IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NATIONWIDE MUTUAL INSURANCE 

COMPANY,

 Plaintiff,

 v.

GRETCHEN COURTNEY & ASSOCIATES, 

LTD., and JOAN FITZGARRALD,

 Defendants.

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No. 12 C 5708

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

This declaratory judgment action stems from an insurance coverage dispute. Defendant 

Joan Fitzgarrald sought Under Insured Motorist coverage under a business auto liability 

insurance policy issued by Nationwide Mutual Insurance Company (“Nationwide”) to Gretchen 

Courtney & Associates, Ltd. (“GCA”). Fitzgarrald maintains that as an employee of GCA, she 

qualifies as an insured under the Policy and is entitled to coverage for injuries she sustained in a 

car accident while driving home from an appointment with a GCA client. Nationwide argues 

that Fitzgarrald was not a GCA employee but rather an independent contractor and is therefore 

not an “insured” under the terms of the Policy and not entitled to Under Insured Motorist 

coverage. Nationwide moves for summary judgment and seeks a declaration that Fitzgarrald is 

not an insured and is not entitled to coverage or benefits provided under the Policy. For the 

reasons stated herein, Nationwide’s Motion for Summary Judgment is denied.

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STATEMENT OF MATERIAL UNDISPUTED FACTS1

I. Challenges to Rule 56.1 Assertions of Fact

Nationwide challenges several assertions made by Fitzgarrald in her Local Rule 56.1 

Statement of Material Facts. In order to clarify what is properly before the Court and what is 

not, the Court addresses these arguments before delving into the facts of this case.

A. Fitzgarrald’s Affidavit

Nationwide objects on the basis of hearsay, relevance, and lack of foundation to every 

assertion contained in Fitzgarrald’s sworn affidavit. According to Nationwide, Fitzgarrald’s 

affidavit itself is a hearsay document, contains out of court statements offered for the truth of the 

matter asserted therein, and contains self-serving assertions with no evidentiary support. 

Nationwide further objects on the basis of relevance to several assertions in the affidavit 

describing the terms and conditions of Fitzgarrald’s relationship with GCA, arguing that such 

facts are irrelevant in light of the Independent Contractor Agreement between Fitzgarrald and 

GCA. Nationwide’s blanket objection to the affidavit in its entirety is overruled. 

First, Fitzgarrald may testify to facts regarding her arrangement with Nationwide when 

those facts are based on her personal knowledge, including reasonable inferences based on 

observations and first-hand experience. See Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003); 

cf. Rawal v. United Airlines, Inc., No. , 2008 WL 4890169, at *4 n.2 (N.D. Ill. Nov. 12, 2008) 

(plaintiff’s “declaration, like any other sworn affidavit based on personal knowledge, is 

 1 Throughout this Opinion, the Court refers to the Parties’ Local Rule 56.1 Statements of Undisputed Material Facts 

as follows: citations to Nationwide’s Statement of Facts (Dkt. No. 17) have been abbreviated to “Pl. 56.1 St. ¶ __”; 

citations to Fitzgarrald’s Statement of Material Fact (Dkt. No. 20, p. 2–8) have been abbreviated to “Def. 56.1 St. 

¶ __”; citations to Nationwide’s Response to Fitzgarrald’s Statement of Facts (Dkt. No. 28) have been abbreviated to 

“Pl. 56.1 Resp. ¶ __”; and citations to Fitzgarrald’s response to Nationwide’s Statement of Facts (Dkt. No. 20, p. 1–

2) have been abbreviated to “Def. 56.1 Resp. ¶ __.” 

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admissible for summary judgment purposes”) (citing Oto v. Metro. Life. Ins., Co., 224 F.3d 601, 

604–05 (7th Cir. 2000)). Furthermore, courts routinely consider, and the summary judgment rule 

specifically allows, affidavits from witnesses used to make assertions of fact, so long as those 

assertions are supported by the record. See Fed.R.Civ.P. 56(c)(4) (affidavits and declarations 

used to oppose summary judgment must be made on personal knowledge); Winskunas v. 

Birnbaum, 23 F.3d 1264, 1267–68 (7th Cir. 1994) (explaining that although affidavits are 

ordinarily not admissible evidence at trial, they may be used in summary judgment proceedings 

where the substitution of oral testimony for the testimony provided in the affidavit would make 

that evidence admissible at trial). Second, Nationwide’s relevance objections are unfounded. As 

explained in the Court’s substantive discussion below, the fact that Fitzgarrald entered into an 

Independent Contractor Agreement with GCA is not dispositive of the nature of her relationship 

with GCA. Other factors, particularly the level of control GCA exercised over Fitzgarrald, are 

pertinent to the inquiry. Warren v. Williams, 730 N.E.2d 512, 518 (Ill. App. Ct. 2000); Lang v. 

Silva, 715 N.E.2d 708, 717 (Ill. App. Ct. 1999).

However, Fitzgarrald makes several assertions regarding the terms and conditions of her 

relationship with GCA that appear to be based on out of court statements made by either GCA or 

one of its representatives. Specifically, Fitzgarrald states that she was (1) informed that she 

could not work as an educational consultant for any other company; (2) not allowed to discuss 

any additional services GCA provided with clients; (3) forbidden from providing her personal 

contact information to any school or school teachers; (4) informed by GCA that she should 

inform clients that any questions or inquiries should go through the GCA Office; (5) required to 

teach from the PowerPoint presentation provided by GCA; (6) required to provide a written 

report to GCA within 36 hours of completing a workshop; and (7) informed that for any 

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workshops occurring more than two hours from her home she would be reimbursed for a hotel 

stay. (Def. 56.1 ¶¶ 15, 17–18, 21, 23, 27.) Fitzgarrald has failed to lay the proper foundation for 

these assertions and to the extent they are based on statements made by individuals at GCA, they 

are hearsay statements being offered to prove the terms conditions of her relationship with GCA

and are therefore inadmissible. See Fed.R.Civ.P. 56(c)(4) (affidavits used to oppose a motion for 

summary judgment must set out facts that would be admissible); Martin v. Shawano-Gresham 

Sch. Dist., 295 F.3d 701, 713 (7th Cir. 2002) (statements in affidavit premised on hearsay and 

based on the affiant’s “understanding” are inadmissible and cannot be used to defeat a motion for

summary judgment); see, e.g., System Dvmt Integration v. Computer Sciences Corp., No. 09 C 

4008, 2011 WL 1311903, at *5 n.3 (N.D. Ill. Apr. 1, 2011) (statements made in an affidavit 

submitted by plaintiff’s representative asserting representations purportedly made by 

defendant’s employees inadmissible).

B. Exhibit Attachments to Fitzgarrald’s Rule 56.1 Statement

Nationwide asserts in a footnote to its Reply brief that documents submitted by 

Fitzgarrald in support of her opposition to summary judgment were not disclosed in preparation 

for the parties’ Joint Status Report and that Fitzgarrald did not timely file a Rule 26 Disclosure 

Statement until after she filed her Memorandum in Opposition to Nationwide’s Motion. 

Nationwide has not raised any discovery-based objections to these documents in its Local Rule 

56.1 Statements nor has it moved to strike the exhibits pursuant to Federal Rule of Civil 

Procedure 37. Instead, Nationwide objects under Rule 26 in its “reply” to Fitzgarrald’s Response 

to Nationwide’s Statement of Facts. (Dkt. No. 29.) However, this reply is not properly before 

the Court because Local Rule 56.1 does not provide that a party may reply to an opposing party’s 

response to its statement of facts. See Hudgens v. Wexler and Wexler, 391 F.Supp.2d 634, 637 

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(N.D. Ill. 2005) (“[N]owhere does the rule state that a movant may reply to the responses of a 

non-movant.”). Thus the Court will not consider the “unnecessary and improper ‘replies’ to 

[Fitzgarrald’s] responses.” Id. (citing Shulz v. Varian Med. Sys., Inc., 315 F.Supp.2d 923, 925 n.1 

(N.D. Ill. 2004) (“Such a reply is inappropriate); accord Kozlowski v. Fry, 238 F.Supp.2d 996, 

1000 n. 2 (N.D. Ill. 2002) ([S]uch a submission by Defendants is neither appropriate nor 

necessary under the Local Rules.”). Any objections to Fitzgarrald’s affidavit and attached 

exhibits based a failure to disclose are deemed waived.

Nationwide also raises several evidentiary objections to documents submitted by 

Fitzgarrald in support of her opposition to Nationwide’s Motion for Summary Judgment. First, 

Nationwide objects under Fed.R.Evid. 801 to Fitzgarrald’s use of a GCA business card 

purportedly given to her by GCA. The Court overrules Nationwide’s objection because the 

contents of the business card are relevant to Fitzgarrald’s state of mind – specifically, her 

understanding of the nature of her relationship with Nationwide. Thus there is an independent 

basis for admitting the business card that does not implicate the hearsay rule. In addition, GCA’s 

act of providing a business card and Fitzgarrald’s testimony based on her own personal 

knowledge that GCA gave her the card do not implicate the hearsay rule because such evidence 

does not involve a statement.

Next, Nationwide objects on the basis for hearsay, lack of foundation, and lack of 

authenticity to a form entitled “Special Information Request Form-Drivers” that was purportedly 

sent by Nationwide to GCA two months before the beginning of the relevant coverage period. 

The Court overrules all three objections. First, Rule 602 of the Federal Rules of Evidence 

provides that a “witness may not testify to a matter unless evidence is introduced sufficient to 

support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. 

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Thus, in an affidavit, a statement that a witness knows something without statements about how 

the witness is aware of that information is not admissible. See Ward v. First Federal Savings 

Bank, 173 F.3d 611, 618 (7th Cir. 1999); Drake v. 3M, 134 F.3d 878, 887 (7th Cir. 1988). In this 

case, Fitzgarrald presents the Special Information Request Form through an affidavit submitted 

by her attorney, Brian T. Schurter, stating that he is personally aware of the information 

contained within the form because he received it on October 27, 2011 as an attachment to an 

email from Michael S. Coleman, a claims specialist at Nationwide Insurance. Fitzgarrald has 

also provided as a separate exhibit a copy of the October 27, 2011 email. The email from 

Coleman, taken together with Schurter’s affidavit stating that he received the form as an 

attachment from Nationwide, is sufficient foundation to establish that Schurter has personal 

knowledge of the form.

With respect to the authenticity of the document, Federal Rule of Evidence 901 provides 

that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the 

proponent must produce evidence sufficient to support a finding that the item is what the 

proponent claims it is.” Fed.R.Evid. 901(a). Evidence that satisfies this requirement may include 

“distinctive characteristics” such as “[t]he appearance, contents, substance, internal patterns, or 

other distinctive characteristics of the item, taken together with all the circumstances.” 

Fed.R.Evid. 901(b)(4). Here, the Special Information and Request Form contains Nationwide's

logo, motto (“On Your Side”), and address. It is addressed to GCA and is stamped with a policy 

number and coverage period identical to the policy at issue in this case. Based on these distinct 

characteristics, contents, and the evidence demonstrating the circumstances through which 

Schurter obtained the form, the Court finds that Fitzgarrald has established the authenticity of the 

exhibit. 

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Lastly, the Court finds that the Special Information Request Form is not hearsay and is 

admissible pursuant to Federal Rule of Evidence 810(d)(2) as it is a statement that is (1) made by 

an employee of Nationwide during and on a matter within the scope of the employment 

relationship, (2) offered by Fitzgarrald, (3) against Nationwide, a party opponent. See 

Fed.R.Evid. 801(d)(2)(D).

II. Factual Background

Fitzgarrald’s claim for Under Insured Motorist (“UIM”)2 coverage from Nationwide 

arises from a motor vehicle accident that occurred on September 24, 2009. On that day 

Fitzgarrald conducted a workshop at Flossmoor School located in Chicago Heights, Illinois

pursuant to an Independent Contractor Agreement (the “Agreement”) she entered into with 

GCA. (Id. ¶ 10.) After completing the workshop for GCA, Fitzgarrald drove in her own motor 

vehicle toward her home in Rantoul, Illinois. (Id. ¶ 11.) At approximately 6:15 p.m., Fitzgarrald 

was injured when a motor vehicle driven by Michelle Earnest crossed the median on Interstate 

57 and collided with her vehicle. (Id. ¶ 12.) As a result of this accident, Fitzgarrald filed a 

 2 The Illinois Insurance Code defines an underinsured motor vehicle as follows:

[T]he term “underinsured motor vehicle” means a motor vehicle whose 

ownership, maintenance or use has resulted in bodily injury or death of the 

insured, as defined in the policy, and for which the sum of the limits of liability 

under all bodily injury liability insurance policies or under bonds or other 

security required to be maintained under Illinois law applicable to the driver or 

to the person or organization legally responsible for such vehicle and applicable 

to the vehicle, is less than the limits for underinsured coverage provided the 

insured as defined in policy at the time of the accident. The limits of liability for 

an insurer providing underinsured motorist coverage shall be the limits of such 

coverage, less those amounts actually recovered under the applicable bodily 

injury insurance policies, bonds, or other security maintained on the 

underinsured motor vehicle.

215 ILCS 5/143a-2(4). The legislative purpose of underinsured motorist coverage is to “ ‘place the insured in the 

same position he would have occupied if the tortfeasor had carried adequate insurance.’ ” Phoenix Ins. Co. v. Rosen, 

949 N.E.2d 639, 646 (Ill. 2011) (quoting Susler v. Country Mutual Ins. Co., 591 N.E.2d 427, 429 (Ill. 1992)). 

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lawsuit against Earnest in the Circuit Court of Sixth Judicial Circuit, Champaign County, Illinois.

(Id. ¶ 13.) That lawsuit was settled and Earnest’s auto insurer paid its policy limits to 

Fitzgarrald. (Id. ¶ 14.) After settling with Earnest, Fitzgarrald made an UIM claim to her own 

auto insurance company, State Farm Mutual Automobile Insurance Company. (Id. ¶ 15.) State 

Farm offered Fitzgarrald its UIM policy limits to resolve her claim against it. (Id.) 

A. Fitzgarrald’s Relationship with GCA

1. The Independent Contractor Agreement

In September 2009, Fitzgerald signed a document with GCA entitled, “Independent 

Contractor Agreement.” (Id. ¶ 6.) The Agreement provides:

SECTION 2: INDEPENDENT CONTRACTOR: The Contractor 

[FITZGARRALD] acknowledges and agrees that the Contractor is 

an independent contractor with professional qualifications and is 

not an agent or employee of Courtney [GCA]. The Contractor 

warrants that (s)he has the requisite expertise, ability, judgment 

and skill to render the services required by this Agreement. The 

Contractor further agrees to supply all tools, equipment, and 

materials required to perform these services, in addition to those 

provided by Courtney, which are part of the unique concepts, 

ideas, trade secrets and proprietary business information of 

Courtney.

SECTION 3: AGENCY: The Contractor has no authority to bind 

Courtney, to enter into any contracts or agreements on behalf of 

Courtney, or to represent that the Contractor has the authority to do 

so. This Agreement does not create a partnership, joint venture, or 

loan servant arrangement between the parties.

* * *

SECTION 5: TAXES: Neither federal, state, nor local payroll 

taxes of any kind or state disability insurance will be paid or 

withheld on behalf of the Contractor or its employees, The [sic] 

Contractor will not be treated as an employee with respect to the 

services performed under this Agreement for federal or state tax 

purposes.

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* * *

SECTION 7: BENEFITS: Because the Contractor is engaged in 

the Contractor’s own independently established business, the 

Contractor is not eligible for, and shall not participate in, any 

employee fringe benefits which may from time to time be provided 

by Courtney to her employees, if any, including but not limited to 

sick pay, vacation pay, group medical and dental coverage, 

pension, and profit-sharing. No worker’s compensation insurance, 

unemployment insurance, and/or retirement benefits will be 

provided by Courtney for the Contractor. Contractor will be solely 

and entirely responsible for his/her acts during the term of this 

Agreement and any renewal and/or extension hereof.

(Id. ¶ 9.) 

2. Fitzgarrald’s Duties, Responsibilities, and Obligations with Respect to 

GCA

Fitzgarrald states that her relationship with GCA began in June 2007. (Id. ¶ 9.) Between 

June 11 and June 15, 2007, Fitzgarrald attended a one-week long training “in the GCA system of 

strategies to be used by elementary school teachers to better teach elementary students how to 

read and comprehend.” (Id. ¶ 10–11.) GCA paid Fitzgarrald $150 per day in addition to 

covering all of her expenses for attending the training. (Id. ¶ 7.) Fitzgarrald attended additional 

trainings in Lake Geneva, Wisconsin, and at the GCA office in St. Charles, Illinois. (Id. ¶ 12.) 

At these trainings, Fitzgarrald was taught how the GCA system could be used to fit “Common 

Core” standards that schools were required to meet. (Id.) Again, GCA paid Fitzgarrald $150 per 

day to attend these trainings also and paid for all of her expenses. (Id.)

Fitzgarrald’s sole responsibility was to go to schools that had contracted with GCA and 

provide the specific courses that had been contracted for. (Id. ¶ 16.) Though she did not solicit 

schools to purchase the GCA system, Fitzgarrald was provided a business card to provide to 

GCA clients. (Id. ¶¶ 13, 16.) Fitzgarrald did not work as a consultant or in any other capacity 

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during this time period and has never advertised or independently sought clients to work as an 

educational consultant. (Id. ¶¶ 14, 19.) Every workshop Fitzgarrald led was referred to her from 

GCA. (Id. ¶ 20.) When teaching a workshop, Fitzgarrald used a PowerPoint presentation created 

and provided by GCA. (Id. ¶ 21.) GCA also provided Fitzgarrald the equipment she needed to 

conduct the workshops, including a laptop computer, projector, headset speaker system, and any 

games referenced in the PowerPoint materials. (Id. ¶ 22.) At various times Gretchen Courtney, 

the President of GCA, or another GCA agent attended workshops and provided reviews of 

Fitzgarrald’s performance. (Id. ¶ 24.) These reviews were provided to GCA. (Id.)

Fitzgarrald was also provided a handbook detailing her responsibilities and obligations as 

a consultant for GCA (the “Handbook”).3 (Id. ¶ 28; Dkt. No. 19-3.) The Handbook informs that 

consultants will be expected to, among other things, “know the current literature and research in 

your area of expertise,” “maintain professionalism at all times,” “develop client relationships,” 

“arrive at least one and half hours prior to the presentation,” “come prepared and organized,” 

“dress for success,” “refrain from eating or drinking anything, except water during your 

presentation,” and “present your business cards and present it to the contact person when you 

meet.” (Dkt. No. 19-3, p. 4.) The Handbook provides that it is the consultant’s responsibility to 

notify the GCA office in advance of all dates the consultant is unable to work, check emails 

daily, and send PowerPoint presentations to the office for review at least 2-3 weeks prior to 

conducting a workshop. (Id. at 5.) The portion of the Handbook entitled “Procedures” also 

instructs consultants to notify GCA of all dates the consultant is not able to work “as soon as 

 3 Nationwide objects to the relevance of this assertion and to the use of Fitzgarrald’s affidavit on the basis of 

hearsay. (Pl. 56.1 Resp. ¶ 28.) As discussed in Section I.A above, affidavits supported by the record and based on 

the affiant’s personal knowledge are admissible and GCA’s level of control over Fitzgarrald is relevant to the 

determination of whether she was employee or independent contractor of GCA. Nationwide raises no other 

evidentiary objections to the admissibility of the Handbook. (Pl. 56.1 Resp. ¶ 28.)

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possible.” (Id. at 8.) In addition, the Handbook contains detailed instructions regarding GCA’s 

Dress-Code and Personal Appearance Policy:

The personal appearance of our consultants directly reflects on the 

company. Therefore, we ask that our professionals follow these 

simple rules:

• Clean, pressed, properly fitting business attire is 

appropriate.

• Hair should be clean, combed and neatly trimmed or 

arranged. Shaggy, unkempt hair is not permissible.

• Sideburns, moustaches, and beards should be neatly 

trimmed.

• Good personal hygiene must be maintained.

• Use perfume or cologne sparingly or not at all, many 

individuals are sensitive to various scents.

• Keep jewelry simple and to a minimum; avoid flashy pins 

and dangling earrings. All jewelry should remain

stationary.

• Open toed shoes should not be worn.

• Boots should not be worn.

• No clothing with spaghetti straps; clothing revealing bare 

backs, midriffs or shoulders; or any revealing or 

provocative clothing, neckline should be half way between 

your clavicle and bust line.

Inclement Weather Days: The company understands that inclement 

weather conditions may require different attire for the day. Use 

good judgment when dressing for weather conditions.

(Id. at 6.) 

The Handbook also sets forth detailed instructions and limitations for how GCA 

consultants should interact with clients. (Id. at 7.) Specifically, the Handbook directs consultants 

to, among other things, return all client phone calls promptly, contact a client in the event the 

consultant will not arrive within one hour of a scheduled workshop, and follow up a visit with 

either a thank you note to the school or a packet of additional requested information. (Id.) The 

Handbook further provides that consultants are not to discuss payment issues with the client. 

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(Id.) The Handbook also details the responsibilities of the consultant with respect to scheduling 

and executing workshops. (Id. at 8.) According to the Handbook, consultants are required to 

make client confirmation calls 5-7 business days prior to the workshop date in order to confirm 

the “date, location, start and end times, and number of participants. (Id. at 9.) 

Lastly, the Handbook sets out general terms of employment and method of compensation. 

(Id. at 10.) The Handbook informs the consultant that they “have been hired as an independent 

contractor” and “will receive an independent contractor agreement for the date(s) of service that 

must be signed.” (Id.) The Handbook also states that consultants will be paid once a month and 

will be reimbursed for certain hotel and mileage expenses. (Id.) Fitzgarrald confirms that she 

was paid monthly for the work she performed for GCA based upon an hourly rate of $100 per 

hour. (Id. ¶ 25.) Accordingly, she received $300 for each half-day (3 hour) workshop and $600 

for each full-day (6 hour) workshop. (Id.) In addition to her hourly compensation, Fitzgarrald 

was reimbursed for mileage and hotel stays when required. (Id. ¶ 27.) 

B. The Nationwide Policy

Nationwide issued a business auto liability insurance policy to GCA under Policy No. 

ACP BA 5822423522. (Pl. 56.1 St. ¶ 4.) The Policy was effective from November 1, 2008 to 

November 1, 2009. (Id.) 

1. Coverage under the Nationwide Policy

The Policy contains an auto declarations section delineating what individuals are covered 

and what autos are covered under the Policy. (Id. ¶ 16.) That section provides in relevant part: 

ITEM TWO – SCHEDULE OF COVERAGES AND COVERED 

AUTOS: This policy provides only those coverages where a 

charge is shown in the premium column below. Each of these 

coverages will apply only to those “autos” shown as covered 

“autos”. “Autos” are shown as covered “autos” for a particular 

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coverage by the entry of one or more of the symbols from the 

COVERED AUTO’S section of the Business Auto Coverage Form 

next to the name of the coverage.

(Id; Complaint, Ex. A, p. 57.)

The UIM coverage designates the types of autos covered under the Policy’s UIM 

coverage and provides the following descriptions:

7 – Specially described “autos” – only those “autos” described in 

Item 3 of the Declarations for which a premium charge is shown 

...

8 – Hired “autos” only – only those “autos” you4 lease, hire, rent 

or borrow. This does not include any “auto” you lease, hire, rent, 

or borrow from any of your “employees”, partners (if you are a 

partnership), members (if you are a limited liability company) or 

members of their households.

9 – Nonowned “autos” only – only those “autos” you do not own, 

lease, hire, rent or borrow, that are used in connection with your 

business. This includes “autos” owned by your “employees”, 

partners (if you are a partnership, members, if you are a limited 

liability company) or members of their households but only while 

used in your business or your personal affairs.

(Id. ¶ 17; Complaint, Ex. A, p. 18.)

The policy also contains a commercial auto form endorsement titled “Illinois 

Underinsured Motorist Coverage.” (Id. ¶ 18.) This form provides that Nationwide will pay all 

sums the “insured” is legally entitled to recover as compensatory damages from the owner or 

driver of an underinsured motor vehicle where those damages result from the “bodily injury” that 

is sustained by the “insured” and caused by an “accident.” (Id.) Where, as here, the named 

insured is a corporation,5 then the following are insured under the Policy’s UIM coverage: (a) 

 4 The policy provides that “the words ‘you’ and ‘your’ referred to the named insured [GCA] shown in the 

Declaration. (Pl. 56.1 St. ¶ 17.)

5 GCA is a registered and active Illinois Corporation incorporated in Illinois on August 9, 1999 (Pl. 56.1 St. ¶ 2.)

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“Anyone ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto’ that is taken 

out of service because of breakdown, repair, servicing, ‘loss’ or destruction;” (b) “Anyone else 

‘occupying’ an ‘auto’ you do not own that is a covered ‘auto’ under this Coverage Form for 

Liability Insurance;” and (c) “Anyone for damages he or she is entitled to recover because of 

‘bodily injury’ sustained by another ‘insured.’ ” (Id.)

2. Coverage of Employees under the Policy and the Special Information 

Request Form

The Policy contains a “Schedule of Nonownership Coverage and Premiums” and a 

“Supplemental Schedule of Nonownership Coverage and Premium.” (Id. ¶¶ 3, 6.) Although both 

schedules list “7” under the column “Number of Employees,” the Policy does not identify any 

GCA employees or independent contractors by name. (Id. ¶¶ 3, 6–7.) However, in a form titled 

“Special Information Request Form – Drivers,” dated September 3, 2008, Nationwide provided 

GCA with a list of 11 individuals and asked GCA to review the list and make any changes or 

additions needed “[i]n order to keep [the] policy as accurate as possible.” (Id. ¶ 8.) The form 

bears the same policy number as the policy issued by Nationwide to GCA and requests that GCA 

check any individuals that are “No Longer Employed.”. (Id. ¶ 8.) Joan Fitzgarrald is listed as the 

second driver in Nationwide’s Special Information Request Form. (Id.) The form contains 

Fitzgarrald’s date of birth, sex, and driver’s license number and the letter “N” appears next to her 

name under a column titled “Excluded.” Nationwide informed GCA in the correspondence that 

it would “appreciate receiving a reply within 20 days.” (Id.) 

STANDARD OF REVIEW

Summary judgment is proper when the “pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter 

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of law.” Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court 

must view the evidence and draw all reasonable inferences in favor of the party opposing the 

motion. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001). See also Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513–14 (1986). However, as noted 

above, the Court will “limit its analysis of the facts on summary judgment to evidence that is 

properly identified and supported in the parties’ [Local Rule 56.1] statement.” Bordelon v. 

Chicago Sch. Reform Bd. Of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed 

statement of fact is supported by the record and not adequately rebutted by the opposing party, 

the Court will accept that statement as true for the purposes of summary judgment. An adequate 

rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not 

adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. 

Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (“Rule 56 demands something 

more specific than the bald assertion of the general truth of a particular matter[;] rather it requires 

affidavits that cite specific concrete facts establishing the existence of the truth of the matter 

asserted.”). As the party opposing the motion for summary judgment, Fitzgarrald “gets the 

benefit of all facts that a reasonable jury might find.” Loudermilk v. Best Pallet Co., LLC, 636

F.3d 312, 314 (7th Cir. 2011).

DISCUSSION

The crux of the disagreement between Nationwide and Fitzgarrald lies in the nature of the 

Fitzgarrald’s relationship with GCA at the time the accident occurred. The UIM coverage 

afforded by Nationwide to GCA under the Policy includes autos owned by GCA employees, but 

only while those vehicles are used in GCA’s business or personal affairs. Thus the vehicle 

Fitzgarrald drove home from the GCA workshop on September 24, 2009 would constitute a 

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“covered auto” if (1) Fitzgarrald is deemed to have been an employee of GCA and (2) driving 

home after the workshop constitutes use in GCA’s business or personal affairs.

I. Illinois Law Governs the Interpretation of the Insurance Policy and Independent 

Contractor Agreement

The Court applies Illinois law in interpreting the terms of the insurance policy and 

Fitzgarrald’s Independent Contractor Agreement with GCA. First, the parties do not dispute that 

Illinois law governs the interpretation of both the Agreement and policy. Furthermore, with 

respect to the policy, Illinois choice-of-law rules for insurance contracts require that courts use 

the “most significant contacts” test in determining the applicable law. United Farm Family 

Mutual Ins. Co. v. Frye, 887 N.E.2d 783, 788 (Ill. App. Ct. 2008). Under this test, “insurance 

policies are governed by the location of the subject matter, the place of delivery of the contract, 

the domicile of the insured or of the insurer, the place of the last act to give rise to the contract, 

the place of performance, or other place bearing a rational relationship to the general contract.” 

United Farm, 887 N.E.2d at 788. In this case, Illinois has more significant contacts to the policy 

than any other state. Both Fitzgarrald and GCA are citizens of Illinois, the policy was issued in 

Illinois, the terms of the policy are defined under Illinois law, and the accident giving rise to 

Fitzgarrald’s claim and Nationwide’s subsequent declaratory judgment action occurred in 

Illinois. See Costello v. Liberty Mut. Fire Ins. Co., 876 N.E.2d 115, 120–121 (Ill. App. Ct. 2007) 

(“Unless some other state has a more significant relationship to the transaction, an automobile 

policy will be governed by the state where the car was intended to be principally located, even if 

the car is occasionally located somewhere else.”) (citing Western States Ins. Co. v. Zschau, 698 

N.E.2d 198, 204 (Ill. App. Ct. 1998)); see also Country Preferred Ins. Co. v. Chastain, No. 3-11-

0702, 2012 WL 7006583, at *2 (Ill. App. Ct. 2012) (unpublished) (“In a suit involving 

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underinsured motorist coverage, the state where the parties entered into the insurance policy and 

where the car principally covered by the policy is located are the most significant factors in 

determining which state has the most significant contacts.”) Furthermore, based on the choice of 

law provision contained in the Independent Contractor Agreement and the fact that the parties do 

not dispute that Illinois law governs,6 the Court also applies Illinois law to the interpretation of 

the Agreement.

II. A Factual Dispute Exists as to whether Fitzgarrald was a GCA Employee when the 

Accident Occurred

“It is well established in Illinois that the question of whether a person is an employee or 

an independent contractor is for the jury unless the relationship is so clear as to be undisputed.” 

DeRosa v. Albert F.Amling Co., 404 N.E.2d 564, 566 (Ill. App. Ct. 1980). Thus, under Illinois 

law, the Court must allow the jury to decide the nature of Fitzgarrald’s relationship with GCA 

unless the undisputed relevant facts are susceptible to only one inference. See Zaitzeff v. 

Peregrine Financial Group, Inc., No. 08 C 4053, 2010 WL 438158, at *6 (N.D. Ill. Feb. 1, 2010) 

(“Under Illinois law, ‘[t]he question of whether one is an ... employee or an independent 

contractor is generally a question of fact.’ ”) (quoting Lang, 715 N.E.2d at 717); Netzel v. 

Industrial Com’n, 676 N.E.2d 270, 273 (Ill. App. Ct. 1997) (even where the facts are undisputed, 

if those facts “permit more than one reasonable inference, that is, that the claimant was an 

employee or an independent contractor, then a question of fact, not law, is presented”) (citing 

Kirkwood v. Indus. Comm’n, 416 N.E.2d 1078, 1079–80 (Ill. 2001); Manahan v. Daily NewsTribune, 365 N.E.2d 1045, 1048 (Ill. App. Ct. 1977); see also Ware v. Indus. Comm’n, 743 

 6 Section 12 of the Agreement, titled “Applicable Law,” provides that “[t]his Agreement shall be governed by and 

interpreted under Illinois law.”

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N.E.2d 579, 583 (Ill. App. Ct. 2000) (“The question of whether an employment relationship 

existed at the time of an accident is one of fact.”).7

In this case, Fitzgarrald argues that summary judgment in Nationwide’s favor is improper 

because Nationwide treated Fitzgarrald as an employee in the insurance policy it issued to GCA 

and because the Independent Contractor Agreement notwithstanding, the actual terms and 

conditions of Fitzgarrald’s relationship with GCA evidence an employee-employer relationship 

and not an independent contractor arrangement. The Court addresses each argument in turn.

A. Nationwide’s Treatment of Fitzgarrald Under the Terms of the Policy

Fitzgarrald argues that Nationwide’s Motion should be denied because Nationwide 

treated Fitzgarrald as an employee in the Policy. In support of this argument Fitzgarrald points 

to a form entitled “Special Information Request Form-Drivers” sent by Nationwide to GCA on 

September 3, 2008, about two months prior to the coverage period at issue in this case. The form 

identifies the Policy by number and coverage period and states that “[i]n order to keep your 

policy as accurate as possible, we ask that you review the information listed below and make any 

changes or additions needed.” (Dkt. No. 19-6, p. 1.) Further down, the form lists 11 individuals 

and requests that GCA check any individuals that are “No Longer Employed.” Fitzgarrald is the 

second person named in the list. Fitzgarrald’s date of birth, sex, and driver’s license number and 

also appear on the form next to her name. Additionally, the letter “N” appears next to 

Fitzgarrald’s name under a column titled “Excluded.” 

 7 The Seventh Circuit has taken a different position in addressing federal causes of action, finding that the 

determination of whether an individual is an employee or an independent contractor “is a question of law for the 

court.” EEOC v. North Knox Sch. Corp., 154 F.3d 744, 747 n.1 (7th Cir. 1998) (“The ultimate question of whether 

an individual is an employee or an independent contractor is a ‘legal conclusion’ which involves an ‘application of 

the law to the facts.’ ”) (quoting Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 379 (7th Cir. 1991)); 

see also Moore v. Vantil, 97 C 7295, 1999 WL 51802, at *2 (N.D. Ill. Jan. 29, 1999) (recognizing distinction 

between federal law as applied in Seventh Circuit and Illinois law and applying Illinois law). 

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The Court finds the Special Information Request Form sufficient to create a factual 

dispute over whether Nationwide treated Fitzgarrald as an employee under the Policy on the date 

of the accident. While the form does not conclusively demonstrate Fitzgarrald’s coverage status 

on September 24, 2009, it strongly suggests that Fitzgarrald was, at a minimum, previously 

considered an employee under the Policy and that Nationwide sent GCA a questionnaire to 

confirm whether that status should hold into the November 2008 to November 2009 coverage 

period. The Policy states that its terms extend coverage to seven GCA employees and/or 

partners. Although this means that at least four of the eleven individuals listed on the Special 

Information Request Form ultimately did not receive coverage once the Policy was issued, 

Nationwide has presented no evidence indicating who the seven covered employees were or 

which individuals listed on the Special Information Request Form were ultimately excluded. 

Viewing this evidence in the light most favorable to Fitzgarrald, the Court finds that Fitzgarrald 

has shown a factual dispute as to whether she was one of the individuals covered under the 

Policy during the relevant coverage period.

B. The Terms and Conditions of Fitzgarrald’s Relationship with GCA

The terms and conditions of Fitzgarrald’s relationship with GCA also evince a factual 

dispute over whether Fitzgarrald was a GCA employee or an independent contractor. In Illinois, 

“there is no rigid rule for determining whether a person is an ... employee or an independent 

contractor.” Doe v. Brouillette, 906 N.E.2d 105, 116 (Ill. App. Ct. 2009); see also Netzel, 676 

N.E.2d at 273 (“[T]here is no rigid rule of law governing the determination of whether an 

employer-employee relationship exists.”). Rather, Illinois courts look to a multitude of factors, 

including “the right to control the manner in which the work is performed; the right to discharge; 

the method of payment; whether taxes are deducted from the payment; the level of skill required 

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to perform the work; and the furnishing of the necessary tools, materials, or equipment.” Lang, 

715 N.E.2d at 716. Of these factors, “[t]he most important factor is the right to control and the 

manner in which the work is done.” Warren, 730 N.E.2d at 518. 

Nationwide directs the Court’s attention to the Agreement between GCA and Fitzgarrald, 

which unmistakably describes Fitzgarrald as an independent contractor. The Agreement states

unequivocally that the “[c]ontractor acknowledges and agrees that the Contractor is an 

independent contractor with professional qualifications and is not an agent or employee of 

Courtney.” (Complaint, Ex. B, p. 2.) The Agreement goes on to explain that the “Contractor will 

not be treated as an employee with respect to the services performed under this Agreement for 

federal or state tax purposes.” (Id.) The section of the Agreement titled “Benefits” provides that 

“[b]ecause the Contractor is engaged in the Contractor’s own independently established business, 

the Contractor is not eligible for, and shall not participate in, any employee fringe benefits” and 

that “[n]o worker’s compensation insurance, unemployment insurance, and/or retirement benefits 

will be provided by Courtney for the Contractor.” (Id. at 3.) 

The Agreement suggests that the parties intended that Fitzgarrald work as an independent 

contractor and not as an employee; however it is not dispositive of the inquiry. See Ware, 743 

N.E.2d at 586 (“[T]he label the parties apply to their relationship is a minor consideration which 

may ‘in a close case swing the balance by aiding in establishing the true intent of the parties’ ”)

(quoting Earley v. Indus. Comm’n, 553 N.E.2d 1112, 1118 (Ill. App. Ct. 1990)); McConnell v. 

Freeman United Coal Co., 555 N.E.2d 993, 996 (Ill. App. Ct. 1990) (“The fact that the contract

designated Koestar as an independent contractor is not controlling; rather, the right to control the 

manner of doing the work is of principal importance in the consideration of this question.”). The 

Illinois Supreme Court has stated that “although a contractual agreement is a factor to consider, it 

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does not, as a matter of law, determine an individual’s employment status.” Roberson v. Indus. 

Comm’n, 866 N.E.2d 191, 205 (Ill. 2007) (quoting Earley, 553 N.E.2d at 1118); see also

Manahan v. Daily News-Tribune, 365 N.E.2d 1045, 1049 (Ill. App. Ct. 1977) (“The parties may 

enter into a written contract which states their respective rights and duties. The contract may by 

its terms attempt to create an employer/independent contractor relationship and define the limits 

of control; however, the actual conduct of the parties determines whether they have created an 

employer/independent contractor relationship.”); see also Barnes v. Duffy, No. 02 C 5530, 2004 

WL 2931326, at *8 (N.D. Ill. Dec. 15, 2004) (holding that a question of fact existed as to 

whether defendant was an employee of a trucking company even though defendant signed an 

“independent contractor agreement” with the company); Davila v. Yellow Cab Co., 776 N.E.2d 

720, 725–26 (Ill. App. Ct. 2002) (holding that a question of fact existed as to whether a cab 

driver was an employee of a cab company even though the cab driver’s lease agreement 

explicitly disclaimed any employer-employee relationship).

In this case, several factors Illinois courts use to determine whether a person is an 

employee counsel against entry of summary judgment. First and most importantly, it is clear that 

GCA exercised significant control over Fitzgarrald. Fitzgarrald was directed by GCA to remain 

apprised of current literature in her area of expertise, check emails daily, notify the GCA office 

in advance of all dates she was unable to work, send PowerPoint presentations to the office for 

review at least 2-3 weeks prior to conducting a workshop, arrive at a client site least 90 minutes 

prior to giving a presentation, “dress for success,” develop client relationships, refrain from 

eating or drinking anything other than water during her presentations, and present her GCAissued business card upon meeting the contact person of a GCA client. Fitzgarrald was also 

asked to adhere to a “Dress-Code and Personal Appearance Policy” that imposed specific 

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limitations on her attire, hair style, use of perfume, jewelry, and shoes. In addition, Gretchen 

Courtney or other GCA agents attended GCA workshops taught by Fitzgarrald to provide 

reviews on her performance. See, e.g., McConnell, 555 N.E.2d at 996 (defendant employees’ 

regular visits to jobsite to monitor work suggested a level of control more akin to an employeeemployer relationship). The “right to control the manner in which the work is done” being the 

most important factor, Warren, 730 N.E.2d at 518, these instructions and requirements weigh 

strongly in favor of a finding that Fitzgarrald was a GCA employee and not an independent 

contractor.

Other factors also weigh in favor of a finding that Fitzgarrald was a GCA employee.

First, Nationwide does not dispute the substance of Fitzgarrald’s assertion that GCA provided 

her with the computer equipment, projectors, speaker systems, and PowerPoint presentation 

materials used to conduct GCA workshops. This assertion is supported by GCA’s Consultant 

Handbook, which states that “Gretchen Courtney & Associates will supply you with a tablet 

computer, a projector and a portable microphone system.” (Dkt. No. 19-3, p. 5.) The provision 

of equipment weighs in favor of a finding that an employer-employee relationship exists. See

Ware, 743 N.E.2d at 585 (provision of equipment factor weighed in favor of plaintiff being an 

employee where defendant provided “the most expensive piece of equipment used by [the 

plaintiff].”); Lang, 715 N.E.2d at 716; Netzel, 676 N.E.2d at 273 (fact that defendant provided 

claimant “all equipment necessary to perform her duties” suggested an employee-employer 

relationship); cf. Enesco Corp. v. Doherty, 731 N.E.2d 888, 896 (Ill. App. Ct. 2000) (no 

employer-employee relationship where plaintiff did “not furnish the artists with materials, 

supplies, tools, equipment, transportation, samples, business cards or an expense account.”). 

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Second, the nature of Fitzgarrald’s position and the training she underwent suggest that 

she was a GCA employee and not an independent contractor. Upon starting as a consultant, 

GCA conducted and compensated Fitzgarrald for attending a week-long training course 

specifically designed to train its consultants in the “GCA system of strategies.” Fitzgarrald 

attended two additional trainings conducted by GCA, which focused on how GCA’s system 

could be used to fit with the “Common Core” standards that schools were required to meet. A 

position that requires substantial training and supervision is indicative of an employee-employer 

relationship; positions requiring special skills and independent judgment, by contrast, suggest

that the individual is an independent contractor. See Worth v. Tyer, 276 F.3d 249, 263 (7th Cir. 

2001). 

Third, there is a strong nexus between Fitzgarrald’s occupation (teacher) and GCA’s 

business (literacy instruction). See Wheaton v. Suwana, 823 N.E.2d 993, 997 (Ill. App. Ct. 2005) 

(treating the nexus between the worker’s occupation and the company’s business as an additional 

factor to be considered when determining whether a worker was an employee or independent 

contractor); see, e.g., Zaitzeff, 2010 WL 438158, at *7 (nexus between plaintiff’s occupation 

(futures broker) and defendant’s business (futures commodities merchant) weighed in favor of a 

finding that plaintiff was defendant’s employee). 

Fourth, Fitzgarrald’s compensation arrangement indicates that she was a GCA employee. 

GCA paid Fitzgarrald on a monthly basis based on an hourly rate. Cf. Espenschied v. DirectSat 

USA, LLC, 705 F.3d 770, 772–73 (7th Cir. 2013) (“These technicians are more like independent 

contractors than employees; they spend the work day installing and repairing satellite equipment 

at customers’ homes and are paid on a piece-rate basis—so many dollars per job—rather than 

being paid a fixed hourly wage.”); but see Central States, Southeast and Southwest Areas 

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Pension Fund v. Nagy, No. 10 C 358, 2011 WL 3021524, at *9 n.8 (N.D. Ill. July 22, 2011) 

(“WCV’s payment of Nagy on an hourly basis does not support either party’s position. It is not 

uncommon for both employees and independent contractors to be paid by the hour.”), aff’d ---

F.3d ----, 2013 WL 1706413 (7th Cir. Apr. 22, 2013). GCA also reimbursed Fitzgarrald for her 

mileage and for hotel expenses incurred while travelling over a certain distance from GCA’s 

home office. See Nagy, 2013 WL 1706413, at *6 (“In a typical employer-employee relationship, 

the employer pays for overhead and other operational expenses, while independent contractors 

usually bear their own costs.”) (citing EEOC v. N. Knox Sch. Corp., 154 F.3d 744, 749 (7th Cir. 

1998)). 

On the other hand, GCA’s treatment of Fitzgarrald for tax purposes evinces a classic 

independent contractor relationship. GCA consultants received 1099 form each year and were 

informed that it was their responsibility to make quarterly filing arrangements. See Taylor v. 

ADS, Inc., 327 F.3d 579, 581 (7th Cir. 2003) (issuance of 1099 instead of W-2 weighed in favor 

of finding that plaintiff was an independent contractor and not an employee); Nagy, 2013 WL 

1706413, at *6 (“We have held in previous cases that the 1099 tax treatment weighs heavily in 

favor of independent-contractor status.”) (citing N. Knox, 154 F.3d at 750, and Neiman, 285 F.3d 

at 595); but see Ware, 579 N.E.2d 586 (“Whether income tax is withheld has not been found to 

be a significant factor.”) (citations omitted). The fact that GCA did not provide Fitzgarrald 

fringe benefits such as sick pay, vacation pay, medical coverage, or pension benefits is also 

indicative of independent contractor status. Sulkin v. Chicago Transit Authority, No. 99 C 8088, 

2000 WL 1508241, at *7 (N.D. Ill. Oct. 10, 2000) (plaintiff’s lack of sick pay, vacation pay,

health insurance, or retirement and pension benefits constituted “objective evidence ... 

conclusively establish[ing] that Plaintiff was an independent contractor”). In addition, the last 

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page of the Agreement suggests that Fitzgarrald’s relationship with GCA was not continuous and 

that she entered into a separate agreement with GCA for each workshop. Cf. Ware, 743 N.E.2d at 

587 (parties “operating under a continuous agreement for a period of five years at the time of 

[the plaintiff’s] accident” indicative of employee-employer relationship). 

Viewing together the Independent Contractor Agreement, GCA’s level of control over 

Fitzgarrald’s work, the fact that GCA provided Fitzgarrald equipment and programming for the 

workshops, Fitzgarrald’s compensation arrangement, the nexus between Fitzgarrald’s occupation 

and GCA’s business, GCA’s tax treatment of Fitzgarrald, and the absence of fringe benefits, the 

Court cannot, construing the facts in the light most favorable to Fitzgarrald, conclude that the 

relevant facts permit only one inference regarding the nature of the relationship between 

Fitzgarrald’s and GCA. See, e.g., Zaitzeff, 2010 WL 438158, at *8 (finding that a question of 

fact existed as to whether plaintiff was an employee or independent contractor where plaintiff 

signed an agreement identifying him as an independent contractor but defendant controlled 

several aspects of his work by directing him how to handle client accounts, imposing a dress 

code, requiring him to change his computer screen saver, and setting his work schedule); 

Advanced Cleanroom Technologies, v. Newhouse, No. 00 C 6623, 2002 WL 206960, at *4 (N.D. 

Ill. Feb. 11, 2002) (finding it “improper” to decide on summary judgment whether defendant was 

an independent contractor or employee where defendant executed an agreement that termed him 

an independent contractor, did not receive any employee benefits, and was responsible for 

paying his own taxes, but spent 95% of his time working on company matters, was given 

business cards listing him as the General Manager for the company, used company letterhead, 

and was listed in the company’s marketing brochures as a General Manager). Thus under Illinois 

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law, a factual dispute exists as to whether Fitzgarrald was an employee or an independent 

contractor based on the terms and conditions of her relationship with GCA.

II. A Factual Dispute Exists as to whether Fitzgarrald was engaged in GCA’s 

Business or Personal Affairs when the Accident Occurred

The terms of the Policy provide that the driver of a “nonowned auto,” which includes 

autos owned by GCA employees, is covered only while using her vehicle in GCA’s business or 

personal affairs. (Complaint, Ex. A, p. 18.) Thus even if Fitzgarrald is found to be an employee 

and not an independent contractor of GCA, she would not be entitled to coverage if she was 

acting outside of GCA’s business or personal affairs at the time of the accident. In this case, 

Nationwide argues that Fitzgarrald is not entitled to coverage under the terms of the Policy 

because the accident giving rise to her claim occurred during her drive home after she had 

already finished conducting a GCA workshop.

Under Illinois law, the “primary objective in construing the language of an insurance 

policy is to determine and give effect to the intention of the parties as expressed by the words of 

the policy.” Wolfensberger v. Eastwood, 889 N.E.2d 635, 637–38 (Ill. App. Ct. 2008) (citing 

Rich v. Principal Life Ins. Co., 875 N.E.2d 1082 (Ill. 2007), and Profitt v. OneBeacon Insurance, 

845 N.E.2d 715 (Ill. App. Ct. 2006)). “If the words used in a policy are clear and unambiguous, 

they must be given their plain, ordinary, and popular meaning, and the policy will be applied as 

written, unless it contravenes public policy.” Rich, 875 N.E.2d at 1090 (citing Central Ill. Light 

Co. v. Home Ins. Co., 821 N.E.2d 206 (Ill. 2004), and Hobbs v. Hartford Ins. Co. of the Midwest, 

823 N.E.2d 561 (Ill. 2005)). An insurance contract is not ambiguous simply because the parties 

disagree on a provision’s meaning. Id. (citations omitted). Furthermore, the Court will consider 

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only “reasonable interpretations of the policy language” and “will not strain to find an ambiguity 

where none exists.” Wolfensberger, 889 N.E.2d at 638 (citing Rich, 875 N.E.2d at 1090). 

In Illinois, the phrase “in your business or your personal affairs” in the context of an 

insurance policy that provides coverage for the insurer’s employees, has been interpreted “to 

protect employees who are injured ‘while acting in the scope of their employment.’ ”

Wolfensberger, 889 N.E.2d at 638 (citing Wausau Underwriters Ins. Co. v. Baillie, 281 

F.Supp.2d 1307, 1316 (M.D. Fla. 2002). Illinois courts have “uniformly held ‘summary 

judgment is generally inappropriate when the scope of employment is at issue.’ ” Id. at 638–39 

(recognizing that “Illinois courts have not discussed the propriety of granting summary judgment 

on a scope of employment issue within the context of an ‘Employee as Insured’ endorsement” 

and relying on law applied by Illinois courts in respondeat superior cases) (citing Pyne v. 

Witmer, 543 N.E.2d 1304 (Ill. 1989), and Giannoble v. P & M Heating and Air Conditioning, 

Inc., 599 N.E.2d 1183 (Ill. App. Ct. 1992)). Thus “[o]nly if no reasonable person could conclude 

from the evidence that an employee was acting within the course of employment should a court 

hold as a matter of law that the employee was not so acting.” Id. at 639 (quoting Pyne, 543 

N.E.2d at 1308, and Giannoble, 599 N.E.2d at 1186). 

Generally, an employee traveling to or from work outside actual work hours is not acting 

within the scope of their employment. Pyne, 543 N.E.2d at 1307; Hindle v. Dillbeck, 370 N.E.2d 

165, 169 (Ill. 1977). However, “an exception exists for employees who are caused by their 

employers to travel away from a regular workplace or whose travel is at least partly for their 

employers’ purposes rather than simply serving to convey the employees to or from a regular 

jobsite.” Id. (collecting cases); see also Givenrod-Lipe, Inc. v. Industrial Commission, 376 

N.E.2d 1018, 1020 (Ill. 1978) (workman’s compensation case noting that “[i]t is well established 

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that if an employee is injured during travel to or from other than the normal place of 

employment, undertaken incidentally to the employment and for the accommodation of the 

employer, such injuries arise out of and in the course of employment.”) (citations omitted); 

Warren v. Industrial Commission, 335 N.E.2d 488, 490 (Ill. 1975) (“There are exceptions to this 

ordinary applied rule, such as in a case where the trip or travel was made necessary by special 

circumstances of the employment.”). 

At the date and time of the accident at issue in this case, Fitzgarrald was not commuting 

between her home and a “regular jobsite” or “normal place of employment” but was instead 

traveling to her home in Rantoul, Illinois after conducting a GCA workshop at the remote offsite 

location of a GCA client in Chicago Heights, Illinois, nearly 100 miles from her place of 

residence and 150 miles from GCA’s office in St. Charles, Illinois.8

 Under these circumstances, 

the Court finds that “a reasonable person could conclude from the evidence that [Fitzgarrald] was 

acting within the course of employment” while driving home from the GCA client-site in 

Chicago Heights, Illinois after conducting a workshop on behalf of GCA. See Wolfensberger, 

889 N.E.2d at 639. Accordingly, under Illinois law, there is a genuine issue of material fact 

regarding whether Fitzgarrald, if found to be an employee of GCA, was acting within the scope 

of her employment at the time of her accident.

 8 The Court may take judicial notice of the distance between two geographic points. See Lowrance v. Pflueger, 878 

F.2d 1014, 1018 (taking judicial notice of approximate distances between two geographic locations); Ikerd v. 

Lapworth, 435 F.2d 197, 205 (7th Cir. 1970) (acknowledging that district court was entitled to take judicial notice 

that Madisonville, Kentucky was more than 100 miles from Terre Haute, Indiana); see e.g., Humphries v. 

Coppercrest Leveraged Mortg. Fund, No. 10-cv-7756, 2012 WL 527528, at *3 (N.D. Ill. Feb. 15, 2012); United 

States v. Bell, 357 F.Supp.2d 1065, 1072 (N.D. Ill. 2005); B.F. Goodrich Co. v. Goodyear Tire & Rubber Co., No. 

86 C 3145, at * 3 (N.D. Ill. Feb. 5, 1987).

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CONCLUSION AND ORDER

For the foregoing reasons, Nationwide’s motion for summary judgment is denied.

________________________________________ 

Virginia M. Kendall 

United States District Court Judge 

Northern District of Illinois

Date: July 19, 2013

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