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                                   Appellate Court                         Date: 2017.02.06
                                                                           12:19:14 -06'00'




         American Family Mutual Insurance Co. v. Tyler, 2016 IL App (1st) 153502



Appellate Court        AMERICAN FAMILY MUTUAL INSURANCE COMPANY, as
Caption                Subrogee of Michael Gaffney, Plaintiff-Appellant, v. DAVID L.
                       TYLER, THE CITY OF CHICAGO, and AIMAN R. OTHMAN,
                       Defendants (The City of Chicago, Defendant-Appellee).



District & No.         First District, Second Division
                       Docket No. 1-15-3502



Filed                  November 22, 2016



Decision Under         Appeal from the Circuit Court of Cook County, No. 14-M1-14555; the
Review                 Hon. Jerry A. Esrig, Judge, presiding.



Judgment               Affirmed.



Counsel on             Arnett Law Group, LLC, of Chicago (Scott J. Larsen and Sean P.
Appeal                 Farrell, of counsel), for appellant.

                       Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                       Solomon, Myriam Zreczny Kasper, and Susanne M. Loose, Assistant
                       Corporation Counsel, of counsel), for appellee.



Panel                  JUSTICE MASON delivered the judgment of the court, with opinion.
                       Justices Neville and Pierce concurred in the judgment and opinion.
                                             OPINION

¶1       American Family Mutual Insurance Company (American Family), as subrogee of its
     insured, Michael Gaffney, asserted claims against the City of Chicago (City) and others arising
     out of the theft by fraud and ultimate recovery of Gaffney’s vehicle. The trial court dismissed
     American Family’s complaint as it pertained to the City, on the ground that the City was
     immune from suit under the Local Governmental and Governmental Employees Tort
     Immunity Act (Act) (745 ILCS 10/2-101 (West 2012)). We agree with the trial court and
     affirm.
¶2       On April 19, 2011, Gaffney agreed to sell his vehicle, a 2006 BMW 650i, to an individual
     named David Tyler. Tyler paid for the car with two cashier’s checks written on Fifth Third
     Bank: one payable to the lienholder on the vehicle, BMW Financial Services Remarketing,
     Inc., and the other payable to TRKAM, LLC, a business owned by Gaffney that held title to the
     car. After receipt of the checks, Gaffney gave Tyler the keys to the car and on April 21, 2011,
     faxed Tyler a copy of the vehicle’s registration.
¶3       The following day, Gaffney was informed by First Merit Bank, where he had deposited the
     check payable to TRKAM, LLC, that the check was counterfeit. Gaffney then contacted the
     Chicago police department to report his vehicle stolen and likewise advised American Family
     of the theft. His efforts to contact Tyler were unsuccessful.
¶4       On some later date unspecified in the record, Gaffney called the Chicago police
     department, presumably to determine if his vehicle had been recovered. Gaffney was informed
     that the car had been recovered, undamaged, and that the police had called the vehicle’s
     “owner.” When Gaffney indicated that he was the owner and had not received a call, he was
     referred to the eighteenth precinct. Gaffney went to the station and was told that the car had
     already been returned to the “owner.”
¶5       Gaffney’s car was ultimately recovered on January 4, 2012, during a routine traffic stop. At
     the time, the car was being driven by defendant Aiman Othman.
¶6       American Family filed suit on July 10, 2014. In its first amended complaint, in addition to
     claims against Tyler and Othman, American Family asserted a claim labeled “breach of
     bailment contract” against the City. American Family alleged that the City (i) “voluntarily
     received” Gaffney’s vehicle, (ii) “intended to create a bailment, when it accepted and
     maintained exclusive control and possession” of the vehicle, and (iii) despite Gaffney’s
     demand, failed to return to vehicle to its proper owner. American Family sought damages
     consisting of the amount it paid Gaffney for the loss ($11,670) as well as the amount of
     Gaffney’s deductible ($1000).
¶7       The City filed a motion to dismiss the complaint in which it asserted that the gist of
     American Family’s claim was the City’s negligence in failing to provide “adequate police
     protection or service” or a failure to “prevent, detect or solve crimes”—conduct for which the
     City is immune under the Act. In response, American Family insisted that its claim against the
     City was a “bailment contract claim” excluded from the Act’s scope under section 2-101,
     which preserves claims asserting a public entity’s liability based on contract. 745 ILCS
     10/2-101(a) (West 2012). The City denied that a bailment existed, given the lack of mutual
     assent between it and Gaffney and that, at most, the complaint asserted a constructive



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       bailment—a contract implied in law—which did not fall under the Act’s exemption for
       contract claims.
¶8          The trial court agreed that a fair reading of American Family’s claim against the City
       asserted the existence of a quasi-contract or a contract implied in law, but concluded that under
       Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 500 (2001), the claim was
       not based on a “contract” for purposes of the Act’s exemption for liability under a contract. The
       court concluded, therefore, that American Family’s claim fell under the Act’s immunity
       provisions and was barred. Following its ruling, given the pendency of claims against other
       defendants, the court entered a finding pursuant to Illinois Supreme Court Rule 304(a) (eff.
       Feb. 26, 2010), and this appeal followed.
¶9          A motion pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619
       (West 2012)) “admits the legal sufficiency of the plaintiff’s complaint, but asserts an
       affirmative defense or other matter that avoids or defeats the plaintiff’s claim.” Relf v.
       Shatayeva, 2013 IL 114925, ¶ 20; DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). “Affirmative
       matter” includes any defense other than a negation of an essential allegation of plaintiff’s cause
       of action. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). A
       municipality’s assertion that it is immune from suit is an appropriate subject of a motion under
       section 2-619. Smith v. Waukegan Park District, 231 Ill. 2d 111, 115 (2008); Brooks v. Daley,
       2015 IL App (1st) 140392, ¶ 14. We review the trial court’s ruling on a section 2-619 motion
       de novo. Smith, 231 Ill. 2d at 115; DeLuna, 223 Ill. 2d at 59.
¶ 10        The evolution of the Act was discussed by our supreme court in Village of Bloomingdale.
       In response to the judicial abolition of sovereign immunity, the legislature enacted the Act in
       1965. Village of Bloomingdale, 196 Ill. 2d at 489. The Act reflects the general principle that
       governmental entities are liable in tort, but that liability is limited by an “extensive list” of
       immunities defined by specific government functions. Id. The Illinois Constitution of 1970
       again abolished sovereign immunity, “[e]xcept as the General Assembly may provide by law.”
       Ill. Const. 1970, art. XIII, § 4. “Today, therefore, the tort liability of a local public entity or
       employee is expressly controlled both by the constitutional provision and by legislative
       prerogative as embodied in the [Act].” Village of Bloomingdale, 196 Ill. 2d at 489.
¶ 11        As noted, the Act preserves a public entity’s contractual liability: “Nothing in this Act
       affects the liability, if any, of a local public entity or public employee, based on: a) Contract
       ***.” 745 ILCS 10/2-101(a) (West 2012).
¶ 12        American Family asserts here that its constructive bailment claim falls under the Act’s
       exception for claims against governmental entities based on contract. Notwithstanding our
       supreme court’s decision in Village of Bloomingdale, American Family, citing American
       Ambassador Casualty Co. v. City of Chicago, 205 Ill. App. 3d 879 (1990), contends that its
       constructive bailment claim is the type of claim for which the City can be sued under the Act
       because it is a liability imposed by contract, albeit a contract implied in law.
¶ 13        We agree with the City that Village of Bloomingdale controls the analysis and that our
       supreme court’s reasoning in that case effectively overruled American Ambassador on the
       issue of whether a constructive or quasi-contract falls within the Act’s provision preserving
       contract claims against public entities. Although American Family’s claim against the City is
       couched in terms of a breach of the duty of care (the City “had a duty to exercise a reasonable
       degree of care and caution in handling, storing and protecting [Gaffney’s] vehicle”) and thus
       would implicate a negligence/duty analysis, American Family expressly disavows any reliance

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       on a tort theory in support of its claim against the City. Therefore, we limit our analysis to the
       viability of American Family’s constructive bailment claim.
¶ 14       In American Ambassador, an insurance company sued the City when its insured’s vehicle,
       which had been impounded after the insured was arrested, was stolen from the impound lot. Id.
       at 881. The plaintiff alleged that the City accepted the vehicle and exercised exclusive control
       over it but failed to return the car to its owner. Id. at 882. The court recognized that “[a]
       bailment is the delivery of property for some purpose upon a contract, express or implied, that
       after the purpose has been fulfilled, the property shall be redelivered to the bailor, or otherwise
       dealt with according to his [or her] directions, or kept until he [or she] reclaims it. [Citation.]”
       Id. at 881. The elements of a bailment claim are (1) an express or implied agreement to
       establish a bailment, (2) delivery of the property in good condition, (3) the bailee’s acceptance
       of the property, and (4) the bailee’s failure to return the property or the bailee’s redelivery of
       the property in a damaged condition. Id.
¶ 15       In its opinion, the court observed that “[a] constructive bailment, or a bailment implied in
       law, may be found where the property of one person is voluntarily received by another for
       some purpose other than that of obtaining ownership.” Id. at 882. Where a bailment is implied
       in law, the holder or bailee is obligated to keep and preserve the property for the benefit of the
       owner notwithstanding the lack of any mutual assent to create a bailment. Id. at 882-83.
¶ 16       The City claimed that the plaintiff’s claim sounded in negligence and was encompassed
       within the immunity afforded under the Act for the failure to provide adequate police
       protection or service or the failure to prevent the commission of crimes. Id. at 883. Rejecting
       this argument, the court found that the plaintiff’s claim was not a tort claim but rather sounded
       in contract and fell within the Act’s exemption for claims based on contract: “Nothing in the
       language of the Tort Immunity Act provides local public entities or public employees
       immunity from suit for breach of contract or the failure to return bailed property in good
       condition.” Id. at 884. Finding that the insurance company’s quasi-contract bailment claim fell
       outside the immunity provided the City under the Act, the American Ambassador court
       reversed a judgment in favor of the City. Id. at 885.
¶ 17       In Village of Bloomingdale, our supreme court addressed whether a quasi-contract claim
       qualifies as a claim asserting a public entity’s liability “based on contract” and thus is excepted
       from the immunity granted under the Act. In Village of Bloomingdale, a developer acquired
       several parcels of land and petitioned the village to annex the land and rezone it for residential
       use. 196 Ill. 2d at 486. The petition was ultimately denied, and the village sued the developer
       for breach of contract based on the developer’s refusal to pay for services rendered by the
       village in connection with the petition. Id. The developer counterclaimed, raising as one of its
       theories of recovery the alleged existence of a quasi-contract by which the village agreed, in
       exchange for the developer’s payment of a fee, to process its petition reasonably and in good
       faith, which it failed to do. Id. at 488.
¶ 18       The court gave short shrift to the developer’s argument. Citing Steinberg v. Chicago
       Medical School, 69 Ill. 2d 320, 334 (1977), the court noted that a quasi-contract “exists
       independent of any agreement or consent of the parties” and that because it is an obligation
       imposed by law, a quasi-contract is “ ‘no contract at all,’ but a ‘rule of law that requires
       restitution to the plaintiff of something that came into the defendant’s hands but in justice
       belongs to the plaintiff.’ D. Dobbs, Dobbs Law of Remedies § 4.2(3), at 580 (2d ed. 1993).”
       Village of Bloomingdale, 196 Ill. 2d at 500. Thus, the court determined that a quasi-contract is

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       not a “contract” for purposes of section 2-101(a)’s preservation of municipal liability for
       breach of contract. Id. at 500-01.
¶ 19       American Family attempts to distinguish Village of Bloomingdale based on the type of
       quasi-contract claim asserted in that case—a breach of the duty to act in good faith—compared
       to its constructive bailment claim. But like the quasi-contract claim in Village of
       Bloomingdale, the constructive bailment claim here is based on “no contract at all,” and thus
       American Family cannot avail itself of the Act’s exception for a municipality’s liability for
       breach of contract.
¶ 20       That Village of Bloomingdale did not mention or expressly overrule American Ambassador
       is of no moment. The reasoning of the supreme court’s decision dooms American Family’s
       quasi-contract claim, no matter what facts or theories underlie that claim; there was no more a
       contract between the City and Gaffney regarding his vehicle than there was between the
       developer and the village in Village of Bloomingdale. We are certainly not at liberty to
       disregard Village of Bloomingdale given its expansive reasoning. Rickey v. Chicago Transit
       Authority, 98 Ill. 2d 546, 551 (1983) (“ ‘It is fundamental that appellate courts are without
       authority to overrule the supreme court or to modify its decisions.’ ” (quoting Beagley v.
       Andel, 58 Ill. App. 3d 588, 591 (1978))); Gatreaux v. DKW Enterprises, LLC, 2011 IL App
       (1st) 103482, ¶ 23 (same); People v. Muhammad, 398 Ill. App. 3d 1013, 1017 (2010) (same).
       We, therefore, affirm the judgment of the circuit court of Cook County.
¶ 21       In its reply brief, American Family raises a new argument based on its claim that the
       release of Gaffney’s vehicle was a ministerial, rather than discretionary, act. This argument,
       raised neither in the trial court nor in American Family’s opening brief, has been forfeited, and
       we will not consider it further. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (points not argued
       in appellant’s opening brief “are waived and shall not be raised in the reply brief, in oral
       argument, or on petition for rehearing”).

¶ 22      Affirmed.




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