                                        2014 IL 116389



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 116389)

       BRIDGEVIEW HEALTH CARE CENTER, LTD., Appellant, v. STATE FARM
                 FIRE & CASUALTY COMPANY, Appellee.


                                 Opinion filed May 22, 2014.



        JUSTICE BURKE delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
     Theis concurred in the judgment and opinion.



                                              OPINION

¶1       This appeal presents the following question: When a federal district court sitting in
     a sister state makes a prediction under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938),
     that the supreme court of that state would resolve a legal issue in a way that is at odds
     with Illinois law, does that prediction, in itself, establish an actual conflict between the
     two states’ laws for purposes of a choice-of-law analysis? For the reasons that follow,
     we answer that question in the negative.



¶2                                     BACKGROUND

¶3       Bridgeview Health Care Center, Ltd. (Bridgeview), an Illinois corporation, filed a
     three-count, class action complaint in the federal district court of Northern Illinois
     against Jerry Clark, d/b/a Affordable Digital Hearing. Clark is an Illinois resident who
     operates Affordable Digital Hearing, a sole proprietorship dealing in the sale and repair
     of hearing aids, out of Terre Haute, Indiana. Bridgeview’s complaint alleged that Clark
     sent Bridgeview and others across the United States unsolicited faxes in June of 2006.
     Count I of the complaint sought recovery under the Telephone Consumer Protection
     Act of 1991 (TCPA) (47 U.S.C. § 227 (2006)). Count II alleged that Clark was liable
     for common law conversion of Bridgeview’s fax machine paper and toner. Count III
     alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (815
     ILCS 505/2 et seq. (West 2010)).

¶4       Clark was insured under a comprehensive general liability policy issued by State
     Farm Fire and Casualty Company, an Illinois corporation. The policy was purchased
     through an agent in Indiana and issued to Clark at his business address in Indiana out of
     State Farm’s West Lafayette, Indiana office. Relevant here, the policy provided certain
     business liability coverage under both a “property damage” provision and an
     “advertising injury” provision.

¶5       Clark tendered defense of Bridgeview’s suit to State Farm, which accepted the
     defense under a reservation of rights. In March 2010, State Farm filed a complaint for
     declaratory judgment in the circuit court of Vigo County, Indiana, against Clark and
     Bridgeview, seeking a declaration that it had no duty to defend Clark in the underlying
     federal lawsuit under either the property damage or advertising injury provisions of its
     policy. This action was eventually dismissed for want of personal jurisdiction over
     Bridgeview.

¶6       In June 2010, Bridgeview filed a declaratory judgment action against State Farm
     and Clark in Cook County, seeking a declaration that State Farm had a duty to defend
     and indemnify Clark because the unwanted faxes fell within both the advertising injury
     and property damage provisions of the insurance policy. State Farm, in turn, filed a
     counterclaim against Bridgeview and Clark, seeking a declaration it had no duty to
     defend or indemnify Clark.

¶7       Both Bridgeview and State Farm moved for partial summary judgment on the
     question of whether State Farm had a duty to defend. In its motion, State Farm
     acknowledged that, under Illinois law, coverage was provided under both relevant
     provisions of the insurance policy. State Farm maintained, however, that Illinois law
     conflicts with Indiana law on the coverage issues. State Farm conceded there were no
     Indiana state court cases which addressed whether coverage was provided, but relied
     on two unreported federal district court decisions from the Southern District of Indiana.
     These decisions predicted that the Indiana Supreme Court would hold there is no

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       coverage under a general comprehensive liability policy for the claims raised in
       Bridgeview’s complaint. State Farm maintained that these decisions, in themselves,
       created a conflict with Illinois law. Further, State Farm contended Indiana law should
       apply in this case because Indiana had the most significant contacts with the dispute.
       Thus, State Farm maintained its policy provided no coverage.

¶8          Bridgeview, in its motion, argued there was no conflict between Indiana and
       Illinois law. Bridgeview relied on a recent appellate court decision, Pekin Insurance
       Co. v. XData Solutions, Inc., 2011 IL App (1st) 102769, which held that a federal
       district court decision which merely predicts what state law would be does not, in itself,
       constitute “state law,” and, further, when there is no state case law on a question, there
       can be no conflict. Bridgeview also maintained that, even assuming Illinois and Indiana
       law were in conflict, Illinois had the most significant contacts. Therefore, according to
       Bridgeview, Illinois law should apply. Clark adopted Bridgeview’s position.

¶9          On May 17, 2012, the circuit court of Cook County granted Bridgeview’s motion
       for partial summary judgment and denied State Farm’s motion. The circuit court agreed
       with Bridgeview that Pekin controlled the outcome; that there was no conflict between
       Illinois and Indiana law; and, thus, there was no need to conduct a choice-of-law
       analysis. Thereafter, the circuit court made a written finding pursuant to Supreme
       Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)), that there was no just
       reason to delay appeal.

¶ 10       The appellate court reversed and remanded. 2013 IL App (1st) 121920. The
       appellate court concluded that Pekin conflicted with the purpose of the choice-of-law
       doctrine and chose not to follow that decision. Instead, the appellate court held that the
       federal decisions cited by State Farm were sufficient to raise the possibility of a conflict
       between Illinois and Indiana law and “that the potential for conflict between Indiana
       law and Illinois law requires the trial court to engage in a choice-of-law analysis for the
       case.” Id. ¶ 22. We granted Bridgeview’s petition for leave to appeal. Ill. S. Ct. R.
       315(a) (eff. July 1, 2013).



¶ 11                                        ANALYSIS

¶ 12      This case brings before us the circuit court’s grant of partial summary judgment in
       favor of Bridgeview. Summary judgment is properly granted when “the pleadings,
       depositions, and admissions on file, together with the affidavits, if any, show that there
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       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 2010). Summary judgment
       rulings are reviewed de novo. Hooker v. Retirement Board of the Firemen’s Annuity &
       Benefit Fund, 2013 IL 114811, ¶ 15.

¶ 13       The parties do not dispute that, under Illinois law, State Farm has a duty to defend
       the underlying complaint pursuant to the insurance policy’s “advertising injury” and
       “property damage” coverage. See Valley Forge Insurance Co. v. Swiderski Electronics,
       Inc., 223 Ill. 2d 352 (2006) (coverage provided under the advertising injury provision);
       Insurance Corp. of Hanover v. Shelborne Associates, 389 Ill. App. 3d 795 (2009)
       (coverage provided under the property damage provision). Nevertheless, State Farm
       maintains that the circuit court erred in granting Bridgeview’s summary judgment
       motion because Indiana law applies.

¶ 14        “[A] choice-of-law analysis begins by isolating the issue and defining the conflict.”
       Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155 (2007); 1A C.J.S. Actions § 45
       (2005); 15A C.J.S. Conflict of Laws § 30 (2012). A choice-of-law determination “is
       required only when a difference in law will make a difference in the outcome.”
       Townsend, 227 Ill. 2d at 155; Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 59
       (2007). The party seeking the choice-of-law determination bears the burden of
       demonstrating a conflict, i.e., that there exists a difference in the law that will make a
       difference in the outcome. See Chicago Board Options Exchange, Inc. v. International
       Securities Exchange, L.L.C., 2012 IL App (1st) 102228, ¶ 44. Once a conflict between
       laws is established, the analysis turns to which law should be applied. Townsend, 227
       Ill. 2d at 157.We review de novo a circuit court’s decision on a choice of law issue. Id.
       at 153-54.

¶ 15       No Indiana state court has addressed the question of whether the sending of
       unsolicited faxes falls within a comprehensive liability policy’s provisions, either as an
       advertising injury or as property damage. However, two unreported federal district
       court decisions, Ace Mortgage Funding, Inc. v. Travelers Indemnity Co. of America,
       No. 1:05-cv-1631-DFH-TAB, 2008 WL 686953 (S.D. Ind. Mar. 10, 2008), and Erie
       Insurance Exchange v. Kevin T. Watts, Inc., No. 1:05-cv-867-JDT-TAB, 2006 WL
       1547109 (S.D. Ind. May 30, 2006), have predicted Indiana law. These decisions
       predicted that the Indiana Supreme Court would hold there is no coverage for claims
       such as Bridgeview’s under comprehensive general liability policies. In so holding, the
       district courts relied on American States Insurance Co. v. Capital Associates of
       Jackson County, Inc., 392 F.3d 939 (7th Cir. 2004). In that decision, the Seventh
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       Circuit looked at Illinois law and predicted that this court would hold that coverage was
       unavailable under a comprehensive general liability policy. That position was
       subsequently rejected by this court in Valley Forge Insurance Co. v. Swiderski
       Electronics, Inc., 223 Ill. 2d 352 (2006). The question before us in this case is whether
       the federal district court decisions can be the source of an outcome determinative
       conflict so as to trigger a choice-of-law analysis. State Farm contends they can. State
       Farm maintains that the federal district court decisions, in and of themselves, establish
       a conflict between Illinois and Indiana law. We disagree.

¶ 16       Under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), a federal district court in a
       diversity action must apply the law of the state in which the court sits with respect to
       substantive matters. In the absence of prevailing authority from the state’s highest
       court, the district court “must make a predictive judgment as to how the supreme court
       of the state would decide the matter if it were presented presently to that tribunal.”
       Allstate Insurance Co. v. Menards, Inc., 285 F.3d 630, 635 (7th Cir. 2002). Such a
       predictive judgment is not, in fact, state law; it is an “ ‘Erie guess’ ” as to what state law
       would be. Id. at 638. As one commentator has noted, “even if the rule in question is
       embraced by the state’s highest court at a later date it remains true that the rule applied
       in federal court did not in fact constitute a sovereign command of the state.” Bradford
       R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial
       Federalism After Erie, 145 U. Pa. L. Rev. 1459, 1505 (1997); see also, e.g., Pekin
       Insurance Co. v. XData Solutions, Inc., 2011 IL App (1st) 102769, ¶ 23 (federal district
       court decision making an Erie prediction is not state law); Paul A. LaBel, Legal
       Positivism and Federalism: The Certification Experience, 19 Ga. L. Rev. 999, 1015
       (1985) (“When a federal court makes an Erie determination of a question of first
       impression, the ‘law of the state’ that the federal court purports to apply to the case is,
       in reality, federal law.”). As in Illinois, Indiana courts recognize that federal district
       court decisions making an Erie prediction are not binding on questions of state law;
       Indiana courts are under no obligation to accept federal district court decisions as the
       law of Indiana. League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758,
       763 (Ind. 2010); Harris v. State, 985 N.E.2d 767, 781 (Ind. Ct. App. 2013).

¶ 17       Because a federal district court’s Erie prediction is not state law, such a prediction
       cannot, by itself, establish a conflict between state laws. Thus, the fact that the federal
       district court decisions cited by State Farm in this case predicted that the Supreme
       Court of Indiana would reach a result at odds with Illinois law is not, standing alone,
       sufficient to establish a conflict between the law of Illinois and Indiana. This is not to
       say, however, that when a circuit court in Illinois is confronted with a motion alleging a
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       conflict of laws it may not consider what the federal district court has to say about our
       sister state’s law. If, for example, the federal district court bases its Erie prediction on
       the holdings of the state’s intermediate appellate courts (see, e.g., Menards, 285 F.3d at
       637), that would be a relevant consideration for the circuit court. But the focus must be
       on the underlying state law, and not merely the fact of the Erie prediction itself. Only
       when the movant establishes a conflict between state laws to the circuit court’s
       satisfaction is a choice-of-law analysis required.

¶ 18       State Farm maintains, however, that in Phillips Petroleum Co. v. Shutts, 472 U.S.
       797 (1985), the United States Supreme Court relied upon a federal district court’s Erie
       prediction to find a conflict between state laws. In Shutts, the Kansas state courts, in a
       class action lawsuit, applied Kansas law to claims concerning the awarding of interest
       on suspended royalty payments from gas leases, even though 99% of the gas leases at
       issue and 97% of the plaintiffs had no connection to Kansas. Id. at 814-15. On appeal to
       the Supreme Court, the defendant argued that this violated due process. The Supreme
       Court agreed. In addressing the issue, the Court noted it was required to determine
       whether Kansas law conflicted with other states’ law, particularly Oklahoma and
       Texas. With respect to Oklahoma, the Court concluded that Oklahoma law required an
       interest rate on the royalties of 6%, not the higher 15% imposed by Kansas. Id. at
       816-17. Thus, Oklahoma and Kansas law conflicted. In reaching this conclusion, the
       Court cited to an Oklahoma statute and supreme and appellate court case law. Id.

¶ 19       With respect to Texas, several conflicts existed, including the interest rates. The
       Court again cited to a Texas statute and Texas state court case law to reach this
       conclusion. Although the Court did reference one published Northern District of Texas
       case interpreting Texas law in a “moreover” sentence, it had already found at least one
       clear conflict. The basis for reversal was the conflicting interest rates, and, because of
       this conflict alone, the Court concluded the Kansas courts erred in holding that Kansas
       law applied to all transactions. Id. at 818. The Supreme Court did not hold that a federal
       district court’s Erie prediction, by itself, established a conflict of state laws.

¶ 20      State Farm also relies on Sears, Roebuck & Co. v. National Union, 331 Ill. App. 3d
       347 (2002), for the proposition that a federal district court’s Erie decision establishes a
       conflict between state law. Sears does not so hold. In Sears, the parties conceded that
       Pennsylvania law applied. The question before the court was whether an Illinois circuit
       court could accept a federal district court decision interpreting Pennsylvania law over a
       Pennsylvania intermediate court decision. Sears, 331 Ill. App. 3d at 351. The court
       answered that question in the negative. Specifically, it held, “[b]ased on the holdings in
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       Moscov [v. Mutual Life Insurance Co. of New York, 387 Ill. 378 (1944)] and
       Continental-Midwest Corp. [v. Hotel Sherman, Inc., 13 Ill. App. 2d 188 (1957)] and
       applying the principles set forth above, this court holds that Illinois state courts have
       the discretion to rely on persuasive federal diversity decisions in predicting how a sister
       state’s supreme court would rule on a matter at issue, in the absence of controlling
       authority from the sister state’s supreme court or intermediate appellate court.”
       (Emphasis added.) Id. at 353. In Sears, the choice of a sister state’s law was already
       established. The issue for the circuit court in that case was how to determine the sister
       state’s law in a situation where the court had to do so. Sears did not, however, address
       how a conflict of laws is to be established and Sears did not hold that a federal district
       court’s Erie prediction is sufficient, in itself, to establish a conflict of state laws. That
       question simply was not before the court.

¶ 21        State Farm also points to Moscov and Continental-Midwest Corp. and contends that
       a circuit court can consider all data to ascertain a state’s law, including federal district
       court decisions, and whether there is a conflict between two states’ laws. While it may
       generally be true that a court can consider all data in ascertaining or interpreting
       another state’s law, neither of these cases involved a discussion of whether it was
       appropriate to utilize a federal district court’s Erie prediction to determine whether an
       actual conflict exists between state laws. The question before these courts was whether
       a state lower court decision could be deemed that state’s law. In Moscov, we held that
       Illinois courts must accept the decision of an intermediate court of review as stating the
       law of another jurisdiction in the absence of any conflicting decision by another
       appellate court of coordinate jurisdiction in that state or by its highest court of review.
       Moscov, 387 Ill. at 389. This holding was followed in Continental-Midwest Corp.,
       which concluded that a Delaware chancery court decision stated that state’s law.
       Continental-Midwest Corp., 13 Ill. App. 2d at 196. Neither Moscov nor
       Continental-Midwest Corp. holds that a federal district court’s Erie prediction,
       standing alone, establishes a conflict of state laws.

¶ 22       State Farm also relies on Banks v. RIBCO, Inc., 403 Ill. App. 3d 646 (2010), for the
       proposition that the circuit court can rely on a federal district court’s Erie prediction to
       establish a state-law conflict. Again, Banks does not support this position. In Banks, the
       parties agreed there were several “critical” conflicts between Illinois and Iowa
       dramshop laws. In identifying one of those conflicts, the appellate court set forth an
       Iowa statute as well as a published federal district court case interpreting that statute. In
       identifying a second conflict, the court set forth an Iowa statute. Id. at 649. Because a

                                                 -7-
       “real conflict” between state laws had been identified, the court conducted a
       choice-of-law analysis.

¶ 23       Lastly, State Farm argues that the mere potential for a conflict between state laws is
       sufficient to warrant a choice-of-law analysis. The appellate court below reached the
       same conclusion. The appellate court reasoned that when the law of another
       jurisdiction is uncertain, courts should undertake a choice-of-law analysis to determine
       which state’s law applies. According to the appellate court, “because the application of
       Indiana law could possibly lead to a different result than that reached under Illinois law,
       the trial court must first determine which state has the most significant contacts to the
       dispute, and then apply to the dispute the law of the state with the most significant
       contacts.” 2013 IL App (1st) 121920, ¶ 22. In reaching this result, the appellate court
       below relied on Sterling. Sterling Finance Management, L.P. v. UBS PaineWebber,
       Inc., 336 Ill. App. 3d 442 (2002).

¶ 24       The question before the court in Sterling was the scope of the corporate
       attorney-client privilege. In defining the scope, Illinois applies the control group test.
       Id. at 448. New York law on that question was not clear. The Sterling court correctly
       recited the principle that a choice-of-law determination is “not implicated unless there
       is an actual conflict in the law of the two states.” (Emphasis added.) Id. at 447. The
       court concluded that a “true conflict” existed between Illinois and New York law. Id. at
       451. Confusingly, however, the court also stated that “[b]ased on the uncertainty of
       New York law, and its rejection of the control group test in a different context, we
       believe it prudent to consider that an actual conflict may exist” and therefore, undertake
       a choice-of-law analysis. (Emphasis added.) Id.

¶ 25        To the extent that Sterling holds that a mere possibility of a conflict of laws is
       sufficient to require a choice-of-law analysis, we disagree. As the United States
       Supreme Court has observed, “there can be no injury” in applying the local forum’s law
       if that law is not in actual conflict with the law of another jurisdiction. Shutts, 472 U.S.
       at 816. Applying Illinois law in this case does no injury to State Farm if Indiana law is
       not in actual conflict with Illinois. Further, it is unclear what the appellate court below
       and State Farm mean by a “potential” conflict of laws. There is always a “potential” for
       differences to arise on state-law questions, even on matters that have previously been
       addressed. A “potential” conflict standard would appear to create substantial
       uncertainty in deciding what law to apply. We adhere to settled law: a choice-of-law
       determination is required only when the moving party has established an actual conflict
       between state laws.
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¶ 26       Apart from the Erie predictions made in the Indiana federal district court decisions,
       State Farm does not argue that Indiana law is in conflict with Illinois law. Indeed, State
       Farm asserts that “what the law of Indiana actually is has no bearing on the dispositive
       question presented in this appeal—whether a federal district court’s Erie prediction can
       be the source of an outcome determinative conflict so as to trigger the most significant
       contacts test.” Because State Farm identifies no Indiana law on point, we conclude that
       State Farm has failed to meet its burden of demonstrating an actual conflict exists
       between Illinois and Indiana law. We note that this holding does not offend the notions
       of full faith and credit. We are not refusing to give “the public Acts, Records, and
       judicial Proceedings of every other State” (U.S. Const., art. IV, § 1), here Indiana, the
       credit they deserve since none of those exist in Indiana on the question at bar.



¶ 27                                     CONCLUSION

¶ 28      For the foregoing reasons, the judgment of the appellate court is reversed. The
       judgment of the circuit court awarding partial summary judgment in favor of
       Bridgeview is affirmed.



¶ 29      Appellate court judgment reversed.

¶ 30      Circuit court judgment affirmed.




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