AJ Maggio Co. v. Willis, 1-99-3425.

• Court: United States Appellate Court of Illinois
• Citation: 250 Ill.Dec. 376,738 N.E.2d 592,316 Ill.App.3d 1043
• Docket Number: No. 1-99-3425.,1-99-3425.
• Parties: A.J. MAGGIO COMPANY, an Illinois corporation, Plaintiff-Appellant, v. Coy WILLIS d/b/a Willis Construction, Debra L. Tennant and Harold E. Tennant d/b/a Tennant Insurance Agency and Illinois Emcasco Insurance Company, an Illinois corporation, Defendants-Appellees.
• Decision Date: 26 September 2000

738 N.E.2d 592
316 Ill.App.3d 1043
250 Ill.Dec. 376

A.J. MAGGIO COMPANY, an Illinois corporation, Plaintiff-Appellant,
v.
Coy WILLIS d/b/a Willis Construction, Debra L. Tennant and Harold E. Tennant d/b/a Tennant Insurance Agency and Illinois Emcasco Insurance Company, an Illinois corporation, Defendants-Appellees

No. 1-99-3425.

Appellate Court of Illinois, First District, Second Division.

September 26, 2000.

Rehearing Denied November 6, 2000.

738 N.E.2d 594

Joel S. Siegel, Horvath & Lieber, P.C., Chicago, for Appellant

Stephen R. Miller, Jill B. Lewis, O'Connor, Schiff & Myers, Chicago, for Appellee.

Justice COUSINS delivered the opinion of the court:

The Board of Education of Reed-Custer Community Unit School District 255U (School) entered into a contract with A.J. Maggio Co. (Maggio), a general contractor, for the construction of Braidwood Middle

738 N.E.2d 595

School, in Braidwood, Illinois. Maggio subcontracted with Willis Construction (Willis) to construct and install a sanitary and storm sewer. Willis is owned by Coy Willis

Pursuant to the contract between Willis and Maggio, Willis agreed that if the materials or workmanship it furnished were deemed inadequate, Willis would perform the necessary repairs. If Willis failed to make these corrections, Maggio could deduct the cost sustained in making the necessary corrective work from the amount due Willis. Willis agreed that if this amount was insufficient to reimburse Maggio, it would pay the outstanding balance.

The contract between Maggio and Willis also required Willis to carry comprehensive general liability insurance and to name Maggio and others as additional insureds under the policy. Willis retained Tennant Insurance Agency (Tennant) to acquire the insurance. The insurance policy Tennant procured for Willis was written by Illinois Emcasco Insurance Company (Emcasco) and provided coverage from September 11, 1991, through September 11, 1992. The policy provided the correct type of insurance but failed to provide coverage to Maggio as mandated by the contract between Maggio and Willis.

Tennant issued a certificate of insurance to Maggio, which stated that Maggio was an additional insured on the policy, but in fact Maggio was not named as an additional insured on the policy. Subsequent to receiving the certificate of insurance, Maggio made requests to Tennant to be placed on the insurance policy, as an additional insured. The architect and School were added to the policy on May 18, 1992, yet Maggio was not.

Emcasco renewed the policy from September 11, 1992, through September 11, 1993. Again, Maggio was not named as an additional insured. Maggio alleges that Emcasco failed to add Maggio to the policy after being requested to do so.

Shortly after Willis completed installation of the sanitary and storm sewer, sinkholes began to appear under driveways and sidewalks. Maggio requested Willis to perform the necessary corrective work. Willis refused.

Under its contract with the School, Maggio was ultimately responsible for any defective work. On October 12, 1993, the School notified Maggio that it should have the sewers fixed within seven days or the School would perform the repairs and back charge Maggio. Maggio hired another company to perform the repairs for $497,067. Maggio sent the bill to Willis but Willis refused to pay.

After Maggio had paid $497,067 to correct the defective work, the School, which was named as an additional insured on the insurance policy issued by Emcasco, executed a written assignment transferring and assigning to Maggio any causes of action that the School may have had against Emcasco. The assignment, which was executed on October 18, 1995, purportedly authorized Maggio to sue Emcasco to recover the $497,067 spent on corrective work.

On October 30, 1995, Maggio filed a two-count complaint, where count I named Willis as a defendant and count II named Willis, Emcasco, and Tennant as defendants. On February 22, 1996, the trial court dismissed without prejudice count II of Maggio's original complaint against Tennant pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)). On March 21, 1996, Maggio filed a two-count amended complaint, in which count I again named Willis as a defendant and count II named Willis, Tennant, and Emcasco as defendants. On May 28, 1996, the trial court dismissed without prejudice count II of Maggio's amended complaint against Tennant pursuant to section 2-615.

On June 25, 1996, Maggio filed its second amended complaint. The complaint contained four counts, which were: (1) count I, breach of contract against Willis,

738 N.E.2d 596

(2) count II, third-party breach of contract against Emcasco, (3) count III, assignment of cause of action against Emcasco, and (4) count IV, subrogation of cause of action against Emcasco. On July 15, 1996, Emcasco filed a motion to dismiss the second amended complaint pursuant to section 2-615 and section 2-619 of the Code of Civil Procedure. On August 22, 1996, the trial court granted Emcasco's motion to dismiss count II without prejudice. On September 11, 1996, Emcasco filed a separate motion to dismiss counts III and IV of the second amended complaint pursuant to section 2-615. On October 10, 1996, the trial court granted Emcasco's motion to dismiss counts III and IV

On April 27, 1999, the trial court granted Maggio's motion to file an amended count II to its second amended complaint, which Maggio went on to file on May 10, 1999. On May 27, 1999, Emcasco filed a motion to vacate the order allowing Maggio to file an amended count II. On August 20, 1999, the trial court granted the motion to vacate. On August 27, 1999, the trial court denied Maggio leave to file an amended count II and found that there was no just reason to delay enforcement or appeal of that order or the order of October 10, 1996, dismissing counts III and IV. Maggio appeals.

We affirm.

ANALYSIS

I

Maggio maintains the trial court erred in granting Emcasco's motion to dismiss its assignment claim, count III of the second amended complaint, for failure to state a cause of action. We disagree.

When a complaint is dismissed pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), the standard of review is de novo. Vernon v. Schuster, 179 Ill.2d 338, 344, 228 Ill.Dec. 195, 688 N.E.2d 1172, 1175 (1997). The question presented by a section 2-615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Vernon, 179 Ill.2d at 344, 688 N.E.2d at 1175. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings that entitle the plaintiff to recover. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 86-87, 220 Ill.Dec. 195, 672 N.E.2d 1207, 1214 (1996).

As a general rule, "[a]n assignment * * * is the transfer of some identifiable property, claim or right from the assignor to the assignee." Buck v. Illinois National Bank & Trust Co., 79 Ill.App.2d 101, 106, 223 N.E.2d 167, 169 (1967). The assignment operates to transfer to the assignee all the right, title or interest of the assignor in the thing assigned. American Sand & Gravel Co. v. Chicago Gravel Co., 184 Ill.App. 509, (1914). For an assignment to be valid, the assignor must either actually...