                                                       FIFTH DIVISION
                                                       SEPTEMBER 22, 2006



No. 1-05-1921


FOUNDERS INSURANCE COMPANY,                ) Appeal from the
                                              ) Circuit Court of
                 Plaintiff-Appellee,    ) Cook County.
                                              )
v.                                            )
                                              )
TAMIETHA R. WHITE and ROSZETTA )
WILLIAMS, As Guardian and Next Friend )
Of KRISTINA WILLIAMS, a Minor,       ) Honorable
                                              ) Dorothy Kirie Kinnaird,
                 Defendants-Appellants. ) Judge Presiding.


      JUSTICE TULLY delivered the opinion of the court:

      In this declaratory judgment action, the trial court entered summary judgment in

favor of plaintiff Founders Insurance Company, finding that it had no duty to defend or

indemnify defendant Tamietha White (White), who was the driver in a car-pedestrian

accident. The sole issue on appeal is whether the trial court erred in finding that Great

Northern Insurance Agency (Great Northern), the company from which White obtained

insurance, was not an agent of plaintiff. We affirm.
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       In December 2002, White was driving her car when she was involved in an

accident with a pedestrian, the minor defendant Kristina Williams. Defendant Roszetta

Williams, as guardian and next friend of the minor, filed a personal injury action against

White. Ultimately, plaintiff denied coverage to White under her insurance policy

because at the time of the accident White was operating a vehicle which she owned,

which was outside the coverage of her non-owners insurance policy.

       The undisputed facts established that on September 12, 2002, White, with the

assistance of Great Northern, obtained a non-owners vehicle insurance policy issued by

plaintiff. The terms of the policy only provide coverage to White when she is operating a

vehicle which she does not own.

       On October 25, 2004, plaintiff filed a revised motion for summary judgment,

which is the subject of this appeal. In this motion, plaintiff asserted that Great Northern

was not its agent and if White had any dispute regarding the type of insurance coverage

she applied for in September 2002, White would have to raise such a claim against

Great Northern. Plaintiff further asserted that the terms of White's non-owners policy

were clear and unambiguous and that White was not entitled to insurance coverage for

the December 2002 accident because she was operating a vehicle that she owned at

the time of the accident. Plaintiff also observed that an earlier default judgment had

been entered against White related to this action. 1

       Plaintiff attached the affidavits of its senior claim/coverage analyst (Mauricio

       1
           The default judgment against White was entered on September 25, 2003.



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Valdivia), its vice president of underwriting (David Mirza), and Great Northern's

underwriting manager (Richard Pepelea). Plaintiff also attached the transcript of the

discovery deposition of White and White's application for insurance with plaintiff.

       Valdivia averred that White operated a vehicle that she owned at the time of the

accident and therefore was not covered by her non-owners policy. Mirza attested that

Great Northern was an independent insurance broker and had never been plaintiff's

agent. Mirza further attested that on September 12, 2002, and at all relevant times

Great Northern had no fixed or permanent relationship with plaintiff.

       Pepelea averred that on September 12, 2002, Great Northern offered insurance

products to the public for approximately 15 to 20 different insurers, including plaintiff,

and that Great Northern was an independent insurance broker. Pepelea further averred

that: (1) neither plaintiff nor any insurer exercised any control over Great Northern's

actions with the public; (2) Great Northern had no fixed or permanent relationship with

any of those 15 to 20 insurers; (3) Great Northern possessed insurance applications for

those 15 to 20 insurers; and (4) Great Northern "upon determining which of these 15 to

20 insurers would best suit our clients' specific needs, would, together with and with [sic]

the assistance of the client, complete the [a]pplication from that insurer."

       In particular, Pepelea attested that White was placed with plaintiff, as opposed to

another insurer, because plaintiff "offered the most competitive rates for a Non-Owners

Policy for someone in Tamietha White's position at that time." Pepelea further attested

that on September 12, 2002, Great Northern acted as White's agent and acted to



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protect and further her interests.

          Plaintiff requested the court to enter a finding that plaintiff had no duty to defend

or indemnify White in connection with defendant's claim, that any issue in connection

with the scope of coverage requested by White in September 2002 was not attributable

to plaintiff, and that defendant was not entitled to recovery under White's non-owners

policy.

          On December 27, 2004, defendant filed a response to plaintiff's motion for

summary judgment and a cross-motion for summary judgment, asserting that Great

Northern acted as an agent of plaintiff when White obtained her non-owners policy on

September 12, 2002. Specifically, defendant contended that White went to Great

Northern, signed an application of insurance bearing plaintiff's name and identifying

Great Northern as an agent of plaintiff, paid the required insurance premium, and left

Great Northern's office with insurance coverage in effect. Defendant further contended

that plaintiff exercised control over Great Northern through plaintiff's written guidelines in

a document identified as "Producer Agreement."

          Defendant attached the transcript of White's deposition, White's insurance

application, and the "Producer Agreement" between plaintiff and Great Northern.

          On February 23, 2005, defendant filed a supplemental response to plaintiff's

motion for summary judgment, asserting primarily that Great Northern was an agent of

plaintiff for the purposes of issuing and binding coverage. Defendant further asserted

that Great Northern committed various errors and provided White with the incorrect



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coverage and that plaintiff was responsible for Great Northern's error. Consequently,

defendant contended that plaintiff was obligated to provide insurance coverage to

White.

         Defendant attached to the supplemental response, in pertinent part, the transcript

of the discovery deposition of Richard Pepelea (underwriting manager at Great

Northern). Pepelea testified that Great Northern financed White's premium that she

owed to plaintiff for the non-owner's policy. When asked about the written guidelines

provided by plaintiff, Pepelea stated that Great Northern received such underwriting

guideline books from all insurance companies that Great Northern worked with.

Pepelea further stated that Great Northern was obligated to comply with the producer

agreements provided by all of the insurance companies. Pepelea was unaware of any

circumstances in which Great Northern had the ability to bind insurance coverage for

plaintiff.

         Defendant also attached the transcript of the discovery deposition of David Mirza

(plaintiff's vice president of underwriting). Mirza testified that plaintiff provided Great

Northern with an underwriting guidelines book, which describes specific underwriting

rules, acceptable makes and models of vehicles, and insurance premium rates. Mirza

stated that Great Northern did not have the ability to bind plaintiff to insurance coverage

and that plaintiff had "the final say" regarding binding coverage and acceptance of risk.

         In regard to White's coverage, Mirza explained that when White left Great

Northern's office on September 12, 2002, she had insurance coverage effective



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September 13, 2002. Mirza further explained that when plaintiff reviewed White's

application at a later date, White's coverage was "retroactive back to September 13th."

       On March 8, 2005, plaintiff responded to defendant's pleadings and essentially

repeated its earlier arguments. Specifically, plaintiff asserted that the evidence clearly

demonstrated that Great Northern had no fixed and permanent relationship with plaintiff

and that Great Northern did not have the power or authority to bind plaintiff for any risks.

       On March 18, 2005, following a hearing and after reviewing the parties'

pleadings, the circuit court granted plaintiff's motion for summary judgment. The court

found that no question of material fact existed and that Great Northern was not an agent

of plaintiff. The court further found that any issue regarding the scope or type of

coverage initially requested by White could not be imputed to plaintiff. Accordingly, the

court found that plaintiff had no duty to defend or indemnify White in connection with

defendant's lawsuit regarding the December 2002 accident and that defendant was not

entitled to any recovery under White's non-owners policy.

       On appeal, defendant admits that the non-owners insurance policy purchased by

White does not afford coverage for the underlying accident. To circumvent this

undisputed result, defendant posits that White meant to purchase or should have

purchased an owners policy and, therefore, Great Northern procured the wrong policy

for White. In turn, the alleged mistake by Great Northern should be imputed to plaintiff,

which then should cover White under a policy that she did not buy and, therefore, does

not exist, i.e. an owners policy. Defendant's reasoning is based on the allegation that



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Great Northern is an agent of plaintiff. Accordingly, defendant only contests the trial

court's findings that Great Northern was not an agent of plaintiff.

       We review de novo a circuit court's entry of summary judgment. Home

Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). When

conducting such a review, we may affirm a grant of summary judgment on any basis

contained in the record, regardless of whether the lower court relied upon that basis.

Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d

294, 305 (2005). An entry for summary judgment is proper where, "when viewed in the

light most favorable to the nonmoving party, the pleadings, depositions, admissions,

and affidavits on file reveal that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law." Northern Illinois

Emergency Physicians, 216 Ill. 2d at 305.

       In this case, we must determine whether there is a genuine question of material

fact regarding defendant's assertion that Great Northern acted as plaintiff's agent when

it assisted White in obtaining her non-owners policy. An insurance broker owes a duty

to the insured, while an insurance agent owes a duty to the insurer. Young v. Allstate

Insurance Co., 351 Ill. App. 3d 151, 162 (2004). To determine whether a certain

individual acted as a broker or an agent, we must analyze the following four factors: (1)

who first set that individual in motion; (2) who controlled that individual's action; (3) who

paid that individual; and (4) whose interests that individual was protecting. Young, 351

Ill. App. 3d at 162-63; Farmers Automobile Insurance Ass'n v. Gitelson, 344 Ill. App. 3d



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888, 892 (2003).

       Here, we find that Great Northern did not act as plaintiff's agent, but instead

served as White's agent. Notably, White indisputably set Great Northern in motion

when White sought Great Northern's assistance in procuring automobile insurance.

Moreover, as Pepelea testified, Great Northern worked with 15 to 20 insurance

companies and White obtained an insurance policy from plaintiff because plaintiff

offered the most competitive rates for a non-owners policy for someone in White's

position. In accordance with White's request, Great Northern assisted her in acquiring

the non-owners policy from plaintiff. Furthermore, for the benefit of White, Great

Northern financed a portion of the premium owed by White to plaintiff. Moreover, both

Pepelea and Mirza unequivocally attested that Great Northern was not plaintiff's agent

and that Great Northern was an independent insurance broker. After reviewing this

evidence in light of the relevant factors, we find that the circuit court properly concluded

that Great Northern was not an agent of plaintiff.

       We are not persuaded by defendant's interpretation of the evidence regarding the

relationship between plaintiff and Great Northern. Defendant directs our attention to a

variety of clauses in the underwriting guidelines issued by plaintiff to Great Northern

regarding plaintiff's underwriting policies, wherein plaintiff establishes certain

requirements that Great Northern must follow. Defendant further notes that, according

to those guidelines, Great Northern was authorized to bind insurance coverage if it

followed plaintiff's published underwriting guidelines. Defendant also directs our



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attention to the fact that Great Northern collected a premium from White on behalf of

plaintiff.

        However, after reviewing the cited guidelines in conjunction with the

              other evidence, we find that these guidelines do not

              demonstrate that Great Northern was an agent of plaintiff.

              Notably, as Pepelea testified in his deposition, Great

              Northern received similar guideline books from all of the

              insurance companies that Great Northern worked with.

              Moreover, in regard to defendant's allegation that Great

              Northern could bind insurance coverage, we note that the

              referenced clause provides:                       "[Great

              Northern] is specifically prohibited and not authorized to

              bind, execute, modify or issue insurance contracts, except

              as provided in [plaintiff's] published underwriting guidelines."

This clause, contrary to defendant's characterization of it, establishes that Great

Northern was not expressly authorized to bind insurance coverage for plaintiff, but

instead had that ability only in limited circumstances.

        We acknowledge, as defendant observes, that Great Northern collected a

premium from White on behalf of plaintiff and, under limited circumstances, may have

had authority to bind insurance coverage for plaintiff. However, these facts are

insufficient to establish that Great Northern was plaintiff's agent. Put simply, "[t]he mere



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fact that business transactions occurred or that a contractual relationship existed

[between two business entities] is insufficient to support" a finding of a fiduciary

relationship. State Security Insurance Co. v. Frank B. Hall & Co., 258 Ill. App. 3d 588,

597 (1994).

       For the foregoing reasons, we affirm the judgment of the circuit court.

       Affirmed.

       McNULTY, P.J., and O'MALLEY, J., concur.




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