2013 I LApp (1st) 121128 FI FTH DIVI SI ON SEPTEMBER 27, 2013

No. 1-12-1128 DI RECT AUTO I

NSURANCE COMPANY, ) Appea l from the ) Circuit Court of Plaintiff-Appellant, ) Cook County

. ) v. ) No. 09 CH 33780 ) EL IA B EL TRAN, MARI O B EL TRAN, ARACEL I ) Honora ble BEL TRAN, ACUI TY I

NSURANCE COMPANY, ) L eRoy Martin, as subrog ees of

Alice Obe rmann, Ge org e ) J udg e Presiding

. Ober mann, and Ma

rk Obe rmann,, AL I CE ) OB ERMANN, and G EORGE OB ERMANN, ) ) Def endants-A

ppellees. )

) (CRESC END TECHNO L OGI ES L L C and ) LUTHERAN G ENERAL HOSPI TAL , ) ) Def endants.) ) PRES I DI NG JUS TI CE GORDON de livered the judgme nt of the cour t, with opinion. J ustices Palmer a

nd Taylor conc urre d in the judgme nt and opinion.

OP INION ¶ 1 Plaintiff Direc t Auto I nsuranc e Co. (DAI ) filed a n action see king a

decla ratory judgme nt, arguing that: (1) an insura nce policy

it issued to defenda

nt Elia Be ltran wa s resc inded and null and void, ab initio ; (2) that DAI owed no duties unde r the policy to any of the de fenda

nts; and (3) that defe ndants wer e not entitled to any rec overy under the policy . DAI

and def endant Ac uity Insuranc e Company

(Ac uity), as subrog ee of

Alice Obe rmann, Ge org e Obe rmann, a nd Mark

1No. 1-12-1128

Ober mann, filed c ross-motions for summary judgme nt. The trial cour t gr anted Ac uity ' s motion and denie d DAI ' s motion, finding cove rag e. DAI filed a motion to rec onsider, which the trial court de nied. DAI

appea ls, and we a ffirm. ¶ 2 BA CKGROUND ¶ 3 I . The Parties a nd The Policy ¶ 4 DAI

is an insuranc e compa

ny with its principal place of business in Chicag o, I llinois

. DAI is duly licensed to unde rwrite policie s for a utomobile insurance, a

nd to sell such policies and cove rag e to member s of the g ener al public. Elia B eltran ( Elia), Mar io Be ltran (Ma rio), and Ara celi B eltran ( Ara celi) a re I llinois residents. Elia spe aks limited English and he r Spanish literac y is lim ited by

the fa ct that she c annot write in Spanish. ¶ 5 DAI

rec eived a

n application for

automobile insurance from Nor thwest Insuranc e Networ k, Inc. (N I

N), a n insurance broker

. The a pplication listed Elia as the applica nt. The 1 application lists Elia's g ender as " M," de spite Elia beinga woman. T he application states that Elia has an inter

national driver ' s license. How ever , Elia testified in her de position t hat she doe s not know how to drive a

n automobile. Elia owns a 2006 F ord F ree sty le SE motor vehicle ( the Elia vehicle ). Elia purc hased the Elia vehicle with the intent that Mario, her brother, w ould use it to drive her

to and from wor

k. Elia did not sign the a

pplication, and instead, the applicant

NI N is not a party

to this l awsuit. In her a ffidavit, an N I N re prese ntative re fer s to NI N 1 as an " independe nt broker." In the complaint, DAI ref ers to NI N as a n "inde pendent insura

nce ag ency ." 2No. 1-12-1128

signature lines bea

r the notation " T/O." After rec eiving the application, DAIissued a policy of 2 insurance to Elia (the DAI policy ). The D AI

policy cover ed bodily

injury , proper

ty damag e, medical pa

y ments, uninsured motorist, and phy sical dama g e. The DAI policy had an e ffe ctive date of November

23, 2008. ¶ 6 Acuity

is a Wisconsin m utual insurance company , licensed a nd authorized to write insurance in the State of I llinois . Alice Obe rmann (A lice), G eorg e Obe rmann (G eorg e), a nd Mark Obe rmann (Ma

rk) a re I llinois residents. " Alice Obe rmann, Ge org e Obe rmann, a nd Mark Ober mann had in for ce a

cer tain policy

of insuranc e with Acuity Insuranc e Company

[(the Acuity policy )] which provided, among othe r thing s, automobile cover ag e for pay ment of prope rty damag e and me dical pay

ments incurre d as a r esult of an a utomobile collisi on." ¶ 7 The other

defe ndants, Cresce nd Tec hnologie s, L L C (Cresce nd), an I llinois limit ed liability corpor ation, and L

uthera n Gene ral Hospital (L

uthera n), an I llinois not-for- profit entity , did not participate in this appea l. ¶ 8 I I . The Unde rlying A ction ¶ 9 The de clar atory

judgme nt action in the ca se at ba r ar ises from an unde rlying subr og ation action filed by

Acuity , as subrog ee of

Alice, Ge org e, and Ma

rk. Ac uity

filed a two- count complaint in the circ uit court of Cook County , alleg ing ne g lige nce a g ainst Mario and ne g lige nt entrustment ag ainst Elia. Acuity states in the under lying c omplaint that the lawsuit "is a subrog ation action whe rein the r eal pa rties in interest ar e Ac uity Insuranc e Company

and Mar k

Def endant Ac uity

Insuranc e Co. states in its brief that " T/O" "indicates that [the 2 application] was made ove r the tele phone." The a pplication has three signature lines. Two contain the notation " T/O," and the third, whic h states " Rece ived by ," be ars a signature. 3No. 1-12-1128

Orbe rmann" with reg ard to the ne g lige nce c laim, and " is a subrog ation action whe rein the r eal parties in intere st are A cuity Insuranc e Company

and Alice Ober

mann, Geor g e Obe rmann, a nd Mark Or berma nn" w ith reg ard to the ne g lige nt entrustment claim. ¶ 10 The unde rlying c omplaint alleg es the followingfac ts. On or about De cembe r 15, 2008, Mario wa s operating the E lia vehicle, a nd Mark wa s operating his vehic le, which wa s cover ed by the Acuity

policy . Mario had a

duty to operate the Elia ve hicle in a sa fe a nd rea sonable manne r, and Mar io brea ched that duty . The two ve hicles collided, " causingproper ty damag es to [Mark' s] vehicle a nd injuries to [ Mark] requiringmedical tre atment." The c omplaint further a lleg es that Elia place d the Elia vehic le " in the car e and c ustody of [Mario] knowing that his ability to drive the vehicle and his reliability wer e such that she was plac ing a car eless, neg lige nt, rec kless, incompetent and unsa fe dr iver upon the stre ets when she knew, or in the exercise of

ordinary

car e, should have known, that by doing so, she might or c ould cause injury to other per sons on the public way ." Pursua

nt to the Acuity

policy , Acuity

"pa id policy

benef its in t he amount of $10,000.00 for medic al pay ments on behalf of

[Mark] and property

damag e pay

ments on behalf of Alice Ober

mann, Geor g e Obe rmann, a nd Mark Obe rmann in the amount of $9,738.01, including towingchar g es and stora g e and a $500.00 deductible." ¶ 11 I I I . The De clar atory Action ¶ 12 A. The Complaint ¶ 13 DAI

filed a de clar atory

judgme nt action, alleg ing that Elia made mate rial misrepre sentations in her a pplication for insura

nce, a nd as a r esult, there w as no cove rag e. DAI alleg es the followingfac ts: NI N was a n "inde pendent insura

nce a g ency " a cting as Elia' s ag ent for

4No. 1-12-1128

the purpose of

secur ing insura

nce. O n or about Nove mber 24, 2008, Elia, through NI N, submitt ed an e lectronic application for insurance to DAI . The DA Ipolicy was issued on November

28, 2008, based on the application submitted by NI N. Elia wa s the named insure d under the DAI

policy , and owne d the Elia vehic le. ¶ 14 The DA Ipolicy

was subjec t to the following te rms and conditions:

" 4. F raud and Misre presentat ion. Statements contained in the application for

insurance are deeme d to be re prese ntations relied upon by

[DAI ] i n issuing this policy . In the eve nt that any repr esentation contained in the application is false, misleading or materia lly

aff ects the a cce ptance or rating of risk by [DAI ], by either dire ct misrepre sentation, omissions, concealment of fac ts or incorre ct statements, then c overa g e for the ac cident or loss in question shall not be provided by [DAI ] and/or this pol icy

shall be null and void and of no be nefit whatsoever f rom its inception. * * * 17. Dec larations. By

acc eptanc e of this policy the named insured agree s that the statements and r epre sentations contained in the Application have been ma de by him/her or on his/her be half and said stateme nts are r epre sentations and the state ments in the Application and in any

subsequent applica

tion or questionnaire

acc epted by

[DAI ] are off

ere d as an induc ement to [DAI ] t o issue

5No. 1-12-1128 or to continue this policy and that this policy

is issued and continued in re liance upon the truth of such stateme nts and repr esentations and that this poli cy embodies all agree ments exis ting be tween himself/he rself a nd [DAI ] relating to this insurance ." ¶ 15 The a

pplication reque sts a list of the known drivers of the Elia vehic le. The a

pplication lists El ia as a

driver a nd states that " [a] pplicant war rants ther e ar e no other

drivers othe r than those listed below." No other dr ivers ar e so listed. The a pplication contains a pa

ragraph stating that the applica

nt acknowle dg es that she ha s rea d and attests that all answ ers pr ovided ar e true
. ¶ 16 On or a

bout Dece mber 15, 2008, Mar io was oper ating the Elia vehic le, and at this t ime, the Elia vehic le " came into contact with the per son or prope rty " of Alice a nd Mark. As a

result of the c ollisi on, Acuity , as subrog ee of Alice a nd Mark, f

iled the under lying subr og ation action ag ainst Mario and Elia. ¶ 17 DAI

alleg es that Elia, " either individually or throug h her a g ent, intentionally misled DAI as to the other dr ivers in her residenc e." DAI

alleg es that, had it known that the Elia ve hicle wa s to be oper ated by

drivers othe r than Elia, " said information would have materia lly aff ecte d DAI ' s decision to issue the DAI policy " to Elia, a

nd that it would not have issued the DAI policy as written. DAI

further alleg es that, due to Elia' s material misrepr esentation, the DAI policy is null and void, ab initio . DAI

resc inded the policy

and re turned Elia' s full premium on or about Dec ember

29, 2008, and owe s no duty to defe nd or indemnify

Mario and E lia. ¶ 18 DAI

asks the trial c ourt to decla re: (1) that as a r esult of Elia' s material

6No. 1-12-1128

misrepre sentations, the DAI policy is "re scinded a

nd null and void, ab initio , and of no be nefit whatsoeve r" ; (2) that DAI owes no duty

under the DAI

policy to defe nd or indemnify

Elia and Mario with re g ard to a

ny claim or law suit made by them or the other

defe ndants as her ein named

as a r esult of the vehic le collision; (3) that none of the defe ndants are entitled to rec overy under the DAI policy for or in connec tion with any

claim or law suit resulting fr om the vehicle c ollisi on; and (4) "a ny such other a

nd further relief " that the trial court " deems just and appr opriate in the circ umstances." ¶ 19 B. A nswer a nd Def ault ¶ 20 Def

endants Ac uity , Alice, Ge org e, and Ma rk filed a n answe r and c ounterc laim to the decla ratory judgme nt action. The c ounterc laim also sought a decla ratory judgme nt reque sting: (1) the tr ial court to " decla re a nd adjudicate the rig hts, obligations, and liabilities of the par ties to this suit with respec t to the DAI policy "; ( 2) a f

inding of cover ag e for

indemnity

of Mar io and Elia for the underlying a ction under the DAI policy ; (3) a f

inding that DA Iowes a

duty to defe nd Mario and E lia in the underly ing a ction under the DAI

policy ; (4) a f

inding that DA Iowes a

duty to indemnify

Mario and E lia in the underly ing a ction under the DAI

policy ; (5) that Ac uity

is entitled to judgment in its favor ; and (6) that Acuity is entitled to any

other or f urther r elief that the trial cour

t deems just and equitable. ¶ 21 The c ounterc laim alleg es that the DA I policy contains the followingterm:

" P ersons Insured. The followingare Insured unde r Part I : (a) Wit h respe ct to the owned a utomobile; (1) the na med insured, or

7No. 1-12-1128 (2) a ny other pe rson using such automobile to whom the named insure d has g iven per mission, provided the use is within t he scope of such permission." Acuity alleg es that Elia g ave Ma rio permission to drive the Elia ve hicle, and w as there fore an insured under

the DAI policy

. ¶ 22 Def

endants Elia, Ma

rio, Ara celi, Cresc end, and L uthera n did not file answer s. DAI filed motions for defa

ult ag ainst those defe ndants, and the tria l court g rante d the motions, finding them in defa

ult. ¶ 23 C. Motions for Summary J udg ment ¶ 24 DAI

and Ac uity , as subrog ee of Alice, Ge org e, and Ma

rk, filed c ross-motions for summary judgme nt seekingjudgme nt in their favor in their respe ctive dec laratory judgme nt lawsuits. ¶ 25 1. DAI ' s Motion ¶ 26 DAI

argues that Elia made an intentional mater ial misrepre sentation, and a s a re sult, the DAI policy is void, ab initio . DAI

attache d Elia' s deposition, at which she wa s aided by a Spanish interprete r. She testified that she a nd Mario lived in the same apar tment on the day befor e the e ffe ctive date of the DA Ipolicy . DAI arg ues that Elia' s failure to disclose other drivers in he r household constituted a material misrepr esentation that allowed DAI to rescind the policy . DAI

argues that eve n if Mario, a n undisclosed driver

who lived with Elia at the time the DAI policy was issued, wa s a per

missive user under

the DAI policy , no cover ag e existed beca use
8No. 1-12-1128

Elia made material misrepr esentations in her application for insurance , and thus, the policy was void, ab initio . DAI

argued that the policy

was void, and that, unlike a policy defe nse in which the policy still exis ts, if a policy

is void due to a materia l misreprese ntation, it is treated as having

never exis ted in the first plac e. ¶ 27 DAI

asser ted, throug h the af

fidavit of DAI

claims manag er Micha el Tore llo, that it had returne d Elia' s policy

premium to NI

N. DAI also argued that, bec ause Elia, Ma rio, Ara celi, Cresce nd, and L

uthera n wer e found to be in defa ult, all well-pled alleg ations are considere d admitted ag ainst them. ¶ 28 ConcerningNI

N' s role in submitti ng the application for the DAI policy , DAI

attache d the aff idavit of NI

N re prese ntative L inda Robnett, in which she atteste d to the following

. NI N is 3 not an ag ent of DA I , but is an independe nt broker. D AI exercises no c ontrol over NI N and doe s not pay NI N. NI N sells products fr om "a

varie ty of insurer s, not just [ DAI ]." NI N re ceive s a commission, which is added to the pre mium paid by Elia, the insured. N I

N did not contact DA I until Eli a " chose [DAI ] as her insurer from a host of insure rs ava ilable," and NI N re ceive d Elia' s application for

insurance throug h an automobile dea lership. " NI N records do not refle ct Elia Be ltran or Elia B eltran' s ag ent at the de aler ship disclosing Mar io Be ltran as a member of

Elia Be ltran' s household." ( Emphasis added.) ¶ 29 The trial c ourt denied D AI ' s motion for summary judgme nt.

Robnett's a ffidavit does not a ssert that her statements ar e base d upon persona l 3 knowledg e, nor doe s it attach sworn or cer tified copies of

any documents re fer

red to in the aff idavit, as requir ed by

I llinois Supreme Court Rule 191(a ) (e ff. Jul. 1, 2002).

9No. 1-12-1128

¶ 30 2. Acuity ' s Motion ¶ 31 Acuity , as subrog ee of Alice, Ge org e, and Ma

rk, filed a motion for summary

judgme nt seekinga fa

vorable dispositi on of its counterc laim for a de clar atory judgme nt. The motion stated the following . In DAI ' s answer s to Acuity ' s interrog atories, DA Istated that NI N' s commission i s included in the pre mium Eli a paid f or the DA Ipolicy . Acuity attache d a letter

from DAI

to NI N, in which DAI

informed NI

N that the DAI

policy was null and void, ab initio , beca use of mate rial misrepre sentations made by Elia in her a

pplication. The letter

beg an with " Dea

r Ag ent," and stated that DAI

would cre dit NI

N' s "a g ent statement." ¶ 32 Acuity

also attac hed Elia' s deposition, at which she testified to the f ollowing: Elia wa s unable to re call the na

me of the de aler ship where she purc hased he r vehic le. Upon purc hasing the vehicle , someone at the deale rship informed Elia that the vehicle c ame with insuranc e. Elia does not know how to drive, a nd she purc hased the vehicle w ith the intent that Mario would operate it. Elia testified that someone at the deale rship asked Elia a bout whether

other pe ople in her house hold would drive the ve hicle:

"Q . Did y ou inform this indivi dual [at the deale rship] t hat Mario re sided with y ou? A. Yes. Q. What did he say

when you informed him that Mario resided w ith y ou? A. ' No, that' s okay . That' s okay .' Q. He told you ' That' s okay ' ?

10No. 1-12-1128 A. Since I tell [ sic ] hi m that Idon' t know how to drive a nd that my brother is g oing to dr ive the [Elia vehicle], they said, ' I t's okay .' " Elia testified that she did not speak with NI N to "a pply [for] or obtain insurance f or the [Elia vehicle]," and that she did not conta ct NI N until the vehicle c ollisi on. Elia testified that the signature on the N I

N applica tion was not hers. At the time of the acc ident, Mario obtained E lia' s permission to operate the Elia vehic le. ¶ 33 Acuity

argues that the NI

N application lis ted Elia' s g ender as " M," de spite the fac t that Elia is a woman. The application fur ther lists Elia as ca

rry ing a n international drive r' s license, but Elia does not have a

driver' s license. ¶ 34 Acuity

argues that DAI

failed to, a

nd cannot, pr ove that Elia made a mater ial misrepre sentation nec essar y to declar e the policy

void, ab initio , beca

use Elia did not make a false statement, and, e ven if she ha d, she had no intent to dec eive or materia lly

aff ect the

acc eptanc e of the risk or hazard a ssumed by DAI . Acuity

next arg ues that, eve n if Elia made a materia l misreprese ntation, DAI failed to prope rly

resc ind the DAI

policy and has w aived a

ny opportunity

to do so. Acuity

further argues that DAI

is prevente d from re scinding the DAI policy , both by

statute and by

public policy

. ¶ 35 Finally , Acuity

argues that althoug h independe nt insurance broker s like NI N ca n have dual ag encie s to both insurers and insure d, the fa cts of the c ase indicate that NI N was a n actua l or appar ent ag ent of DA Ias a matter of law . As a re sult, NI N' s actions and knowle dg e ar e imputed onto DAI . Acuity

argues that bec ause of

"N I N' s knowledg e that Elia c ould not drive and that

11No. 1-12-1128

Mario wa s a re sident driver," DAI is imput ed to have this knowledg e and c ould not claim that Elia made a

misrepre sentation. ¶ 36 The trial c ourt g rante d Acuity ' s motion for summary judgme nt. ¶ 37 D. Motion to Reconsider ¶ 38 DAI

filed a motion to rec onsider the tria l court' s denial of its motion for summary judgme nt and its gr anting of Ac uity ' s motion for summary judgme nt. DAI

asser ts that the trial court e rre d in applying the law bec ause de fenda nts did not counter fa cts attested to in the aff idavits DAIused to support its moti on for summary judgme nt. DAI

asser ts that these aff idavits were sufficie nt to establish that Elia made a material misrepr esenta tion, and thus it was entitled to summary

judgme nt. DAI

also attac hed a pr intout analy zing the diffe renc e in the cost of the pre mium had drivers in addition to Elia been disc losed in her a pplication. The printout states that, had Elia listed on the a pplication that other drive rs re sided with her, he r pre mium would have be en four

times gr eate r. ¶ 39 The trial c ourt issued a wr itten order de ny ing D AI ' s motion t o rec onsider. The trial court conclude d that Elia made no intentional misrepr esentation. The trial cour t further conclude d that "[t]here wa s one license d, male drive r in [Eli a' s] residence at the time of the application [ Mario]. I f the a pplication had bee n completed c orre ctly , with the name Ma rio instead of Elia, Ma

rio would not have be en re quired to disclose that Elia lived in the r esidenc e with him beca use she is not a license d driver, a ccor ding to the a pplication form questions." The trial c ourt found no evidenc e of " any

other indicators that might have aff ecte d the risk assumed ne g atively , such as a neg ative drivingrec ord, etc ." D AI appea ls.

12No. 1-12-1128

¶ 40 ANALYSI S ¶ 41 DAI

raises two issues on a

ppeal: (1) whether

the trial cour

t erre d in gr anting Acuity ' s motion for summary

judgme nt and deny

ing D AI ' s motion for summary judgme nt; and (2) whether the trial cour

t erre d in denying D AI ' s motion t o rec onsider. F or the followingrea sons,

we a ffirm. ¶ 42 I . Standard of Re view ¶ 43 Summary

judgme nt is appropriate wher e the plea dings, de positions, admis sions, and aff idavits show that there is no g enuine issue of materia l fac t and that the moving party is entitled to judgment a s a matter of law. Mashal v. City of Chicago , 2012 I L112341, ¶ 49. Summary judgme nt is a "dr astic mea ns of disposing of

litigation and, ther efor e, should be g rante d only when the r ight of

the moving pa

rty is clear and fr ee f

rom doubt." Mashal , 2012 I L112341, ¶ 49. Where a case is decided through summary judgme nt, our standar d of re view is de novo

. Pielet v. Pielet , 2012 I L112064, ¶ 30. De nov o consideration means we pe rfor m the same a

naly sis that a trial judg e would per form. Khan v. BDO Se idman, LLP , 408 I ll. App. 3d 564, 578 (2011). " A defe ndant moving f

or summary

judgme nt bear s the initial burden of proof ." Siegel De velopme nt, LLC v. Pe ak Construction, LL C , 2013 I L App (1st) 111973, ¶ 109. " The de fenda nt may meet its burden of proof e ither by

aff irmatively

showingthat some eleme nt of the ca se must be re solved in his favor or by

establishing ' " ' that there is an absenc e of e vidence to support the nonmoving party ' s case .' " ' Siegel , 2013 I LApp (1st) 111973, ¶ 109 ( quoting Nedzvek as v. Fung , 374 I ll. App. 3d 618, 624 (2007), quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)). Where a plaintiff has moved f

or summary

judgme nt, the materia ls relied upon must establish the validity

13No. 1-12-1128

of the plaintiff' s fac tual position on all t he conte sted eleme nts of the ca use of a ction. Gene ral Motors Corp. v. Douglass , 206 I ll. App. 3d 881, 885 (1990). ¶ 44 Reg ardingthe sec ond issue, "[a] ruling on a motion to reconsider is within the sound discretion of the trial court a nd will not be disturbed absent a n abuse of

discretion." Robidoux v. Oliphant , 201 I ll. 2d 324, 347 (2002). " An abuse of discre tion will be found where no

rea sonable pe rson would take the view adopte d by the circ uit court." Fenne ll v. Illinois Central R.R. Co. , 2012 I L113812, ¶ 21. ¶ 45 I I . Summary J udg ment Motions ¶ 46 DAI

argues that the trial c ourt err ed whe n it gr anted de fenda nts' motion for summar

y judgme nt and denied D AI ' s motion for summary judgme nt. DAI

arg ues that Elia made a mater ial misrepre sentation in her a pplication for the D AI

policy , and as a

result, DAI

proper ly resc ind the DAI policy

. ¶ 47 Section 154 of the I llinois Insuranc e Code (the Code) states the f ollowing: "N o misrepre sentation or fa lse war ranty made by the insured or

in his behalf in the ne g otiation for a policy of insuranc e, or br eac h of a condition of such policy shall defe at or avoid the policy or preve nt its attachingunless such misrepre sentation, false war ranty or condition shall have be en stated in the policy or endor sement or rider attached the reto, or in the written application therefor . No such misrepre sentation or fa lse war ranty shall defe at or avoid the policy unless it shall have bee n made with ac tual intent to deceive

14No. 1-12-1128 or materially affects either the ac ceptanc e of the risk or the hazard assumed by thecompany ." ( Emphasis added.) 215 I L CS 5/ 154 (West 2008). "T he statute e stablishes a two-pr ong test to be used in situations where insurance policies may be voided: the statement must be fa lse and the f alse stateme nt must have bee n made with an intent to dece ive or must materiallyaff ect the a cce ptance of the risk or hazard assumed by the insurer ." (Emphasis adde d.) Golden Rule I nsurance Co. v. Sc hwartz , 203 I ll. 2d 456, 464 (2003). " A misrepre sentation in an application for insuranc e is a stateme nt of something a s a fa ct which is untrue a nd affects the risk take n by the insurer ." ( Emphasis added.) Northern Li fe InsuranceCo. v. Ippolito Real Estate Partnership , 234 I ll. App. 3d 792, 801 (1992) (c iting W einstein v. Metropolitan Lif

e Insuranc e Co. , 389 I ll. 571, 577 (1945)). Whether a n insured' s statements are material "is de termined by

whether rea sonably

car eful a nd intelligent pe rsons would have reg arde d the fa cts stated as substantially incre asingthe cha

nces of the eve nts insured ag ainst, so as to cause a reje ction of the application ." ( Emphasis added.) Northern Li fe , 234 I ll. App. 3d at 801. ¶ 48 In establishing the materia lity of a misre prese ntation, an insurer may rely on the underwriter' s testimony

or the testimony

of its employ ees. Northern Li fe , 234 I ll. App. 3d at 802. "O rdinarily , the mater iality of a misre prese ntation is a question of fac t; however , wher e the misrepre sentation is of such a na ture that a ll would ag ree that it is or is not materia l, the question is appropriate for summar y judgme nt." Northern Li

fe , 234 I ll. App. 3d at 802. ¶ 49 First, DAI

asser ts, without arg ument, that the first prongof the re scission test has been

15No. 1-12-1128

satisfied bec ause Elia ma de a f alse stateme nt. DAI

states that althoug h Elia' s application lists no other drive rs in her house hold, she testified in her de position t hat she a nd Mario lived in the same household. DA Iargues that Elia also testified that Mario would drive the Elia vehicle and there fore Elia herse lf " indicated that the inf ormation in the applica

tion was false " be cause she failed to disclose a

licensed dr iver at her re sidence in addition t o herself

. ¶ 50 Howeve r, Elia' s testimony , which is unrebutted, une quivocally states that she herse lf was not a licensed drive r , and that she w ould not operate the Elia vehic le. Elia testified that she w as purcha sed the Elia ve hicle with the intent that Mario would dr ive it. Elia did not testify that she

was a licensed dr iver or that there w ere licensed dr ivers in addition t o Mario residingwith her. There fore , the number of

drivers c overe d under the policy is the same as the number of drivers disclosed by

Elia: one. In eff

ect, Elia w as g iven cove rag e see king c overa g e for Mario for

a nonowned a utomobile. ¶ 51 The discr epanc y

lies in the name of the insured drive r. The a pplication states that a male named Elia B eltran is the insure d driver, when in fa ct (1) a male name d Mario B eltran w as the intended insured dr iver a

nd (2) Elia is a f

emale. ¶ 52 DAI

cites var ious cases to a

rgue that Elia' s misreprese ntation was mater ial. In Styzinski v. United Sec urity Lif

e Insuranc e Co. of Illinois , 332 I ll. App. 3d 417 (2002), the insure r filed a counter claim asser

ting that the insure d made a materia l misreprese ntation on his application for medical insura

nce, a nd asked the trial court to find that the policy be re scinded. Styzinski , 332 I ll. App. 3d at 418. The insure d filled out an application for insuranc e, and a nswere d "no" to the following question: " ' Does a ny person named above contemplate or has within the last two y ear s
16No. 1-12-1128

been e ng ag ed in the followingactivities: *** Motorcycle Dr iving or Racing***.' " Styzinski , 332 I ll. App. 3d at 419. After the insurer

issued the policy

to the insured, the insure d was injured in a motorcycle a ccide nt. Styzinski , 332 I ll. App. 3d at 419. ¶ 53 The insure r filed a motion for summary

judgme nt on its counterclaim, and a ttached the depositions of the insured a nd the insurer ' s underwr iting mana g er. I n his deposition, the insured testified that at the time he c ompleted the application for insuranc e, he ha d a license to drive a motorcycle a

nd owned a

"stre et bike" and an " off- road bike ." Styzinski , 332 I ll. App. 3d at 420. The insure d, a mec hanic, f urther te stified that he re paire d "a pproxi mately

a dozen motorcycle or dirt bikes per year

and test-dr ove all of the m." Styzinski , 332 I ll. App. 3d at 420. The insure d testified that he ha d operated dirt bikes and motorc ycles duringthe two-y ear period prior

to submitt ing the application. Styzinski , 332 I ll. App. 3d at 420. Howeve r, the insure d testified that he oper ated the dir

t bikes and motorcycles " off- road," and at the time he submitt ed the application, he ha d not operated a motorc ycle on the hig hway duringthe prior two year s and he had no intention of oper ating a motorcycle on the stre ets in the future

. Styzinski , 332 I ll. App. 3d at 420. The insure r' s underwr iting mana g er te stified in his deposition t hat in his capa city as underwriting ma

nag er, he "e valuated the risks prese nted by insurance applications, dete rmined whether a policy should be issued, and if so, whe ther it should be issued with an endor sement limit ing or

chang ing the terms of c overa g e." Styzinski , 332 I ll. App. 3d at 420-21. The underwriting ma

nag er te stified that had the insure d answe red " y es" to the motorcycle que stion on the application, the insurer " would have a sked follow-up que stions reg arding [t he insured' s] us e of motorcycles a

nd issued an elimination endorse ment excluding cove rag e for motorcycle

17No. 1-12-1128

injuries." Styzinski , 332 I ll. App. 3d at 421. The trial c ourt g rante d summary judgme nt, and this court a ffirme d, finding that the insurer would not have provided c overagefor motorcycle injuries had the insure d reve aled that he test-drove motorcycles duringthe two y ear s prior to submitti ng the application. ¶ 54 In Northern Li

fe , the insurer

brought suit t o resc ind six life insuranc e policies issued to the insured, a

rguing that the insured mater ially misrepre sented the c ondition of his health when he applied f

or life insura

nce. Northern Li

fe , 234 I ll. App. 3d at 793-94. When the insured completed the a

pplication for the sixth i nsuranc e policy , he disclosed the f act that he suffe red from hemophilia and disc losed all of his treatments and phy sicians for the prec edingfive y ear s, but he fa iled to disclose that he had r ece ntly suffe red a

weig ht loss of approxim ately 20 pounds. Northern Li

fe , 234 I ll. App. 3d at 794-95. The insure d was subseque ntly diag nosed with AI DS. Northern Li

fe , 234 I ll. App. 3d at 795. The insure d' s phy sician explained to him that no cure f or AI DS exi sted and that he would eventua lly die from it. Northern Li

fe , 234 I ll. App. 3d at 795. After he wa s diag nosed with AI DS, the insured complete d an ame ndment to the application for the six th policy , in which the insured ve rified that the inf ormation containe d in the application as amende d was true and cor rec t, that he continued to be in g ood health, and ha d not suffer ed any sickness or c onsulted or attende d by a phy sician. Northern Li fe , 234 I ll. App. 3d at 795. ¶ 55 The trial c ourt found that the insure d made mate rial misrepre sentations with reg ard to the six th policy , holding that the insure d had an intent to dec eive the insure r re g ardingthe condition of his health, and it g rante d summary judgme nt on the six th policy

. Northern Li fe , 234 I ll. App. 3d at 796. On appe al, this court found that " the re cord indicates that [the insurer] did indeed rely

18No. 1-12-1128

upon repr esentations made by [t he insured] in the amendme nt." Northern Li fe , 234 I ll. App. 3d at 802. The insure r' s chief unde rwriter testified " that disclosures made by [t he insured] in the amendment would be considere d in evaluatingwhether [t he insurer ] could acce pt the risk." Northern Li

fe , 234 I ll. App. 3d at 802. The c hief unde rwriter testified that, had the insure d disclosed on the ame ndment that he had be en diag nosed with AI DS, the insurer " would have declined c overage beca

use AI DS was then, a

nd is now, uninsurable ." ( Emphases a dded.) Northern Li

fe , 234 I ll. App. 3d at 802. Fur thermore , a phy sician testified that he was fa miliar with insurance industry

prac tices, and opine d that the insured' s misreprese ntation was mater ial. Northern Li

fe , 234 I ll. App. 3d at 802. This court found that the insure d misrepre sented his condition of hea lth on the amendment bec ause he did not disclose that he had be en diag nosed with AI DS and stated in his application that he c ontinued to be in g ood health. Northern Li fe , 234 I ll. App. 3d at 802. This court dete rmined that " rea sonably car eful a nd intelligent pe rsons would reg ard the diag nosis of AI DS, an uninsurable c ondition, subst antially incre asingthe risk assumed by

[t he insurer ]," and thus " it was not improper for the circ uit court to hold that [ the insured] materially

misrepre sented his condition of hea lth." Northern Li fe , 234 I ll. App. 3d at 802. This court fur

ther c oncluded that the insure d' s misreprese ntation was deliber ate a nd intentional beca

use the insure d lear

ned new fac ts that render ed portions of his application no longe r true, but sig ned the a mendment ave rringthat the information conta ined in the application was true
. Northern Li

fe , 234 I ll. App. 3d at 803 (citing Stipcich v. M etropolitan L ife Insurance Co. , 277 U.S. 311, 316 (1928)). A s a re sult, thi s court af firmed the tr ial court' s g rant of summar y judgme nt with reg ard to the sixth pol icy

. Northern Li fe , 234 I ll. App. 3d at 803-04.

19No. 1-12-1128

¶ 56 Finally , in Ratliff

v. Safeway I

nsurance Co. , 257 I ll. App. 3d 281 (1993), the insure d filed a dec laratory

judgme nt action see king a decla ration that her

son was insured unde r an a utomobile insurance policy

and that " the protec tion of the [ins uranc e policy ] ex tended to any claims arising out of [the son's] operation of the [m otor vehicle ] described in the policy ." Ratliff , 257 I ll. App. 3d at 282. In 1984, the insured a pplied for a

n automobile insurance policy with the insurer. Ratliff , 257 I ll. App. 3d at 282. The insure d applied for the insuranc e policy

throug h "a

n independe nt ag ency

[t he indepe ndent ag ency] selli ng policies for se vera l insurance companies." Ratliff , 257 I ll. App. 3d at 282. In 1986, afte r re ceivinga re newa l notice, the insured c alled the independe nt ag ency

to rene w the insuranc e policy

. Ratliff , 257 I ll. App. 3d at 282. The insure d

answe red se vera l questions and stated that " none of the information from the pr evious y ear had chang ed; that she wa s the main driver of the a utomobile; that her son *** was a n ' occa sional' driver of the automobile; and that ther e we re no ' regular' drivers of the automobile under

the ag e of 25." Ratliff

, 257 I ll. App. 3d at 282. The insure d "ne ver sa w, re ad, or sig ned the a

pplication for r enew al, and did not know whose signature a ppear s on it." Ratliff

, 257 I ll. App. 3d at 282. "T he applica

tion for [the insured' s] 1986 automobi le insuranc e, which w as complete d by [t he independe nt ag ency], st ates in par t that 'A PPL I CANT WARRANTS THAT THERE ARE NO OTHER DRI VERS I

N THE HO USEHOL D, OTHER THA N THOSE L I STED BEL OW.' " Ratliff , 257 I ll. App. 3d at 282-83. The a pplication did not lis t the insured' s son as a drive r of the vehicle. Ratliff

, 257 I ll. App. 3d at 283. The a pplicant sig nature line was blank a nd the applicant' s ag ent sig nature line contained a n illegible sig nature
. Ratliff , 257 I ll. App. 3d at 283. ¶ 57 On Dec ember

27, 1986, the insured' s son was oper ating the vehicle with the insured' s
20No. 1-12-1128

permission and wa s "involved in a n acc ident with another ve hicle." Ratliff , 257 I ll. App. 3d at 283. At the time of the a ccide nt, the insured' s son was 20 y ear s old and " had alwa y s lived with [t he insured]." Ratliff

, 257 I ll. App. 3d at 283. The insure d' s son drove the ve hicle approximately

twice a wee k, and he a lway s had the insure d' s permission to drive the vehic le. Ratliff , 257 I ll. App. 3d at 283. The drive r of the othe r vehic le filed suit ag ainst the insured a nd her son, a nd the insurer

ref used to provide c overa g e or pr ovide a de fense to the insured and he r

son. Ratliff

, 257 I ll. App. 3d at 283. In response , the insured a nd her son f

iled a dec lara

tory action ag ainst the insurer. Ratliff , 257 I ll. App. 3d at 283. The c ase pr ocee ded to a be nch trial and at the c lose of the insure d' s case , the insurer made a motion for a dire cted f

inding. Ratliff

, 257 I ll. App. 3d at 283. The trial c ourt g rante d the motion, finding that: (1) the insured' s son was not contemplated a s an insured in the policy ; (2) disclosure of the insure d' s son as a drive r would have pr esente d an incr ease d risk to the insurer; (3) the complaint in the under lying a ction arising out of the ac cident could not state a cause of ac tion ag ainst the insured solely on the basis of

owner ship of the vehicle ; and (4) the insurance policy was void. Ratliff

, 257 I ll. App. 3d at 283. ¶ 58 On appe al, the only issue befor e this court wa s whether the trial cour

t's f inding that " the contra ct of a

utomobile insurance be tween [the insured] and [the insurer] did not provide

cover ag e for

[t he insured' s son] was a g ainst the manifest we ight of the evidenc e." Ratliff

, 257 I ll. App. 3d at 284. This cour t stated that there wer e thre e cir cumstance s under whic h a finding would be ag ainst the manifest we ight of the evidenc e: " (1) if [the independe nt ag ency] was acting as [the insurer' s] age nt when it filled out the application for re newa l of insuranc e; (2) ifthe nondisclosure on the a

pplication form of [the insured' s son] as anothe r driver of the insure d

21No. 1-12-1128

automobile was not mater ial and did not aff ect [the insurer' s] risk; or (3) if the insuranc e contr act

was ambiguous a s to [ the insured' s son's] cover ag e." Ratliff , 257 I ll. App. 3d at 284. ¶ 59 This court found that " the nondisclosure of a 20-year -old driver

residingin the same household is a misrepre sentation that materia lly aff ects the r isk assumed by

the insurer ." Ratliff

, 257 I ll. App. 3d at 288. This court stated that " ' [i ]t is a matter of common knowledg e that the rate fre quency

of ac cidents for

drivers be tween the ag es of sixt een a nd twenty -four

is substantially

g rea ter than f or all driver s who are twenty -five year s of ag e or more .' " Ratliff , 257 I ll. App. 3d at 288 (quoting W estern States Mutual Automobile InsuranceCo. v. May , 18 I ll. App. 2d 442, 448 (1958), overruled by Sobina v. Busby , 62 I ll. App. 2d 1 (1965)). This c ourt conclude d that, had the insure d disclosed the pre sence of her son as a dr iver in her

household, his ag e, and the amount he drove the vehicle , the insurer "c erta inly " w ould have r easse ssed the risk it

was a ssuming. Ratliff

, 257 I ll. App. 3d at 288. This court stated that " the mater ialityof the nondisclosure [was] confirmed by the stipulation in t he re cord that *** almost a month after the

acc ident, [t he insured] reque sted that [her son] be added to her policy , and that [the insurer] char g ed an a dditional $320 to add him." Ratliff , 257 I ll. App. 3d at 288-89. ¶ 60 We find these ca ses distinguishable. I n Styzinski , the insurer ' s underwr iter testified that the insurer

would have spe cifica lly

excluded cover ag e for

motorcycle injuries ha d the insured provided a ccur ate r esponses. Styzinski , 332 I ll. App. 3d at 421. In Northern Li fe , the insured ha d been dia g nosed with AI DS and intended to misrepr esent. Northern Li fe , 234 I ll. App. 3d at 802. The insure r' s underwr iter stated that, ha d the insured disclosed his diagnosis, the insurer would have de nied cove rag e " beca use AI DS was then, a

nd is now, uninsurable ." ( Emphasis added.)

22No. 1-12-1128

Northern Li

fe , 234 I ll. App. 3d at 802. In these two c ases, the misre prese ntations were materia l beca use the insure rs would have denied c overa g e had the insureds not made the ir misrepre sentations. In the ca se at ba r, DAI stated that it would not have issued the policy as writt en , and that Elia' s premium would have be en hig her. I n addition, in its motion to reconsider, DAI submitt ed a doc ument estimating what Elia' s premium would have bee n had DAI known that other potential drive rs lived with Elia. Ther efor e, DAI cannot a rgue that it would have found Elia uninsurable had it known that she lived with other dr ivers. ¶ 61 In Ratliff

, both the insured and he r son oper ated the ve hicle, despite the insured' s application disclosing only one drive r. Ratliff

, 257 I ll. App. 3d at 282-83. The risk insured ag ainst increa sed bec ause the vehicle w as re g ularly driven by

twice a s many

people a s were listed on the policy

. Ratliff

, 257 I ll. App. 3d at 288. Howeve r, in the ca se at ba r, Elia, did not operate the Elia vehic le, despite be ing the named insure r. Elia testified in her unrebutted de position t hat only Mario oper ated the E lia vehicle, a nd, thus, the number of dr ivers listed on the application matched the true number

of driver s. 4 ¶ 62 DAI

argues that Elia' s misreprese ntations were materia l beca use the " status, number and char acte r of the pe rsons who ar e likely to be drivingthe [vehicle] with the owner' s permission"

In its mot ion to reconsider , DAI argues that it was insuringthree individuals: Eli a, 4 Mario, and F elipe B eltran ( Fe lipe), Elia' s 23-y ear -old son. DAI does not mention Fe lipe in its motion for summary

judgme nt. DAI

mentions Felipe f

or the fir st tim e in its moti on for rec onsideration. Whether F elipe qualifie s as a " driver" under the terms of the a pplication is unclea r. Elia testified in her

deposition that, on the day of the de position, she lived with Felipe. Elia does not testify

that she lived with Fe lipe on the day she applied f

or the DA Ipolicy . Elia also testified that F elipe neve r drove the Elia vehic le. In addition, there is no evide nce in the rec ord to indicate whether Fe lipe had a dr iver' s license.

23No. 1-12-1128

are rele vant to the risk. Gove rnment Employe es InsuranceCo. v. Dennis , 90 I ll. App. 2d 356, 365 (1967). DA I ' s argument rests on the " number" of driver s likely to be drivingthe Elia vehicle, a nd is premised on the a ssumption t hat Mario wa s a driver in addition t o Elia. DAI relies on Elia' s deposition to prove that Mario lived with Elia on the e ffe ctive date of the DA I policy , and thus that Elia had a dditional drivers in her home . Howeve r, Elia' s deposition repe atedly

states that Elia ca

nnot and does not drive, a nd that she purc hased the Elia vehicle with the intention that Mario would drive it. Ther efor e, Elia' s deposition indicates that there was only one drive r in her r esidenc e. As a result, there was no misrepr esentation that "substantially incre as[ed] t he cha

nces of the eve nts insured ag ainst." Northern Li fe , 234 I ll. App. 3d at 801. The a pplication stated that only one drive r of the E lia vehicle r esided at Elia' s residenc e, and althoug h the application lis ted this person as Elia, the fac t that the true drive r wa s in fact Ma rio did not increa se the risk DA Iinsured ag ainst. The number of driver s likely

to be drivingthe Elia vehicle w as one. A s we stated a bove, the number

of driver s disclosed on the application matches the number of

drivers who actua lly

drove the Elia vehicle . There fore , any misrepre sentation by Elia was not mater ial beca use she did not misstate the number of regular drive rs of the Elia vehicle. Dennis , 90 I ll. App. 2d at 365. Nor did the misrepr esentation "substantially incre as[e] the cha nces of the eve nts insured ag ainst." Northern Li fe , 234 I ll. App. 3d at 801. Most importantly , there is no showing that Elia intentionally misrepre sented the f

acts. The policy should have be en cla ssified as a non- owned ve hicle policy with an incre ase in pre mium. ¶ 63 In its mot ion for summary judgme nt, DAI

relies on the a ffidavits of its claims manag er and an N I N employ ee to support its arguments. DAI argues that the a ffidavits suffic iently

24No. 1-12-1128

establish that Elia' s misreprese ntation was mater ial. DAI relies on its claims manag er' s aff idavit to assert that " the [DAI ] pol icy would not have be en issued as written or would not have bee n issued at all " ha d DAI

known of the ina ccur acie s on the application. (Emphasis added.) The aff idavit states as follows:

"I , Michae l Torello, beingfirst duly and lawf ully sworn on my oath, depose and state that Ihave pe rsonal knowledg e of the following fac ts, and that, if sworn a s a witness her eto, I could competently

and ver ily

testify to the same: 1. that Iam the cla im's [ sic ] m anag er of [DAI ] and have been so e mploy ed in this capa city duringall rele vant times here in. 2. that Ihave r eviewe d the Amende d Complaint filed by [DAI ], captioned above , incorporated fully here in and attache d here to with [ DAI ' s] M otion for Summary J udg ment as Exhibi t A, and ver ify the alleg ations contained there in are true a

nd corr ect to the be st of my knowledg e." The a ffidavit does nothingmore than a ssert that the fa ctual alleg ations are "tr ue and c orre ct to the best of [his] knowledg e." Fur thermore , the amende d complaint alleg es that " [Eli a] had other drivers [in her household]" at the time she made he r applica tion for insuranc e. This alleg ation is contra ry to the fac ts testified to in Elia's de position, which DAIattache s as evidenc e to its moti on for summary

judgme nt. Elia' s unrebutted testimony , coupled with the f acts surr ounding the

25No. 1-12-1128

discrepa ncy , i.e. that the fe male, unlicense d Elia was listed as a male with an inter

national driver' s license, that the a pplicant sig nature lines bear the notation, "T /O," and that the 5 application is written in Eng lish, a lang uag e that Elia doe s not speak, indicate that the sole er ror in the application wa s the name of the insured, whic h resulted f rom poor communication. The aff idavit does not make more plausible the asse rtion that Elia was a driver of the Elia vehic le and that there was more than one r egular drive r of the E lia vehicle. ¶ 64 DAI

relies on the a ffidavit of N I N employ ee L inda Robnett to assert that NI N is not an ag ent of DA I

. Acuity

asks that we not c onsider Robnett' s aff idavit, arguing that it does not 6 comply with I llinois Supreme Court Rule 191(a ). Rule 191(a ) re quires that af fidavits "sha ll be made on the pe rsonal knowledg e of the aff iants; shall set forth with particular ity the fa cts upon which the c laim, counterc laim, or defe nse is based; shall have attache d there to sworn or c ertified copies of a ll documents upon which the a ffiant r elies." I ll. S. C t. R. 191(a) (e ff. Jul. 1, 2002). Robnett's a ffidavit does not aver that the statements made in he r af fidavit are based upon he r persona l knowledg e. Robnett asser ts that Elia "c hose [DAI ] as her insurer from a host of insurers a vailable," but also asserts that " NI N re ceive d the application for [Elia's] insurance throug h an automobile dea lership" and that " NI N' s rec ords do not ref

lect any communications Acuity asser ts that "T/O" indicates that the a pplication was made over the phone, and 5 DAI does not dispute this assertion. The pa rties ar gue in their brie fs that whethe r or not NI N was a n ag ent of DA Iis releva

nt 6 to this case. NI

N was the ag ent of Elia f

or the obtainingof the insura nce a nd may have be en the ag ent of DA Ifor pa

y ment. A&

B Freight Line, Inc. v . Ryan , 216 I ll. App. 3d 1093, 1097 (1991) (holding that under c erta in circumstanc es, indepe ndent insuranc e ag ents may be ag ents of both insurer a nd insured). H oweve r, since w e find that the misre prese ntation was not materia l, it has no eff ect on our decision-makingproce ss. 26No. 1-12-1128

with [ Elia], other that [ sic ] t he applica tion submi tted." Robne tt does not assert how she knew that Elia selec ted DAI

as her insurer if no one at NI

N eve r communicated with her. Fur thermore , Robnett's a ffidavit make s ref ere nce to NI

N documents, but no docume nts are attache d to the aff

idavit. As a re sult, Robnett's aff idavit fails to comply

with the require ments of Rule 191(a)

. ¶ 65 DAI

also argues that, bec ause c erta in defe ndants, including Elia and Mar io, are in defa ult, the alleg ations in the complaint are admitted ag ainst them and may be used a s evidenc e. DAI insists that it is not

arguing tha

t the alleg ations in its complaint are admitted ag ainst Acuity and the Ober manns, but rather

that the alleg ations are now evidenc e that Ac uity and the Obe rmanns must "mee t and over come." ¶ 66 A def

ault admits the fac ts alleg ed ag ainst a def endant in the c omplaint to be true. People v. $1,124,905 United States Currency &One 1988 Chevrolet Astro Van , 177 I ll. 2d 314, 334 (1997). A de fault does not admit the conc lusions present in the complaint. $1,124,905 U. S. Currency , 177 I ll. 2d at 334. A defa ult for fa ilure to plead is ef fec tive ag ainst only

the par ty in defa ult. Universal Casualty Co. v. Lopez , 376 I ll. App. 3d 459, 464 (2007). Af ter a trial court enter s an orde r of de fault, the trial c ourt has the discr etion to hold a "pr ove-up" hear ing, a t which the plaintiff must prese nt proof of the fac tual alleg ations in its complaint. American Se rvice InsuranceCo. v. City of Chi cago , 404 I ll. App. 3d 769, 779 (2010). I f the plaintiff f ails to meet its burden of proof

at the prove -up hea

ring , the trial cour

t may ref use to enter

a def ault judgme nt. American Se rviceInsuranceCo. , 404 I ll. App. 3d at 779. ¶ 67 DAI

argues that, althoug h the fa ctual alleg ations of the complaint have not been a dmitted

27No. 1-12-1128

ag ainst Acuity

and the Obe rmanns, the f actua l alleg ations have be en admitted ag ainst Elia and Mario, and a

re thus evide nce. D AI

asser ts that Acuity

and the Obe rmanns must now " meet and

overc ome" that evidenc e to def eat DA I ' s motion t o dismiss . In essenc e, DAI is arguing tha

t beca use fa cts in the complaint are deeme d judicially admitted ag ainst some parties, those f acts

are to be treated as pre sumptively proven a g ainst the nondefa ulting def endants, a nd the nondefa ulting def endants now ha

ve the bur den to re but the presumption. ¶ 68 DAI

cites the I llinois Supreme Court ca se of Chamblin v. Chamblin , 362 I ll. 588 (1936) to bolster its point . Howeve r, DAI ' s rea ding of Chamblin is unpersuasive. F irst, Chamblin expli citly states that " [t ]he default of one defe ndant is not an admission by the others, a

nd does not relieve the complainant f rom the nec essity

of establishinghis case a g ainst those who appe ar and plea d." Chamblin , 362 I ll. at 593. Next, DAIrelies upon a passag e in Chamblin that states that nondefa

ulting def endants " may

meet and ove rcome , if they can, the evidenc e of the complainant." Chamblin , 362 I ll. at 593. Howeve r, DAI excludes the first clause of the sentenc e, which states that complainants must " provethe issues to the answe ringdefe ndants." (Emphasis adde d.) Chamblin , 362 I ll. at 593. ¶ 69 To treat the fac tual alleg ations of a c omplaint as "e vidence " unde r DAI ' s rea soning w ould be to place an improper

burden upon nonde faultingdefe ndants. Nondef aulting de fenda

nts would be subjec ted to a hig her bur den as a result of the c onduct of the de faultingdefe ndants, which is out of the control of

nondefa ulting def endants. ¶ 70 I I I . Motion to R econside r ¶ 71 DAI

also argues that the trial c ourt improperly denied its motion to reconsider. T he

28No. 1-12-1128

intended purpose of a motion to rec onsider is to bring to the court' s attention newly discovere d evidenc e, cha

ng es in the law, or

err ors in the cour

t's pr evious applica

tion of the exist ing la

w. In re Marriage of Epting , 2012 I LApp (1st) 113727, ¶ 41. " Newly discovere d evidenc e" is evidenc e that wa s not available pr ior to the hea ring

. Emrikson v. M

orfin , 2012 I LApp (1st) 111687, ¶ 30. " In the abse nce of a re asonable explanation reg ardingwhy the evidenc e wa s not available at the time of the or igina l hear ing, the circ uit court is under no oblig ation to consider it." Emrikson , 2012 I LApp (1st) 111687, ¶ 30. ¶ 72 DAI

asser ts in it s motion t o rec onsider that the tria l court er red in its application of the law. Howe ver, D AI

does not explain how the trial court misapplied the law when it grante d defe ndants' motion for summary judgme nt and denied D AI ' s motion. I nstead, DA Irea sserts its arguments from its motion for summary judgme nt. DAI

also attac hed print-out compa ringthe cost of the pr emium DAI

would have c harg ed had D AI been insuringmore than one individual with the premium ac tually char g ed. We have stated above that the DAI policy did in fact c over only one per son: Mario. Howe ver, e ven if that we re not true , the trial cour t could not consider it beca use DAI g ave no e x planation as to why it did not previously

attach suc h a docume nt to its motion for summary

judgme nt. " ' Trial cour

ts should not allow li tiga

nts to stand mute, lose a motion and then fra

ntically g ather evidentiar

y materia l to show that the court er red in its ruling .' " River Plaza Home owner's Ass' n v. He aly , 389 I ll. App. 3d 268, 280 (2009) (inter nal quotation marks omitted) (quoting North River InsuranceCo. v. Grinnell Mutual Reinsurance Co. , 369 I ll. App. 3d 563, 572-73 (2006) ). DAI also attac hed to its moti on to rec onsider a ne w af fidavit from a DAI employ ee, who argued that the misrepr esentation was materia l beca use Mar io's dr iving

29No. 1-12-1128

rec ord mig ht have pr eclude d DAI from cove ringhim. However , no drivingrec ord is included in the re cord on a

ppeal. F or the same rea son, the trial cour t could not properly

consider the aff idavit. ¶ 73 In a wr itten order, the trial court f ound that "[t]here wa s only one license d, male drive r in the re sidence at the time of the a pplication." T he trial c ourt furthe r found that if the application had included Ma

rio' s name instead of

Elia' s, Mario " would not have be en re quired to disclose that Elia lived in the reside nce w ith him because she was not a lice nsed driver , acc ordingto the application for

m questions." The trial court f ound no evidenc e of a

ny indicators that insuring Mario would have neg atively aff ecte d DAI ' s risk, such as a bad drivingrec ord. We find no such evidenc e in the re cord, a

nd there fore , we c annot say that the trial cour

t abused its discretion in denying the motion for rec onsideration. ¶ 74 CONCL USI ON ¶ 75 For

the fore g oing r easons, the tr ial court prope rly g rante d summary

judgme nt in favor of Acuity and denie d summary

judgme nt in favor of

DAI

. ¶ 76 Affir

med.

30