Schwartz v. Great Cent. Ins. Co.

• Decision Date: 20 September 1989
• Docket Number: No. 5-88-0344,5-88-0344
• Citation: 188 Ill.App.3d 264,544 N.E.2d 131,135 Ill.Dec. 774
• Parties: , 135 Ill.Dec. 774 Ruth SCHWARTZ and Schwartz Dress and Bridal Shop, Inc., Plaintiffs-Appellees, v. GREAT CENTRAL INSURANCE COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 131

544 N.E.2d 131

188 Ill.App.3d 264, 135 Ill.Dec. 774

Ruth SCHWARTZ and Schwartz Dress and Bridal Shop, Inc., Plaintiffs-Appellees, v. GREAT CENTRAL INSURANCE COMPANY, Defendant-Appellant.

No. 5-88-0344.

Appellate Court of Illinois,

Fifth District.

Sept. 20, 1989.

Richard A. Cary, Janie F. Smith, Wham & Wham, Centralia, for defendant-appellant.

George C. Lackey, Lackey & Warner, P.C., Centralia, for plaintiffs-appellees.

Justice CHAPMAN delivered the opinion of the court:

Prior to August 1, 1984, Plaintiff Ruth Ann Schwartz, owned and operated a clothing store under the name of Schwartz Dress and Bridal Shop, in Centralia, Illinois. Steve Schwartz, an independent insurance agent, acting on behalf of Ruth Ann Schwartz, obtained a workmen's compensation policy of insurance for Ruth Ann Schwartz through the brokerage department of Rockford Mutual Agency, whereby Great Central Insurance Company agreed to provide workmen's compensation and employer's liability coverage to Ruth Ann Schwartz. Great Central Insurance Company issued the policy to "Ruth Ann Schwartz d/b/a Schwartz's", said policy having an effective date of October 27, 1983 to October 27, 1984. On the face of the policy there were four categories preceded by blocks. The block preceding the category labeled "individual" had been checked, with the other blocks having descriptive labels of "partnership", "corporation" and "other", being blank.

At the time the policy was issued, Schwartz's Dress and Bridal Shop employed three persons. On August 1, 1984 plaintiff's shop was incorporated under the name of Schwartz Dress and Bridal Shop, Inc. After incorporation the clothing store remained at its pre-incorporation location, the nature of the business did not change, and Ruth Ann Schwartz continued to manage the business as she had done previously. Subsequent to incorporation, a renewal certificate on the workmen's compensation insurance policy was mailed via Rockford Mutual agency or a Rockford Mutual agent, to Steve Schwartz d/b/a Schwartz's Insurance Shop. The renewal certificate listed the insured as "Ruth Ann Schwartz d/b/a Schwartz's". The certificate once again contained four categories preceded by blocks. The block preceding the category labeled "individual" had been checked, with the other blocks having descriptive labels of "partnership", "corporation" and "other" being blank.

Plaintiff claims that on March 11, 1985 she sustained injuries while working as an employee of Schwartz's Dress and Bridal Shop, Inc. Ruth Ann Schwartz filed a workmen's compensation application for claim with Great Central Insurance Company against her employer "Schwartz's Dress and Bridal Shop, Inc." Great Central Insurance denied coverage under the workmen's compensation renewal certificate. Great Central Insurance reasoned that it had no contract of insurance with "Schwartz's Dress and Bridal Shop, Inc.", covering the employee Ruth Ann Schwartz.

Plaintiff urges that on or about August 1, 1984 she notified Steve Schwartz of the incorporation of her business. Defendant contends that at no time prior to March 11, 1985, the date upon which Ruth Ann Schwartz was allegedly injured on the job, did plaintiff notify Steve Schwartz of the incorporation of her business, and it wasn't until March 14, 1985 that Great Central was notified of the change. Subsequently Great Central allowed an endorsement to the renewal certificate, amending the named insured to read "Schwartz's Dress and Bridal Shop, Inc.", effective March 14, 1985.

Plaintiff filed a complaint in the circuit court of Marion County, praying that the court enter a declaratory judgment finding Great Central Insurance Company liable to plaintiff under the renewal certificate of insurance despite the discrepancy in names of the insured. Thereafter plaintiff filed a motion for summary judgment, alleging as grounds that in addition to the above facts, subsequent to August 1, 1984 and prior to October 20, 1984, the defendant Great Central Insurance, through its agents, employees or brokers caused an audit of the plaintiff business to be conducted to determine the amount of premiums to be paid by the plaintiff business, but failed during that audit to note that the business had earlier been changed from a sole proprietorship to a corporation. Plaintiff at all times paid the premiums due under the policy and the renewal certificate at issue herein, and said premiums were accepted and retained by the defendant. Plaintiff also notes that subsequent to incorporation she paid the premiums with a business check which clearly notes the name of the business as "Schwartz's Dress and Bridal Shop, Inc.".

Defendant filed its motion for summary judgment urging that the court award judgment in its favor, reasoning that at no time was there issued by defendant an insurance policy providing workmen's compensation coverage to Ruth Ann Schwartz as an employee.

The court in its order dated April 22, 1988 granted plaintiff's motion for summary judgment. The court stated in its ruling that the parties intended to insure under a workmen's compensation policy the employees of a certain clothing business known as "Schwartz's", regardless of whether it was owned by an individual, a partnership or a corporation. The court further found that the fact that the named insured was not changed on the policy after plaintiff incorporated the business was a mutual mistake of fact. Defendant filed a motion for reconsideration of the court's order and to enter judgment in defendant's favor. On May 3, 1988 the court issued its order granting plaintiff's motion for summary judgment and denying defendant's motion for summary judgment. Defendant whereupon filed its appeal.

Plaintiff first raises the argument that defendant's brief is wholly insufficient with regard to supreme court Rule 341 dictating the proper form of briefs. (113 Ill.2d R. 341.) Plaintiff contends that defendant-appellant's brief substantially departs from the requirements of Supreme Court Rule 341 with regard to the form of the summary statement or "points and authorities", defendant's "statement of facts" and "statement of the issues". Plaintiff further cites as deficient the section of defendant's brief entitled "statutes involved". Plaintiff argues that as there is no issue in the case involving the construction or validity of any statute, defendant erred in including said section in its brief.

We acknowledge that a court of review is entitled to have briefs submitted that are articulate, organized and present a cohesive legal argument in conformity with supreme court rules. (In re Application of Anderson (1987), 162 Ill.App.3d 815, 819, 114 Ill.Dec. 705, 708, 516 N.E.2d 860, 863.) We disagree with plaintiff that the defendant's brief fails to substantially comport with Rule 341. Defendant's brief properly and informatively states the alleged errors relied upon for reversal. We are a tribunal of justice and are not inclined on this occasion to deprive the parties-in-interest of the benefit of our views on the substantive issues. Coffey v. Hancock (1984), 122 Ill.App.3d 442, 443-45, 77 Ill.Dec. 677, 679-80, 461 N.E.2d 64, 66-67.

We next address technical issues which plaintiff has raised in opposition to this appeal. It is plaintiff's contention that the defendant's answer to plaintiff's complaint was purportedly verified by defendant's attorney. Plaintiff argues that the verification contains no statement that the affiant has any knowledge regarding this case, or the facts contained in the complaint. It is alleged that the purported verification of defendant's answer is therefore insufficient and the allegations of plaintiff's complaint must be deemed admitted.

Section 2-605 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-605), provides that if any pleading is verified, every subsequent pleading must also be verified unless verification is excused by the court. Section 2-610 further directs:

"(b) Every allegation, except allegations of damages, not explicitly denied is admitted unless the party states in his or her pleading that he or she has no knowledge thereof sufficient to form a belief and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has no opportunity to deny."

(Ill.Rev.Stat.1987, ch. 110, par. 2-610.)

Both parties concede that an attorney having personal knowledge of the facts set out in a pleading is not precluded from verifying that document. (Citicorp Savings of Illinois v. Occhipinti (1985), 136 Ill.App.3d 835, 836, 91 Ill.Dec. 360, 362, 483 N.E.2d 706, 708.) Plaintiff would have us wholly disregard defendant's answer on grounds that defendant's pleading is insufficient and does not qualify as a verified pleading. Plaintiff fails to acknowledge that the verification attached to defendant's answer included averments that counsel was retained to defend the defendant in this cause, and that both counsel and defendant lacked sufficient information at this time to form a belief as to the truth of the allegations contained in plaintiff's complaint. Defendant's counsel of record further affixed his notarized statement to said verification, stating that he has read the foregoing Answer and is acquainted with the contents and that the matters contained therein are true and correct to the best of his knowledge. The law has outgrown its primitive state of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. (Weingart v. Weingart (1959), 23 Ill.App.2d 154, 160, 161 N.E.2d 714, 719.) It is our judgment that the verification is sufficient.

Plaintiff further alleges defendant never claimed in the trial court that there existed any disputed issue as to material fact. Plaintiff argues that defendant should therefore be precluded from raising the issue on appeal. By failing to alert the trial court of a possible question of fact, a party...