Galiher v. Spates
| Decision Date | 24 September 1970 |
| Docket Number | Gen. No. 11225 |
| Citation | 262 N.E.2d 626,129 Ill.App.2d 204 |
| Parties | Betty J. GALIHER, Plaintiff-Appellant, v. Ralph L. SPATES, Defendant, Kenilworth Insurance Company, a corporation, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Philip C. Zimmerly and James M. Langan, Champaign, for plaintiff-appellant.
Hatch, Corazzo, Baker & Jensen, Harold L. Jensen, Champaign, for defendant-appellee.
This is an appeal from an order of the Circuit Court of Champaign County granting a motion for summary judgment by defendant Kenilworth Insurance Company.
Action was to recover damages for negligence of defendant Ralph L. Spates in driving his automobile. Count I of the complaint was against Spates. Count II of the complaint was against defendant Kenilworth Insurance Company, alleging that Spates was an uninsured motorist and that defendant Kenilworth Insurance Company, insurer of plaintiff, Betty J. Galiher, failed to provide plaintiff uninsured motorist coverage as required by statute.
The complaint alleged that plaintiff purchased a policy of automobile insurance from Kenilworth Insurance Company through its agent, Best Insurance Agency, of Decatur, Illinois. After several amendments to the complaint and a motion for summary judgment by plaintiff, a motion for summary judgment by Kenilworth alleging that Best was a broker and therefore as a matter of law was the agent of the insured and not of the insurer, was allowed. The trial court found no just cause to delay appeal, and this appeal seeks reversal of the order of summary judgment for defendant Kenilworh Insurance Company.
Plaintiff contends that whether a broker of insurance is acting as agent of the company or of the insured is a question of fact, and that the applicable statute requiring an automobile-liability company to provide uninsured motorist coverage to an applicant unless the applicant rejects it makes the broker an agent of the company. Further, plaintiff contends that an admission by defendant in a superseded answer that Best was its agent is admissible as an admission and prevents a finding, as a matter of law, that Best was an agent of the insured.
An answer filed by defendant Kenilworth Insurance Company, in paragraphs 9 and 10, admitted Best Insurance Agency was its agent in selling the policy. Thereafter, over objection, defendant was permitted to file an amended answer denying the agency. A second amended answer was filed by Kenilworth, amending paragraph 13 of its amended answer to set up as an affirmative defense that Best was a broker and as such a representative of the plaintiff. Plaintiff's motion to strike this defense was denied.
Plaintiff filed a motion for summary judgment, accompanied by an affidavit of plaintiff and the discovery deposition of plaintiff and of Jack L. Holt, an employee of Best. The affidavit of plaintiff stated that at no time did Jack Holt, or any employee of Best, tell her that the Best Insurance Agency was acting on her behalf, but she understood that Best was an agent for the company with which her insurance was being placed. This motion was denied.
Defendant filed a motion for aummary judgment, accompanied by the discovery deposition of Robert A. Best of Best Insurance Agency. Plaintiff filed a reply denying the allegations of the affirmative defense in paragraph 13 of the second amended answer. The trial court allowed defendant's motion for summary judgment, filing a memorandum in which it found, as a matter of law, that Best Insurance Agency was a broker and as such acted as agent of plaintiff and not of defendant.
An insurance broker is one who procures insurance and acts as middleman between the insured and the insurer, and solicits insurance business from the public under no employment from any special company, but, having secured an order, places the insurance with the company selected by the insured, or, in the absence of any selection by him, with the company selected by such...
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... ... As the court explained in Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 264 (7th Cir.1986) (quoting Galiher v. Spates, 129 Ill.App.2d 204, 262 N.E.2d 626, 628 (1970)): ... "[A broker] procures insurance and acts as middleman between the insured and the ... ...
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