and Peter G. Syregelas, both of Pretzel &
                           Stouffer, Chtrd., of Chicago, for appellee.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Justices Steigmann and Cook concurred in the judgment and opinion.



                                            OPINION

¶1          In March 2011, the trial court awarded summary judgment to plaintiff, Farmers
        Automobile Insurance Association (Farmers), in the declaratory judgment action it brought
        against defendants, Rodney L. Burton and Carrie Buckley, the administrator of the estate of
        Timothy A. Buckley, because Burton did not provide reasonable notice to Farmers of the
        automobile accident which caused Timothy’s death. Burton (No. 4-11-0330) and Buckley
        (No. 4-11-0289) filed separate appeals challenging the court’s summary judgment ruling. We
        have consolidated these appeals for purposes of our review. We affirm.

¶2                                      I. BACKGROUND
¶3          On April 30, 2010, Buckley filed a cause of action against Burton alleging he caused
        Timothy’s death on May 11, 2008. Buckley’s complaint was served on Burton on June 7,
        2010. According to the complaint, a motor vehicle driven by Burton struck and drove over
        Timothy. Buckley alleged Burton did not stop or give assistance to Timothy or report the
        incident to law enforcement or other governmental authorities.
¶4          In September 2010, Farmers filed a complaint for declaratory judgment against Burton
        and Buckley. Farmers provided automobile insurance to Burton at the time of Timothy’s
        death. Farmers alleged Burton first gave it notice of the May 2008 accident on July 8, 2010,
        after Burton was convicted of leaving the scene of an accident involving a death.
¶5          Burton’s insurance policy contained the following provision concerning liability
        coverage:
            “A. We will pay damages for ‘bodily injury’ or ‘property damage’ for which any
            ‘insured’ becomes legally responsible because of an auto accident. Damages include pre-
            judgment interest awarded against the ‘insured.’ We will settle or defend, as we consider
            appropriate, any claim or suit asking for these damages. In addition to our limit of

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           liability, we will pay all defense costs we incur. Our duty to settle or defend ends when
           our limit of liability for this coverage has been exhausted. We have no duty to defend any
           suit or settle any claim for ‘bodily injury’ or ‘property damage’ not covered under this
           policy.”
       However, the policy also contained the following provision concerning an insured’s duty
       after an accident or loss:
           “A. We must be notified promptly of how, when and where the accident or loss
           happened. Notice should also include the names and addresses of any injured persons and
           of any witnesses.”
       Farmers accepted the tender of Burton’s defense with respect to Buckley’s claim, subject to
       a reservation of its rights.
¶6         In its complaint for declaratory judgment, Farmers claimed it had no duty or obligation
       to defend Burton in the action filed against him by Buckley because Burton breached the
       notice condition of the policy. According to the complaint, Burton did not provide notice of
       the occurrence for almost 26 months after it occurred.
¶7         Buckley responded to the complaint, denying Farmers was prejudiced by the notice it
       received. Buckley further denied Burton failed to reasonably comply with the notice
       provisions of his insurance policy.
¶8         In November 2010, Farmers filed a motion for summary judgment based on Burton’s
       failure to provide reasonable notice. That same month, Buckley filed a motion for summary
       judgment, arguing Burton had no duty to notify Farmers until he was served with a summons
       in the case filed by Buckley against Burton. According to Buckley’s motion, Burton
       complied with the policy’s notice provisions.
¶9         In January 2011, Burton filed a response to Farmers’ motion for summary judgment.
       Burton argued collateral estoppel should not apply in this case because it would be unfair to
       Burton since he had maintained his innocence throughout the life of the criminal case and
       his conviction was a manifest injustice. He also argued he could not have violated the notice
       requirements because he had no knowledge of the occurrence which caused Timothy’s death.
¶ 10       On March 29, 2011, the trial court granted Farmers’ motion for summary judgment. The
       court stated:
           “This is a complaint for Declaratory Judgment on an insurance policy. Previously, this
           Court addressed the same underlying fact situation in a declaratory judgment action
           involving Dram Shop coverage and the salient facts (well-known to the parties) are set
           forth in this Court’s Order of September 7, 2010[,] in Macon County cause no. 10-L-52.
           Those fact determinations are incorporated by reference here. The Plaintiff here insured
           Rodney Burton (Burton) on an automobile liability policy. The policy required the
           insured, Burton, to ‘promptly’ notify the Plaintiff in the event of an ‘accident or loss.’
           Burton was convicted on June 10, 2010, of leaving the scene of an accident causing the
           death of Timothy Buckley (Buckley) (Macon County cause no. 09-CF-1340). Burton had
           been arrested for the crime on August 28, 2009, and was arraigned on the charge on
           September 3, 2009. It is undisputed Burton first notified Plaintiff of this claim on July
           8, 2010, having been served with summons in Macon County cause no. 10-L-52 on or

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           about June 2, 2010. Burton argues that since he has always maintained his innocence and
           non-involvement in the death of Buckley, he had no obligation to notify the Plaintiff of
           anything until he was served with the summons and complaint in case no. 10-L-52. The
           Plaintiff now moves for summary judgment, as does the Defendant, Carrie Buckley
           (Carrie Buckley is administrator of Timothy Buckley’s estate). The Plaintiff argues
           Burton’s notice of the loss was inexcusably late, and that following American Country
           Insurance Co. v. Bruhn, 289 Ill. App. 3d 241 (2nd Dist. 1997) a fear of criminal
           prosecution does not excuse failure to notify an insurer if coverage is sought for a loss
           which also involved a crime. The Plaintiff notes Bruhn was followed in American
           Standard Insurance Company of Wisconsin v. Slifer, 395 Ill. App. 3d 1056 (4th Dist.
           2009). Carrie Buckley counters that in both Bruhn and Slifer, the insured admitted guilt
           to the crime involving the loss, and here Burton has always maintained his innocence.
           Burton has filed an affidavit in the instant cause reiterating his position he is innocent of
           causing the death of Buckley and was wrongfully convicted. What both Burton and
           Carrie Buckley fail to account for is the delay between Burton’s arrest and arraignment
           in late August and early September 2009, and his notification to the Plaintiff in July
           2010, approximately 11 months later. Burton points to no authority which holds that once
           a person is arrested and arraigned for a crime which might involve an insured loss, it is
           tantamount to an admission of criminal guilt to notify that person’s insurance carrier of
           the charges if a civil defense and indemnity are sought. No authorities would seem to
           support the assertion of Burton and Buckley that only conviction of a crime informs the
           insured of a ‘loss or accident.’ Burton offers no excuse for the 11 month delay in
           informing the Plaintiff of the loss except his affirmance of innocence of the underlying
           crime. That Burton maintains his innocence is [a] distinction without a difference under
           the authority of Bruhn and Slifer. This places this case squarely among those cases where
           the delay in notifying the insurer was solely attributable to the insured’s negligence. The
           Plaintiff’s motion for summary judgment is allowed, and the Plaintiff owes no defense
           or indemnity to Burton in Macon County cause no. 10-L-52. Carrie Buckley’s Motion
           for Summary Judgment is denied.”
¶ 11       These appeals followed. We note two motions were taken with this case. On September
       1, 2011, Farmers filed a motion to strike certain portions of Buckley’s brief and appendix.
       On December 5, 2011, Farmers filed a motion to cite additional authority. We deny both of
       these motions.

¶ 12                                      II. ANALYSIS
¶ 13       The issue before this court is whether the trial court erred in granting Farmers’ motion
       for summary judgment based on Burton’s failure to provide reasonable notice to Farmers of
       an automobile accident which caused Timothy’s death. Summary judgment is a drastic
       means of disposing of litigation. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163, 862
       N.E.2d 985, 991 (2007). For summary judgment to be appropriate, the movant’s right must
       be clear and free from doubt. Bagent, 224 Ill. 2d at 163, 862 N.E.2d at 991.
¶ 14       Summary judgment is only proper where the pleadings, depositions, admissions, and


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       affidavits on file, when viewed in the light most favorable to the nonmoving party, reveal no
       genuine issue as to any material fact exists and that the moving party is entitled to judgment
       as a matter of law. Quincy Mall, Inc. v. Kerasotes Showplace Theatres, LLC, 388 Ill. App.
       3d 820, 824, 903 N.E.2d 887, 890 (2009). We review the grant of a motion for summary
       judgment under a de novo standard of review. Coole v. Central Area Recycling, 384 Ill. App.
       3d 390, 395, 893 N.E.2d 303, 308 (2008).
¶ 15        A party moving for summary judgment bears the burden of meeting the initial burden of
       production and the ultimate burden of proof. See Pecora v. County of Cook, 323 Ill. App. 3d
       917, 933, 752 N.E.2d 532, 545 (2001); Williams v. Covenant Medical Center, 316 Ill. App.
       3d 682, 689, 737 N.E.2d 662, 668 (2000); see also Barbara A. McDonald, The Top 10 Ways
       to Avoid Losing a Motion for Summary Judgment, 92 Ill. B.J. 128, 128-29 (2004). “If the
       movant has the burden of proof at trial, the movant must produce affirmative evidence that,
       if uncontradicted, would justify a directed verdict at trial to carry the original burden of
       production on the motion.” 4 Richard A. Michael, Illinois Practice § 40.3 (2d ed. 2011)
       (Civil Procedure Before Trial). Once the moving party meets its initial burden, the burden
       shifts to the nonmoving party to present some evidence demonstrating “1) the movant’s
       evidence about a material fact is not undisputed; 2) other material facts are disputed; or 3)
       more than one reasonable inference can be drawn from the undisputed facts.” Barbara A.
       McDonald, The Top 10 Ways to Avoid Losing a Motion for Summary Judgment, 92 Ill. B.J.
       128, 130 (2004).
¶ 16        In its declaratory judgment action, Farmers alleged it had neither a duty to defend nor a
       duty to indemnify Burton as a result of the accident because Burton did not provide the
       company with prompt notice. The insurance policy in question contained a provision
       requiring the insured to provide prompt notice of any accident or loss. Our supreme court has
       stated: “A provision in an insurance liability policy requiring an insured to give the insurer
       notice of an accident is a reasonable policy requirement, one which affords the insurer an
       opportunity to make a timely and thorough investigation and to gather and preserve possible
       evidence.” Barrington Consolidated High School v. American Insurance Co., 58 Ill. 2d 278,
       281, 319 N.E.2d 25, 27 (1974). Notice provisions in an insurance policy are not merely
       technical requirements but are conditions precedent to an insurer’s contractual duties.
       Northbrook Property & Casualty Insurance Co. v. Applied Systems, Inc., 313 Ill. App. 3d
       457, 464, 729 N.E.2d 915, 920-21 (2000); see also Country Mutual Insurance Co. v. Livorsi
       Marine, Inc., 222 Ill. 2d 303, 311, 856 N.E.2d 338, 343 (2006) (recognizing these clauses
       impose valid prerequisites to insurance coverage). “Breaching a policy’s notice clause by
       failing to give reasonable notice will defeat the right of the insured to recover under the
       policy.” Livorsi, 222 Ill. 2d at 312, 856 N.E.2d at 343. “Whether notice has been given
       within a reasonable time depends on the facts and circumstances of each case.” Livorsi, 222
       Ill. 2d at 311-12, 856 N.E.2d at 343.
            “The following factors may be considered in determining whether notice to an insurer
            has been given within a reasonable time: (1) the specific language of the policy’s notice
            provision; (2) the insured’s sophistication in commerce and insurance matters; (3) the
            insured’s awareness of an event that may trigger insurance coverage; (4) the insured’s
            diligence in ascertaining whether policy coverage is available; and (5) prejudice to the

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           insurer.” (Emphasis added.) West American Insurance Co. v. Yorkville National Bank,
           238 Ill. 2d 177, 185-86, 939 N.E.2d 288, 293-94 (2010).
       Whether Farmers was prejudiced by the late notice is a relevant factor. However, it is not a
       determinative factor. According to our supreme court, an insurance company does not have
       to establish it was prejudiced for notice to be unreasonable. Livorsi, 222 Ill. 2d at 317, 856
       N.E.2d at 346. In addition to the factors listed by our supreme court in West American
       Insurance Co., the most obvious factor to be considered in determining whether notice was
       reasonable is time itself, which in this case was almost 26 months after the accident and
       approximately 11 months after Burton’s arrest and arraignment.
¶ 17       Burton still contends he did not hit and kill Timothy. However, as for the rest of the
       material facts in this case, the parties appear to be in agreement. Timothy was killed after
       being struck by an automobile on May 11, 2008. On August 28, 2009, Burton was arrested.
       On September 3, 2009, he was charged with leaving the scene of the accident and failing to
       report the fatal motor vehicle accident. On April 30, 2010, Carrie Buckley, as administrator
       of Timothy’s estate, filed a complaint against Burton and other defendants. In June 2010,
       following a jury trial, Burton was convicted of leaving the scene of an accident and failing
       to report the resulting fatality (Macon County case No. 09-CF-1340). Burton did not notify
       Farmers of the accident in question until July 8, 2010. Finally, on August 18, 2011, this court
       affirmed Burton’s criminal conviction. See People v. Burton, 2011 IL App (4th) 100725-U
       (unpublished order under Supreme Court Rule 23).
¶ 18       While Burton still contends he did not hit and kill Timothy, he was convicted of leaving
       the scene of the accident that resulted in Timothy’s death and failing to report the resulting
       fatality. Regardless of his denial of involvement or his ultimate conviction, the key date in
       this case is the date of his arrest for the hit and run death of Timothy.
¶ 19       Buckley, in her brief, points to the notice provision in the policy, which states:
       “[Farmers] must be notified promptly of how, when and where the accident or loss
       happened.” Buckley questions what this provision means. According to Buckley’s brief:
                “In this case [Burton] asserts that he did not have an ‘accident’ and he asserts he was
           not involved in a ‘loss[.’] While he was arrested, [Burton] claims he had no factual
           knowledge to submit to the insurance company. Was he required to submit to [Farmer’s]
           the fact that he had been arrested in a criminal case in order to maintain his insurance
           coverage? Does getting arrested equate to being in an ‘accident or a loss[?’]”
       While being arrested does not equate to an “accident or loss,” Burton’s arrest for the hit and
       run death of Timothy placed him on notice of both his potential criminal and civil liability
       for the accident which resulted in Timothy’s death. Regardless of his claim he was not
       involved in this accident, he should have known he could be found legally responsible for
       Timothy’s death. As a result, his insurance policy required him to provide prompt notice of
       the accident and loss. Burton’s policy clearly stated: “We will pay damages for ‘bodily
       injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because
       of an auto accident.” (Emphasis added.)
¶ 20       Burton should have promptly notified his insurance company after he had been arrested
       for the hit and run accident. Based on the undisputed facts in this case, Farmers met its

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       burden for summary judgment purposes of establishing Burton failed to provide reasonable
       notice of the accident.
¶ 21       The only reasonable inference to be drawn from the undisputed facts in this case is that
       Burton did not provide prompt notice to Farmers because he believed that notice would
       somehow further implicate him in the hit and run accident. However, he could have provided
       notice without making any admission of guilt. Regardless of his consistent denials of
       involvement in the accident, we find his failure to provide notice to his insurance company
       after his arrest inexplicable. Even if his belief providing notice to the insurance company
       would be detrimental to his defense in the criminal case, fear of criminal prosecution does
       not excuse the violation of an insurance policy’s notice provision. See American Country
       Insurance Co. v. Bruhn, 289 Ill. App. 3d 241, 249, 682 N.E.2d 366, 371 (1997); American
       Standard Insurance Co. of Wisconsin v. Slifer, 395 Ill. App. 3d 1056, 1062-63, 919 N.E.2d
       372, 377-78 (2009).
¶ 22       The trial court did not err in granting Farmers’ motion for summary judgment in this
       case. Farmers established Burton did not provide it with notice of the automobile accident
       for over 11 months after he knew the State believed he killed Timothy in the hit and run
       accident. This clearly was not reasonable notice under the policy.

¶ 23                                 III. CONCLUSION
¶ 24      For the reasons stated, we affirm the trial court’s order granting Farmers’ motion for
       summary judgment.

¶ 25      No. 4-11-0289, Affirmed.
¶ 26      No. 4-11-0330, Affirmed.




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