Our panel of leading appellate attorneys reviews the seven civil and ten criminal opinions handed down Thursday, November 30, 2023, by the Illinois Supreme Court.
People v. Webb, 2023 IL 128957
By Kerry J. Bryson, Office of the State Appellate Defender
In March 2018, Dante Webb was driving a semi pulling a partially loaded car hauler when he was stopped by the police because the semi lacked the federally-required DOT markings and failed to display proper registration. The sheriff’s deputy who initiated the stop observed that Webb was in a “panic.” He was disorganized, provided the deputy with information he did not request, volunteered that he had already been stopped several times during his trip and that the truck had been checked for drugs, and ultimately produced paperwork which did not match the truck’s license plate. Believing Webb was involved in some type of criminal activity, the deputy requested backup.
While the deputy was preparing a written warning, a second deputy arrived and took over that portion of the stop so that the original deputy could conduct a canine sniff. The canine was trained to alert to crack cocaine, methamphetamine, heroin, ecstasy, and marijuana. During the sniff, the dog alerted on the truck. A subsequent search revealed an unlicensed firearm and over 2,700 grams of cannabis, valued at approximately $40,000.
In the trial court, Webb unsuccessfully sought to suppress the evidence, arguing that the warrantless search was unlawful because the police lacked reasonable suspicion for the stop, impermissibly prolonged the stop to conduct the canine sniff, and searched the truck in violation of the fourth amendment. The trial judge concluded that the police properly stopped defendant’s vehicle for a registration violation, the canine sniff was proper, and the dog’s alert provided probable cause for the warrantless search of the truck.
On appeal, Webb argued that trial counsel was ineffective for failing to seek suppression on a different basis, specifically that a positive canine alert, without more, was no longer sufficient to establish probable cause because Illinois had legalized possession of cannabis for medical use and the officer did not ascertain whether Webb had a medical cannabis card prior to the search.
The Illinois Supreme Court first clarified that the issue before the Court was limited to whether counsel rendered ineffective assistance by not seeking suppression based upon the Medical Cannabis Act. To succeed on a claim of ineffective assistance, a defendant must establish both that counsel’s performance was deficient and that defendant was prejudiced as a result.
On the question of deficient performance, counsel’s performance is evaluated in context of existing law at the time, and an attorney will not be deemed deficient for not making an argument which had no basis in law. Here, controlling law at the time of the traffic stop was that either a canine alert (People v. Campbell, 67 Ill. 2d 308 (1977)) or a police officer’s detection of the odor of cannabis emanating from a vehicle (People v. Stout, 106 Ill. 2d 77 (1985)) could establish probable cause for a warrantless search.
Webb argued, however, that the Supreme Court’s statement in People v. Hill, 2020 IL 124595, that the Act “somewhat altered the status of cannabis as contraband,” should have prompted counsel to seek suppression here where Hill was decided seven months prior to the hearing on Webb’s motion to suppress. But, the Court concluded, as it had in Hill, that the deputy here relied on more than just the canine alert in conducting the search of Webb’s vehicle. Specifically, the officer noted multiple failures to comply with registration and safety regulations, as well as the fact that Webb was disorganized, volunteered irrelevant and unnecessary information, and was in a “state of panic.” Thus, the totality of the circumstances, including the canine alert, were sufficient to justify a reasonable person in believing that the vehicle contained contraband or evidence of criminal activity. Accordingly, counsel did not provide deficient representation by not seeking suppression on the basis of medical cannabis law, and Webb’s conviction of cannabis trafficking was affirmed.
The Court went on to note that even if it assumed the deputy relied only on a canine alert to cannabis in conducting the search, Campbell and Stout were binding authority at the time and the court would have been bound to apply those cases and uphold the search. Notably, the Court may have the opportunity to address the continued validity of Campbell and Stout when it considers two cases currently on its docket, People v. Redmond, No. 129201, consolidated with People v. Molina, No. 129237.
People v. Fukama-Kabika, 2023 IL 128824
By Jay Wiegman, Assistant Appellate Defender
Illinois Supreme Court Rule 472, titled “Correction of Certain Errors in Sentencing,” provides that in criminal cases, the circuit court retains jurisdiction to correct sentencing errors, including “[c]lerical errors in the written sentencing order or other part of the record resulting in a discrepancy between the record and the actual judgment of the court,” at “any time following judgment and after notice to the parties, including during the pendency of an appeal, on the court’s own motion, or on motion of any party. Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019). In People v. Fukama-Kaibika, 2023 IL 128824, the Court considered a case in which the Court advised the defendant, on the first day of trial, that as to one of the charges, defendant faced a sentence that included a term of Mandatory Supervised Release (MSR) of three years to natural life, but upon conviction entered an order that only imposed a three-year term of MSR as to that conviction. A unanimous Court held that where a portion of the statutorily mandated MSR term was erroneously omitted from the written sentencing order, the trial court retains jurisdiction under Rule 472 to correct the error.
During Fukama-Kabika’s direct appeal, the Department of Corrections notified the Champaign County circuit court that the MSR term should have been for three years to natural life, and requested that the trial court enter a nunc pro tunc order. Without notifying parties, the circuit court amended the order “effective nunc pro tunc” as of the day of sentencing. The defendant challenged the amended sentencing order in a post-conviction petition, which was ultimately affirmed by the Appellate Court, Fourth District. The Appellate Court found that the trial court was powerless to impose a term of MSR other than that provided by statute, determined that the trial court’s misstatement of the MSR term on the written sentencing order was a clerical error, and observed that Rule 472 permitted the circuit court to retain jurisdiction to correct clerical errors.
The Illinois Supreme Court granted defendant leave to appeal. Writing for a unanimous Court (with Justice Holder White taking no part in the consideration of the case), Chief Justice Theis first observed that the primary purpose of Rule 472 was to provide the trial court with jurisdiction to correct certain sentencing errors in criminal cases at any time after judgment without requiring the Supreme Court’s intervention through a writ of mandamus. The Court then determined that the omission of the phrase “to natural life” was a clerical error, as it was “not the deliberate result of judicial reasoning and determination,” given that record showed the trial court, defense counsel, defendant, and State all understood that the defendant faced an MSR term of three years to natural life upon conviction of criminal sexual assault.
Though finding that the trial court could properly determine the error warranted correction, the Illinois Supreme Court concluded that the trial court did not follow the proper procedure and cautioned that it expects trial courts to “comply with the entirety of Rule 472 going forward,” including providing proper notice to the parties.
Pinkston v. City of Chicago, 2023 IL 128575
By Joanne R. Driscoll, Forde & O’Meara LLP
The issue in this case is whether a class-action plaintiff, who sued the City of Chicago for allegedly improperly issuing parking tickets, failed to exhaust administrative remedies. In a unanimous opinion written by Justice Holder White, the Court held that there is no class-action exception; each putative member of the class was required to exhaust.
This case presents a good primer on the common law doctrine of administrative review, adopted in the Illinois Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2018)), including its purpose and its exceptions. One such exception―where the agency cannot provide an adequate remedy―was used by the appellate court to reverse the dismissal of plaintiff’s complaint here. According to the appellate court, that exception was met because the plaintiff complained about a routine or systematic practice regarding the issuance of parking tickets; and the City’s Department of Administrative Hearings was not equipped to provide the plaintiff or the class with the relief sought, namely, injunctive and monetary relief. The Illinois Supreme Court disagreed, finding the case upon which the appellate court relied, Board of Education of Chicago v. Board of Trustees of the Public Schools Teachers’ Pension & Retirement Fund of Chicago, 395 Ill. App. 3d 735 (2009), distinguishable.
Reviewing the City’s administrative process for review of parking tickets, the Illinois Supreme Court concluded that the procedure in place provided plaintiff (and the members of the class) with ample opportunity to contest the issuance of parking tickets. According to the Court, the plaintiff could have presented evidence to the hearing officer who could then have made findings of fact, and, possibly, ruled in his favor or reduced his fine. Then, if unsuccessful, the plaintiff could have sought administrative review by filing a complaint in the circuit court. That process, as the Court explained, saves judicial resources and allows the City to correct its errors, if any.
Addressing the issue of whether exhaustion is required when a class action is brought, the Court reaffirmed its prior holdings that there is no class-action exception to the exhaustion requirement. The Court stated that the exhaustion requirement cannot be circumvented by a party’s seeking declaratory, injunctive, or monetary relief in a class-action complaint. Each individual who would have been part of the class is required to exhaust administrative remedies. The requirement of exhaustion cannot be avoided by bundling similar claims in a class action.
People v. Bush, 2023 IL 128747
By Kerry J. Bryson, Office of the State Appellate Defender
Mitchell Bush and his cousin, Henry Mayfield, were involved in a neighborhood dispute which intensified over the course of a single day. The dispute culminated in a physical confrontation between two groups of individuals which included Bush’s firing the shots that killed Dwayne Jones and injured Lathaniel Gulley. Bush claimed that he shot in self-defense, fearing for his safety and the safety of Mayfield and Mayfield’s son. Ultimately, Bush was convicted of felony murder predicated on mob action, aggravated battery with a firearm, and unlawful possession of a weapon by a felon.
Bush raise various challenges in the appellate court. The appellate court reversed the conviction of aggravated battery with a firearm, but, as relevant here, rejected Bush’s arguments that he was not proved guilty of felony murder, that mob action could not serve as the predicate for felony murder under the facts of this case, and that he was denied a fair trial by the cumulative impact of certain errors.
The Illinois Supreme Court first upheld Bush’s conviction of felony murder predicated on mob action against a challenge to the sufficiency of the evidence. As charged here, mob action required proof that Bush acted together with at least one other person in the knowing or reckless use of force or violence disturbing the public peace. Bush argued that the State failed to prove that he acted together with another, but the Court disagreed. The evidence at trial showed that Bush traveled to the scene of the shooting with Mayfield and was present during discussions about the reason for going to the scene, specifically because of an earlier attack on Mayfield’s son. Additionally, Bush and Mayfield approached together, Bush was carrying a gun, and Mayfield directed Bush to shoot. On this evidence, a rational trier of fact could find that Bush “was actively engaged in the use of force or violence in concert with Mayfield,” even if Bush was not an active participant in the decision to go to the scene. The jury was not required to accept Bush’s claim of self-defense or his contention that he only had the firearm with him because he was planning to sell it.
Bush went on to argue that the acts constituting mob action here lacked an independent felonious purpose from Jones’s murder and thus mob action could not serve as the predicate felony pursuant to People v. Morgan, 197 Ill. 2d 404 (2001). The Illinois Supreme Court disagreed, noting that it had only applied the “merger doctrine” discussed in Morgan in one other case, People v. Pelt, 207 Ill. 2d 434 (2003), and that both Morgan and Pelt involved “singular acts of assaultive conduct.” The Court clarified that the rule was only meant to apply where the predicate felony’s sole purpose is the commission of an act of physical violence contemplating death. The essential characteristic of mob action is not an act of physical violence contemplating death, and thus it is a proper predicate for felony murder.
Bush also argued that the trial court erred in refusing to admit a State witness’ rap video as a prior inconsistent statement at trial. Under 725 ILCS 5/115-10.1, a prior inconsistent statement may be admitted substantively if it meets certain requirements specified in the statute, specifically that it narrates, describes, or explains an event of which the witness had personal knowledge and that it was accurately recorded by video, audio, or other similar electronic means. Those requirements were met here, but the trial court reasoned that the rap video was made for entertainment purposes and thus was not akin to a prior witness statement and was therefore inadmissible. The Illinois Supreme Court concluded that the trial court abused its discretion in excluding the video. Once a statement satisfies the requirements of Section 115-10.1, it is admissible so long as it is relevant. Here, the statements on the video bore a “strong nexus” to the circumstances of the underlying offense in that the rap purported to narrate the events of that day, thus it was relevant as a statement of historical fact. But, the error in excluding the video was harmless beyond a reasonable doubt because it was cumulative to other evidence introduced at trial.
Finally, the Court rejected Bush’s argument that the trial court erred in allowing a juror to continue on the jury after she revealed a connection to State witnesses. Specifically, juror Proctor told the court on the second day of trial that she only then realized that her daughter was married to the mother of one of the State’s witnesses and the surviving shooting victim when she saw the mother seated in the courtroom. The juror assured the court that she could be fair and impartial. The Illinois Supreme Court held that while there are certain relationships which give rise to a legal conclusion of implied bias, the relationship of step-grandparent, alone, is not sufficient to qualify. Here, the record reflected that the juror’s relationship was not close, and she did not know of her step-grandsons’ involvement in the case prior to the trial. Thus, the court did not err in allowing the juror to remain on the jury.
Doe v. Burke Wise Morrissey & Kaveny, LLC, 2023 IL 129097
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
The attorney defendants here, Elizabeth Kaveny and Burke Wise Morrissey & Kaveny, LLC, faced a lawsuit from a former client who alleged Kaveny wrongfully publicized confidential mental health information about her client after a medical malpractice trial. Reinstating the trial court’s order dismissing the case, the Illinois Supreme Court held that the plaintiff, “John Doe,” waived his statutory claim of confidentiality by voluntarily disclosing private health information in a public proceeding. The Illinois Supreme Court also found the statute Doe cited, the Mental Health and Developmental Disabilities Confidentiality Act (Act), 740 ILCS 110/1 et seq. (West 2014), was inapplicable to the defendants’ post-trial, public discussion of the evidence presented during the trial.
The defendants represented Doe in a medical malpractice action against a hospital and members of its medical staff. The trial court provided the hospital with access to Doe’s statutorily protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. sec. 1320d (2012). The evidence, including Doe’s testimony, addressed his suicide attempt, injuries, and diagnosis, and the jury reached a verdict in Doe’s favor. After the trial, the defendant attorneys issued a press release describing Doe’s suicide attempt, injuries, and diagnoses. Kaveny also commented on the case and Doe’s history for an article in the Chicago Daily Law Bulletin.
Alleging that Kaveny did not obtain Doe’s consent before disclosure to the Law Bulletin and other outlets, he sued the defendant lawyers under the Act. The defendants moved to dismiss the case. They argued that no therapeutic relationship existed between Doe and the defendants, that they only repeated information Doe testified to during the medical malpractice trial, and that Doe waived any confidentiality interest in his medical records by placing his condition at issue in the lawsuit. The trial court dismissed Doe’s claim under the Act. He appealed the ruling and won reinstatement of his claim in the appellate court, which disagreed with the trial court’s statutory interpretation and the impact of the HIPAA qualified protective order on the issue of post-litigation disclosure of protected health information.
The Illinois Supreme Court began its analysis by observing that, although Doe held a statutory privilege “to refuse to disclose and to prevent the disclosure of confidential information,” 740 ILCS 110/10(a), the statute does not prohibit a recipient of mental health treatment from voluntarily divulging his confidential information. After a detailed analysis of its precedent on the subject of express privilege waiver, the Illinois Supreme Court concluded Doe’s voluntary testimony about his history and hospitalization constituted a public disclosure of mental health information which destroyed the privilege. Doe’s argument that a qualified HIPAA order shielded Doe from a finding of waiver did not persuade the Supreme Court. Rather, the Court explained the HIPAA privacy rule merely provides the procedure for obtaining authority to use medical records in litigation; it does not create a privilege or prevent counsel, like the defendants here, from discussing facts a mental health care recipient voluntarily revealed in a public trial.
The Illinois Supreme Court disagreed with the appellate court’s ruling for the additional reason that records and communications made or kept in the course of providing mental health services are distinguishable from the defendants’ discussion of trial testimony and evidence about their client’s mental health issues. And an amendment of the Act broadening its scope did not apply retroactively to Doe’s lawsuit against Kaveny and the law firm or save the case from dismissal.
In re Estate of Coffman, 2023 IL 128867
By Joanne R. Driscoll, Forde & O’Meara LLP
This will contest case brings into play the fiduciary-relationship of undue influence, which is applied cautiously in the context of a marital relationship, and the debilitated-testator theory of presumptive undue influence, which was overruled more than 70 years ago. The decedent’s sisters (the petitioners) sought application of these theories to set aside the decedent’s will, executed one month before he died of cancer (the 2018 will), which left interests in certain family businesses to the decedent’s wife (Dorothy).
In 2001, the decedent executed powers of attorney appointing Dorothy as his agent for health care and property. He also executed a will (the 2001 will), which, among other things, divided his residuary estate between two trusts and named Dorothy trustee. Dorothy or any successor trustee was prohibited from distributing the family business ownership interests during Dorothy’s lifetime. After Dorothy’s death, distribution of those assets was directed to petitioners or per stirpes to petitioners’ descendants. The 2018 will granted the business ownership interests partially to Dorothy outright and the rest to her as trustee of the family trust. In contrast to the 2001 will, the 2018 will authorized Dorothy, not petitioners, to designate the ultimate disposition of the excluded assets.
Petitioners sought to have the 2018 will declared invalid on grounds of Dorothy’s undue influence over the decedent who, they allege, was physically and psychologically weakened and vulnerable to undue influence by, and dependent on, Dorothy when that will was executed. After the parties presented evidence, the circuit court denied the petition to contest the 2018 will and entered a directed finding and judgment for Dorothy. First, the court found petitioners had failed to present any evidence of actual undue influence. Second, the court found petitioners had not presented sufficient evidence on any of the four elements of presumptive undue influence.
The appellate court affirmed the judgment, holding that Dorothy did not owe the decedent a fiduciary duty as a matter of law and the circuit court’s directed finding that she did not procure the contested will was not against the manifest weight of the evidence. The court also rejected, as no longer good law, petitioners’ debilitated-testator theory of presumptive undue influence.
The Illinois Supreme Court, in a unanimous opinion authored by Justice Rochford, affirmed the circuit court and appellate court judgments but disagreed with certain aspects of their analysis. The Court began by explaining the standard of review when a circuit court grants a directed finding. The Court then addressed two of the four elements of presumptive undue influence, which are rebuttable. On the first, the ―existence of a fiduciary relationship―the Court disagreed with the lower courts’ findings that no such relationship existed, even though Dorothy held a power of attorney over the decedent’s property, because Dorothy never exercised that power. After reviewing the Illinois Power of Attorney Act (755 ILCS 45/1-1 et seq. (West 2020)) and the decedent’s own power of attorney, the Court held that, for purposes of proving the fiduciary-relationship element of the presumption of undue influence, the 2001 power of attorney for property, held by a substantial beneficiary under the will, created a fiduciary relationship as a matter of law and that it did not matter that Dorothy never exercised that power.
Addressing the fourth element― proof that the will was prepared by or its preparation was procured by the person who received a substantial benefit from the will―the Illinois Supreme Court held that, under the totality of circumstances, the circuit court’s finding that Dorothy’s conduct did not amount to procurement of the preparation of the will was not against the manifest weight of the evidence and was not arbitrary, unreasonable, or not based on the evidence.
The Court then reached petitioners’ alternative argument that, regardless of whether a fiduciary relationship existed, they made a prima facie case of the “debilitated-testator” presumption of undue influence, showing that Dorothy procured the execution of the 2018 will when the decedent was enfeebled by his age and medical condition. After tracing the “debilitated-testator” presumption back to Mitchell v. Van Scoyk, 1 Ill. 2d 160, 172-73 (1953), the Court noted that Illinois does not recognize that presumption, having overruled Mitchell in Belfield v. Coop, 8 Ill. 2d 293, 311 (1956). The Court declined petitioners’ request to revive Mitchell.
People v. Brusaw, 2023 IL 128474
By Kerry J. Bryson, Office of the State Appellate Defender
Bryan Brusaw was charged with aggravated DUI, the public defender was appointed to represent him, and the matter was assigned to Judge Sarah Jones. Shortly thereafter, Brusaw filed a pro se motion for substitution of judge as a matter of right pursuant to 725 ILCS 5/114-5(a). The following week, Brusaw’s appointed counsel was present in Judge Jones’ courtroom and asked to call Brusaw’s case. Brusaw was not present. Counsel noted that Brusaw had filed his own motion for substitution and asked to have it continued to the next scheduled court date, which the judge granted. No mention was ever made of Brusaw’s motion for substitution at that next court date or any future court date, and thus it was never ruled on. Brusaw ultimately waived a jury trial, proceeded to a bench trial in front of Judge Jones, and was convicted.
On appeal, Brusaw argued that his conviction should be vacated because no ruling was ever entered on his motion for substitution of judge. The appellate court agreed, over a dissent. The majority held that a Section 114-5(a) motion is not subject to abandonment and that Brusaw was entitled to file a pro se motion for substitution even though he was represented by counsel because the right to substitution set forth in Section 114-5(a) is a right personal to the defendant. The majority concluded that the failure to rule on the motion for substitution was, effectively, a denial of that motion and was improper because the judge should have immediately transferred the case to another judge upon Brusaw’s filing of the motion.
The Illinois Supreme Court reversed the decision of the appellate court, clarifying that a motion for substitution is subject to abandonment. Section 114-5(a) states that upon the filing of a motion for substitution, “the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion.” This language does not mean that the motion is “self-executing” with nothing more for the named judge to do; rather, such a motion requires judicial evaluation as to whether all of the statutory requirements are met before it can be granted. And, if it is not pursued once filed, it is subject to abandonment.
Generally, the party who files a motion is responsible for obtaining a ruling on it. If the party fails to obtain a ruling, the motion is presumed to have been abandoned in the absence of circumstances indicating otherwise. An abandoned motion is not considered to have been denied but rather operates as a waiver of the issue raised in the motion.
Here, Brusaw and his attorney had multiple opportunities to seek a ruling on the motion but did not. Indeed, Brusaw voluntarily waived his right to a jury trial and proceeded to a bench trial in front of the judge he had named in the motion. On this record, the Illinois Supreme Court concluded that Brusaw had simply abandoned his motion to substitute. The appellate court’s judgment was reversed.
People v. Agee, 2023 IL 128413
By Kerry J. Bryson, Office of the State Appellate Defender
In 2012, James Agee pled guilty to one count of first degree murder in the strangling death of his ex-girlfriend in exchange for a 25-year sentence. He subsequently filed an untimely motion to withdraw plea, which the court recharacterized as a post-conviction petition and docketed for second-stage proceedings. Counsel was appointed and filed an amended petition, which was dismissed on the State’s motion.
On appeal, Agee argued that he had received unreasonable assistance from post-conviction counsel because counsel defectively pled a claim that counsel added in the amended petition. The appellate court held that neither Rule 651(c) nor the Post-Conviction Hearing Act require post-conviction counsel to provide any level of representation, let alone reasonable assistance, in the presentation of new claims not included in the petitioner’s original pro se petition.
The Illinois Supreme Court first clarified that a petitioner is entitled to reasonable assistance of counsel both as to claims raised in the petitioner’s pro se petition as well as to any claims added by counsel in an amended petition. Here, Agee’s post-conviction counsel filed a facially valid Rule 651(c) certificate stating that counsel had consulted with Agee to ascertain his contentions of constitutional deprivation, had reviewed the record, and had made any amendments necessary for adequate presentation of Agee’s claims.
The filing of a Rule 651(c) certificate creates a rebuttable presumption that counsel provided reasonable assistance. Agee argued that the record rebutted that presumption in this case, however, where counsel added a claim in the amended petition – specifically ineffective assistance of trial counsel for failing to inform Agee of a possible second-degree murder defense – but did not adequately allege the prejudice prong of that claim. The Illinois Supreme Court disagreed and found that counsel had shaped Agee’s “vague and inarticulate” pro se contentions into a properly-stated legal claim supported by the transcript of Agee’s statement to the police, as well as Agee’s own affidavit which specifically stated the element of prejudice, i.e., that he would not have pled guilty had he “known about the elements of second-degree murder.”
The Court also rejected Agee’s argument that he made a substantial showing of ineffective assistance of trial counsel, concluding that the record rebutted his claims regarding the availability of a second-degree murder defense. The record showed that Agee knew about second degree murder where Agee had filed an (untimely) post-plea motion alleging that counsel had informed him that his charge could not be reduced to a lesser degree and that he had not wanted to plead guilty because he believed his actions constituted second-degree murder. Further, Agee could not have established second degree where the State would have introduced evidence that Agee had actually been stalking the victim, the victim was much smaller than Agee, and this sort of argument was a regular occurrence between them and not a sudden quarrel arising from some unidentified provocation. Finally, at the plea hearing, Agee confirmed on the record that he knew about his rights to plead not guilty and proceed to trial, that he was pleading guilty voluntarily, and that he had discussed his case thoroughly with his attorneys.
Galarza v. Direct Auto Insurance Co., 2023 IL 129031
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In this insurance coverage dispute, the Illinois Supreme Court addressed whether a bicyclist injured in a hit-and-run accident was covered under the uninsured motorist (UM) provision of his father’s automobile insurance policy. The Illinois Supreme Court ruled that a provision in the policy limiting UM coverage to insureds occupying an insured automobile violates the Illinois Insurance Code and the state’s public policy.
Litigating the coverage issue in a case at one time consolidated with another individual’s claim against Direct Auto Insurance Company, Fredy Guiracocha and his minor son, Cristopher, conceded the Direct Auto policy, as written, did not provide coverage. The policy limited UM coverage to insureds injured while occupying an “insured automobile,” and Cristopher was on a bicycle, not in an automobile, when he was hit. Throughout the litigation, however, the Guiracochas contended the restriction violated Section 143a of the Illinois Insurance Code, 215 ILCS 5/143a (West 2020), a statute serving the policy goal of securing for policyholders payment for damages incurred in auto accidents.
Direct Auto prevailed under the language of the policy in the circuit court. The appellate court, where–according to the Guiracochas–Direct Auto conceded that Cristopher was an insured, reversed; the appellate panel reasoned that Direct Auto violated Section 143a by evading its obligation to broadly mandate UM coverage for “the protection of persons insured” under auto policies.
As a threshold matter, the Illinois Supreme Court invoked the principle that waiver limits parties, not courts, and chose to consider the merits of Direct Auto’s argument that Cristopher was not an insured. Nonetheless, the Court held the Guiracochas met their “heavy burden” of persuading the Court to declare the UM restriction contained in the insurance policy, a private contract, invalid on public policy grounds.
The Illinois Supreme Court observed that Section 143a requires motor vehicle insurance policies to provide UM coverage at least equal to the statutory minimum, $25,000 per person, $50,000 per occurrence, and cited its precedent determining that UM coverage must apply “to all who are insured under the policy’s liability provisions.” The Court rejected Direct Auto’s argument that Cristopher was not an insured absent occupation of a vehicle at the time of the accident. In the Court’s view, the proper inquiry is whether the injuries resulted from “the ownership, maintenance or use of a motor vehicle,” including an uninsured vehicle alleged to be at fault. The Illinois Supreme Court concluded that Cristopher, a “relative” under his father’s Direct Auto policy, was an insured under that policy and entitled to UM coverage for an accident caused by an uninsured motor vehicle.
People v. Hilliard, 2023 IL 128186
By Kerry J. Bryson, Office of the State Appellate Defender
Andre Hilliard sought post-conviction relief on the basis that his 40-year sentence for attempted murder, which included a 25-year firearm enhancement, violated the proportionate penalties clause of the Illinois constitution as applied to him, in part because he was only 18 years old at the time of the offense. His petition was summarily dismissed, the appellate court affirmed, and so did the Illinois Supreme Court.
The Court first clarified the limits of its holdings in People v. Thompson, 2015 IL 118151, People v. Harris, 2018 IL 121932, and People v. House, 2021 IL 125124. In each of those cases, the Court had allowed for the possibility that young adult offenders could raise Miller-type as-applied proportionate penalties clause challenges to mandatory life sentences. Here, while Hilliard was a young adult offender in that he was only 18 years old at the time of the offense, his 40-year sentence was neither a de facto life sentence nor mandatory. Under People v. Buffer, 2019 IL 122327, only a sentence that exceeds 40 years constitutes a de facto life sentence, while a sentence of exactly 40 years does not. And, regardless, Hilliard’s sentence was discretionary; the sentencing court could have imposed a total sentence as low as 31 years had it chosen to do so (6-year minimum for Class X attempt murder plus 25-year enhancement for personally discharging a firearm causing great bodily harm during the offense). Thus, Thompson, Harris, and House provided no support for his claim here.
The Court also rejected Hilliard’s argument that he stated a viable proportionate penalties claim under People v. Leon Miller, 202 Ill. 2d 328 (2002). There, the Illinois Supreme Court found that the 15-year-old defendant’s mandatory life sentence violated the proportionate penalties clause where the convergence of several, separate statutes – specifically Illinois’s juvenile transfer statute, accountability statute, and multiple-murder sentencing statute – eliminated the trial court’s discretion to consider mitigation such as the defendant’s age and degree of participation. Here, on the other hand, Hilliard acted as the principle, and only, offender, he was an adult, and his sentence was at least partially discretionary.
Finally, the Court rejected Hilliard’s argument that society’s evolving standards of decency supported his claim. Hilliard cited to recent legislative changes that allow courts to decline to impose firearm enhancements on juvenile offenders and provide parole review for offenders who were under 21 at the time of their offense. But, as the Court observed, the legislature made a deliberate judgment that adult offenders, even young adult offenders, should still be subject to the mandatory firearm enhancements and that the youthful offender parole statute not be applied retroactively. Accordingly, they provided no support for Hilliard’s claim here.
In affirming the summary dismissal of Hilliard’s post-conviction petition, the Court noted that while he was young at the time of the offense, Hilliard deliberately chose to fire multiple shots at the victim, at close range, without provocation, in an attempt to kill him. Accordingly, he failed to state even the gist of a claim that his 40-year sentence was so cruel, degrading, or wholly disproportionate to the offense as to shock the moral sense of the community.
Mosby v. Ingalls Memorial Hospital, 2023 IL 129081
By Amelia Buragas, Illinois State University
In Mosby v. The Ingalls Memorial Hospital, the Illinois Supreme Court continued its exploration of the boundaries of the Biometric Information Privacy Act, this time in the context of information collected by health care providers from their employees. In interpreting the language of the Act to determine whether the health care worker plaintiffs were exempted from its provisions, the Illinois Supreme Court’s analysis hinged on the legislature’s use of the word “of” as well as a deep dive into the canons of statutory interpretation.
The case arose out of two separate lawsuits filed in Cook County by health care workers alleging that their employers violated the Biometric Information Privacy Act when they required employees to use a finger-scan device as part of the hospitals’ medication dispensing systems. The purpose of the finger-scan was to authenticate the identity of the user before allowing access to controlled and restricted materials. The lawsuits also named the distributor of the finger-scan device, Becton, Dickenson and Company. Defendants in both cases filed motions to dismiss pursuant to Section 2-619(a)(9), arguing that the information collected was excluded from the Act. The circuit court denied the motions but allowed interlocutory appeals pursuant to Supreme Court Rule 308.
The certified questions on appeal focused on Section 10 of the Act, which excluded from its protections “information collected, used, or stored for health care treatment, or operations under the federal Health Insurance Portability and Accountability Act of 1996.” The appellate court consolidated the cases and affirmed with one justice dissenting, concluding that Section 10 excluded from the Act’s protections only patient biometric information and not information collected from employees. The Illinois Supreme Court granted the defendant’s petition for leave to appeal and allowed amicus curiae briefs from a number of health care providers as well as the Illinois Health and Hospital Association, Chamber of Commerce of the United States of America, American Nurses Association, and Advanced Medical Technology Association.
The Illinois Supreme Court noted that Section 10 of the Act excludes certain information from the “biometric identifier” designation, including “information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations” under HIPAA. The Court then focused its analysis on the use of the word “of.” The Court noted that “of” is a disjunctive word, meaning that it “marks an alternative indicating the various parts of the sentence which it connects are to be taken separately.” The Court explained that when the legislature used the word “of” to separate the Act’s reference to “information captured from a patient in a health care setting” from its reference to “information collected, used, or stored for health care treatment, payment, or operation,” the legislature indicted that “information is exempt from the Act if it satisfies either statutory criterion.”
The Court further explained that by using the word “information” at the beginning of each separate clause, the legislature intended for each clause to reference “a different specified category of information,” and, unlike the first clause, the second clause did not include the word “patient.” In its analysis, the Supreme Court favorably commented on the use of the nearest-reasonable-referent canon used by Justice Mikva in his dissenting opinion in the appellate court. Following this same analysis, the Supreme Court found further support in its conclusion that Section 10 referenced both patients and employees through the legislature’s use of the phrase “under HIPAA” at the end of the second clause. The Court explained that this phrase directed readers to use HIPAA to discern the meaning of the terms preceding it and that “HIPAA’s definitions of these terms relate to activities performed by the health care provider—not by the patient.”
As a result, the Court concluded that the Act excludes from its protections the biometric information of health care workers where that information is collected, used, or stored for health care treatment, payment, or operations, as those functions are defined by HIPAA. The Court cautioned, however, that in reaching this conclusion it was “not construing the language at issue as a broad, categorical exclusion of biometric identifiers taken from health care workers.” But, rather, the Supreme Court explained that the exception only applies in situations like in the cases before it where biometric information was collected, used, and stored to access medications and medical supplies for patient health care treatment.
Hart v. Illinois State Police, 2023 IL 128275
By Amelia Buragas, Illinois State University
The disclosure of information under the Freedom of Information Act is not limitless and the statute contains a number of exemptions for information that may not be disclosed pursuant to a FOIA request. In Hart v. Illinois State Police, the Illinois Supreme Court considered the exemption contained in Section 7.5(v) of the Act, which prohibits the disclosure of the names and information of individuals who have applied for or received Firearm Owner’s Identification cards. Plaintiffs in the case argued that the exemption did not apply to them because they had requested information pertaining to their own applications. The Illinois Supreme Court, in a unanimous opinion authored by Justice Cunningham, was not persuaded by plaintiffs’ arguments and held that the lower courts erred when they interpreted Section 7.5(v) to allow for disclosure of one’s own FOID application and denial or revocation letters.
Plaintiffs Sandra Hart and Kenneth Burgess, Sr., separately filed complaints in the circuit court of Madison County alleging that the Illinois State Police violated FOIA when it declined to provide documents relating to their FOID card applications. The ISP had denied the FOIA requests pursuant to Section 7.5(v) of FOIA. This section exempts from disclosure the names and information of people who have applied for or received FOID cards. The circuit court agreed with plaintiffs and ordered ISP to produce the requested documents. The appellate court consolidated the matters on appeal and affirmed.
The Illinois Supreme Court applied standard rules of statutory construction and reversed, explaining that the plain language of the exemption contained in Section 7.5(v) “makes no distinction between another person’s FOID card information and one’s own FOID card information.” The appellate court, in reaching the opposite conclusion, had reasoned that an exception to the exemption must exist because the statute used the plural terms “names” and “people” and, as a result “must not exempt from disclosure an individual’s request for his or her own information.” However, the Illinois Supreme Court pointed out that Section 1.03 of the Statute on Statutes contains the “well-settled principle of statutory construction” providing that “[w]ords importing the singular may extend and be applied to several persons or things, and words importing the plural number may include the singular.” Consequently, the Supreme Court concluded that the use of the plural terms did not indicate that a request for an individual’s own information was excluded from the exemption contained in Section 7.5(v).
The Illinois Supreme Court also disagreed with the appellate court’s conclusion that an individual may consent to disclosure of FOID card information under Section 7(1)(c) of FOIA. Section 7(1)(c) pertains to personal information contained in public records and contains language stating that the individual subjects of the information may consent to its disclosure. The problem here, according to the Supreme Court, is that an individual’s application for a FOID card and a subsequent denial or revocation letter from the ISP are not “public records.” Thus, the plaintiffs could not consent to its disclosure. Further, the Court explained that the information contained in a FOID card application is “clearly” defined as private information under Sections 2(c-5) and 7(a)(b) and, as a result, is prohibited from disclosure under those sections.
This conclusion, however, did not leave the plaintiffs in this case without recourse. The Court noted that while the plaintiffs were not entitled to the requested information under FOIA, they could alternatively obtain their FOID card applications and revocation letters through the Firearm Services Bureau, which is the division of ISP that processes FOID card applications and determines FOID card eligibility.
People v. Wells, 2023 IL 127169
By Kerry J. Bryson, Office of the State Appellate Defender
In 2001, Angela Wells pled guilty to first degree murder and was sentenced to 40 years in prison. The conviction arose out of an incident where Angela’s husband, Ronald, devised a plan to rob and kill the victim, who had recently acquired a large sum of money. According to Angela’s statement to the police, Ronald fought with the victim, stabbed him, and, with Angela’s help, placed him in a large freezer in the Wells’ basement, believing him to be dead. After Ronald left the house, Angela discovered that the victim was still alive and hit him with a hammer and stabbed him. After Ronald came home, they buried the victim in the backyard where his body was later discovered by the police.
In 2018, Angela filed a petition under 735 ILCS 5/2-1401(b-5), seeking a reduced sentence on the basis that her participation in the offense was due to her having been a victim of domestic violence. Section 2-1401(b-5) allows an individual convicted of a forcible felony to petition for relief where his or her participation in the offense was related to domestic violence, evidence of that domestic violence was not presented at sentencing, the individual was not aware of the mitigating nature of the evidence of domestic violence at the time of sentencing, and the evidence of domestic violence is material and noncumulative to other evidence that was offered at sentencing and is of such conclusive character that it would likely change the original sentence.
In her petition, Angela cited a lengthy history of physical and verbal abuse by her husband and stated that she acted out of fear and compulsion. The trial court dismissed the petition on the State’s motion, concluding that Section 2-1401(b-5) relief was not available because Angela had entered a fully negotiated guilty plea and because the petition was filed beyond the two-year limitations period found in Section 2-1401.
Angela appealed, arguing that the trial court had violated her due process rights by granting the State’s motion to dismiss without allowing her an opportunity to respond. The appellate court agreed, vacated the dismissal order, and remanded for further proceedings. The court found that the due process error was not harmless because it denied Angela the opportunity to amend her petition or otherwise respond. The State appealed, and the Illinois Supreme Court reversed, reinstating the circuit court’s dismissal order.
While the Illinois Supreme Court agreed that Angela’s due process rights were violated by the court’s granting the State’s motion to dismiss just a week after it was filed and without holding a hearing or otherwise allowing an opportunity to respond, the Court concluded that the error was harmless. More specifically, the Court held that the only relief under Section 2-1401(b-5) is sentencing relief, but sentencing relief was not available to Angela because she had entered a fully-negotiated guilty plea. It is well-established that a defendant who enters into a fully-negotiated plea agreement cannot unilaterally seek a sentence reduction. Further, under the plain language of the statute, there is no exception for proceedings under Section 2-1401(b-5). Nor does the plain language of the statute allow a petitioner to seek withdrawal of his or her guilty plea based upon new evidence of domestic violence. Accordingly, because Section 2-1401(b-5) does not apply to Angela’s fully-negotiated guilty plea, she could not state a viable claim for relief, and the premature dismissal of her petition was harmless beyond a reasonable doubt.
Justice Neville dissented, noting that the majority’s construction of the statute severely restricted its impact. Justice Neville would have held that Section 2-1401(b-5) was meant to be liberally construed because it is remedial legislation meant to correct a prior imperfection in the law, specifically overly harsh sentences imposed on domestic violence victims. And because Section 2-1401(b-5) is a separate collateral remedy rather than a continuation of the original criminal proceedings, the general prohibition against sentencing relief following a negotiated guilty plea does not apply. Justice Neville would have allowed Angela’s petition to proceed so that the circuit court could consider whether the evidence she presented warranted a reduction of sentence under Section 2-1401(b-5).
People v. Roland, 2023 IL 128366
By Jay Wiegman, Assistant Appellate Defender
The Post Conviction Hearing Act (Act) provides an avenue for individuals convicted of criminal offenses to challenge their convictions on grounds of constitutional violations. 725 ILCS 5/122 1 et seq. (West 2008). There are three stages of review: at the first stage, the circuit court determines, without input of the parties beyond the petition itself, whether the petition presents the gist of a constitutional violation. If it does not, the petition is dismissed. It it does, it advances to the second stage, at which the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. If it does, the defendant is entitled to a third-stage evidentiary hearing.
In People v. Roland, 2023 IL 128366, the Illinois Supreme Court considered whether a third-stage hearing was warranted where the defendant claimed that he made a substantial showing that he received ineffective assistance where his trial counsel failed to provide certain documents to support his claim at trial that he had previously attempted suicide, and that he should not have been convicted of attempted murder of a police office because he instead was attempting to commit “suicide by police.” Writing for a unanimous court (Justice Neville taking no part in the decision), Justice Cunningham set forth the standard governing allegations of ineffective assistance of counsel, which was established in Strickland v. Washington, 466 U.S. 668 (1984): to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant. The Court agreed with the defendant that the documents he had attached to his petition would have corroborated his uncontested testimony at trial regarding his mental health, but found that the outcome at trial would not have been different had those materials been presented at that time. The Court noted, as defendant had acknowledged, that the trial court was fully aware of his mental health issues and prior suicide attempts, but still found that his conduct the day of the offense did not support his defense – that he wanted to commit “suicide by cop” – because he would not have fled, running and ducking behind structures, had he wanted the officers to shoot back at him. As a result, the Illinois Supreme Court held that Roland’s post-conviction petition failed to make a substantial showing that he received ineffective assistance of counsel. The Court therefore reversed the appellate court’s judgment, which reversed the circuit court’s second-stage dismissal of the defendant’s post-conviction petition.
People v. Webster, 2023 IL 128428
By Jay Wiegman, Assistant Appellate Defender
In the seminal case of Miller v. Alabama, 567 U.S. 460 (2012), the United States Supreme Court held that the eighth amendment prohibits mandatory life without parole sentences for murderers under 18 years of age. In 2012, the Illinois Supreme Court held, in People v. Buffer, 2019 IL 122327, that a prison term of more than 40 years imposed upon a juvenile is a de facto life sentence that may be imposed only when the trial court considered the defendant’s age and its attendant circumstances, as well as the circumstances of the murder. In People v. Webster, 2023 IL 128428, the Illinois Supreme Court considered a case in which the Appellate Court, First District, reversed a 40-year sentence imposed upon a juvenile before Buffer was decided; the majority of the appellate court and the dissent found Webster’s sentence to be constitutional, but the majority vacated it and remanded for resentencing because it believed that the circuit court had not intended to impose a sentence one day short of life in prison on a defendant the circuit court “clearly found had rehabilitative potential,” for the reason that it seemed “only fair to both the judge and to [defendant] to allow the judge to reconsider the sentence in light of Buffer.”
Writing for a unanimous Court, Justice O’Brien first stated that the Court’s focus centered on the source and scope of the appellate court’s authority to vacate a criminal sentence imposed by a trial judge and remand the matter for resentencing. To make this determination, the Court first considered whether the defendant’s sentence was the result of error or an abuse of discretion by the circuit court. The Court quickly determined that the sentencing range for first degree murder with a gun was between 20 and 85 years, and that a sentence of more than 40 years would have been unconstitutional only if the sentencer had not considered the defendant’s youth and its attendant circumstances, as well as the circumstances of the murder, which the trial judge did. Therefore, the sentence was proper.
Because the appellate court majority’s vacatur and remand of defendant’s sentence were not based upon any underlying error or abuse of discretion finding, the Court then considered whether the appellate court may vacate a defendant’s sentence and remand for resentencing absent such a finding, and held that it could not. The Court first noted that the Supreme Court Rule upon which the appellate court relied, Supreme Court Rule 366(a), was a civil rule rather than a criminal rule, and that the appropriate rule for such a consideration is Supreme Court Rule 615(b), a criminal rule that allows a court of review to disturb a sentence only if it was “unlawful or amounted to an abuse of discretion.” Because the appellate court did not make such a finding, it was without authority to vacate Webster’s sentence and remand for resentencing. The Illinois Supreme Court therefore reversed the judgment of the appellate court and reinstated Webster’s 40-year sentence.
People v. Montanez, 2023 IL 128740
By Jay Wiegman, Assistant Appellate Defender
The Post-Conviction Hearing Act (725 ILCS 5/122-1, et seq.), provides a collateral means for a defendant to allege constitutional violations at trial when those allegations could not have been previously adjudicated on direct appeal. Under the language of the Post-Conviction Act, any claim of substantial denial of constitutional rights that a defendant does not raise in his original or amended post-conviction petition is waived. 725 ILCS 5/122-3 (West 2018). Thus, the filing of a successive post-conviction petition is “highly disfavored” and allowed only in “very limited circumstances.” Indeed, the legislature designed the Post-Conviction Act with the intention that defendants be allowed to file only one petition under the Act. 725 ILCS 5/122-1(f) (2018).
In People v. Montanez, 2023 IL 128740, a unanimous Illinois Supreme Court (with Justice Rochford taking no part in the decision), considered an appeal from a denial for leave to file a successive petition that was filed while the denial of the initial post-conviction petition was still on direct appeal. Writing for the Court, Justice Overstreet detailed the extensive history of the case, in large part because a determination of whether there existed “cause” for filing a successive petition requires a showing that there was some objective factor external to the defense that prohibited defendant from raising a claim in an earlier proceeding. In his initial petition, filed in 2014, the defendant raised 18 issues, supplemented by a 19th issue shortly after the petition was filed. This 19th claim, filed pro se, alleged a discovery issue under Brady v. Maryland, 373 U.S. 83 (1963), based on an assertion that the State failed to disclose a plea deal with a witness in exchange for the witness’ testimony.
In 2015, after the defendant’s initial petition was advanced to the second stage of proceedings, defendant was contacted by a civil rights attorney, Candace Gorman, who had been given access to certain files of the Chicago Police Department (CPD), and who sent a letter to the defendant and offered to provide the file to his attorney, though she could not share the information directly with him. In 2016, defendant filed a pro se first amended petition for post-conviction relief that raised 46 claims, the 23rd of which raised a Brady violation based on the State’s failure to provide defendant with the CPD file. After the initial post-conviction petition was dismissed, the defendant appealed that denial. While that appeal was pending, defendant filed a petition for leave to file a successive post-conviction petition, the denial of which was the issue in this appeal, and argued that he was unable to secure the CPD file in Gorman’s possession during his initial post-conviction proceedings because of his status as a pro se litigant. Leave to file a successive petition was ultimately denied, as was the appeal of that denial. The Illinois Supreme Court granted the defendant leave to appeal so as to review the circuit court’s decision.
The Court noted that circuit courts can grant leave to file a successive post-conviction petition only if a defendant can show both that there was “cause” for failure to bring the claim in the initial post-conviction proceedings and that “prejudice” resulted from that failure. “Cause” refers to some objective factor external to the defendant that impeded counsel’s efforts to raise the claim in an earlier proceeding, while “prejudice” refers to a claimed constitutional error that so infected the entire trial that the resulting conviction or sentence violates due process. The Court also observed that the legislature intended tor the courts to make cause and prejudice determinations based on the pleadings rather than by evidentiary hearings. As a result, a defendant must present enough by way of documentation to allow the circuit court to make a cause and prejudice determination.
The Illinois Supreme Court found that Montanez failed to establish cause and prejudice for failing to assert his Brady violation claim because he did not raise it in his proposed successive petition and, alternatively, the Brady claim he now argues on appeal was previously raised in the prior proceeding and was adversely decided against him by a final dismissal order of the court. The Court noted that the defendant was aware of a potential Brady claim due to the nondisclosure of the CPD file as early as April 2016, and thus had ample opportunity to include it in the initial proceedings, and had demonstrated knowledge of the potential issue. The Court further rejected that defendant’s assertion that his pro se status was an objective factor outside his defense that inhibited his ability to raise a Brady violation claim with respect to the entire CPD file when he raised the claim in count XXIII and then made no effort to access the CPD file prior to the dismissal of count XXIII. The Supreme Court therefore affirmed the appellate court, which had affirmed the circuit court’s denial of leave to file a successive post-conviction petition.
Acuity v. M/I Homes of Chicago, LLC, 2023 IL 129087
By Michael T. Reagan, Law Offices of Michael T. Reagan
While at first glance this case might appear to be of limited application, dealing with property damage insurance coverage for a builder of residential townhomes against a claim brought by a homeowner’s association, there is much more here than first meets that glance. This opinion, by Chief Justice Theis for a unanimous court, slices through a Gordian knot of a coverage problem which has bedeviled generations of lawyers facing these coverage issues which often arise. This opinion will also constitute a paradigm as to how to argue the broad contours of the law to the Supreme Court, as well as how to approach the interpretation of insurance policies in many areas.
In the litigation underlying this declaratory judgment insurance coverage litigation, a residential homeowner’s association filed suit against M/I Homes as the general contractor and successor developer/seller of townhomes. The underlying complaint alleged that subcontractors to M/I Homes caused construction defects by using defective materials and engaging in faulty workmanship, resulting in physical injury to the townhomes, including water leakage and moisture causing damage to the homes and to building materials within the homes. As will be recognized by practitioners in this area, the plaintiff Association alleged that M/I Homes did not perform any of the construction work, and that the work was done by subcontractors, and that that work caused damage to portions of the townhomes that were not the work of those subcontractors. M/I Homes demanded a defense from Acuity based upon its status as an additional insured on a CGL policy that Acuity issued to one of its subcontractors. Acuity denied that it had a duty to defend and filed this declaratory judgment action. Among the bases asserted by Acuity for denying a duty to defend, it contended that the underlying complaint failed to allege any “property damage” caused by an “occurrence”. The circuit court granted summary judgment in favor of Acuity, finding that the property damage resulting from faulty work was not an occurrence because it was not an accident as required under the policy.
On appeal, the parties agreed with the premise that under current Illinois law, there could be no “property damage” caused by an “occurrence” unless the underlying complaint alleged property damage to something beyond the townhome construction project. Starting from that premise, M/I Homes argued that there was an allegation of damage to “other property” which was sufficient to satisfy that standard. The appellate court recognized that the parties’ “shared understanding of the law” was not “directly tied to the language of the insurance policy” but rather was derived from appellate court caselaw interpreting CGL policies. The appellate court also noted that those cases had been driven by broad policy considerations and not by the language of the policy. The appellate court also wrote about whether the existing cases were supportable, but that interesting discussion cannot be set out in this short summary. The Illinois Supreme Court noted that the appellate court had “found it unnecessary to answer these myriad questions, but raised them hoping that this court could ‘bring clarity to these nuanced issues of coverage under CGL policies in construction litigation.’” The appellate court found that the broad allegations of the underlying complaint sufficiently alleged damage to other property such that the potential for coverage existed, bringing into being Acuity’s duty to defend.
Upon the grant of Acuity’s petition for leave to appeal, multiple organizations were granted leave to file briefs amici on behalf of both sides. The Illinois Supreme Court opinion agreed with the observation of the appellate court that the caselaw in this area is in flux, and further observed that the parties had focused their arguments on whether “other property” was sufficiently pled. The Supreme Court observed that cases have acknowledged that “much of the analysis has not been directly tied to the principles of contract interpretation but instead on various policy considerations.” The Court further noted that “commentators have observed that the law in this area ‘lies in chaos.’”
Foreshadowing what was to come, the Illinois Supreme Court stated that “rather than merely begin with the parties’ premise, the best approach to bringing clarity to these issues is to return to first principles and apply a disciplined legal framework from which we can arrive at the correct legal analysis and the correct result.” In dealing with first principles, the Court said that it would “not adopt an interpretation that ‘rests on gossamer distinctions that the average person … cannot be expected to understand.’” Further, where competing reasonable interpretations of a policy exist, a court may not choose which interpretation it will follow, but rather the construction must be in favor of the insured.
Although the succeeding work of this Court in going through the policy is highly interesting to follow, for this summary it suffices to say that the Court found that the allegations were sufficient to plead “property damage” as defined in the coverage grant. Further, an “accident” sufficient to give rise to an “occurrence” had been pled, at odds with decades of Illinois appellate cases but aligned with commonly accepted definitions of “accident” in other jurisdictions which had considered that term with respect to construction defects. “Neither the cause of the harm – the inadvertent defects – nor the harm – the resulting water damage to the walls … – was intended, anticipated, or expected.” The Court next addressed the common statement in the caselaw that a CGL policy was not intended to insure the cost to repair or replace defective work. The Court said that those “notions of business risk” are not to be found in the language of the initial grant of coverage but rather must be examined in the exclusion section of the policy.
As the last part of its analysis, the Court set out the exclusions commonly encountered in these cases, for expected or intended injury and what have been termed as the “business risks exclusions.” But “given that the parties focused on the initial grant of coverage, they did not address, and the trial and appellate court did not consider,” the business risk exclusions, nor an exception to one of the exclusions. Further, the parties had not engaged how their status as named insured and additional insured might impact the analysis. The Court said that “we think it best to remand to the trial court for further consideration” of those, and any other, remaining challenges concerning coverage.