Docket No. 105991.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

SECU RA INSU RAN CE COM PA NY, App ell ee, v. ILLIN OIS FARMERS I

NSURANCE CO MPANY, Ap pellant.

Opinion filed January 23, 2009.

CHIEF JUSTICE FITZ GERALD delivered the judg ment o f the court, with opinion. Justic es Fr eeman, Thomas, Kilbride, Garman, Karmeier , and Burke concurred in the judgme nt and opinion.

OPINION

Plaintiff Secura Insurance Company

(Secura) filed a declaratory jud gment action against Illinois Far mers Insurance Compa n y (Farme rs) in the cir

cuit cour t of Du Pag e County . Secura sought a declaration that

a policy of

automobile insurance issued by Farmers to Paul Stech obligated Fa rmer s to defe nd and ind

emnify Bogoja Muzikoski, doing bu siness as B&A Au

tomotive Re

pair (B&A A utomot ive), with regard to an accident involving Stec h’s automobile. After cross-motions for summary judgment were fi le d, the trial court granted summary judgment in favor of Farmers. Secura filed a notice o f appeal , but did not include a certifi cate or

affida vit indicating the date of

filing with the circuit court clerk. The appe llate court denied F armers’ motion to dis miss the appeal d ue to fai lure to-2- timely file the appeal, and found in favor of Secura on

the merits of the case. 377 Ill. App. 3d 536. We granted lea ve to appeal (210 Ill. 2d R. 315) and

fin d that the n otice of appeal was not timely filed, thus depriving the appe llate

cour t of ju risdi ction . We therefore vacate the judgmen t of the a ppellate court an d dismiss the

appeal.

BACKGROUND The facts a

re not i n dispute. On Octobe r 21, 2000 , in the co

urse of his employ

ment, B& A Automotive employee Da niel Dill was driving a 1995 Chevrolet Blazer owned by Paul Stech whe n Dill was involved in an accident with a vehicle driven by Vincent Henehan

. B&A Automotive was insured at th e time of the accident under a commercial liability policy issued by Secura w

ith limits of $1 million. Stech and his Ch ev rolet Blazer were insured by Farmers under a policy of automobile insurance . Henehan and his wife subs equently sued Dill and B&A Au tomotive se eking d

amage s. In

this underlying action, the Hene

hans alle ged tha

t Dill was an agent and employ ee of B& A Automotive

at the time

of the ac cident. T

his lawsu it late r settled out of court for $1 million. Secura initially defended both B &A Automotive and Dill in the underlying

action under the co mmercial liability policy . The underlying

plaintiff s voluntar

ily d ismiss edDill and accepted a settlement from Secura on behalf of B& A Automotive. Secura filed a c omplaint a

gainst F armers in the circuit court of Du Page Cou

nty . It sought a declaration that Farmers o wed B&A Automotive defense and

indemnity obligations under the automobile po li cy. Secura also sought a bad-fa ith finding

agains t Farme

rs. Farmers asserted affirmative defenses to Secur a’s complaint. The parties filed

cross-motions for

summary judgmen t. Among Farmers’ argume nts were that B&A, as an

employ er of Dil l, did

not qualify as

an“insured person” under the policy ’s definition. The policy states that employ ers of “ insured p ersons”

are exce pte d from coverage. Secura responded that section 7–317(b)(2) of the I llinois Ve hicle Code (625 IL CS 5/7–317(b) (2 ) (West 2004)) does not permit an insurer to exclude perm issive employers fr om coverage. Further, according to Secura, even if section 7–317( b)(2) granted such permission, Farmers’ employ ers exclusion offends public pol ic y a s-3- articulated

in the equ

al treat ment test s et forth by th is court in Progressive Universal Insurance Co. o f Illin ois v. Liberty Mutual Fire Insurance Co. , 215 I ll. 2d 121 (2005), and State Farm Mutual Automobil

e Insuran ce Co. v. Smith , 197 Ill. 2d 369 (2001). OnMarch 17, 2006, the tri al court granted Farmer s’ motion for

su mmary judgment and denied Secura’s motion for summary judgmen t. The tria

l court declar ed that F armers owed no dut y to defend or indemnify B&

A Automotive. It found the Farmer s policy clear ly and unambiguously e

xcluded Muzikoski as an insured an d al so di d n ot vi ol at e Il li no is la w o r p ub li c p ol ic y. Secura then sought reconsideration of the trial court’s Mar ch 17, 2006, order. T

his m otion was denied on May 17, 2006. T

he circ uit court received Secura’s notice of appeal on June 20, 2006. Farmers filed a

motion to dismiss for want of jurisdiction in the appella te cour t. The ap

pellate c ourt initia

lly g ranted F armers’ unopposed

motion to dismiss Secura’s appeal for want of jurisdiction and issued itsmandate on December 21, 2006. After the appeal was dismissed, however, Secura moved to recall the manda te, for leave to respond to Farmers’ motion instanter and to rehear Farmers’ motion to dismiss. The court allowed the motion to recall the mandate and vaca t e d the order d ismi ssin g the appeal. The appellate court also allowed Secura to supplem ent the r

ecord witha letter to the circuit court dated June 16, 2006, and ruled that the motion b e taken w

iththe case. No affidavit or certificate of service was filed, however. The appella

te court then denied

Farmers’ motion to

dismiss in its writtenopinion. The appellate court ruled that it was not deprived of jurisdiction to hear Sec ura’s a ppeal be cause the failur

e to compl

y with the rules was “harmless error” and the re was no showing of prejudice to Farmers. 377 I ll. App. 3d at 541. Turning to the mer

its, the ap pellate court held that the provision of Farmers’ policy

excepting from the definition of i nsure d person

“ [a] ny person or organization, other than y ou or a family membe

r, who is the empl oye

r of any in sured pers on” was void as ag ainst Illinois public pol icy

as expres sed by

the I llinois Vehicle

Code (625 IL CS 5/1–100 et seq. (West 2004)) and the I llinois Safety

and Fam ily Financial Responsib ility

Law (625 I LCS 5/7 –317(b)(2), (b)( 3) (West-4- 2004)). 377 Ill. App. 3d at 547. We gran ted leav e to appeal. 210 I ll. 2d R. 315.

ANA LYSIS A reviewi

ng cour t must asce

rtain its ju

risdiction b efore proceeding

in a cause of action, regardless of whether e ither party has raised the issue. People

v. Smith , 228 I ll. 2d 95, 10 6 (2008); R.W. Dunteman Co. v. C/G Enterprises, Inc. , 181 Ill. 2d 153, 159 (1998). Therefore, before we may consider the merit s, we must

determine the threshol d question of

whether the appellate court improvidently took jurisdict ion over Se cura’s

appeal. The timely filing of a

notice o f appeal is both jurisdictional and

ma nd at or y. 134 I ll. 2d R. 301; People v . Smith , 228 Ill. 2d 95, 104 (2008); Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd. , 182 Ill. 2d 6, 7 (19 98); R.W. Dunteman , 181 Ill. 2d at 159 . At issue i s Secura’s appeal of the trial court’s May 17, 2 006, order de

nyi ng its motion for rec onsidera

tion. By operati on of Rule

303(a)(1), Secura’s notice was due at the circuit court clerk’s office within 30 day s, or by June 16, 2006. Se e 210 I ll. 2d R. 303(a)(1) (notice of appeal must be filed within 30 days afte

r the entry

of the or der dispo sing of t

he last pending postjudgment mot ion directed agains t the j udgment or order). There is no disput

e that the circuit court did not receive the notice of appeal on that date. However, the notic e of appe al may be filed by mail pursuant to Rule 373 (155 I ll. 2d R. 373). In the Harrisburg-Raleigh case, we stated that a “notice of appeal, unlike many other papers filed in the circuit court, is

closely related to th e app ellate process.” Harrisburg-Raleigh Airport Authori ty v. Department of Revenue , 126 Ill. 2d 326 (19 89). We concluded t hat it was “there fore ap

propria te that the promailing policy of

Rule 373 should be applied to the filing of a notice of appeal under Rule 303(a).” Harrisburg-Raleigh Airport Authority
, 126 Ill. 2d at 341-42. Rule 373, entitled “Date of Filing Papers in Reviewing Court; Certificate or Affidavit of Mailing,” states: “Unless

received after

the due date, the time of filing record s, briefs or other papers required to be f iled within a specified time will be

the date on whic h t he y are actually-5- received by the clerk of

the reviewing court. I f received after the due date, the time of

mailing shall be deemed the time of fili ng. Proof of mailing shall be as provided in Rule 12(b)(3).” 155 Ill. 2d R. 373. There is no dispute here that Secura’s notice of appeal was re ceived after the due date. The refore , Rule 373 d irects that we look

to Rule 12(b)(3). R

ule 12, entitled “Proof of Service in the Trial and Reviewin g Courts ; Effec tive Date

of Servic e” state s, in part : “(a) Filing. When service of a paper is required, proof of service shall be filed with the clerk. (b) Manner of Proof. Service is proved: (1) by written

acknowledgment signed by the person served; (2) in case of service by personal del i very, by certifi cateof the attorney , or a ff idavit of a person, other th an an at to rn ey, wh o m ad e d el iv er y; (3) in case of service by mail, by certifica

te of the at to rn ey, or

affi da vi t o f a pe rs on ot he r t ha n t he at to rn ey, who deposite d the pape

r in the ma

il, stating the time and place of mai ling, the complete address which appeared on the envelope, and the fact that proper postag e w as prepaid; or (4) in case of

servic e by fac simile transmission, by certifi cate of the attorney or a ffidavit of a person other thanthe attorney, who tr

ansmitted the paper

via fac simile machine, stating

the time a

nd place of trans mi ssion, the telephone number to

which the transmission was sent, and the number of pages transmitted.” 145 Ill. 2d R. 12. At issue is subpart

(3) of Rule 12(b), concerning ser vice by mail. We ther efore must determine if Secura’s mailing fulfilled the requi rements o f proof pursuant to this rule where there is no certificate or affidavit of mailing in the re cord. Farmers asserts that the record reflects that the notice of appeal

was filed on June 20, 2006. Farm ers argues that the cover letter submittedby Secura to suppleme ntthe rec ord is not adequate proof of service. According to Far mers, the cover letter lacks the very certification

that would have permitted the court to determ ine the-6- timelines s of the notice of appeal. Here, according

to Farmers, Secura did not “par tially comply ” with Rule

12(b)(3 ). Rather , there w as no compliance with that rule. Secura does not adopt the argument of the appella te court that

it made a “harmless error” and that Farmers was notprejudic ed. Rathe

r, Secur a argu es t hat it essentia lly c omplied wi

th the rule and

only concede s that there is no reference to the “time” of mailing. We agre e with Fa rmers. Rule 373 modifies the requirement of timely f iling by specif

ying that, if a docu

ment is file d “afte

r the due date, the ti me of mailing shallbe deemed the time of filing.” 155 Ill. 2d R. 373. That rule also, however, requi res th at “[p ]roo f of ma ilin g shall be as provided in Rule 12(b)(3).” (Emphasis added.) 155 I ll. 2d R. 373. Rule 12(b)(3) provides that “ in ca se of service by mail, [service is provided] by certific ateof

the attorney, or affidavit of a person other than the at to rn ey, who depos ited the p aper in t he mail, st

a ting the t ime and place of mailing, the compl ete ad dress which appeared on the envelope, and

the fac t that prope r post age was prepaid[.]” (Emphases added .) 145 I ll. 2d R. 12( b)(3). T hus, while

Rule 373 r

elaxes t h e requirement

of timely filing whe

re a party takes ad vant age of the convenience of mailing

a docume

nt, a par ty can only take

advan tage of Rule 373 if

it fil es prope r proof o f mailing as requi red by Rule 12(b)(3). 155 Ill. 2 d R. 373. Th e reason for suc h a requi rement is el em en ta ry. If th ere is no proof of mailing on file, the re is noth ing in the record

to establi sh the dat

e the doc ument w as t imely

mailed to confer jurisdict ion on the a

ppellate court. Secura con tends that the cover letter, which lacks any accompany

ing certification or affidavit, is alonesufficient to comply

w iththe ru le. Th e cover lett er does not p rovid e “proo f of ma ilin g” suchthat it is competent evidence under the rule. The letter does not contain anaffida vit or a c ertific ate and n

othing is certified

or sworn to

. The cover letter contains only a date, which, at

best, indicates that it may have bee

n mailed on that date. This is simply insufficient for purposes of

the rul e. Indeed, the re cord, having been supplemented with the co ver let ter, o ffers n o more certai nty concer ning th e timelines s of the notice than it did before the cover letter bec ame part of the record. Ad di ti on al ly, the “Notice of Filing” sent to opp osing counsel i s notadequa

te proof tha

t the notic e of appe al was ma iled on the

date it-7- was due. The “Notice of Filing” re fers to the notice of appeal, but is directed to Farmers’ lawy

ers, and t he cer tificate of service attached indicates only that

the notic e of filin

g was ma iled to Fa rmers’ lawyers

on June 16, 2006. There is nothing in the certification or in the body of the notice of

filing that attest s to the mailing of the notice of appeal to the clerk on June 16, 2006. Secura argues that the only

element require d by

Rule 12(b)(3) that

was missing from

Secura’s entire mailing is the time of the mail ing. This is not true , as Rule

12(b)(3) also requires a certifica te or affida vit of mailing to the clerk. We em phasiz e that the

timely filing o f an appe al is both jurisdictional an d m an da to ry an d the court must determine its own jurisdiction even if no party objects. The appellate court cited Curtis

v. Pekin Insurance

Co. , 105 Ill. App. 3d 561 (1982), and Kimbrough

v. Sullivan , 131 Ill. App. 2d 3 13 (1971), in support of its position. Howeve r, those cases a ddresse d defects in the proof of service. The issue inthis case

is not, as the appell ate court believed, merely about

a slight defect in the form of the not ice . This is not a case where a certificat e or an affidavit was submitted which had a ty pographical
error, misspelling, or other inadvertent mistake. Rather, thi s ca se
concerns Secura’s failure to prove by certificate o r affi davit tha t it complied with the ju

risdictional 3 0-day

notice r equirement in Rule 303. Mitchell v. Fiat-Allis, Inc. , 158 Ill. 2d 143 (1994). Harmless-error

analy sis is not ap

plic able here. T

he appe llate court’s decision

to revie w this cas e on the me

rits was improper, as the appella te court did

not have j urisdicti on over the appea l. As this court has previous ly stat ed in Mitchell v. Fiat-Allis, Inc. , 158 Ill. 2d 143 (1994), “[w]e are not insensitive to the concern expres sed by the appella te court in the instant case. However, this court hasgenera l supervisory

authority to oversee the administration of its own rul es in the statewide system of c ourts.” Mitchell , 158 Ill. 2d at 150. The appella te court ’s rul ing m ay be we ll intentioned, but the appell ate court does not have the authority to excuse the filing requirements of the supreme court rules governing appeals. Mitchell

, 158 I ll. 2 d at 150. M oreover, we note that the record is devoid of any attempt by Secura to supply a proof of ser

vice or affidav it. Further, the record also does not show that

Sec ura made a motion under Rule 303(d), arguing a reasona ble excuse

for a la te notice of appea l. 210 Ill. 2d R.-8- 303 (an appe llant may

file a mot

ion for la te notice of appea l within 30 days of the due

date if it has a reasonable excuse). Becau se we have d e termined that the appellate court lacked jurisdiction ov er the appeal,the appellate court should have dismissed the case . We there fore ne ed not re ach the merits.

CONCLUSIO

N For the fore going reas ons, we va cate the judgmen t of the a ppellate court and dismiss the appeal for lack of jurisdiction.

Appellate court judgment vacated;

appeal dismissed

.