2017 IL App (1st) 160780
NOTICE: THIS OPINION HAS
NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED,
IT IS SUBJECT TO REVISION OR WITHDRAWAL.
NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED,
IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Appellate Court of
Illinois,
Illinois,
First District,
FIRST DIVISION.
The TRAVELERS INDEMNITY
COMPANY and Travelers Property Casualty Company of America,
Plaintiffs–Appellants,
COMPANY and Travelers Property Casualty Company of America,
Plaintiffs–Appellants,
v.
ROGERS CARTAGE COMPANY, Defendant–Appellee.
No. 1–16–0780
December 29, 2017
Appeal from the Circuit
Court of Cook County, No. 10 CH 55238, The Honorable Peter Flynn, Judge,
Presiding.
Court of Cook County, No. 10 CH 55238, The Honorable Peter Flynn, Judge,
Presiding.
OPINION
PRESIDING JUSTICE PIERCE delivered the judgment
of the court, with opinion.
of the court, with opinion.
¶ 1
BACKGROUND
BACKGROUND
*1 ¶ 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 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.
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 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.
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 196061 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 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.
that Travelers issued Rogers CGL policies for the policy periods of 196061 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 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.
*2 ¶ 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.
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.
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 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 196061 and 1965–66 “bookend” policies, and
(3) Rogers proved the terms and conditions of the auto policies issued between
1960 and 1971. Travelers appeals.
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 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 196061 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
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.
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, 365 Ill.Dec. 497, 978 N.E.2d 1000.
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, 110 Ill.Dec. 628, 511
N.E.2d 805 (1987) (citing Allen v. Meyer, 14 Ill. 2d 284, 292, 152
N.E.2d 576 (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, 365 Ill.Dec. 497, 978 N.E.2d
1000), and if reasonable people could draw different inferences from the
undisputed facts, summary judgment is inappropriate (Danada Square, LLC v.
KFC National Management Co., 392 Ill. App. 3d 598, 607, 332 Ill.Dec. 438,
913 N.E.2d 33 (2009) (citing Mountbatten Surety Co. v. Szabo
Contracting, Inc., 349 Ill. App. 3d 857, 867, 285 Ill.Dec. 501, 812 N.E.2d
90 (2004))).
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, 365 Ill.Dec. 497, 978 N.E.2d 1000.
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, 110 Ill.Dec. 628, 511
N.E.2d 805 (1987) (citing Allen v. Meyer, 14 Ill. 2d 284, 292, 152
N.E.2d 576 (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, 365 Ill.Dec. 497, 978 N.E.2d
1000), and if reasonable people could draw different inferences from the
undisputed facts, summary judgment is inappropriate (Danada Square, LLC v.
KFC National Management Co., 392 Ill. App. 3d 598, 607, 332 Ill.Dec. 438,
913 N.E.2d 33 (2009) (citing Mountbatten Surety Co. v. Szabo
Contracting, Inc., 349 Ill. App. 3d 857, 867, 285 Ill.Dec. 501, 812 N.E.2d
90 (2004))).
*3 ¶ 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,
323 Ill.Dec. 507, 893 N.E.2d 981 (2008) (“The standard of review in a bench
trial is whether the judgment is against the manifest weight of the
evidence.”).
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,
323 Ill.Dec. 507, 893 N.E.2d 981 (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, 284 Ill.Dec. 302, 809 N.E.2d 1248
(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 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, 332 Ill.Dec. 438, 913 N.E.2d 33; see also Norskog
v. Pfiel, 197 Ill. 2d 60, 70–71, 257 Ill.Dec. 899, 755 N.E.2d 1 (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.
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, 284 Ill.Dec. 302, 809 N.E.2d 1248
(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 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, 332 Ill.Dec. 438, 913 N.E.2d 33; see also Norskog
v. Pfiel, 197 Ill. 2d 60, 70–71, 257 Ill.Dec. 899, 755 N.E.2d 1 (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, 277 Ill.Dec. 45, 795 N.E.2d 412 (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:
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, 277 Ill.Dec. 45, 795 N.E.2d 412 (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:
*4 “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.”
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.
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 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.
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 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
policies are merely “building blocks” that are used to construct coverage, and
Rogers failed to show what coverages would have been selected.
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
policies are merely “building blocks” that are used to construct coverage, and
Rogers failed to show what coverages would have been selected.
*5 ¶ 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.
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 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.
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 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 196061 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.
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 196061 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.
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 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.
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 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.
*6 ¶ 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 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.
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 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.
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 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.
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 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 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.
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 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.
*7 ¶ 26 We conclude that Rogers established
by a preponderance of the evidence that the 196162, 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.
by a preponderance of the evidence that the 196162, 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.
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, 277
Ill.Dec. 45, 795 N.E.2d 412. A party moving for summary judgment bears the
initial burden of proof. Bank Financial, FSB v. Brandwein, 2015 IL
App (1st) 143956, ¶ 40, 394 Ill.Dec. 488, 36 N.E.3d 421 (citing Nedzvekas
v. Fung, 374 Ill. App. 3d 618, 624, 313 Ill.Dec. 448, 872 N.E.2d 431
(2007)). Once the moving 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, 313 Ill.Dec. 448, 872 N.E.2d 431.
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, 277
Ill.Dec. 45, 795 N.E.2d 412. A party moving for summary judgment bears the
initial burden of proof. Bank Financial, FSB v. Brandwein, 2015 IL
App (1st) 143956, ¶ 40, 394 Ill.Dec. 488, 36 N.E.3d 421 (citing Nedzvekas
v. Fung, 374 Ill. App. 3d 618, 624, 313 Ill.Dec. 448, 872 N.E.2d 431
(2007)). Once the moving 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, 313 Ill.Dec. 448, 872 N.E.2d 431.
¶ 29 Here, Rogers’s
motion for summary judgment argued that Travelers’s SL Letters showed:
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.”
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.”
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.”
*8 ¶ 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 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.
RKSLA8390542 (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.
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 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.
RKSLA8390542 (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 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.
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 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.
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.
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
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 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.
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 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.
*9 ¶ 36 Affirmed; motion denied.
Justices Harris and
Mikva concurred in the judgment and opinion.
Mikva concurred in the judgment and opinion.