THIRD DIVISION 

 FILED: March 31, 2006 

No. 1-05-3122 

GREAT WEST CASUALTY COMPANY, ) APPEAL FROM THE 

 ) CIRCUIT COURT OF 

Plaintiff-Appellant, ) COOK COUNTY 

 ) 

v. ) NOS. 05 CH 3731

 ) 98 L 13503

NANCY JEAN COTE, JOHN JOHANNESSON, ) 

WALCO TRANSPORT, INC., and WALCZYNSKI ) 

ENTERPRISES, INC., ) HONORABLE 

 ) ALEXANDER P. WHITE, 

Defendants-Appellees. ) JUDGE PRESIDING. 

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court: 

The plaintiff, Great West Casualty Company (Great West), 

appeals from an order of the circuit court dismissing its 

declaratory judgment action as untimely and an earlier order 

entered in a consolidated case, finding that it failed to tender 

the full amount of monetary coverage remaining under its policy of 

insurance in partial satisfaction of a judgment entered against its 

insureds. For the reasons which follow, we reverse the circuit 

court=s order dismissing the declaratory judgment action and remand 

this matter with directions and for further proceedings in 

conformity with the opinions expressed herein. 

The facts necessary to an understanding of our disposition of 

this appeal are not in dispute. Nancy Jean Cote filed an action in 

the Circuit Court of Cook County seeking damages by reason of 
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injuries she sustained on November 22, 1996, when the vehicle she 

was driving collided with a semi-tractor and trailer driven by John 

Johannesson. Named as defendant's in Cote's complaint were 

Johannesson and his employer, Walco Transport, Inc.(Walco). The 

case was docketed in the circuit court as No. 98 L 13503 

(hereinafter referred to as the "underlying case"). Following a 

trial, the jury returned a verdict in Cote's favor and against both 

Johannesson and Walco, fixing Cote's recoverable damages at 

$2,052,750. Thereafter, the trial court entered judgment on the 

verdict. The judgment was subsequently amended to include 

Walczynski Enterprises, Inc. in response to Cote's motion 

suggesting that Walco had changed its name to Walczynski 

Enterprises, Inc. (Walczynski). 

 Johannesson and Walco filed post-trial motions which the 

trial court denied. In addition, the trial court imposed monitary 

sanctions against their attorneys for meritless pleading. 

Johannesson and Walco filed a notice of appeal, and Cote filed 

a timely notice of cross-appeal. On review, we reversed the order 

assessing sanctions against the attorneys representing Johannesson 

and Walco and affirmed the circuit court's judgment and orders in 

all other respects. Cote v. Walco Transport, Inc., No. 1-02-3857 

(2004) (unpublished order under Supreme Court Rule 23). 

At all times relevant, Walco was insured under a policy of 
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commercial lines insurance issued by Great West which provides 

$1,000,000 in liability coverage (hereinafter referred to as the 

"Policy"). In its brief, Great West acknowledges that Johannesson 

and Walczynski are additional insureds under the Policy. 

On October 14, 2004, Great West tendered two checks payable to 

Cote and her attorney. The first check was in the sum of $995,000, 

representing what Great West claimed was the remaining limit of 

liability coverage under the Policy. The second check was in the 

sum of $402,901.56, representing accrued interest on the entire 

judgment in favor of Cote in the underlying case through the date 

of tender. Cote refused the tendered sums, contending that Great 

West had failed to tender the Policy=s full $1,000,000 limit of 

liability coverage. 

On November 11, 2004, Johannesson, Walco, and Walczynski 

(hereinafter collectively referred to as the "defendants") filed a 

motion in the underlying action seeking an order finding that the 

judgment in favor of Cote had been partially satisfied to the 

extent of $995,000 and that interest on the judgment had been paid 

to the extent of $402,901.56. Additionally, the defendants 

requested an order providing that, if Cote refused to accept the 

tender of the two checks from Great West, the sums be deposited 

with the court. On November 15, 2004, the trial court entered an 

order directing that the defendants deposit the sum of 
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$1,397,901.56, the total sum tendered by Great West, with the 

Northern Trust Company as escrowee for the benefit of Coat and her 

attorney. The order also provided that the deposit would be 

without prejudice to Cote=s right to contest the adequacy of the 

tender or to maintain that interest continued to run on the full 

amount of the judgment. 

On December 1, 2004, Cote filed a motion in the underlying 

case requesting, inter alia, that the trial court find that the 

defendants= insurance carrier, Great West, had not made a "perfect 

tender so as to stop the post judgment interest from running on the 

full amount" and that the defendants and Great West still owe Cote 

interest on the full amount of the judgment. On February 4, 2005, 

the trial court entered an order finding that "there has been an 

improper tender of the judgment plus accrued interest" and 

directing Cote=s attorney to tender the amounts previously paid back 

to the defendants= attorneys within 30 days. 

On February 25, 2005, Great West filed a declaratory judgment 

action in the Circuit Court of Cook County which was docketed as 

No. 05 CH 03731. Named as defendants in that action were Cote, 

Johannesson, Walco, and Walczynski. Great West sought findings 

that: the maximum limit of its liability for indemnification under 

the Policy is $1,000,000; the limit of its liability for 

indemnification under the Policy was reduced by $2,000 paid to Cote 
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5 

for damage to her property and an additional $3,000 it paid to 

State Farm Insurance Company as reimbursement for Cote=s medical 

expenses; its October 14, 2004, tender to Cote of $995,000 plus 

$402,901.56 in accrued interest fulfilled its obligations under the 

Policy and that it was not obligated to pay any additional sums to 

Cote. In addition, Great West sought an order directing Cote to 

execute a partial satisfaction of judgment reflecting the payment 

of $995,000 plus $402,901.56 in accrued interest through and 

including October 14, 2004. 

On April 28, 2005, the circuit court entered an order 

consolidating Great West=s declaratory judgment action and the 

underlying case. Thereafter, Cote filed a motion pursuant to 

section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-

619 (West 2004)) seeking the dismissal of Great West=s declaratory 

judgment action. In that motion, Coat asserted, inter alia, that: 

the declaratory judgment action is untimely because Great West 

never raised any issues of coverage prior to the entry of the 

judgment in the underlying case; no actual controversy exists 

between Great West and Cote, as all matters relating to the 

adequacy of the October 14, 2004, tender were resolved in the 

underlying action with the trial court=s order of February 4, 2005; 

and Great West=s request for a finding that the limit of its 

liability for indemnification under the Policy was reduced by the 
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$3,000 it paid to State Farm Insurance Company as reimbursement for 

Cote=s medical expenses is untimely pursuant to the provisions of 

section 2-1205.1 of the Code (735 ILCS 5/2-1205.1 (West 2004)). 

On August 22, 2005, the trial court entered a Memorandum 

Decision and Judgment Order, dismissing Great West=s declaratory 

judgment action, finding that the action was untimely and "an 

attempt to reduce Cote=s recovery in violation of 735 ILCS 5/2-

1205.1." In addition, the trial court found that interest on Cote=s 

judgment would continue to accrue "until proper tender is 

attained." Thereafter, Great West initiated this appeal with the 

filing of a notice of appeal from the circuit court=s orders of 

August 22, 2005, and February 4, 2005. In urging reversal of the 

circuit court=s orders, Great West argues that: 1) the dismissal of 

its declaratory judgment action as untimely was error, as no case 

or controversy arose until Cote refused its October 14, 2004, 

tender; 2) the trial court erred in finding that it made an 

"improper tender" of its policy limits to Cote; and 3) the trial 

court erred in finding that its declaratory judgment action 

violated section 2-1205.1 of the Code. 

The circuit court=s Memorandum Decision and Judgment Order of 

August 22, 2005, states that it was entered in response to Cote=s 

motion to dismiss which was brought pursuant to section 2-619 of 

the Code. Section 2-619 affords a defendant a means of obtaining a 
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summary disposition of an action based upon issues of law or easily 

proven issues of fact. Kedzie and 103rd Currency Exchange, Inc. v. 

Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732 (1993). An appeal from 

a dismissal pursuant to this section of the Code is a matter given 

to a de novo review. Guzman v. C.R. Epperson Construction, Inc., 

196 Ill. 2d 391, 397, 752 N.E.2d 1069 (2001). Our function on 

review is to "determine whether the existence of a genuine issue of 

material fact should have precluded the dismissal or, absent such 

an issue of fact, whether dismissal is proper as a matter of law." 

Guzman, 196 Ill. 2d at 397. 

For its first assignment of error, Great West argues that the 

circuit court erred in dismissing its declaratory judgment action 

as untimely. We agree. 

Cote argued, and the trial court agreed, that, when an 

insurance carrier waits to bring a declaratory judgment action 

until after the underlying case has been resolved, the declaratory 

judgment action is untimely as a matter of law. See Employers 

Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 

157, 708 N.E.2d 1122 (1999) (Wausau). Great West acknowledges the 

holding in Wausau, but argues that it has no application to the 

facts in this case. According to Great West, the proposition of 

law set forth in Wausau, and relied upon by the circuit court, is 

applicable only in situations where an insurer denies coverage for 
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the underlying case and neither defends its insured under a 

reservation of rights or brings a declaratory judgment action prior 

to or during the pendency of the underlying case to determine its 

obligations. Great West asserts that this case presents an 

entirely different fact situation as it never denied coverage and 

did, in fact, defend its insureds in Cote's underlying action. 

Great West contends that no actual controversy arose between the 

parties relating to the monetary limit of coverage remaining under 

the Policy until after there was a finding of liability on the part 

of its insureds in the underlying case and Cote refused its tender 

of October 14, 2004. Great West maintains that any declaratory 

judgment action filed prior to that time would have been premature. 

 See Batteast v. Argonaut Insurance Co., 118 Ill. App. 3d 4, 6, 454 

N.E.2d 706 (1983). 

As Great West correctly notes, the holding in Wausau upon 

which the circuit court relied in dismissing its declaratory 

judgment action as untimely was promulgated in the context of a 

case involving an insurer that had denied that the underlying case 

fell within the coverage afforded under its policy of insurance and 

neither defended its insured under a reservation of rights or 

sought a declaratory judgment prior to or during the pendency of 

the underlying action. Wausau, 186 Ill. 2d at 150-57. The Wausau

Court specifically stated that its holding was based on an estoppel 
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9 

theory and was applicable only to an insurer that had breached its 

duty to defend. Wausau, 186 Ill. 2d at 151. In this case, Great 

West neither denied coverage or declined to defend its insureds. 

To the contrary, Great West has always acknowledged that Cote's 

action fell within the coverage afforded under the Policy, and it 

discharged its contractual duty to defend its insureds. 

Simply put, the holding in Wausau upon which the circuit court 

relied to dismiss Great West's declaratory judgment action as 

untimely has no application to the facts of this case. However, 

our review is de novo, and we can affirm the trial court's 

dismissal of the action on any ground warranted, regardless of 

whether the reason given by the trial court was correct. See 

Beckman v. Freeman United Coal Mining Co., 123 Ill. 2d 281, 286, 

527 N.E.2d 303 (1988). Consequently, we will address directly the 

question of whether Great West's declaratory judgment action was 

untimely. 

Section 2-701(a) of the Code provides that the circuit "court 

may, in cases of actual controversy, make binding declarations of 

rights, having the force of final judgments." 735 ILCS 5/2-701(a) 

(West 2004). By the very terms of the statute, a declaratory 

judgment action may not be maintained unless and until an actual 

controversy exists between the parties. As the court in Stokes v. 

Pekin Insurance Co., 298 Ill. App. 3d 278, 280-81, 698 N.E.2d 252 
1-05-3122 

10 

(1998), held: "[A]n 'actual controversy' exists where there is a 

legitimate dispute admitting of an immediate and definite 

determination of the parties' rights, the resolution of which would 

help terminate all or part of the dispute." 

The controversy in this case relates to the amount that Great 

West is required to pay Cote under the terms of the Policy. Great 

West never denied that Cote's action fell within the coverage 

afforded its insureds; rather, the parties' dispute relates only to 

the amount owed. Therefore, until Great West's insureds were found 

liable to Cote, any declaration as to the amount of coverage 

available under the Policy would have been purely advisory and 

premature. Stokes, 298 Ill. App. 3d at 283-84; Batteast, 118 Ill. 

App. 3d at 6. As the court in Batteast observed, if the issue of 

the amount of coverage available under a policy of insurance were 

ripe for resolution prior to a determination of the liability of 

the carrier's insured in the underlying action, every plaintiff, 

upon the filing of a personal injury action, could concomitantly 

file a declaratory judgment action to determine the amount of 

coverage available in the event that liability was subsequently 

established. Batteast, 118 Ill. App. 3d at 6. 

Our analysis leads us to conclude that, in cases such as this 

where an insurance carrier has not denied coverage and has 

undertaken the defense of its insured, a declaratory judgment 
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action to determine the amount of insurance coverage available 

under the carrier's policy is not ripe for adjudication until the 

liability of the insured has been determined in the underlying 

action. Great West filed its declaratory judgment action after the 

liability of its insureds to Cote had been established and Cote had 

rejected its tender in partial satisfaction of her judgment. The 

dispute between Great West and Cote as to the adequacy of the 

tender was certainly ripe for adjudication, and no argument has 

been made that it is barred by any applicable statute of 

limitations. For these reasons, we find that Great West's 

declaratory judgment action was not untimely and the circuit court 

erred in dismissing it on that basis. 

Next, Great West argues that the trial court erred in finding 

that its declaratory judgment action violated section 2-1205.1 of 

the Code. In support of its dismissal of Great West's action, the 

trial court found that Great West was not entitled to any reduction 

in the sums owed to Cote by reason of the provisions of section 2-

1205.1, as no motion to reduce her judgment was made within 30 days 

of its entry. However, Great West disclaims any reliance upon 

section 2-1205.1 in support of its contention that the tender of 

October 14, 2004, was a complete tender of the then remaining 

liability coverage under the Policy. In point of fact, Great 

West's entire declaratory judgment action rests on the proposition 
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that, under the terms of the Policy itself, the $1,000,000 limit of 

the liability coverage had been reduced by the $5,000 it had 

previously paid to "reimburse for [Cote's] *** property damage and 

medical expenses." The issue of whether Great West is obligated to 

indemnify its insureds for post-judgment interest accruing on the 

full amount of Cote's judgment after October 14, 2004, rests on a 

construction of the Policy to ascertain whether Great West's tender 

of October 14, 2004, constituted a complete tender of the remaining 

balance of liability coverage available under the Policy, not on 

whether Cote's judgment has been reduced by $5,000 pursuant to the 

provisions of section 2-1205.1 of the Code. As Great West 

correctly asserts, its declaratory judgment action has nothing 

whatever to do with an application of section 2-1205.1. We 

conclude, therefore, that the trial court also erred in finding 

that Great West's declaratory judgment action is an attempt to 

reduce Cote's judgment contrary to section 2-1205.1 of the Code and 

in dismissing the action on that basis. 

Based upon the foregoing analysis, we reverse the trial 

court's judgment of August 22, 2005, dismissing Great West's 

declaratory judgment action. 

Finally, Great West argues that the trial court erred when, in 

its February 4, 2005, order, it found that Great West made an 

"improper tender" of the Policy's remaining limit of liability 
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13 

coverage. However, for the reasons which follow, we conclude that 

it would be inappropriate to address the merits of the issue at 

this time. 

In its order of February 4, 2005, the trial court found that 

there had been "an improper tender of the judgment and accrued 

interest." The order was entered in Cote's underlying action in 

response to her motion requesting a finding that the defendants and 

their insurance carrier, Great West, had not made a "perfect tender 

so as to stop the post judgment interest from running on the full 

amount" of her judgment and that the defendants and Great West 

still owe her additional interest on the full amount of that 

judgment. The trial court=s order of February 4, 2005, can hardly 

be termed a final order as it did not fully and finally resolve the 

dispute existing between the parties. See People ex rel. Scott v. 

Silverstein, 87 Ill. 2d 167, 171, 429 N.E.2d 483 (1981). It was not 

until the entry of the August 22, 2005, judgment that the trial 

court found that interest on Cote=s judgment would continue to 

accrue until a proper tender is made. However, the August 22, 

2005, judgment was entered in response to a section 2-619 motion, 

requesting only that Great West's declaratory judgment action be 

dismissed as untimely, either because it was not filed until after 

her underlying case had been disposed of or because Great West was 

attempting to obtain a reduction in her judgment past the 30 days 
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provided in section 2-1205.1 of the Code. Had Cote desired a 

judicial determination of the issue of whether interest continues 

to accrue on her judgment in the underlying case, she could have 

filed a counter-claim for a declaratory judgment and, thereafter, 

moved for summary judgment on the issue, or she might have sought 

such a finding in the context of a section 2-615 motion for 

judgment on the pleadings (735 ILCS 5/2-615(e) (West 2004)) 

addressed to Great West's complaint for declaratory judgment. Cote 

did neither. Rather, in the reply memorandum that she filed in 

support of her section 2-619 motion, Cote, for the first time, 

requested affirmative relief in the form of a judicial declaration 

that, "as a matter of law, there has not been a tender to stop 

interest from continuing to run, either by the nature of the tender 

and/or the policy language." The procedure employed by Cote in 

this regard was wholly inappropriate and the affirmative relief she 

sought should not have been entertained, as a section 2-619 motion 

is not a vehicle for obtaining affirmative relief in the form of a 

summary determination in favor of a defendant on one of several 

major issues raised in a plaintiff's complaint. However, Great 

West never objected to the request, the trial court ruled on the 

issues, and Great West has not claimed that it was prejudiced by 

the procedure. Nevertheless, we must decline to address the 

question of the propriety of the trial court's finding. 
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The question of whether Great West's tender of October 14, 

2004, constituted a complete tender of the remaining balance of 

liability coverage under the Policy rests entirely upon a 

construction of the terms of the Policy. The record reflects that 

both Cote and Great West addressed the coverage afforded under the 

provisions of the Policy, but the trial court declined to address 

their arguments, and appears instead to have rested its conclusion 

that Great West's tender was not "legally sufficient" based upon 

its finding that Great West was attempting to receive a set-off 

contrary to the provisions of section 2-1205.1 of the Code. As we 

have already concluded, however, an application of section 2-1205.1 

has nothing whatever to do with Great West's claim that it made a 

complete tender of the remaining balance of liability coverage 

under the Policy. Whether, the October 14, 2004, tender was 

"legally sufficient" or "improper" is an issue which can be decided 

only by construing the terms of the Policy, an inquiry which we are 

not inclined to conduct for the first time on appeal. 

Additionally, the trial court's findings in its August 22, 

2005, judgment provided the finality rendering its interlocutory 

order of February 4, 2005, appealable. Having reversed the August 

22, 2005, judgment, the basis for the exercise of our jurisdiction 

to review the February 4, 2005, order may well have evaporated. 

We believe that the prudent course of action, in light of our 
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conclusion that the issue of the adequacy of Great West's tender of 

October 14, 2004, must be decided based upon a construction of the 

Policy and our misgivings as to whether we have jurisdiction to 

address the propriety of the February 4, 2005, order on the merits, 

is to remand the matter to the circuit court with directions to 

vacate that portion of its February 4, 2005, order finding that 

"there has been an improper tender of the judgment plus accrued 

interest" and to resolve the issue based upon a construction of the 

terms of the Policy. 

For the reasons stated, we reverse the trial court's judgment 

of August 22, 2005, and remand this cause with directions to vacate 

portions of the February 4, 2005, order and to conduct further 

proceedings in conformity with the opinions expressed herein. 

Reversed and remanded with directions. 

KARNEZIS and ERICKSON, JJ., concur.