No. 1-07-1419 SIXTH DI VISI ON August 15, 2008

No. 1-07-1419 STACIE BOVAN, individually and as ) Special Administrator of the Estate of ) Lorenzo Hamilton, deceased, ) ) Appeal from the Plaintiff -Appella nt, ) Circuit Court of

) Cook County , Illinois. v. ) ) AMERICAN FAMI

LY L IFE INSU RANCE ) No. 03 L 3457 COMPANY, and ERIC J. LI NDSAY, )

) Defendants-Appellee ) Honorab le ) Marcia

Maras, (P at ri ck Da vi s, An th on y Bo yce , a nd Lat oya ) Judge Presi ding. Williams, ) ) Third-Party De

fendants). )

JUSTICE JOSEPH GORDON deliver ed the opinion of the

court: Stacie B ovan, ad

ministrato

r of the e state of L

orenzo Ha

milton, bro

ught a w rongfu l death suit aga inst Amer ican Fa mily Life Insu rance C ompany

(Americ an Famil

y) and Amer

ican Fa mily agent Eric L

indsay. She alleg ed that Lindsay , as agent for American Family, had sold a life insurance policy

to a man impersonating Hamilton and that the impostor was part of a conspiracy to murder the real Hamilton so that the conspirators could collect the dea th benefit. She thus contended that Hamilton’s death was a direct result of L indsay’s negligence in processing the im po st or ’s ap pl ic at io n a nd Am er ic an Fa mi ly’ s n eg li ge nc e i n i ss ui ng th e p ol ic y. The trial court granted summary judgment in favor of Lindsay , finding that Bovan hadNo. 1-07-1419

-2-

failed to produce any evidenc e that wou

ld support

a finding that L indsay owed a du

ty o f care to Hamilton or that Lindsay ’s actions were the proximate cause of Hamilton’s death. (B ovan’s claim against American Family remains pending in the circuit court.) Bova n now appeals the trial court’s finding of summary judgment with respect to Lindsay . Bovan also appeals the trial court’s decision to strike the affidavit of Bovan’s expert witness Gregory Wimmer. For the

reasonsthat follo w, we af firm. I. BACKGROUND Bovan, individually a

nd as special admini strator o f the esta te of Ham ilton, file d her fir st amended complaint for wrongful death a gainst American Family

and Lindsay

on September 12, 2003. The

complain t alleg es the fo llowing, in relev ant part . Patrick Davis, Anthony B oyce, a nd Latoy a Williams plotted to obtain a life insurance policy in Hamilton’s name and then murde r Hamilton so that they could collect the death benefit. To this end, on or about January 19, 2001, Davis a nd Boyce went to the insurance office of Lindsay , an American Family agent. Lindsay

allegedly helped Davis complete an application for a life ins urance

policy in Hamilton ’s name with a dea th benef it in the am

ount of $50 0,000. (I

t is not alleged that Lindsay

was a part of the conspiracy or knew about their plans to murder Hamilton.) The application allegedly contains a number of inaccuracies: I t misstates Hamilton’s address, phone number, and employ ment information, it does not contain the requested driver’s li cen se i nfo rma ti on, and it in cor rec tl y sta tes th at La to ya Wi ll iam s i s Ha mi lt on’ s fi anc ee. In addition, it is alleg ed that wh ile Daviswas 21 y

ears old , 6 feet 1 inch and 1 35 pounds a t the timeNo. 1-07-1419

-3-

the policy was issued, Ha milton was 31 years old, 5 feet 9 inches and 170 pounds. The complaint then avers that, as a result of these discrepancies, American Family and Lindsay should have known that Davis was not Hamilton and had no insurable interest in Hamilton’s life. Ne ve rt he le ss , A me ri ca n F am il y is su ed th e p ol ic y. The complaint further alleges that, on or about January 21, 2001, Davis and Boy ce shot and killed Hamilton. It alleges that, but for their desire to collect the benefits of the life insurance policy

on Hamilton’s life, they would not have mur dered him. It contends that the neglig ence of

America n Family and L indsay in failing to proper ly in vestiga te the mat erial fa cts before issuing the policy

was the proximate cause of Hamilton’s death. Hence, B ovan seeks damages from American Family and L indsay for Ha

milton’s death, pursuant to the terms of the Wrongful Death Act (740 I LCS 180/0.01 et seq. (West 2006)). Lindsay filed a motion to dismiss Bovan’s claims against him, contending that Bovan failed to allege any

facts that would demonstrate that Lindsay personally owe d any duty of care to war d Ha mi lt on o r th at Li nds ay ow ed a dut y to H ami lt on a s an age nt of A mer ica n Fa mi ly. In

re sp on se , B ov an ar gu ed th at un de r Il li no is ag en cy l aw , i f a pr in ci pa l o we s a du ty t o a th ir d p ar ty, and the agent play s an “active part” in violating that duty , then the agent can be held liable to the third party in tort. I

n support of this contention, Bovan cited Grover v. Commonwe alth Plaza Condominium Ass’n , 76 Ill. App. 3d 500, 507, 394 N.E.2d 1273, 1279 (1979). The court granted L

indsay’s motion to dismiss, but it gave Bovan 30 da ys to amend her complaint to add allegations that Lindsay played an “ active part” in violating a duty that American Family

owed to Hamilton. Pursuant to this order, Bovan filed her second amendedNo. 1-07-1419

1 Wimmer subsequently amended his aff idavit; since it is the amended affidavit that was eventually struck by

the court, it is the allegations in that affidavit that shall be discussed here. -4- complaint on February

18, 2004. For purposes of this appeal, the facts alleg ed in the second amended complaint are substantially the same as in the first amended complaint. However, the second amended complaint adds allegations that L indsay “actively conducted business” a s American Family ’s agent; that he “actively completed the life insurance application” on America n Family ’s behalf; and tha t in “actively

prepar ing” the policy , Lind say

had a duty

to exercise care and caution. L indsay ag ain filed a motion to dismiss, but the court denied Lindsay ’s motion. Lindsay then filed a motion for summary judg ment, in which he set forth two key arguments. First, he contended that the undisputed fa cts showed that he had no duty to Hamilton as a mat ter of

law an d that , even assum ing arguendo that such a duty existed, there wa s no evidence to show that Lindsay had played a

n “active part” in violating any such duty. Second, Lindsay contended that Lindsay ’s actions as alleged by Bovan could not be considered the proximate cause of Hamilton’s death, as Lindsay could not have foreseen Hamilton’s death as the result of his actions, and Bovan had not proffered evidence to demonstrate that Hamilton’s death would not have occurred but for Hamilton’s alleg ed negligence. In response to L

indsay’s motion for summary judgment, Bovan offered, among other things, an affidavit by

an expert witness named Gregory Wimmer whom she had retained to offer opinions in

connec tion with he

r suit. 1 In his affidavit, Wimmer stated that he was a litiga tion consulta nt and expe

rt witnes s specia

lizing in li fe and he alth insur ance. B ased upo n hisNo. 1-07-1419

-5-

education, training, and experience in the insuranc e industry, he cla imed to be familiar with the standar d of car e for ins urance

produce rs in I llinois, aswell as w ith Illinois req uiremen ts regar ding the applica tion and a pproval p rocess f or life in surance

policies. Wimmer stated that he had reviewed American Fa mily’s underwriting

file, American Family’s rules a

nd guidelines relating to the issuance of life insura nce policies, and deposition testimony and affidavits of va rious American Family

employees, including

that of Lindsay

. Based u pon his review of th

ese docu ments, he stated tha

t it was his u

ndersta nding tha t in persona lly p rocessing Davi s’s applic ation, L indsay “ignor ed many red fla gs, susp icious co nduct, inconsistent statements, and failed to fully e xplain and provide material information on the applica tion.” He theref ore opine d that L indsay breach ed the dut y of ordinar y c are with

regar d to the life insuranc e policy

issued on H amilton. Sp ecifica lly, he said th at Hamilto n had a du ty to submit completed applications to American Family only after he

had asked and received “viable, reasonable answers,” which he ha d not done in the instant case. He also opined that Lindsay ’s conduct in proces sing the applica tion withou

t question ing the r eprese ntations o f Davis or

his suspicious behavior constituted active participation in the issuance of the policy . He also stated that he believed that Hamilton would not have been killed if L indsay had exercised or

dinary ca re in his handling of the application. Lindsay then filed a motion to strike Wimmer’s affidavit, contending that it was not based upon Wimmer’s personal knowledge and that it was composed pr imarily of factual and legal c onclusion s unsuppor ted by the evide nce, in vi olation of

Illin ois Suprem

e Court Rul e 191(a) (134 Ill. 2d R. 191(a)) . American Family subsequently joined in this motion.No. 1-07-1419

-6-

The court held a hearing on May 1, 2007, to consider both Lindsay ’s summary judgment motion and

Linds ay ’s motion to

strike Wimme

r’s aff idavit. With

respec t to Wimmer’ s affida vit, the court noted that in subsequent deposition testimony, Wimmer had admitted, among other things, that each insurance company had its own underwriting manuals and policies and that he had no knowledge with regar d to American Family

policies. The court thus found that Wimmer lacked proper knowledge to for m an expert opinion on whether Lindsay had taken adequate care in processing the policy

taken out on Hamilton’s life. With respect to L

indsay ’s motion f

or summar

y ju dgment, the cour

t stated: “ [I]t is undisputed that Mr. Lindsay only filled out information in part one and submitted to Americ an Fami ly .” As a res ult, it found, “I n no w ay did Mr . Lindsa

y inves tiga

te an d issu e thispolic y. We agree that ther e is no evi dence to

support the conclu sion that E ric L indsay breach ed his duty

to America n Family . Lind say

could not h ave act

ively particip ated in a

ny a lleged America n Family breach.” I

t also stated, “At best, Mr. Lindsay ’s alleged conduct did nothing more than fur nish a condition and that condition caused Hamilton’s death ***. Subsequent independent and criminal acts of Davis and Boy

ce and [ sic ] can’t be the proximate cause of injury .” Accordingly , the court issued an order granting Lindsay ’s and American Family ’s motions to strike Wimmer’s affidavit and granting L indsay’s motion for summary judgment. Subseque ntly , the cour

t made a f inding pu rsuant to Illin ois Suprem

e Court Rul e 304(a)(134 I ll. 2d R. 304(a)) that “there is no just reason to delay appeal from the final order entered on May 1, 2007 entering summary

judgment in favor of Eric L indsay.” B ovan then timely filed the instant appeal.No. 1-07-1419

-7-

II. AN ALYS IS On appeal, Bovan raises two key points of contention: She challenges the trial court’s grant o f summ ary judgme nt in favor o f Lindsa y, arguing t hat co ntrar y to the t rial c ourt’ s find ing, materia l issues of fact exist with resp ect to the

issues of duty and proxima

te cause . She also challenges the trial court’s discussion to strike Wimmer’s affidavit, as she c ontends that he was sufficiently qualified to testify as an expert. We consider these issues in turn. Summary judgment is proper where, “when viewed in the light most favora ble to the nonmoving party, the

pleadings, depositions, admissions, and affidavits on file reveal that there is no gen uine issue as to any materia l fact and that the

moving pa

rty is entitle d to judgm

ent as a matter of law.” General Casualty Insurance Co. v. Lacey , 199 Ill. 2d 281, 284, 769 N.E.2d 18, 20 (2002), citing 735 IL

CS 5/2-1005(c) (West 2006). We review the trial court’s grant of summary judgmen t de novo

. Hartford Fire Insurance Co. v. Everest Indemnity Insurance Co. , 369 Ill. App. 3d 757, 761, 861 N.E.2d 306, 310 (2006). Further more, we may

affirm the trial court’s grant of summary judgment for any

reason that is supported by the record, regardless of whether that rea son formed the basi s for the trial cou rt’s judgment. Leavitt v. Farwell Tower Ltd. Partne rship , 252 Ill. App. 3d 260, 265, 625 N.E.2d 48, 52 (1993). To state a cause of action under the Wrong ful Death Act (740 IL CS 180/0.01 et seq. (West 2006)), the plaintiff must show that: (1) defendant owed a duty to the deceased; (2) defendant breached that duty ; (3) the breach of duty was the proximate cause of the deceased’s death; and (4) monetary

damages resulted to persons designa ted under the Act. Leavitt , 252 I ll. App. 3d at 264, 625 N.E.2d at 52; see Bajwa v. Metropolitan Life Insurance Co. , 208 Ill. 2d 414,No. 1-07-1419

-8-

421, 804 N.E.2d 519, 526 (2004) (stating the same gene ral elements in the context of a negligence action). I

f the plaintiff fails to establish any of these elements, then judgment for the defendant is proper. Leavitt , 252 Ill. App. 3d at 264, 625 N.E.2d at 52 ; see Bescor, Inc. v. Chicago Title & Trust Co. , 113 Ill. App. 3d 65, 68, 446 N.E.2d 1209, 1212 (1983) (to state a cause of action in negligenc e, it is not sufficient for plaintiff to allege that defendant br eached a duty; plaintiff must also allege that defendant owed a duty to the person injured). In its hearing on Lindsay ’s motion for summary judgment, the court found that Bovan had not proffered

ev id en ce th at , i f t ru e, wo ul d s up po rt ju dg me nt fo r h er on th e f ir st an d t hi rd el em en ts , n am el y, duty and proximate cause. Ac cordingly , on appeal, Bovan challenge s this finding, arguing that under the facts a s presen

ted, L indsay owed Ha milton a dut

y of care a nd, furth ermore , that a material issue of fact existed with respect to the issue of proximate cause. The existence, or la ck thereof, of a duty

of care is a question of law to be determined by the court, while the issue of proximate cause is a factual matter for the finder of fact to judge. Bajwa , 208 Ill. 2d at 421-22, 804 N.E.2d at 526 , citi ng Chandler v. Illinois Central R.R. Co. , 207 Ill. 2d 331, 340, 798 N.E.2d 724, 728 (2003). With respect to the issue of duty, Bova n first argues that insurance providers, suc h as American Family , owe a duty of c are to proposed insureds such as Hamilton. She furthermore argues that this duty

of care should extend to insurance agents like L indsay both individually

and in their capacity

as agents. As shall be developed below, we agree with the first proposition but disagree with the second. To demonstrate that American Family owed Hamilton a duty of r easonable care in issuingNo. 1-07-1419

-9-

the polic y in

his name, Bovan c ites Bajwa , 208 Ill. 2d 414, 804 N.E.2d 519. I n Bajwa , the Illinois Supreme Court found that an insurance compa ny owed a duty

of care to advise a proposed insured of a life insurance policy to be taken out on his life. Bajwa , 208 Ill. 2d at 427, 804 N.E.2d at 528-29. It stated that, befor e providing coverage

on someone’s life, the insurer had a duty to take “

reasonable precautions” to ensure that the insured actually conse nted to the issuance of the policy

. Bajwa , 208 Ill. 2d at 427, 804 N.E.2d at 529. However, w hile Bajwa may speak to the que stion of whether American Family owed a duty of c are to Hamilton, it does

no t s pe ak di re ct ly t o t he qu es ti on of wh et he r Li nd sa y, a s a n a ge nt fo r t he in su ra nc e c om pa ny, owed Hamilton a similar duty. The que stion of agent liability wa s not at issue in Bajwa , merely the issue of liability for the insurer

. Bajwa , 208 Ill. 2d at 417, 804 N.E.2d at 523. Thus, we m

ove to con sider Bo van’s co ntention th at Lindsay owed a du

ty to Hamilton in his individual capacity. B ovan argues that insurance agents in the field have a personal duty of care toward proposed insureds such as Ha milton who have policies taken out on their lives, thus exposing them to liability when trag edies like the instant case occur. Although we find

no case l aw spea

king to th e exact sit uation at hand, the gener al rule in Illinois is that an insurance age nt working for the insurer has no duty of care toward a customer, as long as there is no agency relationship betwee n the agent and the customer. “Wherea s the insured’s agent or broker has a duty of car

e, competence, and skill in performing all aspects of the insurance transaction, no such duty is imposed upon the insurer’s agent rega rding its duties toward a customer of the insurer.” Bellmer v. Charter Security Life Insurance Co. , 105 Ill. App. 3d 234, 239 , 433 N.E. 2d 1362, 13 66 (1982) (finding that “[a]bs ent an agency

relation shipNo. 1-07-1419

-10-

betwee n the insur

ed and the

insuranc e age

nt, no duty

is imposed u

pon the ins urer’sagent t

o notify plaintiff of fact s detrime

ntal to the insured f or the br each of which ne glige

nce liab ility

will lie”); see also Mackinac v. Arcadia National Life Insurance Co. , 271 Ill. App. 3d 138, 143, 648 N.E.2 d 237, 240 (1 995) ( citi ng Bellmer in support of its finding that an insurance agent without any independ ent age ncy relation ship to the

insured h ad no duty

to inform insured of

certain policy restrictions). The

distinction is that in the former case, for purposes of tort liability , the duty of rea sonable care flows from the relationship betwee n the parties; where there is no such relationship, no such duty arises. Bellmer , 105 Ill. App. 3d at 238, 433 N.E.2d at 1366. Thus the Bellmer court found that an insurance age nt had no duty to inform plaintiffs, relatives of the insured, that the insured had defaulted on his premium pay ments and that the policy had therefore been terminated. Bellmer , 105 Ill. App. 3d at 239-40, 433 N.E.2d at 1367. This is not to

say that an in surance

agent c an neve

r, under any circumst ances, b e liable t

o a proposed insured. If a

n insurance agent acts so as to induce de trimental reliance by

the proposed insured, the agent thereby undertakes an individual duty not to betra y that reliance

by his subsequent acts. Cf. Wakulich v. Mraz , 203 Ill. 2d 223, 241, 785 N.E.2d 843, 854 (2003) (quot ing Rhodes v. Illinois Central Gulf R.R. , 172 Ill. 2d 213, 239, 665 N.E.2d 1260, 1273 (1996), f or the pr oposition th at “ ‘one

who under

takes, g ratuitous ly o

r for co nsidera

tion, to render services to another is subject to liability for bodily harm ca

used to the other by one ’s failure to exercis e due ca

re in the perfor mance of the under

taking’ ”). This r

eliance theory is displayed in Talbot v. Country Life Insurance Co. , 8 Ill. App. 3d 1062, 291 N.E.2d 830 (1973). In Talbot , plaintiff’s husband applied for life insurance, but it was alleg ed that the insuranceNo. 1-07-1419

-11-

agent failed to process the application within a re asonable time, and plaintiff’s husband died before the policy

could be issued. The court found that plaintiff stated a valid cause of action against the insurance age

nt, despite the fact that the insurance age nt was not acting as agent for the plaintiff’s husband. In doing so, the c ourt applied the principle:

“[O]ne who enters upon an affirmative undertaking, to pe rform a service for another, is required to exercise reasonable c are in performing it, to avoid injury to the beneficiary

of the undertaking. I

nsurance agents who take applica tions, particularly wher

e they rec eive premiums, may be said to have entered definitely upon a course of affirmative conduct, and be liable for misfeasa nce if they unr

easonably de

lay.” Talbot , 8 Ill. App. 3d at 1065, 291 N.E.2d at 832, citing W. Prosser, Delay in Acting on an Application for Insurance , 3 U. Chi. L. Rev. 39 (1935). The court went on to state that, under this principle: “the agent or company

owes an applicant for insurance what amounts to be a legal obligation to act with reasonable promptness on the application, either by providing the desirable coverage or

by notify ing the applicant of the rejection of the risk so that he may not be lulled into a feeling of security or put to prejudicial delay in seeking protection elsewhere.” Talbot , 8 Ill. App. 3d at 1065, 291 N.E.2d at 832. This principle would not apply under the facts of this case, where there wa s absolutely no dealing between the agent and the purpor ted insured and, consequently , no affirmative undertaking. Rather, this case involves the issuance of a policy to an impostor in a context where the purported insured had no contact or course of de aling whatsoever with the carrier or the agent.No. 1-07-1419

-12-

Consequently, there is no circ umstance here that would require that we devia te from the general controlling principles as articulated in Bellmer and Mackinac : namely, that an insuranc e agent acting on behalf of the insurer has no indepe ndent duty of car

e toward the deceased with whom he had no contact or course of dealing and, consequently, with whom he did not enter into any affirm ative under takin g. This rule is consonant with the rule in cases involving employ ee liability outside the insurance context. For instance, in Buckner v. Atlantic Plant Maintenance, Inc. , 182 Ill. 2d 12, 694 N.E.2d 565 (1998), the Illinois Supreme Court held that a dischar ged worker could not bring a retaliatory

discharge claim aga

inst the employee who actually fired the wor ker. In limiting the tort of retaliatory

discharge to the employ

er, the court reasoned that it is the employ er who has the authority to fire; the a gent who carries out the employ er’s will has no authority of his own. Thus, it is the employer and not the employ er’s agent who should be held liable for a ny damag es caused. Buckner , 182 Ill. 2d at 21, 694 N.E.2d at 569-70. The court a lso stated that “[t]he policy considerations that motivated this court to recognize a retaliatory discharge cause of action are adequately

vindicated by allowing

a cause of action against employ ers,” since the purpose of the tort was to discourage malfeasanc e on the part of employ ers. Buckner , 182 Ill. 2d at 20, 694 N.E.2d at 569. This reasoning applies equally well to the case before us today . American Family is the party that had a

uthority to decide whethe r to issue the policy that alleg edly led to Hamilton’s death, so it is reasonable that the burden of care should be placed upon American Family rather than L indsay , who had no ultimate control o ver the i ssuance of the pol

icy . This res ult isNo. 1-07-1419

-13-

consistent with the decision in Bajwa , which discussed only the liability of the carrier, thus leaving the liability of the employee to be r

esolved under general tort principles that a re otherwise applicable. Bovan c ontends th at reg ardlessof the issue of individual duty , Lind say exposed him self to liability

by v irtue of h is status a s agen

t, given the fact that he p lay ed an “a ctive pa rt” in violating a duty that Ame rican Family

owed to Hamilton. We disagree. It is a gener

al principle of agency

law that “[a]n agent’s breach of a duty owed to the principa l is not an independe

nt basis fo

r the ag ent’s tor

t liability to a third p arty . An age

nt is subject to tort liability to a third party harmed by the a

gent’s conduct only

when the agent’s conduct breaches a duty

that the agent owes to the third party .” Restatement (Third) of Agency §7.02, at 138 (2006); see Bescor , 113 I ll. App. 3d

at 68, 446

N.E.2d a t 1212; Cahill v. Ea

stern Benefit Systems, Inc. , 236 I ll. App. 3d

517, 522, 6 03 N.E.2d

788, 792 ( 1992) (st

ating th e same principle); Gateway Erectors Division of Imoco-Gateway Corp. v. Lutheran General Hospital , 102 Ill. App. 3d 300, 302, 430 N.E.2d 20, 22 (1981). The fa cts of Bescor illustrate

this princ iple well. In Bescor , the plaintiff was not paid for construction work that he performed. He brought a suit for neglig ence ag ainst not o nly the owne r of the p roject, but also the owner ’s age nt in charg e of disbu

rsing f unds to the

contractors. Plain

tiff alle ged tha

t the nonpa

yme nt was dir ectly attributable to the disbursing agent’s negligence in accidentally paying the wrong party

. Nevertheless, the court applied the ge neral principle above to dismiss all claims against the disbursin g age

nt, on the g

rounds tha

t plaintif f had not s hown that

the disbur sing ag ent owed him any duty

. Bescor , 113 I

ll. App. 3d

at 68, 446

N.E.2d a t 1212-13. It found that in order toNo. 1-07-1419

-14-

prevail, plaintiff “was required to alleg e facts from which a legal duty would arise apart and distinct from those duties pleaded merely establishing the agent’s duties to its principal.” Bescor , 113 Ill. App. 3d at 68, 446 N.E.2d at 1213. As plaintiff failed to do so, there could be no recovery . Bescor , 113 Ill. App. 3d at 68, 446 N.E.2d at 1213; see also Cahill , 236 Ill. App. 3d at 522, 603 N.E.2d at 792 (finding that plaintiff’s complaint failed to allege a valid cause of action in tort against a defendant age nt where plaintiff did not allege any facts that would show that the agent owed him an independent duty of care). L

ikewise, applying

the rule of Bescor and Cahill to the case at hand, Bovan cannot rely on American Family ’s potential tort liability under Bajwa to hold L indsay otherwis e accou

ntable in his capa city as age nt. Bovan cites the case of Towns v. Yellow Cab Co. , 73 Ill. 2d 113, 382 N.E.2d 1217 (1978), for the proposition that where an agent’s a ctions render the principal liable, such acts also rende r the age nt liable. Howeve

r, this ca se does not support B ovan’s a ssertion t hat L indsay owes a du

ty to Hamilton. In context, Towns deals with the doctrine of respondeat superior : it states t hat, when an action is brought against a pr incipal for the negligent acts of his agent, the principal’s liability is entirely

derivative and vicarious. Towns , 73 Ill. 2d a t 1 23- 24, 382 N.E .2d at 1 221 . It says nothing a

bout a principal’s duty of c are toward a third party being imputed to an agent where, as in this case, the principal’s liability is direct rather than wholly derivative. See Stein v. Rio Parismina Lodge , 296 Ill. App. 3d 520, 525, 695 N.E.2d 518, 522 (1998) (“acts of the principal are never imputed to the age nt”). Bovan f urthermo re conte nds that, notwithsta

nding the principle s of age

nt tort lia bility outlined above, the case of Grover , 76 Ill. App. 3d 500, 394 N.E.2d 1273, supports herNo. 1-07-1419

-15-

conclusion. In Grover , a condominium owner brought suit against his condominium association and the association’s agent, alleging breach of an ag reement regarding

the installation of heating units in the condominiums. The association’s agent contended that it could not be held liable for promulgating the alleged a greement, as it was merely acting as an agent on beha lf of the association. However, the court rejected this ar gument, stating: “While the general rule is that an agent w hose ag ency

is disclosed is not liab le on an a greem ent ente red into o n behalf

of his principal, absent an agreement to that ef fect, an agent who exceeds his authority or who takes an active part in violating a duty the principal owes to a third person may be held liable.” Grover , 76 Ill . App. 3d a

t 507, 394 N .E.2d at 1 279. We note that Grover does not concern an agent’s liability in tort, bu

t rather in contra ct. However, more overridingly , the Grover decision has been repudiated by subsequent decisions, most notably in the case of Gateway E rectors , 102 Ill. App. 3d at 303, 430 N.E.2d at 22. The Gateway E

rectors court found the above-quoted proposition in Grover to be inconsistent with prior case law regarding agent liability, a s well as the Restatement of Agency

. Gateway E

rectors , 102 Ill . App. 3d at 3 03, 43 0 N.E. 2d at 2 2, cit ing Chicago Title & Trust Co. v. De Lasaux , 336 I

ll. 522, 526 , 168 N.E. 640 (1929 ) (wher e his principal is di sclosed, an age nt is not liable on the con

tracts he makes on b ehalf of

that principal, unle ss he ag rees to b e person ally liable). Furthermore, the court states that the Grover court’sexpansion o f liability is unsupported: not only did the key case cited by

the Grover court (

Landau v. Landau , 409 Ill. 556, 101 N.E.2 d 103 (195 1)) not r elate to c ontract

ual liabil ity, but Landau cites DeLasaux , which runs directly counte

r to the Grover decision. See also Joe & Dan International Corp. v. UnitedNo. 1-07-1419

-16-

States Fidelity & Guaranty Co. , 178 Ill. App. 3d 741, 533 N.E.2d 912 (1988) (finding that Grover was inco

rrectly decided insofar as it purp orted to ma

ke an ag ent liable

on contra

cts with third parties where it had apparent authority from its principal, even if the agent lacked a ctual authority). Because we agree that the decision in Grover is an anomaly, we de cline to expand the Grover decision’s broad and sharply criticized view of agent liability in contract to cover the instant tort case. Thus, we f

ind that B ovan hasfailed to establish the eleme

nt of duty , as need

ed to prevail in a wrongful death suit, and the trial court’s g rant of summary judg

ment must be affirmed. See Bescor , 113 I

ll. App. 3d

at 68, 446

N.E.2d a t 1212-13 ( a plaintif

f’s negligenc e claim mu st fail where the plaintiff has failed to show that defendant owed him a duty of car e). The lack of any evidence that would show Lindsay owed Hamilton a duty of c are is sufficient to affirm the court’s entry

of summary judgment in favor of Lindsay . As a result, we do not need to reach the issue of whether Lindsay ’s actions were the proximate cause of Hamilton’s death. Bovan a lso challe nges the trial cou rt’s dec ision to str

ike the a ffidavit of her e xpert, Wimmer. However, we find no need to review the propr iety of the trial cour

t’s ruling as to the sufficiency

of the Wimmer affidavit for purposes of this appeal from the summary judgment granted in favor of L

indsay. Even if, for

the sake of argument, we wer e to accept Wimmer’s affida vit as vali d, it could

have no im

pact on ou

r resolu tion of thiscase. N othing in the aff idavit provides support for the proposition that Lindsay owed any duty

toward Hamilton, either personally or in his ca

pacity as agent for American Family . Wimmer’s affidavit speaks to the issue of w

hether L indsay ’s action s in proce ssing the applica tion conf ormed to th

e approp riateNo. 1-07-1419

-17-

standar d of car e for an America n Family insuranc e age

nt and, mor

e gene rally , for ag ents in insurance industry; for

instance, it states that Lindsay ignored “suspicious conduct” and “inconsistent statements” offered by the man impersonating Hamilton. This affidavit would be relevant in determining whether L indsay would have br

eached his duty to the pla intiff if, indeed, he were under such a duty in the first instance. However, the substance of the a ffidavit does not impact our prior analy sis in determining whether such a duty of care exists in the first place – which, pursuant to our previous discussion, we have determined not to be the ca se. See Bescor , 113 Ill. App. 3d at 68, 446 N.E.2d at 1212-13 (brea ch of duty alone, in the a

bsence of a showing that defendant owed a duty of care to plaintiff, insufficient to support a finding of neg ligence). Consequently, the striking of the affidavit does not affect our decision to affirm the tria l court’s grant of summary

judgment in favor of Lindsay , and therefore it provides no grounds for reversal. See Bafia v. City International Trucks, Inc. , 258 Ill. App. 3d 4, 10, 629 N.E.2d 666, 671 (1994) (“Erroneous evidentiary rulings will not support a reversal unless the error wa s prejudic ial and a

ffecte d the outc ome of the trial”) . Accor

dingly , there i s no need

for us to determine the pro

priety of this af fidavit f or purpos es of our

review o f the summa

ry judgmen t in favor of the emplo ye e, Lindsay , which is a ll that is no w befor

e us. For the foregoing r

easons, the judgment of the trial court is affirmed. Affirmed. McBRIDE, P.J., and O’MAL LEY, J., concur.No. 1-07-1419

-18- REPORTER OF DECISIONS - ILLINOIS APPELLATE CO URT (Front Sheet to

be Attached to Each Case) Please use the following form Stacie Bovan, individually a nd as Special Administrator of the Estate of Lorenzo Hamilton, deceased,

Plaintiff-Appellant,

v. Am er ic an Fa mi ly Li fe Ins ur an ce Co mp an y an d E ri c J . Li nd sa y,

Defendants-Appellee (Patrick Davis, An

thony Boyce, and

Lato ya Williams, Third-Party De

fendants). Docket No. COURT Opinion Filed No. 1-07-1419 Appellat e Court of

Illin ois First District, SIXTH

Division August 15, 2008 (Give month, day and y

ear)

JUSTICES JUSTICE JOSEPH GORDO N DEL IVER ED THE OPI

NIO N OF THE

COURT: McBride, P.J., and O’Malley , J. , concur. APPEAL from the Circuit Court of Cook County; the Hon___ Judge Presi ding. Lowe r Court and Trial Judg e(s) in f orm indica

ted in mar

gin: Ap pe al fr om th e C ir cu it Co ur t o f C oo k C ou nt y. The Hon. Marcia

Maras Judge Presi ding.

APPELL ANTS: John Doe, o f Chi cago Indicate if attorney represents APPELL

ANTS or APPELLE

ES and include attorney s of counsel. Indicate the wor d NONE if not represented. APPELLANT : Christopher Freeman, La w Offices of Steven J. Seidman, 20 South Clark Street, Suite 700, Chicago, IL 60603 For APPEL

LEES, Smith and Smith of Chica go APPELLEES: Joshua G. Vincent and Carol Proctor, Hinshaw & Culbertson LL P, 222 N. LaSalle, Suite 300, Chicago, I L 60601 Add attorneys for

3rd party appe

llants and/or appelle es.No. 1-07-1419

-19-