                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                      Ahle v. D. Chandler, Inc., 2012 IL App (5th) 100346




Appellate Court            DAVID AHLE, Plaintiff-Appellant, v. D. CHANDLER, INC.,
Caption                    Defendant-Appellee.



District & No.             Fifth District
                           Docket No. 5-10-0346


Filed                      March 23, 2012


Held                       In an action arising from an automobile accident between plaintiff’s
(Note: This syllabus       vehicle and a pizza delivery vehicle, the entry of summary judgment for
constitutes no part of     the delivery person’s employer was reversed, since a genuine issue of
the opinion of the court   material fact existed as to whether plaintiff was misled when he settled
but has been prepared      for the policy limits of the delivery person’s insurance based on the
by the Reporter of         incorrect information he received from the adjuster for the employer’s
Decisions for the          insurer that the employer’s policy was an excess policy that would apply
convenience of the         only after the delivery person’s insurance was exhausted; therefore, the
reader.)
                           cause was remanded for further proceedings.


Decision Under             Appeal from the Circuit Court of Madison County, No. 09-L-814; the
Review                     Hon. Ann Callis, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 A.J. Bronsky, of Brown & James, P.C., of St. Louis, Missouri, and
Appeal                     Thomas Q. Keefe, Jr., of Thomas Q. Keefe, Jr., P.C., of Belleville, for
                           appellant.

                           Michael J. Bedesky, of Reed, Armstrong, Gorman, Mudge & Morrissey,
                           P.C., of Edwardsville, for appellee.


Panel                      JUSTICE GOLDENHERSH delivered the judgment of the court, with
                           opinion.
                           Justice Stewart concurred in the judgment and opinion.
                           Justice Spomer dissented, with opinion.




                                            OPINION

¶ 1         Plaintiff, David Ahle, appeals from an order of the circuit court of Madison County
        entering summary judgment in favor of defendant, D. Chandler, Inc. On appeal, plaintiff
        argues the trial court erred in granting summary judgment in favor of defendant. We reverse
        and remand.

¶ 2                                       BACKGROUND
¶ 3         On August 9, 2007, plaintiff was involved in an automobile accident with a Pizza Man
        pizza delivery vehicle being driven by Michael Whitelaw. Whitelaw was an employee of D.
        Chandler, Inc., doing business as Pizza Man. Plaintiff retained an attorney, Christopher
        Donohoo, to represent him in the matter. Mr. Whitelaw was insured by Allstate Insurance,
        and Pizza Man was insured by State Farm.
¶4          On March 9, 2009, plaintiff submitted a joint demand of $400,000 to Allstate and to State
        Farm via claims representatives Ms. Judy Creamer (Allstate) and Ms. Laurice Rollins (State
        Farm). In the letter, Donohoo explained that plaintiff (1) sustained injuries to his neck and
        shoulder during the accident, (2) was in need of surgery, (3) already incurred $24,000 in
        medical expenses, (4) would need surgery that would cost between $47,000 to $57,000, with
        the possibility of additional surgeries, and (5) cannot work and has lost and will continue
        “losing several hundred thousand dollars in future wages.” Donohoo also explained that
        plaintiff’s wage statements showed he earned between $60,000 and $65,000 during the
        previous five years.
¶ 5         On April 13, 2009, Ms. Rollins responded to attorney Donohoo’s demand letter, stating
        in pertinent part as follows:
            “As I previously explained the State Farm policy would be excess to the liability

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           coverage provided by Allstate Insurance. Insurance follows the car in the state of Illinois.
                If and when the Allstate liability insurance is exhausted, will I then be required to
           review for additional consideration and payment as an excess policy.”
       Ultimately, Allstate tendered its policy limits of $100,000 to settle the bodily injury claim
       of plaintiff.
¶ 6        On May 8, 2009, Mr. Donohoo informed State Farm through Ms. Rollins that Allstate
       had tendered its policy limit and requested that State Farm indicate whether it planned to
       make a settlement offer. Donohoo explained that if State Farm was not going to settle, he
       planned “to file a lawsuit against Pizza Man by the end of the month.”
¶ 7        On May 12, 2009, Ms. Rollins requested proof of Allstate’s policy limits and
       confirmation that such limits had been tendered. The following day, Donohoo sent Rollins
       a copy of the letter he received from Allstate that tendered the policy limits. Throughout May
       and June 2009, Donohoo sent follow-up letters, plaintiff’s medical records, and a copy of a
       disability decision by the Social Security Administration favorable to plaintiff to Ms. Rollins
       in the hope of settling the personal injury claim.
¶ 8        On July 6, 2009, plaintiff agreed to accept the $100,000 policy limit offer of Allstate on
       behalf of Michael Whitelaw. A release was executed on July 10, 2009, which stated in
       pertinent part as follows:
           “[I]n consideration of the sum of One hundred thousand dollars ($100,000.00), receipt
           whereof is hereby acknowledged, for myself and for my heirs, personal representatives
           and assigns, I do hereby release and forever discharge Michael Whitelaw, Michael A.
           Whitelaw, Allstate Insurance and any other person, firm or corporation charged or
           chargeable with responsibility or liability, their heirs, representatives and assigns, from
           any and all claims, demands, damages, costs, expenses, loss of services, actions and
           causes of action, arising from any act or occurrence up to the present time and
           particularly on account of all personal injury, disability, property damages, loss or
           damages of any kind already sustained or that I may hereafter sustain in consequence of
           an accident that occurred on or about this 9th day of August, 2007, at or near Old Troy
           Road, Edwardsville, IL.”
       After that language, attorney Donohoo added “Excluding Pizza Man, Dennis Chandler”
       directly on the release. Plaintiff is no longer represented by attorney Donohoo, but has new
       counsel.
¶ 9        On August 6, 2009, plaintiff filed suit against Dennis Chandler, doing business as Pizza
       Man, for personal injuries related to the August 9, 2007, accident. He filed an amended
       complaint on October 5, 2009, naming D. Chandler, Inc., as defendant. On May 6, 2010, the
       parties filed a stipulation that attorney Donohoo, who previously represented plaintiff, wrote
       the words “Excluding Pizza Man, Dennis Chandler” on the release and that the words were
       written “in an attempt to avoid the release from barring Plaintiff’s personal injury claim
       against Chandler in Chandler’s capacity as employer of Michael A. Whitelaw.”
¶ 10       On May 11, 2010, defendant filed a motion for summary judgment in which he argued
       that plaintiff’s settlement with Whitelaw extinguished liability on the part of defendant,
       Whitelaw’s employer. Plaintiff filed a response. On June 25, the trial court granted

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       defendant’s motion for summary judgment. Plaintiff filed a timely notice of appeal.

¶ 11                                          ANALYSIS
¶ 12        The issue we address is whether the trial court erred in granting summary judgment in
       favor of defendant. Plaintiff contends State Farm misled plaintiff and his first attorney, Mr.
       Donohoo, by taking the position that its policy was “excess” and that it could not even
       negotiate with plaintiff until the Allstate policy was “exhausted,” when in fact that was not
       the case. Plaintiff claims he and his attorney followed the misrepresentations of State Farm
       to his detriment and insists defendant should be estopped from asserting the defense that the
       Allstate settlement and release extinguished State Farm’s liability. Defendant responds that
       State Farm did not misrepresent or conceal any material fact and that the issue here is purely
       legal, namely, whether plaintiff can make a claim against defendant after releasing
       defendant’s agent, Michael Whitelaw. Defendant contends there is simply no issue of
       material fact and the trial court correctly entered summary judgment in favor of defendant.
¶ 13        Although summary judgment is an efficient and useful aid in the expeditious disposition
       of a lawsuit, it is a drastic measure that should only be employed if the right of the moving
       party is clear and free from doubt. AYH Holdings, Inc. v. Avreco, Inc., 357 Ill. App. 3d 17,
       31, 826 N.E.2d 1111, 1124 (2005). A movant may only be granted summary judgment when
       all the pleadings, discovery materials, admissions, and permissible inferences, when analyzed
       in the light most favorable to the nonmoving party, so overwhelmingly favor the movant that
       no fair-minded individual could dispute the movant’s right to a judgment in his or her favor.
       Wysocki v. Bedrosian, 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344 (1984). On review,
       a trial court’s decision to grant summary judgment will be affirmed only if the reviewing
       court concludes that there is no genuine issue of material fact and the movant is entitled to
       a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2008); Williams v. Manchester,
       228 Ill. 2d 404, 417, 888 N.E.2d 1, 8-9 (2008). Summary judgment appeals are reviewed de
       novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607
       N.E.2d 1204, 1209 (1992). With a summary judgment motion, the trial court does not decide
       a question of fact but, rather, determines whether a question of fact exists. Therefore, a court
       cannot make credibility determinations or weigh evidence in deciding a summary judgment
       motion. AYH Holdings, Inc., 357 Ill. App. 3d at 31, 826 N.E.2d at 1124. Where a reasonable
       person could draw divergent inferences from undisputed facts, summary judgment should
       be denied and the issue decided by the trier of fact. Espinoza v. Elgin, Joliet & Eastern Ry.
       Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995).
¶ 14        Plaintiff insists that a question of fact exists as to whether plaintiff was misled by the
       State Farm adjuster on behalf of defendant, and, if so, estoppel would apply. Estoppel may
       arise where a party asserting the estoppel has relied to his or her prejudice or detriment on
       some conduct of the other party. Old Mutual Casualty Co. v. Clark, 53 Ill. App. 3d 274, 279,
       368 N.E.2d 702, 705 (1977). Estoppel may involve an “involuntary relinquishment of rights”
       by the insured and requires prejudicial reliance. American States Insurance Co. v. National
       Cycle, Inc., 260 Ill. App. 3d 299, 308, 631 N.E.2d 1292, 1298 (1994). The burden rests with
       the insured to establish prejudicial reliance “ ‘by clear, concise, and unequivocal evidence.’ ”


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       American States Insurance Co., 260 Ill. App. 3d at 308, 361 N.E.2d at 1299 (quoting Old
       Mutual Casualty Co., 53 Ill. App. 3d at 279, 368 N.E.2d at 705).
¶ 15       In the instant case, plaintiff settled his claim with Allstate, the driver’s insurance
       company, and signed a release, but insists that he only did so at the direction of and due to
       the misrepresentations of defendant’s insurance carrier, State Farm. Ms. Rollins, the State
       Farm adjuster assigned to the claim, told plaintiff’s first attorney that she was not authorized
       to negotiate until the Allstate policy was “exhausted” and that the State Farm policy was
       “excess” to the Allstate policy. In our estimation, Rollins’ statements could be construed as
       misleading.
¶ 16       The difference between primary and excess coverage is as follows:
               “Primary insurance coverage is insurance coverage whereby, under the terms of the
           policy, liability attaches immediately upon the happening of the occurrence that gives rise
           to liability. Primary insurers generally have the primary duty of defense. Excess or
           secondary coverage is coverage whereby, under the terms of the policy, liability attaches
           only after a predetermined amount of primary coverage has been exhausted. A second
           insurer thus greatly reduces his risk of loss. This reduced risk is reflected in the cost of
           the policy.” Whitehead v. Fleet Towing Co., 110 Ill. App. 3d 759, 764, 442 N.E.2d 1362,
           1366 (1982).
       In the instant case, the Allstate policy and the State Farm policy are two separate,
       independent policies that cover two different insureds. Accordingly, both the Allstate policy
       and the State Farm policy are primary insurance policies. Defendant has failed to cite any
       language in the State Farm policy that specifies that State Farm is not required to pay until
       Mr. Whitelaw’s coverage with Allstate is exhausted.
¶ 17       Nevertheless, relying on Rollins’ statements and silence after sending additional
       correspondence to Rollins, attorney Donohoo settled plaintiff’s claim against Mr. Whitelaw
       for his Allstate policy limits of $100,000. In order to disperse the funds, plaintiff was
       required to sign a release. While defendant claims attorney Donohoo was not instructed to
       settle and sign a release, Ms. Rollins’ letter of April 13, 2009, can reasonably be construed
       as a contradiction to defendant’s denial. In the letter Rollins specifically states, “If and when
       the Allstate liability insurance is exhausted, will I then be required to review for additional
       consideration and payment as an excess policy.” Attorney Donohoo stated in his affidavit as
       follows:
               “5. I construed the term/word ‘exhausted’ as affirmation on the part of State Farm via
           Laurice Rollins, their agent, to settle with Allstate, obtain the policy limits and distribute
           the funds accordingly. It was then, and only then, I believed the liability insurance policy
           of Allstate would become ‘exhausted’ as set out in Laurice Rollins’s correspondence of
           April 13, 2009.
               6. I corresponded and spoke with both insurance adjusters on several occasions
           regarding settling the claims.
               7. On April 29, 2009, Allstate Adjuster, Ms. Sharon Judy, sent me correspondence,
           tendering its policy limits.
               8. Per my correspondence of May 8, 2009, and telephone conversations, I notified

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           and informed State Farm Adjuster, Ms. Laurice Rollins, that Michael Whitelaw’s
           insurance company, Allstate, had tendered its policy limits.
                9. On May 12, 2009, Ms. Rollins sent me correspondence requesting proof of
           Allstate’s policy limits and confirmation that they had tendered their policy limits.
                10. On May 13, 2009, I sent the April 29, 2009[,] Allstate correspondence to Ms.
           Rollins.
                11. I construed State Farm’s April 13, 2009, correspondence and subsequent silence
           and acquiescence as confirmation to settle the claim with Michael Whitelaw’s insurance
           company, Allstate.
                12. On July 6, 2009, I sent correspondence to Ms. Sharon Judy, settling the claim
           with Allstate.
                13. I would not have settled the claim with Allstate if I had any inclination that State
           Farm would object and/or disapprove of the settlement with Allstate.”
       We also point out that in signing the release, Mr. Donohoo inserted the language “Excluding
       Pizza Man, Dennis Chandler” in an attempt to ensure that in signing the release plaintiff was
       in no way relinquishing his rights to any claim against Mr. Whitelaw’s employer, defendant
       herein. Under this factual scenario, we conclude there is absolutely a genuine issue of
       material fact better left for the trier of fact, and, thus, the trial court erred in entering
       summary judgment in favor of defendant.
¶ 18       Defendant relies on Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d
       788 (1993), in support of his contention that the release of the driver barred plaintiff’s action
       against defendant, the driver’s employer. Gilbert holds that where a plaintiff brings a
       respondeat superior action against a principal, a settlement between the agent and the
       plaintiff also serves to extinguish the principal’s vicarious liability, even if the agent
       expressly reserves the plaintiff’s right to seek recovery from the plaintiff. Gilbert, 156 Ill. 2d
       at 527-29, 622 N.E.2d at 796-97. Gilbert, however, is distinguishable from the case at bar
       because in Gilbert there was no allegation of malfeasance.
¶ 19       In this case, plaintiff claims State Farm’s agent not only misled plaintiff’s attorney with
       her April 13, 2009, letter but also acquiesced in the settlement by remaining silent after
       plaintiff’s attorney sent additional correspondence to her. On the other hand, defendant
       insists that there was nothing misleading about Ms. Rollins’ actions and that attorney
       Donohoo was well aware of a potential Gilbert problem as evidenced by the language he
       added to the release. However, defendant is merely speculating about what attorney Donohoo
       knew or did not know. In any event, attorney Donohoo’s added language indicates that he
       did not want the broad general release language to bar a claim against the State Farm policy,
       and it is clear to us that reasonable minds could draw different and conflicting inferences
       from the undisputed facts. Under these circumstances, there is a genuine issue of material
       fact as to whether or not estoppel applies, and, thus, the trial court erred in entering summary
       judgment in favor of defendant.
¶ 20       For the foregoing reasons, the judgment of the circuit court of Madison County is hereby
       reversed and the cause remanded for further proceedings consistent with this opinion.


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¶ 21       Reversed and remanded.

¶ 22        JUSTICE SPOMER, dissenting:
¶ 23        I respectfully dissent. The majority holds that there is a genuine issue of material fact as
       to whether State Farm should be estopped from asserting the plaintiff’s release of the
       defendant’s agent as a defense to this action against the defendant on a theory of vicarious
       liability. My colleagues leave it to the trier of fact to decide, in addition to the underlying
       claim of vicarious liability, the issue of whether the elements of equitable estoppel are met
       in the case as between the State Farm adjuster and the plaintiff’s previous counsel. I believe
       the majority’s decision to bring the issue of estoppel before a trier of fact in the case is in
       error and that the issue of estoppel must be determined as a matter of law.
¶ 24        The issue of whether equitable estoppel applies is properly decided as a matter of law
       when the facts are undisputed and reasonable persons could not differ as to the inferences to
       be drawn from the facts presented. Pack v. Santa Fe Park Enterprises, Inc., 209 Ill. App. 3d
       648, 652 (1991) (citing Pantle v. Industrial Comm’n, 61 Ill. 2d 365, 369 (1975)). In order for
       equitable estoppel to apply, the following six elements must be present: (1) the party to be
       estopped made a misrepresentation or concealment of material fact by words or conduct; (2)
       the party to be estopped knew or had reason to know the falsity of the misrepresentation or
       concealment; (3) the party asserting the estoppel did not know, or have reason to know, that
       the misrepresentation or concealment was false; (4) the party to be estopped intended, or
       reasonably expected, that the party asserting the estoppel would detrimentally rely on the
       misrepresentation or concealment; (5) the party asserting the estoppel detrimentally relied
       on the misrepresentation or concealment, both reasonably and in good faith; and (6) the party
       asserting the estoppel would be prejudiced if the party to be estopped were permitted to avoid
       the falsity of the misrepresentation or concealment. Pack, 209 Ill. App. 3d at 652 (citing
       Vaughn v. Speaker, 126 Ill. 2d 150, 162-63 (1988)). In order to benefit from estoppel, the
       party asserting the estoppel cannot neglect to seek information that is easily accessible and
       must have had no knowledge or means of knowing the true facts. Pack, 209 Ill. App. 3d at
       652-53 (citing Vaughn, 126 Ill. 2d at 169 (Ryan, J., specially concurring, joined by Miller,
       J.)).
¶ 25        At the time the plaintiff executed the release of Michael Whitelaw, it was clearly the
       long-standing law in Illinois that a settlement between a plaintiff and an agent extinguishes,
       by operation of law, any claim that the plaintiff has against the principal under a theory of
       vicarious liability, regardless of whether the release of the agent expressly reserves the
       plaintiff’s right to seek recovery from the principal. Gilbert v. Sycamore Municipal Hospital,
       156 Ill. 2d 511, 528-29 (1993). Despite this clear and long-standing precedent, the plaintiff
       asserts that his former counsel, in advising him to execute the release of Michael Whitelaw
       for the Allstate policy limits, detrimentally relied on the State Farm adjuster’s statements in
       the letter of April 13, 2009, to the effect that the State Farm policy was an “excess” policy
       and that the adjuster would not consider the claim until Allstate liability insurance had been
       “exhausted.” Other than these statements in the April 13, 2009, letter, and State Farm’s


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       subsequent silence when the plaintiff’s counsel notified State Farm that Allstate tendered its
       policy limits, the plaintiff points to no other statement or conduct on the part of State Farm
       upon which plaintiff’s former counsel detrimentally relied in advising the plaintiff to execute
       a release of Michael Whitelaw. State Farm’s statements and conduct do not negate the long-
       standing rule set forth in Gilbert, and I would hold that former counsel’s alleged reliance on
       these statements when he advised the plaintiff to execute a release of Michael Whitelaw was
       unreasonable as a matter of law.
¶ 26       Regardless of whether the State Farm policy was excess, and whether or not State Farm
       would consider the plaintiff’s settlement demand prior to exhaustion of the Allstate policy
       limits, the clear law in Illinois is that any settlement between the plaintiff, Michael Whitelaw,
       and D. Chandler, Inc., would be required to be executed simultaneously in order to preserve
       the plaintiff’s claims for vicarious liability against D. Chandler. Even if State Farm’s
       statements regarding the excess nature of its policy were true, it was incumbent upon the
       plaintiff’s former counsel to know the Gilbert rule and to ensure that the finalization of
       settlements with Michael Whitelaw and D. Chandler were executed jointly prior to releasing
       either defendant. If settlement with State Farm as D. Chandler’s carrier was not effectuated,
       the rule set forth in Gilbert effectively prohibited the finalization of any settlement with
       Michael Whitelaw. Any damage caused by the failure of the plaintiff’s former counsel to so
       advise the plaintiff would, in my opinion, need to be addressed with counsel’s malpractice
       carrier. For these reasons, I would affirm the order of the circuit court that granted a summary
       judgment for the defendant on the basis of the release.




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