                                  2017 IL App (1st) 160780

                                                                         FIRST DIVISION
                                                                         December 29, 2017

                                        No. 1-16-0780


                                        IN THE

                              APPELLATE COURT OF ILLINOIS

                                    FIRST DISTRICT



 THE TRAVELERS INDEMNITY COMPANY and                      )         Appeal from the
 TRAVELERS PROPERTY CASUALTY COMPANY                      )         Circuit Court of
 OF AMERICA,                                              )         Cook County
                                                          )
        Plaintiffs-Appellants,                            )
                                                          )
 v.                                                       )         No. 10 CH 55238
                                                          )
 ROGERS CARTAGE COMPANY,                                  )         The Honorable
                                                          )         Peter Flynn,
        Defendant-Appellee.                               )         Judge Presiding.


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

                                          OPINION

¶1                                    BACKGROUND

¶2     Rogers Cartage Company is a trucking company that hauls bulk liquid chemicals from a

shipper to an end-user. Two of Rogers’s former truck cleaning facilities in Cahokia and Sauget,

located in St. Clair County, were the subject of environmental contamination lawsuits. Rogers

tendered defense of the underlying claims to The Travelers Indemnity Company and Travelers

Property Casualty Company of America (collectively, Travelers), seeking coverage under

numerous insurance policies issued by Travelers to Rogers. Travelers ultimately paid all of

Rogers’s defense costs under a reservation of rights, and Rogers eventually settled the two
No. 1-16-0780


underlying suits for a total of $9 million. Rogers then sought indemnification from Travelers

under numerous comprehensive general liability (CGL) and auto policies, including the missing

CGL and auto policies that are the focus of these proceedings.

¶3      Travelers filed this declaratory judgment action in Cook County circuit court seeking a

declaration of the parties’ rights regarding the existence, terms, and conditions of various

missing insurance policies allegedly issued by Travelers to Rogers in the 1960s and 1970s. 1 It is

undisputed that neither party can locate originals or copies of the disputed policies, and that there

are no witnesses with contemporaneous knowledge of the existence, terms, or conditions of the

disputed policies. There are two types of policies at issue: CGL policies and automobile policies.

¶4      It is undisputed that Travelers issued Rogers CGL policies for the policy periods of 1960­

61 and 1965-66 (the bookend policies). Travelers continued to issue Rogers CGL policies

through 1986. However, neither party could locate originals or copies of CGL policies issued by

Travelers for the policy periods of 1961-62, 1962-63, 1963-64, or 1964-65. As the insured

seeking coverage, Rogers had the burden of establishing by a preponderance of the evidence that

the policies existed and the material terms and conditions of the policies. Rogers introduced

secondary evidence consisting of various records produced by Travelers during discovery.

Rogers also introduced secondary evidence to prove the terms and conditions of the CGL

policies for the policy periods of 1961-62, 1962-63, 1963-64, and 1964-65. 2 Travelers contended

that Rogers’s evidence was insufficient to establish the existence of CGL policies for the policy



        1
          Rogers filed its own declaratory judgment action in St. Clair County and moved to transfer or
dismiss Travelers’s declaratory judgment action based on forum non conveniens. The Cook County circuit
court granted Rogers’s motion to transfer in part but retained jurisdiction with respect to the issue of the
alleged lost or missing policies.
        2
          In the circuit court, Travelers contested the existence of the 1964-65 CGL policy. On appeal, it
concedes the existence of the 1964-65 CGL policy because a known 1965-66 CGL policy indicated that it
was a renewal policy. Travelers does not concede the terms and conditions of the 1964-65 CGL policy.
                                                     2

No. 1-16-0780


periods of 1961-62, 1962-63, and 1963-64, or the terms and conditions of the CGL policies for

the policy periods of 1961-62, 1962-63, 1963-64, and 1964-65.

¶5      It is also undisputed that, starting in the 1940s and continuing through the 1970s,

Travelers issued Rogers numerous auto policies. Again, the parties were unable to locate

originals or copies of any auto policies issued by Travelers to Rogers between 1961 and 1970,

but Travelers acknowledged the existence of the missing auto policies. Rogers introduced

secondary evidence that it contends establishes the terms and conditions of the missing auto

policies, but Travelers contends that Rogers’s evidence is insufficient to establish the terms and

conditions of the missing auto policies.

¶6     The parties filed cross-motions for summary judgment on all of the issues in dispute and

agreed that there was no further discovery to do be done. Travelers’s motion was supported by

numerous exhibits, including business records, discovery responses, SL Letters (also identified

as “Interoffice Memoranda”), 3 an affidavit from Robert J. Harris, Travelers’s second vice

president in the special liability coverage unit, and various “Notice of Large Loss” records.

Rogers’s cross-motion was supported by letters written in 2000 by Hal C. Koplin, a claims

adjuster at Travelers, Koplin’s discovery deposition transcript, Travelers’s commercial account

claims records, commercial account register records, an excess 1962 “Certificate of Insurance,”

the 1960-61 and 1965-66 CGL bookend policies, Travelers’s “specimen” (or standardized) CGL

policy forms used between 1961 and 1965, and certificates of auto insurance from the Illinois

Department of Insurance.

¶7     The circuit court granted summary judgment in favor of Rogers and denied summary

judgment to Travelers, finding that (1) Rogers proved the existence of the CGL policies for the


       3
        Travelers explains that an “SL Letter” or “Series Letter” are Travelers’s records that are
normally provided to field offices to assist in processing claims made against insureds.
                                                3

No. 1-16-0780


policy periods of 1961-62, 1962-63, 1963-64, and 1964-65 by a preponderance of the evidence,

(2) these CGL polices had the same material terms and conditions as those set forth in the 1960­

61 and 1965-66 “bookend” policies, and (3) Rogers proved the terms and conditions of the auto

policies issued between 1960 and 1971. Travelers appeals.

¶8                                          ANALYSIS

¶9     On appeal, Travelers argues that Rogers did not prove (1) the existence of the CGL

policies for the policy periods of 1961-62, 1962-63, or 1963-64, (2) the material terms and

conditions of the alleged CGL policies for the policy periods of 1961-62, 1962-63, 1963-64, or

1964-65, or (3) the terms of the auto policies issued between 1961 and 1970. We address these

arguments in turn.

¶ 10   The parties disagree about the standard of review. Travelers argues that our standard of

review is de novo. It is well-settled that we review a circuit court’s summary judgment ruling

de novo. This is particularly true where the parties file cross-motions for summary judgment on

the same issue since they typically agree that only a question of law is involved and invite the

court to decide the case based on the record before it. Pielet v. Pielet, 2012 IL 112064, ¶¶ 28, 30.

Summary judgment may be granted on cross-motions for summary judgment where it is clear

that all material facts are before the court, the issues are defined, and the parties agree that only a

question of law is involved. Haberer v. Village of Sauget, 158 Ill. App. 3d 313, 317 (1987)

(citing Allen v. Meyer, 14 Ill. 2d 284, 292 (1958)). But it is also true that the mere filing of cross-

motions for summary judgment does not obligate the circuit court to grant one of the motions

(Pielet, 2012 IL 112064, ¶ 28), and if reasonable people could draw different inferences from the

undisputed facts, summary judgment is inappropriate (Danada Square, LLC v. KFC National




                                                  4

No. 1-16-0780


Management Co., 392 Ill. App. 3d 598, 607 (2009) (citing Mountbatten Surety Co. v. Szabo

Contracting, Inc., 349 Ill. App. 3d 857, 867 (2004))).

¶ 11   Rogers argues, however, that we should review the circuit court’s decision under the

manifest weight of the evidence standard because the circuit court’s ruling “more closely

resembles judgment after a bench trial” or a motion for judgment under section 2-1110 of the

Code of Civil Procedure (735 ILCS 5/2-1110 (West 2010)). See, e.g., Chicago’s Pizza, Inc. v.

Chicago’s Pizza Franchise, Ltd., 384 Ill. App. 3d 849, 859 (2008) (“The standard of review in a

bench trial is whether the judgment is against the manifest weight of the evidence.”).

¶ 12   We find that our standard of review is de novo. The parties agreed that the record was

complete and that testimonial credibility is not an issue in this case. The parties were in

agreement that the circuit court was properly positioned to render a decision based on a wholly

documentary record. Here, the circuit court was presented with a complete record, and the parties

agreed that no further discovery was necessary. There was also no dispute that the circuit court

would not need to evaluate the credibility of any witnesses since there were no disputes over the

documents submitted for the court’s consideration. The only remaining task was to draw

reasonable inferences, if any, from the undisputed documentary record and to reach a conclusion.

The circuit court’s written order recognized that the presence of competing reasonable inferences

ordinarily would preclude the entry of summary judgment. See Adams v. Northern Illinois Gas

Co., 211 Ill. 2d 32, 43 (2004) (“A triable issue precluding summary judgment exists where the

material facts are disputed, or where, the material facts being undisputed, reasonable persons

might draw different inferences from the undisputed facts.”). But the circuit court also

recognized, given the posture of the evidence submitted, that denying summary judgment based

on the presence of competing reasonable inferences would result in a bench trial where the



                                                5

No. 1-16-0780


parties would introduce the same evidence, raise no credibility issues, and then require the trier

of fact to draw reasonable inferences from the undisputed evidence and reach a conclusion. The

circuit court effectively converted the summary judgment proceedings into a stipulated bench

trial. The procedure employed by the circuit court in this case was a proper exercise of judicial

discretion and made in the interest of judicial economy. That does not, however, alter our

standard of review. We review a circuit court’s judgment de novo when the only evidence

presented to a court is documentary and the circuit court does not engage in credibility

determinations. Danada Square, 392 Ill. App. 3d at 608; see also Norskog v. Pfiel, 197 Ill. 2d 60,

70-71 (2001) (“If the facts are uncontroverted and the issue is the trial court’s application of the

law to the facts, a court of review may determine the correctness of the ruling independently of

the trial court’s judgment.”). Based on the foregoing, we begin our de novo review.

¶ 13   Travelers first argues that Rogers failed to present sufficient evidence to establish by a

preponderance of the evidence that Travelers issued CGL policies to Rogers for the policy

periods of 1961-62, 1962-63, and 1963-64. A party seeking to prove the existence of an

insurance policy must do so by a preponderance of the evidence. Central Illinois Light Co. v.

Home Insurance Co., 342 Ill. App. 3d 940, 961 (2003). In order to prove the existence of the

disputed CGL policies, Rogers first relied on an August 30, 2000, letter from Koplin, a claims

adjuster at Travelers. In notifying Rogers that Travelers would defend the underlying claims

under a reservation of rights, Koplin stated that Travelers would pay Rogers’s defense costs on a

pro rata basis. Koplin wrote in a footnote:




                                                 6

No. 1-16-0780


                “As you know, Travelers is participating in Rogers Cartage’s defense under

                confirmed policies in effect from May 1, 1961[,] to May 1, 1962, [sic][4] and from

                April 1, 1967[,] to April 1, 1986. However, Travelers has also located secondary

                evidence that Travelers may have also issued policies which were in effect from

                May 1, 1961[,] to April 1, 1967.”

¶ 14   Travelers contends that Koplin’s letter is insufficient evidence of the policies’ existence

because at his discovery deposition he was asked what the “secondary evidence was for [his]

determination on the possible inclusion or the inclusion in the calculation of the ’61 to ’67

policies.” He responded, “Renewal policy numbers on the front page of insurance policies,

commercial account registers, and commercial account claim records.” Travelers asserts that the

only renewal number Koplin ever identified was on the 1965-66 CGL policy, which only went to

the existence of the 1964-65 CGL policy, the existence of which Travelers concedes on appeal.

¶ 15   Although Travelers’s argument has some arguable merit, we must consider all of the

evidence to determine whether it was more likely than not that Travelers issued CGL policies

between 1961 and 1965. The 1962 “Certificate of Insurance” containing the header “Stewart,

Smith & Co. Limited,” titled “Excess Comprehensive and Auto B.I. and P.D. as Primary,”

reflected a “period: 12 months at 1st May, 1962,” with Rogers listed as the “Assured.” This

document shows that an excess insurer agreed “to indemnify the Assured in respect of [its]

operations as more fully defined in the Primary Policy issued by Travelers Insurance Co.” This

supports a reasonable inference that Travelers issued Rogers a CGL policy for the policy period

of 1962-63. Furthermore, it is undisputed that Travelers issued CGL policies to Rogers before

1961 and after 1965, and there is no evidence in the record to suggest that Travelers did not issue

       4
        Rogers acknowledges, and we agree, that these dates “appear to be a misprint as both the
preceding and subsequent sentences refer to the missing policy period as May 1, 1961[,] to April 1,
1967.”
                                                7

No. 1-16-0780


CGL policies for the policy periods of 1961-62, 1962-63, and 1963-64, or that Rogers was

covered under CGL policies from other insurers. Koplin’s letter, when considered in conjunction

with the 1962 “Certificate of Insurance,” the undisputed existence of the bookend policies, the

absence of any evidence showing that Travelers did not issue CGL policies to Rogers, and the

absence of any evidence showing that Rogers was covered under CGL policies from other

insurers, demonstrates that it is more likely than not that Travelers did issue CGL policies to

Rogers for the policy periods of 1961-62, 1962-63, and 1963-64. We find, based on the evidence

in the record, that Rogers proved by a preponderance of the evidence that Travelers issued CGL

policies to Rogers for the policy periods of 1961-62, 1962-63, and 1963-64.

¶ 16    Next, Travelers argues that Rogers did not prove by a preponderance of the evidence the

material terms and conditions of the CGL policies issued for the policy periods of 1961-62,

1962-63, 1963-64, and 1964-65. It argues that a party cannot demonstrate policy terms through

the use of bookend policies and specimen policies alone. Travelers relies on Canal Insurance Co.

v. Montello, Inc., No. 10-CV-411-JHP-TLW, 2012 WL 4891699 (N.D. Okla. Oct. 15, 2012),

Remington Arms Co. v. Liberty Mutual Insurance Co., 810 F. Supp. 1420 (D. Del. 1992), and

Coltec Industries, Inc. v. Zurich Insurance Co., No. 99 C 1087, 2002 WL 31185789 (N.D. Ill.

Sept. 30, 2002), to argue that there must be some “evidentiary link” between the bookend

policies, specimen policies, and the missing policies before a party can use such evidence to

prove the terms of a missing policy. Travelers insists that the bookend policies had different

payment, coverage, and premium endorsements, and that the 1960-61 policy had no contractual

liability endorsement and no contractual liability schedule while the 1965-66 policy did. 5

Additionally, Travelers argues that there was uncontested evidence that Travelers’s specimen


        5
         Travelers fails to cite the bookend policies to support this assertion but instead cites to the
transcript of the summary judgment hearing where its counsel made this argument.
                                                   8

No. 1-16-0780


policies are merely “building blocks” that are used to construct coverage, and Rogers failed to

show what coverages would have been selected.

¶ 17   We find that Rogers proved the material terms and conditions of the CGL policies for

1961 through 1965 by a preponderance of the evidence. Travelers has not offered any affirmative

evidence to rebut, undercut, or discount Rogers’s evidence that the disputed CGL policies

contained the same coverage and endorsements as the bookend policies and specimen policies.

Furthermore, although there were some differences between Travelers’s specimen policies used

between 1961 and 1965 and the bookend policies, Travelers has not identified any differences

between Travelers’s 1961 through 1965 specimen policies and the bookend policies that were

material to the underlying claims here. We agree with the circuit court’s conclusion that the

terms in the 1960-61 and 1965-66 CGL policies contained no material differences and were

substantially similar.

¶ 18   Rogers proved by a preponderance of the evidence that the 1964-65 policy contained the

same terms and conditions as the 1965-66 CGL policy. It is undisputed the 1965-66 policy

contained a number listed in the “renewal number” box. Koplin explained that the presence of a

renewal number on the 1965-66 CGL policy suggested the existence of a 1964-65 CGL policy

and that, in his experience with Travelers’s policy forms, he did not know of anything other than

a renewal number that might go in the “renewal number” box. Second, it is reasonable to infer

that a renewal policy is renewed on the same terms and conditions as the previous policy unless

otherwise stated. The fact that the 1965-66 CGL policy was a renewal of a previous policy

allows for a reasonable inference that the terms of the 1964-65 CGL policy contained the same

terms and conditions as the 1965-66 CGL policy. Travelers does not identify any evidence that




                                               9

No. 1-16-0780


might lead to an inference that the 1965-66 CGL renewal policy contains any material changes

from the terms and conditions of the policy that it renewed.

¶ 19   Next, Rogers proved by a preponderance of the evidence that the terms and conditions of

the bookend policies contained substantially similar terms not just to each other but also to the

Travelers CGL specimen policies in use during that time period. The evidence before the circuit

court included the CGL policies for the policy periods of 1960-61 and 1965-66, as well as the

specimen policy forms used by Travelers between 1961 and 1965. Rogers argued that the 1960­

61 and 1965-66 bookend policies had the same per occurrence and aggregate limits of liability

and that Travelers’s 1961-65 specimen policies contained the same policy terms as the bookend

policies. The circuit court observed there was no evidence that Travelers or Rogers sought to

change the terms of the CGL policies at any time between 1961 and 1965. Although Travelers

argues on appeal that the bookend policies do not match each other because the policies have

different premium payment endorsements, coverage endorsements, and premium endorsements,

Travelers makes no argument that the differences in payment, coverage, and premium

endorsements in the bookend policies were material differences affecting coverage. Nor does

Travelers argue that there were any material differences between the insuring agreements,

exclusions, or conditions in the bookend policies, or that the specimen policies contain terms and

conditions that are materially different from the terms and conditions in the bookend policies.

¶ 20   Travelers argues that a party cannot demonstrate policy terms through “the use of mere

‘bookend’ policies or specimen forms—more evidence is required.” Travelers relies on Canal,

Remington Arms, and Coltec.

¶ 21   Canal involved a declaratory judgment action related to insurance coverage for asbestos-

related injury claims against Montello, Inc. During the course of the litigation, a dispute arose



                                                10 

No. 1-16-0780


between Montello and Continental Casualty Company regarding the existence, terms, and

conditions of two excess umbrella liability insurance policies allegedly issued by Continental to

Montello for the periods of 1968-71 and 1971-74. Canal, 2012 WL 4891699, *2, *4. Montello

could not locate originals or copies of the policies, but sought to establish the existence, terms,

and conditions of the policies through secondary evidence. Id. at *2. One issue before the district

court was Continental’s motion to strike two expert reports authored by Robert Hughes, a

purported expert in the reconstruction of missing insurance policies. Id. at *2-3. Hughes engaged

in an extensive forensic examination to conclude that the policies existed and that terms and

conditions of the policies could be determined by looking to “exemplar form policies” used

during the time period. Id. at *5-10. The district court ultimately struck Hughes’s reports as

unreliable under Federal Rule of Evidence 702, finding, among other things, that (1) he relied on

two Continental exemplar policies that were never used in Oklahoma, where the policies were

purported to have been underwritten, (2) he changed his conclusion regarding which exemplar

form was most likely to have been used based on new information that he received, (3) he could

not ultimately say with any certainty which exemplar form was most likely used, and (4) the

exemplar forms had materially different terms and conditions. Id. at *7-10.

¶ 22   Canal is distinguishable from the case here. The Canal court found Hughes’s

methodology was too speculative because there was an insufficient link between the missing

policies and the exemplar forms. That is not the case here, where there are confirmed 1960-61

and 1965-66 bookend policies that contain substantially the same material terms and conditions

and Travelers’s specimen policies in use between 1961 and 1965 also contain substantially the

same material terms and conditions contained in the 1960-61 and 1965-66 bookend policies. In

other words, much of what the district court in Canal found lacking in Hughes’s reports is in fact



                                                11 

No. 1-16-0780


present here. Furthermore, Canal involved an expert’s complex forensic effort to reach

conclusions regarding the contents of unknown policies without having examined exemplar

policies that were actually used by the insurer in Oklahoma at the time the policies were

purportedly issued. Here, the parties do not dispute the existence, terms, and conditions of the

1960-61 and 1965-66 bookend policies or that the proffered Travelers’s specimen policies were

in use in Illinois between 1961 and 1965. Canal is therefore distinguishable.

¶ 23   In Remington Arms, the plaintiff insured sought a declaration that the defendant insurer

issued umbrella excess policies for 1965-69 and 1972-73. Remington Arms, 810 F. Supp. at

1421. It was undisputed that the defendant issued some form of liability insurance to the plaintiff

from at least 1936 to 1980. Id. The insured submitted over 2000 pages of evidence, including

business records, sample policies and bookend policies that were both marked as renewals,

internal memoranda directly referencing the policies, retrospective premium reports,

uncontroverted deposition testimony, and proof of premium payments. Id. at 1427. The district

court denied the insured’s motion for summary judgment, finding that “although all the evidence

presented in this case is uncontroverted, genuine issues of fact exist as to *** both the inferences

to be drawn from the evidence presented and the sufficiency of the evidence itself.” Id. at 1428.

Here, the parties acquiesced to the circuit court making the very inferences that the Remington

Arms court found were within the province of the finder of fact. Remington Arms provides little

guidance for resolving the dispute before us.

¶ 24   In Coltec, the insured sought a declaration regarding the terms and conditions of six CGL

policies from 1959-65 that could not be located. Coltec, 2002 WL 31185789, *1. The insured

offered secondary evidence to establish the terms and conditions of the missing policies.

Specifically, the insured relied on specimen CGL policy forms containing the terms and



                                                12 

No. 1-16-0780


conditions of the policies in use during 1959-65, certificates of insurance for the insurer’s

policies, a contemporaneous memorandum authored by an employee of the insured summarizing

and describing the coverage under the missing policies, and testimony that the policies were

written on the insurer’s form policies. Id. at *7. After considering the evidence, the district court

found that the insured demonstrated by a preponderance of the evidence that the missing policies

were written on the insured’s standard CGL policy forms, that the certificates of insurance

demonstrated that the insurer issued policies with definite terms, and that the remaining evidence

further corroborated the terms and conditions of the missing policies. Id. at *7-15.

¶ 25   Here, Travelers merely argues that “Rogers did not come anywhere close to producing

similar evidence to support its claims.” But Coltec does not stand for the proposition that any

particular quantity of evidence is necessary to establish the terms and conditions of a missing

insurance policy. Instead, Coltec evaluated the quality of the evidence to conclude that the

insured established the terms and conditions of the missing policies. Here, Rogers came forward

with evidence that the same material terms and conditions are contained in each bookend policy,

as well as evidence that the same material terms and conditions contained in Travelers’s

specimen policies were contained in each bookend policy. Travelers came forward with no

evidence that might call into doubt whether the missing policies were actually issued or that

might support a reasonable inference that the material terms and conditions of the missing

policies were different. Instead, Travelers relies on the absence of evidence to suggest that

summary judgment should be entered in its favor. However, the existence of the bookend

policies and the specimen policies, all of which contain substantially the same material terms and

conditions, coupled with the absence of any affirmative evidence suggesting the presence of




                                                 13 

No. 1-16-0780


different terms or conditions, supports a reasonable inference that the missing CGL policies

contained the same material terms and conditions as the bookend and specimen policies.

¶ 26   We conclude that Rogers established by a preponderance of the evidence that the 1961­

62, 1962-63, 1963-64, and 1964-65 CGL policies had the same material terms and conditions as

the bookend policies issued in 1960-61 and 1965-66. The circuit court’s judgment in favor of

Rogers is affirmed.

¶ 27   Finally, Travelers argues that the circuit court erred in granting summary judgment in

favor of Rogers regarding the terms and conditions of the auto policies issued between 1961 and

1970. Travelers does not dispute that the certificates of insurance and “Notice of Large Loss”

forms establish the existence of the auto policies. Instead, it contends that Rogers did not prove

by a preponderance of the evidence the terms and conditions of those auto policies and the circuit

court erroneously found that Travelers’s SL Letters and the bookend auto policies issued to

Rogers prior to 1961 and after 1970 sufficiently provided those terms and conditions.

Furthermore, Travelers argues that it issued Rogers over 100 auto policies insuring Rogers

against a variety of different automobile risks and that there is no single, uniform auto policy that

Rogers can point to as the source of the terms for the missing policies. Travelers further notes

that the circuit court found that the auto policies issued between 1961 and 1970 contain the same

material terms as a confirmed policy for 1960-61 but that the 1960-61 policy was never made a

part of the record.

¶ 28   A party seeking to prove the terms of an insurance policy must do so by a preponderance

of the evidence. Central Illinois Light, 342 Ill. App. 3d at 961. A party moving for summary

judgment bears the initial burden of proof. Bank Financial, FSB v. Brandwein, 2015 IL App (1st)

143956, ¶ 40 (citing Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007)). Once the moving



                                                 14 

No. 1-16-0780


party satisfies that initial burden, the burden shifts to the nonmoving party to come forward with

some factual basis that would entitle it to a favorable judgment. Nedzvekas, 374 Ill. App. 3d at

624.

¶ 29	   Here, Rogers’s motion for summary judgment argued that Travelers’s SL Letters showed:

        “ ‘[A] complete outline of the renewal Compensation and Automobile coverages’

        containing the essential terms of the polices, including the name and address of the

        insured, the name of insurance broker [sic] who obtained coverage, type of car insured

        (and excluded), limits of liability, policy number, the policy period, location of the risk,

        how the premium was calculated, and which endorsements were added to the form

        policy.”

At the hearing on the cross-motions for summary judgment, Rogers argued that Travelers’s SL

Letters indicated that Travelers issued Rogers renewal auto policies annually between 1958 and

1970 and that the parties were in possession of the 1960-61 auto policy. Rogers contended that

the 1960-61 auto policy was a renewal policy and that the SL Letters supported a finding that

there were continuous renewals of auto policies through 1970. Rogers further argued that there

was no evidence of any changes, cancellations, or rewritings of the auto policies. The circuit

court agreed, finding that the SL Letters indicated that “each [auto] policy issued from 1958 to

1970 was a renewal policy, and contain no suggestion of any relevant policy change through the

missing policy years.”

¶ 30    We find that Rogers established by a preponderance of the evidence the terms and

conditions of the auto policy for each annual policy period between 1961 and 1970. Travelers’s

own documentation indicates that it annually renewed Rogers’s auto policy from 1958 to 1970.

On November 21, 2012, Travelers’s counsel sent a letter to Rogers’s counsel denying settlement



                                                15 

No. 1-16-0780


authority under a number of different confirmed auto policies. In the November 21, 2012, letter,

Travelers acknowledged an auto policy “that could possibly be implicated” with the policy No.

RKSLA-9430000 for a policy period of May 1, 1960 to May 1, 1961. An SL Letter dated April

25, 1960, reflects that policy No. RKSLA-9430000 was a renewal of policy No. RKSLA­

8390542 (1959-60), which was a renewal of policy No. RKSLA-4510729 (1958-59), which was

a renewal of policy No. RKSLA-3135376 (1957-58). The SL Letters show that policy No.

RKSLA-3135376 was an auto policy covering “Inspection” for “Owned, Hired, and Non-Owned

(Owned private passenger cars not covered)” with limits of “25/100 B.I.; $25,000 P.D.,” with

endorsements for “4050 Receipts Basis,” “1721—B.I—Coverage is on ‘Occurrence Basis,’ ” and

“1721—Coverage is excluded as respects owned private passenger cars.” Those identical

coverage terms and endorsements were reflected in the SL Letters for 1958-61 and are also

reflected in the SL Letters describing policy periods for 1961-70. We conclude that Rogers has

established by a preponderance of the evidence the terms and conditions of auto policies issued

by Travelers to Rogers for policy periods covering 1961-70.

¶ 31   Finally, Travelers notes that the 1960-61 auto policy is not part of the record that was

before the circuit court or this court, and thus neither the circuit court nor this court can rely on

that policy to establish the terms and conditions of the missing policies. The circuit court,

however, observed that the 1960-61 auto policy was in the parties’ possession. Travelers does

not dispute that it is in possession of the 1960-61 policy. Furthermore, as described above, the

material terms and conditions of the 1960-61 auto policy can be discerned from Travelers’s SL

letters: the 1960-61 auto policy had the same terms and conditions as the 1957-58 auto policy

RKSLA-3135376 and it is clear from the SL Letters that Travelers issued Rogers a renewal auto

policy every year between 1961-70 with the same terms and conditions as the 1957-58 auto



                                                 16 

No. 1-16-0780


policy. Therefore, the fact that the 1960-61 policy is not in the record is of no material moment:

whatever terms and conditions are in the 1960-61 auto policy that is in Travelers’s possession are

the terms and conditions for the auto policies for 1961-70.

¶ 32   In sum, we find that Rogers established the terms and conditions of the auto policies

issued by Travelers between 1961 and 1970 by a preponderance of the evidence. The circuit

court’s judgment in favor of Rogers is affirmed.

¶ 33   As a final matter, after this court held oral argument, Rogers filed a motion to strike a

comment made by Travelers’s counsel during rebuttal that the circuit court never considered the

1960-61 auto policy because that policy was not made a part of the record. Rogers acknowledges

that a similar assertion was made in Travelers’s reply brief but claims that Travelers has only

raised this issue when Rogers has no opportunity to respond. Rogers, of course, could have

addressed this issue at oral argument but did not. However, as we have explained, the absence of

the 1960-61 policy from the record is not material because the terms of that policy can be

ascertained from the record, Travelers has acknowledged the existence of the policy, and the

policy is in Travelers’s possession. We therefore deny Rogers’s motion to strike portions of

Travelers’s oral argument.

¶ 34                                     CONCLUSION

¶ 35   Rogers proved by a preponderance of the evidence the existence of CGL policies issued

by Travelers to Rogers for the policy periods of 1961-62, 1962-63, and 1963-64. Rogers further

presented sufficient evidence to prove that the material terms and conditions set forth in the 1961

and 1965 CGL bookend policies more probably than not were the material terms and conditions

contained in the missing CGL policies issued for the policy periods of 1961-62, 1962-63, and

1963-64. Finally, Rogers proved by a preponderance of the evidence that there are auto policies



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No. 1-16-0780


for the period of 1961-70 with the same material terms and conditions as a known auto policy for

the policy period of 1960-61. We therefore affirm the judgment of the circuit court.

¶ 36   Affirmed; motion denied.




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