                                    2018 IL App (1st) 170862


                                                                                 FIRST DIVISION

                                                                                September 10, 2018

                                        IN THE

                              APPELLATE COURT OF ILLINOIS

                                    FIRST DISTRICT


No. 1-17-0862


SAFEWAY INSURANCE COMPANY,                                     )      Appeal from the
                                                               )      Circuit Court of
       Plaintiff and Counterdefendant-Appellee,                )      Cook County.
                                                               )
v.                                                             )      No. 2013 CH 12097
                                                               )
BEATRICE EBIJIMI and DADA EBIJIMI,                             )      Honorable
                                                               )      Anna Demacopolous,
        Defendants, Counterplaintiffs, and Third-Party         )      Judge Presiding.
Plaintiffs-Appellants                                          )
                                                               )
(Parillo, Weiss & O’Halloran, Third-Party Defendant­           )
Appellee).                                                     )


       PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.
       Justices Harris and Pierce concurred in the judgment.


                                            OPINION

¶1     Beatrice Ebijimi demanded arbitration under her mother Dada Ebijimi’s policy with

Safeway Insurance Company (Safeway) after Beatrice was injured by an uninsured motorist.

Safeway sued Beatrice and Dada (the Ebijimis), seeking a stay of arbitration and a declaration

that it had no obligation to settle or arbitrate the Ebijimis’ uninsured motorist claim. The trial

court denied the Ebijimis’ motion for substitution of judge, struck the affidavit of the Ebijimis’

attorney attached to their opposition to summary judgment, and granted summary judgment to

Safeway, finding that the Ebijimis failed to satisfy several conditions of the policy.
No. 1-17-0862


¶2     We find no error in the trial court’s denial of the motion for substitution of judge. But we

find that the trial court erred in striking all of defense attorney’s affidavit filed in support of the

Ebijimis’ response to Safeway’s motion for summary judgment. When we consider those

portions of the affidavit that should not have been struck, we do not agree that Safeway was

entitled to summary judgment. We also find the trial court should not have dismissed the

Ebijimis’ counterclaim or third-party complaint. We affirm in part, reverse in part, and remand

for further proceedings.

¶3                                       I. BACKGROUND

¶4     The Ebijimis allege that, on January 20, 2006, Beatrice was hit by Patricia Tyson’s car,

and that Ms. Tyson was not insured. Beatrice submitted a claim to Safeway on March 13, 2006,

for uninsured motorist coverage through her mother, Dada Ebijimi, who was the named insured

on the Safeway policy. The record is unclear as to whether Beatrice was hit as a pedestrian or she

was driving a car, but counsel for the Ebijimis advised us at argument that she was a pedestrian.

¶5                                          A. The Policy

¶6     Part II of the policy defines “uninsured motor vehicle” as “a motor vehicle or trailer [for

which] there is no bodily injury liability bond or insurance policy applicable at the time of the

accident with respect to any person or organization legally responsible for the use of such

automobile.” Part II also provides for arbitration of uninsured motorist claims. Safeway denied

coverage on the basis of the following provisions:

                “[Condition] 3. Notice. In the event of an accident, occurrence or loss, written

       notice containing particulars sufficient to identi[fy] the insured and also reasonably

       obtainable information with respect to the time, place and circumstances thereof, and the

       names and address of the injured and of available witnesses, shall be given by or for the



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No. 1-17-0862


       insured to the Company as soon as practicable.


                                                  ***


                [Condition] 10. Proof of Claim; Medical Report—Part II, III and IV. As soon as

       practicable, the insured or other person making claim shall give to the Company written

       proof, under oath, if required, including full particulars of the nature and extent of the

       injuries, treatment, and other details entering into the determination of the amount

       payable. The insured and every other person making claim shall submit to examinations

       under oath by any person named by the Company and subscribe the same, as often as

       may reasonably be required. Proof of claim shall be made upon forms furnished by the

       Company unless the Company shall have failed to furnish such forms within 15 days

       after receiving notice of claim.

                The injured person shall submit to physical examinations by physicians selected

       by the Company when and as often as the Company may reasonably require ***.”

¶7     The policy also provides: “No action shall lie against the company unless, as a condition

precedent thereof, there shall have been full compliance with the terms of this policy ***.”

¶8                B. The Arbitration Demands and the Parties’ Correspondence

¶9     In a March 13, 2006, letter, the Ebijimis advised Safeway of the accident, told Safeway

that the office of Robert A. Langendorf & Associates represented them, and demanded

arbitration of their uninsured motorist claim. On March 16, 2006, Safeway sent an accident

report form to the Ebijimis to complete and return. On March 17, 2006, Safeway sent uninsured

motorist forms to the Ebijimis and requested that the Ebijimis comply with the policy by

(1) completing and returning the uninsured motorist claim forms, (2) presenting Beatrice for an

independent medical exam (IME), and (3) giving statements under oath. On March 31, 2006,



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Safeway requested proof from the Ebijimis that the “alleged tortfeasor,” Patricia Tyson, “was in

fact uninsured at the time of the occurrence.”

¶ 10   At some point in 2006 or 2007, counsel for the Ebijimis, Robert Langendorf, forwarded a

letter to Safeway issued by the Illinois Department of Transportation (IDOT), dated August 24,

2006, stating that Ms. Tyson was insured by Affirmative Insurance Company (Affirmative

Insurance) at the time of the accident. On December 18, 2007, Mr. Langendorf forwarded a letter

addressed to Safeway, issued by Affirmative Insurance on November 9, 2006, which stated that

Ms. Tyson’s Affirmative Insurance policy had been cancelled before the accident due to

nonpayment of premiums and had not been reinstated.

¶ 11   Safeway’s attorneys responded with three letters—dated January 31, 2008, June 17,

2008, and July 18, 2008—requesting that the Ebijimis supply proof that Ms. Tyson was

uninsured at the time of the accident, complete the accident forms that Safeway sent them, and

schedule and submit to statements under oath and an IME. In the June 17, 2008, letter, counsel

for Safeway specifically renewed the demand for IDOT certification of Ms. Tyson’s uninsured

status, saying that “[t]he fact that Ms. Tyson may or may not have been insured through

[Affirmative Insurance] does not preclude the fact that insurance may have been purchased

elsewhere.”

¶ 12   According to the affidavit of Mr. Langendorf submitted by the Ebijimis in response to

Safeway’s motion for summary judgment, the Ebijimis filed a demand for arbitration with the

American Arbitration Association (AAA) on February 14, 2008, and sent the demand to

Safeway. Mr. Langendorf states that Safeway “refused and would not pay its share of the AAA

administration fee despite numerous requests” and that AAA ultimately closed its file on June

27, 2008, as a result of this lack of payment.



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No. 1-17-0862


¶ 13   For nearly five years, the record reveals no action by either party regarding the Ebijimis’

claim. According to Mr. Langendorf’s affidavit, on February 7, 2013, he “reopened the claim

with AAA and again demanded arbitration,” but “Safeway did not respond to the demand for

arbitration or pay its share of the AAA administration fee (which [he] eventually paid).”

¶ 14                                  C. Procedural History

¶ 15   On May 7, 2013, Safeway filed this lawsuit seeking an order staying arbitration and

declarations that no coverage existed under the policy for the January 20, 2006, accident and

that, due to her failure to comply with the policy terms, Safeway was “not obligated to settle or

arbitrate the uninsured motorist claim of Beatrice Ebijimi.” The trial court stayed the arbitration

of the Ebijimis’ claim on July 8, 2014, pending the outcome of this declaratory judgment action.

¶ 16   On August 5, 2014, the Ebijimis answered the complaint and filed a counterclaim against

Safeway, asking the trial court to find that (1) Safeway was not entitled to a stay of arbitration

and was instead compelled to participate in that proceeding and reimburse the Ebijimis for its

share of the AAA administration fee, (2) Safeway acted in “bad faith” under section 155 of the

Illinois Insurance Code (Insurance Code) (215 ILCS 5/155 (West 2006)), (3) Safeway breached

the terms of the policy, (4) Safeway violated the Illinois Consumer Fraud and Deceptive

Business Practices Act (815 ILCS 505/1 et seq. (West 2006)), (5) Safeway was estopped from

disputing or denying coverage, and (6) a class ought to be certified for those injured by

Safeway’s bad faith. On that date, the Ebijimis also moved for class certification and filed

affirmative defenses to Safeway’s complaint, including that Safeway was estopped from raising

policy defenses because of its conduct and that it was similarly barred from denying coverage

under the doctrine of laches. Safeway never responded to the affirmative defenses.

¶ 17   On September 17, 2014, the Ebijimis were granted leave to withdraw their counterclaim



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No. 1-17-0862


and file an amended counterclaim by October 14, 2014. They did not file an amended

counterclaim, but instead filed a third-party complaint against the law firm Parillo, Weiss &

O’Halloran (PWO), which represented Safeway in the declaratory judgment suit. In their third-

party complaint, the Ebijimis made class action allegations against PWO and sought to recover

against the firm under section 155 of the Insurance Code (215 ILCS 5/155 (West 2006)) for

PWO’s “aiding and abetting” of Safeway’s allegedly vexatious conduct.

¶ 18   On November 12, 2014, Safeway moved for summary judgment, arguing that the

Ebijimis did not satisfy the conditions of the policy and Safeway was therefore not required to

arbitrate. The Ebijimis moved to disqualify PWO as Safeway’s attorneys, but the trial court

denied that motion.

¶ 19   On March 12, 2015, the Ebijimis filed a motion for discovery and, shortly thereafter,

were granted leave to issue written discovery as to the issues raised in Safway’s motion for

summary judgment. Also on March 12, the Ebijimis filed a “motion to clarify and/or supplement

court order and amend title third party complaint,” seeking an order clarifying that their original

counterclaim was still pending because they never filed an amended version, having instead

decided to bring PWO into the case through a third-party complaint. According to our review of

the record, that motion was never ruled on.

¶ 20   From May 2015 to April 2016, the Ebijimis filed various motions related to discovery,

and the trial court entered and continued Safeway’s motion for summary judgment. Judge Anna

Demacopoulos began presiding over this case in late 2015. On April 21, 2016, she entered an

order ruling on certain discovery matters and setting a briefing schedule for summary judgment.

On April 28, 2016, the Ebijimis filed a one-paragraph motion for substitution of judge as of

right, which was denied on May 10, 2016. The trial court denied substitution “based on the



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No. 1-17-0862


substantive ruling of April 21st and [the] testing of waters during [the] hour long hearing.”

¶ 21   On May 23, 2016, the Ebijimis filed a response to Safeway’s motion for summary

judgment, with Mr. Langendorf’s affidavit attached. On June 6, 2016, Safeway filed a motion to

strike Mr. Langendorf’s affidavit as violating Illinois Supreme Court Rule 191(a) (eff. Jan. 4,

2013). The content of that affidavit is discussed in some detail in our analysis below.

¶ 22          D. The Trial Court’s Rulings on the Affidavit and Summary Judgment

¶ 23   The trial court heard argument on both Safeway’s motion for summary judgment and its

motion to strike Mr. Langendorf’s affidavit on August 22, 2016. On that date, the trial court

struck the affidavit in its entirety, finding that it consisted of “[u]nsupported and self-serving and

conclus[ory] statements” regarding Mr. Langendorf’s beliefs and experience, such that he would

not “subsequently be able to testify to” its contents and have “that testimony be competent and

admissible evidence.” The trial court also granted summary judgment for Safeway, finding that

“[n]o genuine issue of material fact exist[ed] on whether or not the [Ebijimis] complied with” the

conditions of the policy. Specifically, it found that the Ebijimis’ letter notifying Safeway of the

accident and their uninsured motorist claim under the policy did not satisfy the notice provision

in Condition 3 of the policy and that the Ebijimis failed to comply with Condition 10 because

they “never set up an [IME], nor did they send the information asked of them in 2006 and in

2008, the IDOT certification and completed accident report forms.”

¶ 24   The court determined that Safeway was “entitled to judgment as a matter of law,”

rejecting the claims of estoppel and waiver raised in the Ebijimis’ counterclaim and affirmative

defenses. It found “conclusory” the argument that Safeway “lulled or induced Attorney

Langendorf and defendants to take no action on their claim as to Condition 10,” and determined

that the doctrine of laches was inapplicable, in that “neither party here is innocent” because of



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No. 1-17-0862


the delay, and the Ebijimis “cannot place their entire blame or blame ignorance on the plaintiff

for [their] own inaction over the years.” According to the trial court, because “there were no

factual allegations that would make the [Ebijimis] successful on their affirmative defenses” of

estoppel, waiver, and laches, the Ebijimis had no excuse for failing to satisfy the policy

conditions and Safeway was entitled to summary judgment.

¶ 25     Safeway then moved to dismiss the Ebijimis’ third-party complaint against PWO and the

Ebjimis’ counterclaim, and the Ebijimis moved to reconsider the trial court’s order of August 22,

2016. On December 12, 2016, the trial court denied the Ebijimis’ motion to reconsider and

denied them leave to file an amended counterclaim. On February 28, 2017, it dismissed their

third-party complaint against PWO and found that this was “a final order disposing of all claims

in this case.”

¶ 26                                     II. JURISDICTION

¶ 27     The Ebijimis timely filed their notice of appeal on March 28, 2017. We have jurisdiction

under Illinois Supreme Court Rules 301 and 303, governing appeals from final judgments

entered by the circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. Jan. 1,

2015).

¶ 28                                       III. ANALYSIS

¶ 29     Before addressing the issues raised in the briefs, we address a motion filed by Safeway to

strike those portions of the Ebijimis’ briefs that were not supported by the record. We took that

motion with the case. We agree that certain portions of the brief did not have sufficient support

in the record and those have been disregarded. Other portions of the brief are supported by Mr.

Langendorf’s affidavit, which is in the record and which we find the trial court improperly struck

in part. Therefore, we have relied on that affidavit where appropriate. We now address the issues



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No. 1-17-0862


raised by the parties.

¶ 30                                  A. Substitution of Judge

¶ 31   The Ebijimis challenge the trial court’s May 10, 2016, denial of substitution of judge as

of right. We deal with this issue first because, if it were a proper basis for reversal, it would moot

all other issues. See In re Marriage of Crecos, 2015 IL App (1st) 132756, ¶ 28. We find no error

in the denial of this motion.

¶ 32   Section 2-1001 of the Code of Civil Procedure (Code) provides that, “[e]ach party shall

be entitled to one substitution of judge without cause as a matter of right.” 735 ILCS 5/2­

1001(a)(2)(i) (West 2006). A motion for substitution of judge as of right must be filed before the

trial judge considering the motion rules upon any “substantial issue.” Petalino v. Williams, 2016

IL App (1st) 151861, ¶ 18. We review the denial of such a motion de novo. In re Estate of Gay,

353 Ill. App. 3d 341, 343 (2004). The trial court in this case denied substitution “based on the

substantive ruling of April 21st and [the] testing of waters during [the] hour long hearing.”

¶ 33   A substantive ruling is one that directly relates to the merits of the case. Id. “[A] trial

court’s ruling on a discovery motion is a ruling on a substantial issue when it pertains to

evidentiary trial matters.” City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 452,

461 (2002); see also Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1040 (2001) (finding that

rulings are substantial when “any question of evidence to be admitted” is considered). Even if a

court has not made a substantive ruling, it may deny substitution “if the movant had an

opportunity to ‘test the waters’ and form an opinion as to the judge’s reaction to her claim.” Gay,

353 Ill. App. 3d at 343.

¶ 34   The trial judge’s order in this case says there was “testing of waters during [the] hour-

long hearing on April 21, 2016.” The Ebijimis have provided no hearing transcript or bystander’s



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report that would allow us to question that conclusion. The burden is on them as appellants to

provide a complete record and their failure to do so will be construed against them. Foutch v.

O’Bryant, 99 Ill. 2d 389, 391-92 (1984). We affirm the ruling of the trial court on this basis.

¶ 35      We also affirm on the basis that the trial judge made a substantive ruling. We can see

from the common law record that at the April 21, 2016, hearing, the trial court granted the

Ebijimis leave to depose a former employee of Safeway, denied their motion to compel written

discovery and for broader depositions, and ordered them to come forward with evidence that

Safeway disputed or denied coverage. These kinds of discovery rulings are substantive because

they decide what is relevant to the case. In re Marriage of Petersen, 319 Ill. App. 3d 325, 338-39

(2001).

¶ 36                       B. The Stricken Affidavit of Robert Langendorf

¶ 37      Before granting summary judgment for Safeway, the trial court struck Mr. Langendorf’s

affidavit in its entirety. If we find that striking the affidavit was improper, we must review the

trial court’s summary judgment ruling in light of the additional contribution, if any, made by the

affidavit. See Smith v. United Farm Mutual Reinsurance, 249 Ill. App. 3d 686, 690 (1993). We

review de novo the trial court’s ruling striking the affidavit. Madden v. Paschen, 395 Ill. App. 3d

362, 386 (2009).

¶ 38      Under Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), affidavits in support of or

opposition to summary judgment:

          “shall be made on the personal knowledge of the affiants; shall set forth with particularity

          the facts upon which the claim, counterclaim, or defense is based; shall have attached

          thereto sworn or certified copies of all documents upon which the affiant relies; shall not

          consist of conclusions but of facts admissible in evidence; and shall affirmatively show



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No. 1-17-0862


       that the affiant, if sworn as a witness, can testify competently thereto.”

¶ 39   An affidavit satisfies the requirements of Rule 191(a) “if from the document as a whole it

appears the affidavit is based on the personal knowledge of the affiant and there is a reasonable

inference that the affiant could competently testify to its contents.” (Internal quotation marks

omitted.) Madden, 395 Ill. App. 3d at 386. When a court rules on a motion to strike, “only the

tainted portions” of the affidavit should be stricken and any remaining portions that satisfy Rule

191(a) should be saved. Murphy v. Urso, 88 Ill. 2d 444, 462-63 (1981).

¶ 40   After stating that he was a licensed attorney in Illinois with a history of practicing

insurance law, that he represented the Ebijimis in this matter, and that he made an uninsured

motorist claim and demand for arbitration on their behalf, Mr. Langendorf attested as follows:

                “4. After the uninsured motorist claim was made Safeway and its attorneys

       requested through correspondence and communications that I provide them with a

       certified letter from I-DOT stating that the driver at fault in the accident (Patricia Tyson)

       was not insured at the time of the accident. ***

                5. Due to the fact Ms. Tyson reported to the Illinois Department of Transportation

       *** that she had insurance with Affirmative [Insurance], I-DOT could not send a letter

       certifying Ms. Tyson was uninsured on the date of the accident. ***

                6. My office communicated with Affirmative Insurance and obtained a letter from

       Affirmative Insurance stating Ms. Tyson was not insured at the time of the accident due

       to non-payment of premium ***.

                7. I sent the letter from Affirmative Insurance to Safeway’s attorneys at [PWO]

       who advised me they were handling the claim for Safeway. ***

                8. On January 31, 2008 I received a letter from Cheryl Fleming, the PWO



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No. 1-17-0862


       attorney handling the claim, stating it was the second notice and requesting proof the

       alleged tortfeasor was in fact uninsured at the time of the occurrence within 14 days. ***”

¶ 41   In his affidavit, Mr. Langendorf also reviewed the correspondence through 2008,

including a letter he sent on June 5, 2008, that included the police report with information on the

accident, witnesses, and Beatrice’s initial medical treatment. He then stated the following

regarding his conversations with representatives of Safeway:

                “16. Over the course of a few years, prior to and after the AAA demand, I had

       various conversations with attorneys from PWO and specifically Cheryl Fleming wherein

       I was told nothing would be done on the Ebijimi[s’] claim by Safeway because they did

       not have a certified letter from IDOT stating Ms. Tyson was uninsured.

                ***

                18. *** I recall telephone conversations with attorney Cheryl Fleming sometime

       after we provided them with the letter from Affirmative Insurance stating this was not an

       uninsured motorist case. During the conversations Cheryl Fleming told me Safeway was

       not accepting coverage. I asked what they wanted us to do (the Ebijimis) and she told me

       not to bother doing anything, no proof of claim, sworn statement or IME and she

       suggested I file a declaratory action. I said no and I would proceed with AAA and they

       could file a declaratory action.

                19. The telephone conversations with Ms. Fleming, and my past experience with

       Safeway and PWO, was a clear indication to me the claim was disputed based upon

       Safeway’s dissatisfaction with the proof of no insurance provided and that any actions

       taken on the part of the Ebijimis would be futile.

                                                  ***



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No. 1-17-0862


                23. No further actions were taken on the claim on behalf of the Ebijimis at that

      time because my communications with PWO made it clear and Safeway specifically [led]

      me to believe the threshold showing of uninsured motorist status of the driver was not

      accepted. Therefore, any actions including completing any forms, and IME and sworn

      statement would be futile because Safeway was not accepting the proof of no insurance

      provided. I believed no actions were necessary until Safeway accepted the proof the

      driver was uninsured. Based upon Safeway’s statements and refusal to pay AAA [I]

      believed they would be filing a timely declaratory action to dispute the proof of insurance

      (which they did not).

                                                   ***

                26. The last communication Safeway had with me (until the AAA demand claim

      was reopened) was July of 2008.

                                                   ***

                29. After it became apparent to me Safeway was not going to file a declaratory

      action because it had not taken any action for years, on February 7, 2013 I reopened the

      claim with AAA and again demanded arbitration. Again Safeway did not respond to the

      demand for arbitration or pay its share of the AAA administration fee (which I eventually

      paid).

                30. On May 7, 2013 Safeway filed its complaint for Declaratory Judgment and to

      Stay Arbitration.

                31. At no time did Safeway or PWO, prior to filing the declaratory action, state to

      me I was violating the policy or say the claim would be denied if the Ebijimis did not fill

      out the forms or do an IME or statement and based upon my experience and



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No. 1-17-0862


        conversations with Cheryl Fleming that they would be a waste of time because they were

        not accepting coverage. ***”

¶ 42    Several of the remaining paragraphs in Mr. Langendorf’s affidavit generally comment on

business practices of Safeway and PWO or restate Mr. Langendorf’s perceptions of Safeway’s

conduct as it related to the Ebijimis’ claim.

¶ 43    The Ebijimis argue on appeal that it was “improper for the court to strike Mr.

Langendorf’s affidavit,” because the “facts contained in the affidavit are admissible and crucial”

to their defense. In particular, they emphasize the portions of the affidavit containing “details

regarding communications between Mr. Langendorf and Safeway’s attorney, Cheryl Fleming,”

in which Mr. Langendorf was told “nothing would be done on the Ebijimi[s’] claim by Safeway

because they did not have a certified letter from IDOT stating Ms. Tyson was uninsured.”

Paragraph Nos. 16, 18, 19, 23, 26, 29, 30, and 31 all contain sworn statements about the

conversations between Mr. Langendorf and counsel for Safeway regarding the quality of the

proof that Ms. Tyson was uninsured, whether it was futile for the Ebijimis to attempt to comply

with the conditions of the policy absent IDOT certification that Ms. Tyson was uninsured, and

the manner in which the Ebijimis—through Mr. Langendorf—were induced to rely on Safeway’s

remarks regarding the IDOT certification, the uninsured form, the IME, and the sworn

statements. Construed liberally, these portions of the affidavit satisfied Rule 191(a) and should

not have been stricken. See Mitchell v. Simms, 79 Ill. App. 3d 215, 220 (1979).

¶ 44    In addition, in paragraph Nos. 1 through 9 and 13 through 16 of the affidavit, Mr.

Langendorf attests to facts within his knowledge, references attachments included in the

Ebijimis’ response to summary judgment, and generally lays a foundation for the remainder of

the affidavit. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).



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¶ 45    To be sure, the affidavit also contains portions that run afoul of Rule 191(a). The trial

court correctly struck, for example, the conclusory paragraphs attesting to Mr. Langendorf’s

beliefs that “any dispute Safeway had with the proof of no insurance would be determined at the

AAA arbitration as the insurance policy states,” that “through my experience in uninsured

motorist cases *** any discovery which Safeway needed, including sworn statements and IME’s

would be conducted in discovery as allowed in the arbitration rules,” and that Safeway’s “failing

to pay its share of the AAA fees was a common practice.” Nonetheless, the trial court “swept up

the good with the bad” when it struck the affidavit in its entirety, rather than considering those

portions that complied with Rule 191(a). Murphy, 88 Ill. 2d at 462-63.

¶ 46    Safeway points out that Mr. Langendorf’s affidavit “does not identify the dates of any of

the alleged conversations,” nor “where the conversations took place or who was present,” and

urges us to affirm the trial court’s decision to strike the affidavit in its entirety. But the Ebijimis

correctly rely on Allerion, Inc. v. Nueva Icacos, S.A. de C.V., 283 Ill. App. 3d 40, 47 (1996), in

which this court affirmed the trial court’s finding that an affidavit complied with Rule 191(a),

notwithstanding that the affiant generally referenced “ ‘25 telephone conversations and several

items of written correspondence’ ” with representatives of the opposing party. We cautioned that

“affidavits will not be stricken for technical deficiencies” when “it appears that an affidavit is

based on the personal knowledge of the affiant and a reasonable inference is that the affiant

could competently testify to the contents of the affidavit at trial.” (Internal quotation marks

omitted.) Id. at 46.

¶ 47    In sum, while we agree that the trial court properly struck certain paragraphs of Mr.

Langendorf’s affidavit, the paragraphs that we have relied on in this opinion attest to facts within

Mr. Langendorf’s knowledge, lay a foundation for the admissibility of those facts, and comply



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No. 1-17-0862


with Rule 191(a) under the liberal construction mandated for affidavits in opposition to summary

judgment. See Mitchell, 79 Ill. App. 3d at 220. We will consider these portions in reviewing

whether summary judgment was properly granted for Safeway.

¶ 48                                  C. Summary Judgment

¶ 49   Summary judgment is appropriate “if 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

2006). “Although the use of summary judgment aids in the expeditious disposition of a lawsuit,”

it is “a drastic measure and should only be granted if the movant’s right to judgment is clear and

free from doubt.” (Internal quotation marks omitted.) Travelers Insurance Co. v. Eljer

Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001). We review the granting of summary judgment

de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

¶ 50   The trial court granted summary judgment to Safeway based on the Ebijimis’ failure to

comply with Conditions 3 (requiring notice) and 10 (requiring proof of claim) of the policy.

While we think an argument could be made that the notice condition was actually complied with,

it does not matter. For the reasons that follow, Safeway would be estopped from relying on either

of these conditions by virtue of what Mr. Langendorf testified in his affidavit was its insistence

that the Ebijimis supply Safeway with certification from IDOT that Ms. Tyson was not insured.

This was a condition that appeared nowhere in the policy and which it appears would have been

difficult, if not impossible, to comply with.

¶ 51   To establish estoppel in an insurance context, the insured must show that (1) the acts or

statements of the insurer or its agent misled her, (2) she relied on those representations, (3) her

reliance was reasonable, and (4) she suffered detriment or prejudice because of her reliance.



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Chatham Corp. v. Dann Insurance, 351 Ill. App. 3d 353, 366-67 (2004). It is not necessary to

show that the insurer intended to mislead the insured in order for estoppel to apply, and the

burden of establishing prejudice rests with the insured. Id. at 367.

¶ 52   The Ebijimis argue genuine issues of material fact precluded the trial court’s finding that

Safeway never “lulled or induced” them into inaction on the policy conditions. They argue the

“factual statements in Mr. Langendorf’s affidavit contradict the contents of the correspondence

Safeway used and the court relied upon in granting summary judgment.” Essentially, they argue

that they were told compliance with other conditions of the policy—completing the uninsured

motorist form, submitting to an IME, and giving sworn statements—would be futile because the

missing IDOT certification was a precondition to coverage. But as Mr. Langendorf explains—in

the portions of his affidavit that we have found should have been considered—the only

information IDOT had was that Ms. Tyson was insured and thus he could not obtain an IDOT

certification stating that she was not.

¶ 53   The Ebijimis cite cases in which insurers were estopped by their own conduct from

relying on the insureds’ failure to comply with policy conditions. In Davis v. United Fire &

Casualty Co., 81 Ill. App. 3d 220, 225 (1980), for example, we held that an insurer that gave a

“flat denial” of coverage to an insured was barred from later denying a duty to defend on the

basis that the insured failed to timely supply documents under the policy terms. In Heneghan v.

State Security Insurance Co., 195 Ill. App. 3d 447, 451-52 (1990), we held that the insurer was

estopped from relying on a two-year period to request arbitration because he had agreed to await

the outcome of the suit against the potentially at-fault motorists. In doing so, we found that the

insurer’s conduct “was calculated to lull [the] plaintiff into the reasonable belief that arbitration

*** would be held off until the jury determined whether the insured or the uninsured defendant



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No. 1-17-0862


was at fault.” Id. at 452. And in Downing v. Wolverine Insurance Co., 62 Ill. App. 2d 305, 316­

17 (1965), we found that the insurer induced the insured business owner to believe he had no

obligation to file a formal proof of loss under the policy and was therefore barred from raising

the proof of loss requirement to defeat coverage under estoppel and waiver doctrines.

¶ 54   Safeway relies on our decision in Emcasco Insurance Co. v. Alvarez, 110 Ill. App. 2d 307

(1969). In Emcasco we held that a demand for arbitration by the insureds did not preclude the

insurer from denying coverage on the basis of the insureds’ failure to submit to a medical

examination. However, in Emcasco, in contrast to this case, there was no evidence of conduct by

the insurer that might have estopped the insurer from relying on the insureds’ failure to submit to

the medical examination. The Ebijimis are not seeking an excuse from compliance with the

conditions of the policy because they demanded arbitration. Rather, they are seeking to be

excused because they allege and presented evidence demonstrating that Safeway’s conduct lulled

them into believing that compliance with those conditions would be meaningless. Under these

circumstances, Emcasco does not apply.

¶ 55   While estoppel clearly applies, waiver may be relevant as well. Waiver, by contrast to

estoppel, “consists of either an express or implied voluntary and intentional relinquishment of a

known right” and is “essentially unilateral in character, focusing on an insurer’s conduct, and

requiring no prejudice to, nor detrimental reliance by, an insured.” (Internal quotation marks

omitted.) Chatham Corp., 351 Ill. App. 3d at 365. Questions of estoppel and waiver “are left to

the trier of fact where the material facts are in dispute or where reasonable people might draw

different conclusions from the evidence.” Lumbermen’s Mutual Casualty Co. v. Sykes, 384 Ill.

App. 3d 207, 220 (2008).

¶ 56   We note that it also appears to us that the Ebijimis complied with the notice requirement



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in Condition 3 of the policy. The purpose of a notice requirement in an insurance policy is to

enable the insurer to make a timely and thorough investigation of the insured’s claim. Allstate

Insurance Co. v. Carioto, 194 Ill. App. 3d 767, 780 (1990). Under the Safeway policy, notice

was to be given “as soon as practicable.” Neither Safeway nor the trial court have suggested that

the less than two-month period from the January 20, 2016, accident until the first letter to

Safeway on March 13, 2006, was not timely notice. Indeed, our supreme court has held that even

a 27-month delay in providing notice can satisfy the “as soon as practicable” requirement. West

American Insurance Co. v. Yorkville National Bank, 238 Ill. 2d 177, 186, 191 (2010).

¶ 57   The notice requirement of the Safeway policy was only for “particulars sufficient to

identi[fy] the insured and also reasonably obtainable information with respect to the time, place

and circumstances thereof, and the names and address of the injured and of available witnesses.”

Mr. Langendorf’s letter of March 13, 2006, advised Safeway that “our office has been retained

by [Beatrice and Dada Ebijimi] to prosecute a claim against you for uninsured motorist,”

attached a notice of attorney’s lien, and stated its demand for arbitration. This appears to be

information sufficient to identify the insured and begin an investigation.

¶ 58   For these reasons, we reverse the summary judgment ruling for Safeway and remand the

case for further proceedings. Genuine issues of material fact exist on the affirmative defenses of

estoppel and waiver. Although Mr. Langendorf’s affidavit does not establish either estoppel or

waiver as a matter of law, it is sufficient to raise factual issues as to what he was told by Safeway

and whether the Ebijimis acted reasonably in reliance on those statements in their failure to meet

the preconditions of coverage.

¶ 59   We also address the Ebijimis’ affirmative defense of laches, which may become relevant

on remand. Laches is “an equitable principle which bars an action where, because of delay in



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bringing suit, a party has been misled or prejudiced or has taken a course of action different from

what the party otherwise would have taken.” (Internal quotation marks omitted.) Osler Institute,

Inc. v. Miller, 2015 IL App (1st) 133899, ¶ 23. We agree with the trial court that, with respect to

the claim of laches, “neither party here is innocent” of the delay in this case. It is true that

Safeway did not file a declaratory judgment action when it denied coverage, after the initial

demand and denial, but both parties sat on their hands for roughly five years and waited for the

other to pursue a ruling clarifying the coverage issue. Either party could have filed suit at any

time, and the Ebijimis apparently could have, as they finally did, paid both arbitration fees and

proceeded to arbitration without Safeway. The Ebijimis point to no way in which they were

prejudiced or induced to take a different course of action due to Safeway’s delay in bringing suit.

¶ 60              D. Dismissal of the Counterclaim and Third-Party Complaint

¶ 61                                   1. The Counterclaim

¶ 62   In its September 17, 2014, order, the trial court granted Beatrice “leave to withdraw her

counter claim and to file an amended counter claim on or before October 14, 2014,” as well a

leave “to add [an] additional party.” Instead of withdrawing that counterclaim, the Ebijimis filed

their third-party complaint against PWO on October 14, 2014. They moved for clarification on

March 12, 2015, seeking an order stating that their original counterclaim was still pending

because they never superseded it with an amended version. That motion was not ruled on until it

was brought to the court’s attention in 2017.

¶ 63   On December 12, 2016, the trial court denied the Ebijimis leave to file an amended

counterclaim. The trial court found that when the Ebijimis did not file an amended counterclaim

after the September 17, 2014, order granted them leave, they had in effect withdrawn their initial

counterclaim. On February 28, 2017, the court noted that it was not previously aware of the long­



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pending motion to clarify whether the counterclaim was pending but that, in any event, each of

the six counts in the counterclaim was mooted by the summary judgment ruling. The Ebijimis

ask this court, if we remand, to do so with an instruction that they be allowed to proceed with

and to amend their counterclaim.

¶ 64   Since we have reversed the summary judgment finding, that is no longer a basis for

dismissing the counterclaim. We also disagree with the trial court’s declaration that no

counterclaim remained pending because the Ebijimis had never acted on the order allowing them

to file an amended counterclaim. It is the filing of an amended pleading that withdraws the

previous pleading. Barnett v. Zion Park District, 171 Ill. 2d 378, 384 (1996). Thus, the

counterclaim is pending. While we are mindful that the decision whether to allow amendments to

pleadings rests within the sound discretion of the trial court and will not be reversed absent an

abuse of that discretion (O’Brien v. City of Chicago, 285 Ill. App. 3d 864, 872 (1996)), it appears

that the denial of the request to amend in this case rested on the incorrect premise that no

counterclaim was pending. Upon remand, any amendment to that pleading should be reviewed

and allowed if sought on “ ‘just and reasonable terms.’ ” Id. (quoting 735 ILCS 5/2-616(a) (West

1994)). The parties have not briefed and we express no opinion on the merits of any of the

Ebijimis’ counterclaims other than their claims for estoppel, waiver, and laches.

¶ 65                               2. The Third-Party Complaint

¶ 66   The trial court granted Safeway’s combined motion to dismiss the Ebijimis’ third-party

complaint under section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2006)). The trial court

found that the summary judgment ruling for Safeway was an affirmative matter defeating

coverage and the section 155 claims against PWO did not state a claim because “aiding and

abetting” in the “bad faith” conduct of an insurer by that insurer’s attorney does not give rise to a



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cause of action in Illinois.

¶ 67    It is clear that the summary judgment ruling in favor of Safeway is no longer a basis for

dismissing this claim. However, we agree with Safeway and PWO that section 155 of the

Insurance Code provides only for claims against an insurance company. The Ebijimis alleged in

their third-party complaint that Robert J. Parrillo was a founding attorney and managing partner

at PWO and the majority shareholder of Safeway, meaning that these two companies are one and

the same. Neither party really addresses this argument. In addition, the Ebijimis’ third-party

complaint is not limited to allegations that PWO conspired with Safeway to violate section 155.

Rather, it appears that the Ebijimis are also attempting to allege a claim for consumer fraud. On

remand, the trial court should address the merits of the third-party complaint if the Ebijimis wish

to pursue it and allow for amendment if appropriate.

¶ 68                                    IV. CONCLUSION

¶ 69    For the reasons stated in this opinion, we (1) affirm the denial of the motion for

substitution of judge; (2) reverse, in part, the trial court’s ruling striking the affidavit of counsel

for the Ebijimis; (3) reverse the trial court’s grant of summary judgment for Safeway and find

that there are genuine issues of material fact as to the Ebijimis’ affirmative defenses of estoppel

and waiver; and (4) reverse the dismissal of the Ebijimis’ counterclaim and the dismissal of the

Ebijimis’ third-party complaint against PWO. We remand for further proceedings consistent with

this opinion.

¶ 70    Affirmed in part, reversed in part, and remanded.




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