2017 IL App (1st) 160780 

FIRST DIVISION 

December 29, 2017 

No. 1-16-0780 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST DISTRICT
 

THE TRAVELERS INDEMNITY COMPANY and ) Appeal from the 

TRAVELERS PROPERTY CASUALTY COMPANY ) Circuit Court of 

OF AMERICA, ) Cook County 

) 

Plaintiffs-Appellants, ) 

) 

v. ) No. 10 CH 55238 

) 

ROGERS CARTAGE COMPANY, ) The Honorable 

) Peter Flynn, 

Defendant-Appellee. ) Judge Presiding. 

PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion. 

Justices Harris and Mikva concurred in the judgment and opinion. 

OPINION 

¶ 1 BACKGROUND 

¶ 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 
 

 

 

 

 

 

 

 

No. 1-16-0780 

underlying suits for a total of $9 million. Rogers then sought indemnification from Travelers 

under numerous 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: comprehensive general liability (CGL) 

policies and automobile policies. 

¶ 4 It is undisputed that Travelers issued Rogers CGL policies for the policy periods of 1960­

61 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 introduce 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 

1

Rogers filed its own declaratory judgment action in St. Clair County, and moved to transfer or 

dismiss Travelers’s declaratory judgment action based on forum non conveniens. The Cook County circuit 

court granted Rogers’s motion to transfer in part but retained jurisdiction with respect to the issue of the 

alleged lost or missing policies.

2

In the circuit court, Travelers contested the existence of the 1964-65 CGL policy. On appeal, it 

concedes the existence of the 1964-65 CGL policy because a known 1965-66 CGL policy indicated that it 

was a renewal policy. Travelers does not concede the terms and conditions of the 1964-65 CGL policy. 

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No. 1-16-0780 

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. 

¶ 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 original 

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. 

¶ 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 

3

Travelers explains that an “SL Letter” or “Series Letter” are Travelers’s records that are 

normally provided to field offices to assit in processing claims made against insureds. 

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No. 1-16-0780 

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 1960­

61 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 

¶ 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. 

¶ 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. 

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 (1987) 

(citing Allen v. Meyer, 14 Ill. 2d 284, 292 (1958)). But it is also true that the mere filing of crossmotions for summary judgment does not obligate the circuit court to grant one of the motions, 

(Pielet, 2012 IL 112064, ¶ 28), and if reasonable people could draw different inferences from the 

undisputed facts, summary judgment is inappropriate (Danada Square, LLC v. KFC National 

4 
 

No. 1-16-0780 

Management Co., 392 Ill. App. 3d 598, 607 (2009) (citing Mountbatten Surety Co. v. Szabo 

Contracting, Inc., 349 Ill. App. 3d 857, 867 (2004))). 

¶ 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. See, e.g., Chicago’s Pizza v. Chicago’s Pizza Franchise, Ltd., 384 Ill. 

App. 3d 849, 859 (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, 44 (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 

5 
 

 

 

 

 

No. 1-16-0780 

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; see also Norskog v. Pfiel, 197 Ill. 2d 60, 

70-71 (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 (2003). In order to prove the existence of the 

disputed CGL policies, Rogers first relied on an August 30, 2000, letter from Hal C. 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: 

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No. 1-16-0780 

“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.” 

¶ 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. 

¶ 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 a 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 

4

Rogers acknowledges, and we agree, that these dates “appear to be a misprint as both the 

preceding and subsequent sentences refer to the missing policy period as May 1, 1961[,] to April 1, 

1967.” 

7 
 

 

 

 

No. 1-16-0780 

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. 1995), 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 policy did.5 

Additionally, Travelers argues that there was uncontested evidence that Travelers’s specimen 

5

Travelers fails to cite the bookend policies to support this assertion, but instead cites to the 

transcript of the summary judgment argument where its counsel made this argument. 

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No. 1-16-0780 

policies are merely “building blocks” that are used to construct coverage, and Rogers failed to 

show what coverages would have been selected. 

¶ 17 We find that Rogers proved the material terms 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 

9 
 

 

No. 1-16-0780 

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 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 1960­

61 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, 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. 

¶ 21 Canal involved a declaratory judgment action related to insurance coverage for asbestosrelated injury claims against Montello, Inc. During the course of the litigation, a dispute arose 

10 
 

No. 1-16-0780 

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. 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. 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. 

¶ 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 

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No. 1-16-0780 

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 the evidence 

presented in this case is uncontroverted, genuine issues of material 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 

12 
 

 

No. 1-16-0780 

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 *5. 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 

13 
 

No. 1-16-0780 

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. 

¶ 26 We conclude that Rogers established by a preponderance of the evidence that the 1961­

62, 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. 

¶ 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. A party moving for summary 

judgment bears the initial burden of proof. Bank Financial v. Brandwein, 2015 IL App 1st 

143956, ¶ 40 (citing Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007)). Once the moving 

14 
No. 1-16-0780 

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. 

¶ 29	 Here, Rogers’s 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.” 

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.” 

¶ 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 

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No. 1-16-0780 

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 

number RKSLA-9430000 for a policy period of May 1, 1960 to May 1, 1961. An SL Letter 

dated April 25, 1960, reflects that policy number RKSLA-9430000 was a renewal of policy 

number RKSLA-8390542 (1959-60), which was a renewal of policy number RKSLA-4510729 

(1958-59), which was a renewal of policy number RKSLA-3135376 (1957-58). The SL Letters 

show that policy number 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 

1961-1970. 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 

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No. 1-16-0780 

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. 

¶ 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. 

¶ 34 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 show that the material terms and conditions of the CGL policies 

issued by Travelers between 1961 through 1965 CGL policy were more probably than not the 

same terms and conditions set forth in the 1961 and 1965 CGL policies. Finally, Rogers proved 

17 
 

 

No. 1-16-0780 

by a preponderance of the evidence that there are auto policies for the period of 1961-1970 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.
 

¶ 36 Affirmed; motion denied.
 

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