Kridner v. Estate of Padilla
| Decision Date | 10 May 2021 |
| Docket Number | NO. 4-20-0453,4-20-0453 |
| Citation | 2021 IL App (4th) 200453 -U |
| Parties | SHANA KRIDNER, as Independent Administrator of the Estate of Lynse Stokes, Deceased, Plaintiff-Appellant, v. THE ESTATE OF JOSE PADILLA and S.L.D., INC., d/b/a/ Pizza by Marchelloni, Defendants (S.L.D., Inc., d/b/a Pizza by Marchelloni, Defendant and Third-Party Plaintiff-Appellant v. Austin Hough, Third-Party Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
NOTICE
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Livingston County
Honorable Jennifer H. Bauknecht, Judge Presiding.
¶ 1 Held: The appellate court affirmed the trial court's entry of summary judgment in favor of third-party defendant because the third-party claim was barred by the statute of limitations.
¶ 2 In March 2018, Shana Kridner, as independent administrator of the estate of Lynse Stokes (the Estate), filed an amended complaint against S.L.D., Inc. (SLD), d/b/a Pizza by Marchelloni, alleging Jose Padilla, an employee of SLD, caused the death of Lynse Stokes by negligently causing a car accident that resulted in Lynse's death while acting in the scope of his employment.
¶ 3 Later in March 2018, SLD filed a third-party complaint against Austin Hough, the insurance agent that provided SLD with its business liability policy. The claim alleged that Hough negligently failed to procure an insurance policy that covered the liability of delivery drivers. Hough filed an answer and affirmative defenses, alleging, in relevant part, that SLD's claim was barred by the two-year statute of limitations for insurance claims. See 735 ILCS 5/13-214.4 (West 2016).
¶ 4 In May 2020, Hough filed a motion for summary judgment. In September 2020, the trial court granted summary judgment in favor of Hough, concluding that the negligent procurement claim accrued in 2011 when the policy was received, and therefore, SLD's claim was time barred.
¶ 5 SLD and the Estate appeal, arguing the trial court erred when it entered summary judgment in favor of Hough. We disagree and affirm.
¶ 8 In March 2018, the Estate filed an amended complaint against SLD, alleging that in September 2016, Lynse Stokes was riding as a passenger in the car of Jose Padilla, who was working as a delivery driver for SLD at the time. Padilla attempted to make a left-hand turn onto a highway. An oncoming car, which had the right of way, collided with Padilla's car, resulting in Padilla's death and Lynse's death a few days later.
¶ 9 Later in March 2018, SLD filed a third-party complaint against Hough, asserting that Hough was the agent responsible for procuring SLD's business liability policy. SLD requested a policy to cover its "core business," which was pizza delivery. Hough provided a policy from Farmers Insurance (Farmers), but when SLD submitted a claim for the accident, Farmers denied the claim based on an auto exclusion. SLD alleged that Hough failed to exercise ordinary and reasonable care by (1) failing to name SLD as an insured, (2) failing to provide coverage fordelivery drivers, and (3) failing to communicate to Farmers all the necessary information to obtain the coverage requested.
¶ 10 In April 2018, Hough filed an answer and affirmative defenses to SLD's complaint, asserting, among other things, that SLD's claim was barred by the statute of limitations. See id. Hough further contended that a cause of action for negligent procurement accrues at the time of the alleged breach. Because the insurance policy at issue began providing coverage in January 2016, SLD's third-party complaint was filed more than two years after the alleged breach.
¶ 12 In May 2020, Hough filed a motion for summary judgment in which he argued that SLD's complaint was filed seven years after the statute of limitations expired. In support of his motion, Hough attached (1) a copy of the third-party complaint, (2) a copy of the business owners' policy, and (3) the depositions of Letitia Stokes, Dale Stokes, and Hough.
¶ 14 Letitia testified that she started working for the Pontiac Pizza by Marchelloni in 1993. In 1996, she and Dale Stokes formed SLD, and SLD purchased the Pizza by Marchelloni store. In 1998, the franchiser of Pizza by Marchelloni went bankrupt, and SLD purchased the naming rights. Marchelloni provided carry out and delivery pizza. Letitia ran the entire business herself and was the only person who worked in the store; when she was not working, the store was closed. Letitia hired high school and college students to work as part time delivery drivers. When she hired employees, she made sure they had auto insurance.
¶ 15 From 1996 to 2010, SLD got insurance through American Family and agent Kelly Kinate. Letitia testified that American Family insured
¶ 16 In late 2010, Letitia's brother referred her to Hough, and Hough set up a meeting at Marchelloni's to provide an estimate. Letitia testified that she "told [Hough] I needed to [insure] the building, plus I needed driver's insurance for my drivers." Letitia gave Hough a copy of the American Family policy "in order to do that." She also walked him through the restaurant to show him the property. Letitia and Hough talked about what the insurance would be covering, such as the building and equipment. Letitia denied telling Hough that she did not need insurance for her drivers but did agree that she told Hough she required her drivers to have insurance and that she asked Hough "for insurance coverage for all business risks related to" Marchelloni's.
¶ 17 Letitia acknowledged that in her response to interrogatories she stated, "Prices of insurance were discussed, and Mr. Hough talked about the building coverage; but Hough and Letitia never discussed liability exposure of drivers." The following exchange occurred:
¶ 18 Letitia agreed that her American Family policy contained the same auto exclusion as her Farmers policy. Letitia stated that she did not know that the American Family policy or the Farmers policy contained an auto exclusion and she did not know that her drivers were not covered under the American Family policy.
¶ 19 Letitia stated she received a copy of the Farmers policy in January 2011 but neithershe nor Dale reviewed the policy. Hough called Letitia to let her know that the policy was renewed and that he was sending the renewal. Letitia stated she did not recall ever receiving any of the renewed policies and she did not receive a copy of the 2016 policy.
¶ 20 Letitia testified that the accident occurred in September 2016 and she notified Farmers the next day. In January 2017, Farmers sent Letitia a letter explaining that it was denying coverage because of the auto exclusion.
¶ 21 Letitia stated that she did not know what "non-owned auto insurance" was and Hough never asked or told her about it or that she needed it. He never went over what the policy covered with Letitia because he never delivered the policy to her. Hough never asked Letitia for additional information, just for the American Family policy. Hough never told Letitia that Farmers did not cover autos for delivery businesses. Counsel asked Letitia, "Was it [your] understanding that you were getting coverage similar to what you had before but it would just cost less?" Letitia responded, "Yes."
¶ 23 Dale testified that he was Letitia's husband. Dale and Letitia formed SLD to purchase Marchelloni's and had recently sold the business. Dale stated that Letitia ran the business and his only involvement was delivering pizzas in the late nineties.
¶ 24 Dale stopped by the business on the night Hough met with Letitia to get information for a quote. Dale told Hough Dale agreed that he never saw the 2011 policy or any policy since. The following exchange occurred:
¶ 25 Dale stated that even though Letitia required her delivery drivers to have auto insurance, SLD needed "[a]uto insurance covering the drivers for delivery" because "when it was a franchise, that was required." Dale agreed that Letitia sought out Hough because their insurance premium was getting high and she was looking for less expensive insurance "[b]ut still the same coverage." Dale stated that he "presume[d]" Lynse's accident would have been covered under the American Family policy "because of what was required by the franchise," though he had never read it. Dale stated that the franchise required SLD to provide a copy of the insurance for review prior to their being able to purchase it to ensure it complied with franchise requirements. Dale stated he never discussed the insurance with Letitia because (1) she knew what the franchise had required and (2) the policy always renewed and he "presumed it was the same."
¶ 26 Dale testified that he had several other businesses and had insurance for all his businesses' vehicles, equipment, property, and liability. Dale stated that he mostly did not review any of...
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