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## Illinois Official Reports

Appellate Court

Mei Pang v. Farmers Insurance Group , 2014 IL App (1st) 123204

Appellate Court Caption MEI PANG, Plaintiff-Appellant, v. FARMERS INSURANCE GROUP, Defendant-Appellee.

District & No. First District, Fourth Division

Docket No. 1-12-3204

Filed May 1, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) Although plaintiff was injured in a vehicular colli sion while she was a permissive passenger in a vehicle owned by another individual, plaintiff was not an “insured” under the umbrella p olicy issued by

defendant to the owner of the car and the owner’s h usband, and plaintiff was not entitled to underinsured motorist coverage under the umbrella policy, since umbrella policies and primar y automobile policies are distinct and an umbrella policy is out side the scope of the laws applicable to underinsured motorist coverage; therefore, plaintiff’s action seeking a declaration that under insured motorist coverage existed under the umbrella policy was prop erly dismissed.

Decision Under

Review Appeal from the Circuit Court of Cook County, No. 1 0-CH-37672; the Hon. Rita M. Novak, Judge, presiding.

Judgment Affirmed.- 2 -

Counsel on Appeal Keith G. Carlson, of Carlson Law Offices, of Chicag o, for appellant.

Danny L. Worker, Siobhan M. Murphy, and Leena Soni, all of Lewis Brisbois Bisgaard & Smith LLP, of Chicago, for appe llee.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Fitzgerald Smit h concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Mei Pang sustained an injury while ridin g as a passenger in a vehicle that was not

her own (permissive passenger) following a vehicle collision. Plaintiff filed a declaratory action against defendant Farmers Insurance Group, a nd defendant subsequently filed a motion to dismiss the complaint under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)), contending plaintiff di d not qualify as an “insured” under the umbrella policy. Plaintiff now appeals from the tri al court’s order granting defendant’s motion to dismiss. Although she cites no specific statute, she argues, as she did below, that as a permissive passenger she was entitled to underinsur ed motorist (UIM) coverage under the umbrella policy. She also challenges the validity o f the reconstructed insurance policy. In addition, plaintiff asserts that the trial court er red in denying plaintiff’s motion to compel the production of relevant documents. We affirm.

¶ 2 BACKGROUND
¶ 3 We recite only those facts necessary to understand the issues raised on appeal. On January

2, 2002, plaintiff sustained injury as a passenger in a vehicle operated by Ingrid Chan when a collision occurred with a vehicle operated by Donal d McGinnis, an underinsured motorist. McGinnis’s insurer paid plaintiff $100,000 to settl e her claim. At the time of the collision, Ingrid and her husband, Ezra Chan (collectively, th e Chans), were the named insureds on a special umbrella policy (umbrella policy) issued to them by defendant. Shortly thereafter, on March 7, 2002, while the underlying claims related to the collision were pending, defendant’s underwriting supervisor Dwight Hoskins provided a r econstructed copy of the Chans’ umbrella policy with an affidavit certifying its au thentication. The record suggests that the Chans no longer possessed the original policy, and thus, defendant reconstructed the policy based on its records, a common practice in insuranc e disputes.
¶ 4 More than eight years later, on July 7, 2010, plai ntiff filed a complaint for UIM coverage

under both the umbrella policy issued by defendant and a primary auto insurance policy issued to the Chans by another insurer, Mid-Century Insura nce Company (Mid-Century). Mid-Century immediately settled plaintiff’s claim f or $150,000. Defendant filed an answer- 3 -

denying plaintiff coverage under the umbrella polic y because plaintiff did not fall within the umbrella policy’s definition of “insured.” The umbr ella policy explicitly defined “insured” to cover (1) the named insureds (the Chans); (2) the n amed insureds’ relatives by blood, marriage or adoption; or (3) any person under the age of 21 in the care of the named insureds. In addition to denying coverage, defendant filed a counterclaim for declaratory relief seeking a declaration of no coverage. Plaintiff also filed a declaratory action, and the trial court granted plaintiff leave to file an amended complaint in which she all eged that she was legally entitled to UIM coverage under the umbrella policy because she was a permissive passenger in the Chans’

vehicle.
¶ 5 On February 18, 2011, defendant moved to dismiss p laintiff’s amended complaint pursuant

to section 2-619(a)(9) because plaintiff was a pass enger and did not fit within the umbrella policy’s definition of insured, which defeated her claim. See 735 ILCS 5/2-619(a)(9) (West 2010). Hoskins’ affidavit supported the motion seek ing to establish that the reconstructed policy was an accurate copy of the policy issued to the Chans. In addition, defendant provided an affidavit by its attorney Siobhan Murphy, who at tested to having received an identical reconstructed copy of the Chans’ policy through the Chans’ own attorney, Philip Corboy, Jr. Furthermore, Mark Bazzanella, another attorney invo lved in the underlying action, provided an affidavit attesting that he possessed only the r econstructed policy and neither the Chans nor their counsel had any other umbrella policy in thei r possession. The trial court also allowed plaintiff to conduct limited discovery to determine if there was another policy in effect. Defendant responded to written discovery but challe nged the production of other materials, including the underwriting file for the policy, pri vileged communication with the Chans, and underwriting manuals. Plaintiff then filed a motion to compel, which the trial court denied after finding that the requested material was unnecessary for the limited purpose of the motion to dismiss. The trial court, however, struck Hoskins’ affidavit from the record at plaintiff’s request and allowed plaintiff to depose Hoskins.
¶ 6 Hoskins testified that at the time the initial com plaint was filed, he was defendant’s

umbrella underwriting supervisor. Hoskins trained f or this position by working with the department manager and studying manuals regarding u mbrella policies and their reconstruction. In certifying a reconstructed polic y, Hoskins would meet with the employee who assembled the electronic data, review all forms pertaining to the policy, and verify the time period before certifying the reconstruction. H oskins further testified that defendant only issued two umbrella policy forms during the time in question, personal and commercial. He did not know the difference between a “personal umbrell a policy” and a “Farmer’s special personal umbrella policy.” He was unclear why the f ront page of the Chans’ reconstructed policy read “personal umbrella policy,” while the b ack page read “Farmer’s special personal umbrella policy.”
¶ 7 On June 4, 2012, the trial court heard argument an d granted defendant’s motion to dismiss

the amended complaint with prejudice. The court not ed that the umbrella policy in the record was the best evidence of the proper policy and, acc ording to that, plaintiff did not qualify as an insured. In addition, there was no public policy th at barred defendant and its insureds from limiting the definition of “insured” in its umbrell a policy to provide coverage solely for the named insureds and their family members residing in their household. On October 1, 2012, the trial court also denied plaintiff’s motion to recon sider. Plaintiff timely filed this notice of appeal.- 4 - ¶ 8 ANALYSIS
¶ 9 Plaintiff now challenges the trial court’s order g ranting defendant’s motion to dismiss. A

section 2-619(a)(9) motion admits the legal suffici ency of the complaint, but asserts that it is barred by some other affirmative matter. 735 ILCS 5 /2-619(a)(9) (West 2010); Berz v. City of

Evanston , 2013 IL App (1st) 123763. In considering the moti on, all well-pleaded facts and reasonable inferences drawn therefrom are admitted, and all pleadings and supporting documents are construed in a light most favorable t o the nonmoving party. Id. When reviewing a section 2-619 motion to dismiss, we must consider whether a genuine issue of material fact exists that precludes dismissal and whether the aff irmative matter negates the plaintiff’s cause of action completely or refutes critical conclusion s of law or conclusions of material unsupported fact. Turner v. 1212 S. Michigan Partnership , 355 Ill. App. 3d 885, 892 (2005).

We review de novo the dismissal of a complaint pursuant to section 2 -619. Brennan v. Kadner

, 351 Ill. App. 3d 963, 967 (2004).
¶ 10 Without citing to a specific statute, plaintiff co ntends that under Illinois law, she was

entitled to UIM coverage under the Chans’ umbrella policy issued by defendant. When construing the language of an insurance policy, the court’s primary objective is to ascertain and effectuate the intention of the parties as expresse d in their agreement. Travelers Insurance Co. v. Eljer Manufacturing, Inc. , 197 Ill. 2d 278, 293 (2001). Unambiguous words mu st be given their plain, ordinary, and popular meaning, whereas words that are susceptible to more than one reasonable interpretation are ambiguous and wil l be construed in favor of the insured and against the insurer that drafted the policy. Id.
¶ 11 In Illinois, umbrella policies and primary auto po licies are distinct policies. Hartbarger v.

Country Mutual Insurance Co. , 107 Ill. App. 3d 391, 396 (1982). An umbrella pol icy is intended to protect the insured against excess judg ments and the risks and premiums are calculated accordingly. Id. Under section 143a-2(5) of the Illinois Insurance C ode (Code), insurers may, but are not required to, provide unin sured or underinsured motorist (UM/UIM) coverage in umbrella policies. 215 ILCS 5/143a-2(5) (West 2010); Cincinnati Insurance Co. v.

Miller , 190 Ill. App. 3d 240, 248 (1989) (insurers provid ing personal liability coverage on an excess or umbrella basis are neither required to of fer, nor are they prohibited from offering, or making available coverages conforming to this secti on on a supplemental basis). An umbrella policy does not provide the same type of coverage a s an automobile policy and consequently falls outside the scope of Illinois UIM insurance l aws. Cope v. State Farm Fire & Casualty

Co. , 326 Ill. App. 3d 468, 471 (2001).
¶ 12 Contrary to plaintiff’s contention, the plain mean ing of the umbrella policy at issue here

does not provide UIM benefits to permissive passeng ers. The policy clearly defines “insured” as (1) the named insureds, (2) the named insureds’ relatives by blood, marriage or adoption, or (3) any person under the age of 21 in the care of t he named insureds. See Allstate Property & Casualty Insurance Co. v. Trujillo , 2014 IL App (1st) 123419, ¶ 18. Plaintiff does no t fall into any one of these defined categories.
¶ 13 Nonetheless, plaintiff contends that as a passenge r she is entitled to UIM coverage under

the umbrella policy, because both Illinois statutor y and case law mandate that bodily injury liability coverage include permissive passengers in the definition of insured, and thus, no UM/UIM liability coverage may exclude them. In supp ort of her contention, plaintiff relies on
Schultz v. Illinois Farmers Insurance Co. , 237 Ill. 2d 391, 394 (West 2010). In Schultz , the supreme court held insurance companies cannot exclu de permissive passengers from- 5 -

qualifying as insured parties under a primary auto liability policy’s coverage for UIM motorists because the exclusionary practice violate d section 143a-2(5) of the Code. 215 ILCS 5/143a-2(5) (West 2010); Schultz , 237 Ill. 2d at 394. Primary policies must be all encompassing, but the coverage of an umbrella polic y is discretionary between the insurer and

insured.
¶ 14 We find plaintiff’s reliance on Schultz misplaced. The court limited its holding and did n ot

extend this ruling to encompass umbrella policies. Id. Here, since plaintiff is seeking coverage under an umbrella, not a primary insurance policy, the holding in Schultz does not apply. See

Phoenix Insurance Co. v. Rosen , 242 Ill. 2d 48, 57-58 (2011).
¶ 15 In addition, there is no statutory or public polic y requirement obligating defendant to

provide UIM coverage to plaintiff under the umbrell a policy. See Cope v. State Farm Fire & Casualty Co. , 326 Ill. App. 3d 468, 471 (2001) (the minimum sta tutory insurance requirements and public policy arguments related to primary auto liability insurance are not applicable to umbrella insurance policies); Beck v. Budget Rent-A-Car , 283 Ill. App. 3d 541, 545 (1996) (an umbrella policy was not required to offer UIM cover age unless the policy itself stated otherwise). Moreover, plaintiff’s brief fails to ci te any relevant case law in support of her argument. It is well settled that a contention that is supported by some argument, but does not cite relevant legal authority, does not satisfy the requirements of Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013); In re Marriage of Ricketts , 329 Ill. App. 3d 173, 177 (2002) (“[t]he appellate court is not a depository onto wh ich a litigant may dump the burden of research and review”). We find no genuine issue of material fact and need not consider this

contention further.
¶ 16 Plaintiff next contends that the reconstructed pol icy produced by defendant was not an

accurate reconstitution of the original policy. Pla intiff, however, fails to provide evidence or opposing testimony to establish that the reconstruc ted policy was inaccurate. See Seegers Grain Co. v. Kansas City Millwright Co. , 230 Ill. App. 3d 565, 569 (1992). Hoskins provide d uncontradicted testimony detailing defendant’s reco nstruction process, and plaintiff fails to cite to any relevant law that suggests the only way for a policy to be authenticated is through a step-by-step analysis of its actual reconstruction. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); Sakellariadis v. Campbell , 391 Ill. App. 3d 795, 804 (2009) (this court has held that the failure to elaborate on an argument or cite persuasive and relevant authority results in waiver of that argument). In addition, defendant provided ample ev idence with the affidavits of Murphy and Bazzanella to authenticate the policy. Specifically , Murphy attested that she received the reconstructed umbrella policy relied on by defendan t from the Chans’ own attorney in an underlying coverage case. The Chans invoked the umb rella policy on their own behalf in this matter suggesting this was the actual policy, and p laintiff provided no evidence to the contrary. Furthermore, there is no evidence that there was bo th a “special personal umbrella policy” and a “personal umbrella policy” as plaintiff suggests. Plaintiff was given 15 months to conduct discovery and found no contrary evidence.
¶ 17 In the alternative, plaintiff contends that the tr ial court erred in denying the motion to

compel the production of relevant documents, includ ing the Chans’ underwriting file, policy forms, and underwriting manuals. Generally, rulings with regard to discovery are subject to the

abuse of discretion standard of review. Regency Commercial Associates, LLC v. Lopax, Inc.

, 373 Ill. App. 3d 270, 285 (2007). The threshold relevance requirement in discovery is whether items requested are actually relevant to issues in the case. Id. Based on the record, the trial- 6 -

court did not abuse its discretion by denying plain tiff’s motion to compel because she could not demonstrate the relevancy of the materials requeste d. While plaintiff may have been hoping to discover some alternate policy that would have prov ided her coverage, there is no evidence that any such policy existed, and we will not distu rb the sound judgment of the trial court. See CitiMortgage, Inc. v. Bermudez , 2014 IL App (1st) 122824, ¶ 81. In addition, plai ntiff again cites no relevant legal authority in support of her argument. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); People v. Hood , 210 Ill. App. 3d 743, 746 (1991). Thus, we find n o abuse of discretion on the part of the trial court.

¶ 18 CONCLUSION
¶ 19 Based on the foregoing, we affirm the judgment of the circuit court of Cook County.

¶ 20 Affirmed.