State Auto Property & Casualty Insurance Co. v. Brumit Services, Inc., No. 17-1700 (7th Cir. 2017)
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The Seventh Circuit reversed the district court's judgment in an action filed by an insurance company seeking a declaratory judgment that it had no duty to defend the insured. The court held that it was the insured's responsibility to notify the insurance company that he had been in an accident that might lead to a claim; he failed to do so and his failure was inexcusable under Illinois law; and thus the insurance company had no duty to defend or indemnify the insured in the personal injury suit arising out of the accident. Accordingly, the insurance company was entitled to declaratory relief.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17 1700 STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff Appellant, v. BRUMIT SERVICES, INC., AN ILLINOIS CORPORATION, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 3:15 cv 00956 — Nancy J. Rosenstengel, Judge. ____________________ ARGUED OCTOBER 26, 2017 — DECIDED DECEMBER 11, 2017 ____________________ Before FLAUM, RIPPLE, and MANION, Circuit Judges. MANION, Circuit Judge. In this insurance dispute, insurer State Auto Property and Casualty Insurance Company seeks a declaratory judgment that it has no duty to defend insured Brumit Services, Inc., because the latter failed to provide prompt notice of an accident that eventually led to a lawsuit. The district court concluded that the insured’s 21 month de lay in notifying the insurer was reasonable and awarded judg ment to the insured. We disagree. Brumit’s failure to provide 2 No. 17 1700 prompt notice of the accident was inexcusable under Illinois law. Therefore, we reverse the judgment of the district court. I. Background Carl Brumit owns Brumit Services, Inc., a small business that performs residential concrete construction work. The company has two employees and operates out of Brumit’s home. On behalf of the company, Brumit purchased a Busi ness Auto Liability insurance policy from State Auto to cover the truck he used for the business.1 Like most auto insurance policies, Brumit’s policy provided that State Auto would de fend and indemnify Brumit in the event he was sued for an accident causing bodily injury or property damage. However, State Auto had “no duty to provide coverage” unless Brumit complied with his duties under the policy, one of which was that Brumit “must give [State Auto] prompt notice of the ‘ac cident’ or ‘loss.’” On September 6, 2013, Brumit was in the parking lot of a Phillips 66 gas station in Columbia, Illinois, with the covered truck. When he backed out of his parking space, he unwit tingly struck 68 year old Delores Menard with the truck’s tail gate. Menard fell and suffered scrape wounds on her elbow and knee. She was treated by an EMT and declined a trip to the hospital, instead choosing to drive herself home. For his part, Brumit was unaware that he had hit Menard until a by stander alerted him as he was driving away. He then came back to the scene, called for an ambulance, and provided the police officer at the scene with a statement. He observed that 1 For clarity, we use “Brumit” to refer interchangeably to Brumit Ser vices and Carl Brumit personally. No. 17 1700 3 Menard was sitting down and “may have had a scratch on her knee.” After everyone parted ways, Brumit thought the incident so minor that he was not required to report it to State Auto. But on June 22, 2015, he was served with a lawsuit in Illinois state court in connection with the accident. Menard alleged in the state court complaint that the accident caused her to “sus tain severe, permanent and permanently disabling injury; in cluding injuries to her back and spine and the soft tissue struc tures thereof.” She sought damages in excess of $50,000. Her husband also sued Brumit, alleging, among other things, loss of consortium. The next day, Brumit notified State Auto that he had been sued. State Auto then sought a declaratory judgment in the district court that it had no duty to defend Brumit in the law suit because Brumit had breached the policy’s notice require ment. The parties filed cross motions for summary judgment; the district court granted Brumit’s motion and denied State Auto’s. State Auto Prop. & Cas. Ins. Co. v. Brumit Servs., Inc., 245 F. Supp. 3d 1048 (S.D. Ill. 2017). The court concluded that Bru mit’s 21 month delay in notifying State Auto about the acci dent was reasonable as a matter of law. This appeal followed. II. Analysis A. Standard of Review and Governing Law This case comes to us on cross motions for summary judg ment with no disputed facts, so we review the district court’s legal conclusions de novo. “Where facts are not disputed, if a district court grants one party s motion for summary judg ment and denies the other party s cross motion, this court can 4 No. 17 1700 reverse and award summary judgment to the losing party be low.” Glass v. Dachel, 2 F.3d 733, 739 (7th Cir. 1993). The parties agree that Illinois law applies. Our job is to apply Illinois law to the undisputed facts of this case. B. Overview of Applicable Law “In construing an insurance policy, we must ascertain and give effect to the intentions of the parties, as expressed in the policy language.” West Am. Ins. Co. v. Yorkville Nat’l Bank, 939 N.E.2d 288, 293 (Ill. 2010). “Unambiguous words in the policy are to be given their plain, ordinary, and popular meaning.” Id. By contrast, ambiguous terms should be construed liber ally in favor of coverage. Id. In short, Illinois courts construe insurance policies just like other contracts; the rule suggesting that courts should construe ambiguous provisions in favor of coverage is analogous to the general canon that a contract ought to be construed against the party that drafted it. The Illinois Supreme Court has repeatedly held that notice provisions in insurance policies are reasonable. As the court explained in Barrington Consolidated High School v. American Insurance Co., 319 N.E.2d 25, 27 (Ill. 1974), “[a] provision in an insurance liability policy requiring an insured to give the in surer notice of an accident is a reasonable policy requirement, one which affords the insurer an opportunity to make a timely and thorough investigation and to gather and preserve possi ble evidence.” These “are not merely technical requirements but are conditions precedent to an insurer’s contractual du ties.” Farmers Auto Ins. Ass’n v. Burton, 967 N.E.2d 329, 333 (Ill. App. Ct. 2012). Therefore, as the policy in this case provides, breach of a notice requirement absolves the insurance com pany of any obligation to defend or indemnify the insured. Id. No. 17 1700 5 at 334 (citing Country Mut. Ins. Co. v. Livorsi Marine, Inc., 856 N.E.2d 338, 343 (Ill. 2006)). When a notice provision becomes the subject of a dispute, Illinois courts have read such provisions as requirements that the insured provide notice within a reasonable time. See id. (citing Yorkville, 939 N.E.2d at 293–94). The Illinois Supreme Court considers five factors in assessing the reasonableness of a delay in giving notice: “(1) the specific language of the pol icy’s notice provision; (2) the insured’s sophistication in com merce and insurance matters; (3) the insured’s awareness of an event that may trigger insurance coverage; (4) the insured’s diligence in ascertaining whether policy coverage is available; and (5) prejudice to the insurer.” Yorkville, 939 N.E.2d at 293– 94. No one factor trumps the others in this totality of the cir cumstances analysis. See Livorsi Marine, 856 N.E.2d at 346 (ex plaining that an insurer need not be prejudiced in order to in sist on reasonable notice of an accident). C. Application of the Yorkville Factors The district court held that each Yorkville factor weighed in favor of Brumit’s position that his 21 month delay in notifying State Auto was reasonable. We disagree. Instead, we conclude that each factor tilts in favor of the unreasonableness of the delay. We discuss each factor in turn. 1. Policy Language We begin with the language of the policy. Its terms are un mistakably clear: State Auto will have “no duty” to defend an insured unless the insured provided “prompt notice” of the accident at issue, and the insured “must” report any accident. The notice provision is “couched in mandatory terms.” Am. Standard Ins. Co. of Wis. v. Slifer, 919 N.E.2d 372, 377 (Ill. App. 6 No. 17 1700 Ct. 2009); see also Andrews v. Foxworthy, 373 N.E.2d 1332, 1335 (Ill. 1978) (“The use of the words ‘shall’ or ‘must’ is generally regarded as mandatory.”). Because nobody can dispute that an accident occurred when Brumit backed his truck into Menard, the mandatory language in the policy imposed “a contractual obligation to promptly report” the accident. Slifer, 919 N.E.2d at 377. Despite the unambiguous language, the district court con cluded that it wouldn’t make sense for State Auto to want to know about “each and every accident its insureds are in volved in,” because its “phones would never stop ringing.” State Auto, 245 F. Supp. 3d at 1057. It cited the Illinois Supreme Court’s recognition that “[i]t cannot be plausibly said that by the notice provision the insurer intended that every occur rence or accident had to be reported to it.” Barrington Consol. High Sch., 319 N.E.2d at 28. However, the district court took that statement out of context; the Illinois Supreme Court was referring to the distinction between accidents covered by the policy and those not covered. See id. (the provision “obviously refers to an occurrence or accident covered by the policy”). Of course, the insurance company wouldn’t want to know about an accident if “there was no ground for … a reasonable person to believe that a claim under the policy would be made.” Id. But where such a ground does exist, the insured has a duty to report the accident. It is not our job to determine how many phone calls an insurance company is equipped to receive. Here, any reasonable driver would recognize that the ac cident might lead to a claim. Although everyone at the scene on the day of the accident apparently viewed it as minor, it is fairly common for individuals involved in automobile acci dents to experience injuries that don’t manifest themselves No. 17 1700 7 until days, weeks, or even months after the accident. Brumit even testified that he was aware such latent injuries might arise, indicating that he knew Menard might later claim to be injured as a result of the accident. Even more directly, every reasonable driver should know that making contact with a person could plausibly lead to an insurance claim or a law suit, especially when the contact causes the person to fall down. Striking a person is much different from bumping into a curb, grocery cart, or door. State Auto, 245 F. Supp. 3d at 1057. Because a reasonable person would have known that a claim might be filed after the accident, Brumit cannot avoid the mandatory policy language. This factor weighs strongly in State Auto’s favor. 2. Brumit’s Sophistication The second factor is Brumit’s sophistication in matters of commerce and insurance. The district court held that Brumit “falls somewhere on the unsophisticated end of the spec trum.” Id. at 1059. Again, we disagree. Brumit is a high school graduate who has taken two years of college courses and had about eight years of experience working elsewhere when he started his own business. When the accident occurred, he had operated the business for four years and provided income for two employees. He had also purchased several insurance pol icies for himself, his home, and his business, and over several years surely had to renew those policies. His company also participates in workers’ compensation insurance. A person in his position should be expected to possess a better than aver age understanding of commerce and insurance. Surely it is safe to say that Brumit is probably more sophisticated than a majority of insured drivers on Illinois roads. 8 No. 17 1700 Moreover, for the purposes of sophistication, Illinois courts have distinguished automobile insurance policies from other types of insurance, such as homeowners’ insurance. In Farmers Auto Insurance Association v. Hamilton, 335 N.E.2d 178, 181 (Ill. App. Ct. 1975), aff’d 355 N.E.2d 1 (Ill. 1976), the appel late court explained that while a typical homeowner might not understand that he’s covered by a homeowners’ policy when he shoots someone on his property, that would not be the case for “an automobile accident covered by a typical in surance policy.” Rather, “[t]he law is clear on the question of notice under the average automobile liability insurance.” Id. In short, it doesn’t take much expertise to interpret a basic au tomobile insurance policy, while a homeowners’ policy “re quires some study as to its various provisions.” Id. Illinois law expects someone of Brumit’s intelligence and competence to understand his rights and obligations under a basic automo bile insurance policy. The cases cited in opposition are all distinguishable on the ground that they involved either insureds far less sophisti cated than Brumit or policies more complex than an automo bile insurance policy. For example, the insured in Grasso v. Mid Century Insurance Co., 536 N.E.2d 977, 980 (Ill. App. Ct. 1989), was a nineteen year old who had never purchased her own insurance policy, while the policy in Berglind v. Paintball Business Association, 930 N.E.2d 1036, 1039, 1045 (Ill. App. Ct. 2010), was a commercial general liability policy, and the one in Long v. Great Central Insurance Co., 546 N.E.2d 739, 741 (Ill. App. Ct. 1989), was a dram shop liability policy. No Illinois case has held that a person with Brumit’s background was too unsophisticated as a matter of law to understand a basic au tomobile insurance policy. No. 17 1700 9 The approach taken by the district court and advocated in this court by Brumit and Menard would render most people in Illinois unsophisticated as a matter of law. Only corpora tions, attorneys, and insurance agents would likely qualify as sophisticated insureds under this approach, leaving insur ance companies to wonder whether the provisions of their policies will be enforced against the vast majority of Illinois residents. See State Auto, 245 F. Supp. 3d at 1058. This is not only untenable as a matter of law, but it is contrary to the Illi nois Supreme Court’s repeated holdings that notice provi sions in insurance policies are reasonable. We cannot endorse it. Therefore, we conclude that the second factor weighs in fa vor of State Auto. 3. Awareness of Possible Claim The third factor we consider is Brumit’s awareness that a claim might be filed. Here, the district court reasoned that “the incident was trivial, resulted in no apparent harm, and furnished no reasonable ground for Brumit to believe that a claim might arise, particularly given his lack of sophistication in insurance matters.” State Auto, 245 F. Supp. 3d at 1060. However, we have already concluded that Brumit was sophis ticated enough to understand that a claim might follow after he knocked a woman to the ground with his truck. No matter how minor the incident appeared to be at the time, a reason able driver would understand that a claim might be filed against him in such a situation. What is more, even though Brumit knew about latent injuries, he never tried to contact Menard for any assurances that she would not file a claim or lawsuit. Cf. Brotherhood Mut. Ins. Co. v. Roseth, 532 N.E.2d 354, 358 (Ill. App. Ct. 1988) (late notice to insurer was excused in part because “the very nature of the relationship” between the 10 No. 17 1700 insured and the accident victim “and their continued contact” meant that “there was no reason to put them on notice” of a possible claim). Simply put, there was no reason for Brumit to be so sure that no claim would be filed. Cases such as Berglind and National Bank of Bloomington v. Winstead Excavating of Bloomington, 419 N.E.2d 522, 524 (Ill. App. Ct. 1981), do not require a different result. In Berglind, the appellate court held that the insured, a high school drop out who had taken over his girlfriend’s paintball business, had a reasonable belief that a claim would not be filed after a child was struck in the eye by a paintball. The court explained that “in [the insured’s] unsophisticated mind, he thought [the child] had no injury after his eye was washed out,” as he was “sitting calmly” and “everything looked great.” Berglind, 930 N.E.2d at 1045–46. But Brumit was far more sophisticated than the insured in Berglind,2 our case involves an easier to understand auto policy rather than a commercial general lia bility policy, and, as we have emphasized, Brumit knew that latent injuries were a possibility. National Bank of Bloomington is even further afield, as in that case the insured was merely pulling onto a highway when a truck driving too fast behind him flipped over and landed in the median. Not having made any contact with the truck, or having any involvement in the accident at all, the insured had no reason to believe that a 2 For example, the insured in Berglind was uneducated, had never owned real estate, didn’t know whether he was the company’s registered agent, regularly threw away mail he didn’t understand, and allowed a de fault to be entered against him before he took any steps to notify his in surance agent. 930 N.E.2d at 1045. Brumit, on the other hand, was edu cated, operated his own business for four years, understood how to buy insurance, and knew exactly what to do when he was sued. No. 17 1700 11 claim might be filed against him. Nat’l Bank of Bloomington, 419 N.E.2d at 524–25. Brumit of course knew that he was the cause of the minor injuries Menard sustained at the scene, so he had no excuse not to notify State Auto that a claim might be forthcoming. The upshot is that “[a]n insured cannot simply roll the dice with the insurer’s funds, hiding behind the statistical proba bilities it has assigned to the case outcome.” Kerr v. Ill. Cent. Ry. Co., 670 N.E.2d 759, 768 (Ill. App. Ct. 1996). “[T]he burden to an insured to give notice is slight, whereas the repercus sions felt by an insurer due to late notice can be substantial.” Id. Brumit’s own calculations—that the accident was minor and Menard was okay—are not a sufficient excuse to leave his insurer in the dark about the accident. Had it received timely notice, State Auto would have been in a far better position than Brumit to determine the possibility that a claim or suit would be filed. Therefore, we weigh this factor in favor of State Auto. 4. Brumit’s Diligence The fourth Yorkville factor is Brumit’s diligence in ascer taining whether the accident would be covered. Here, we strongly disagree with the district court’s conclusion that “[t]here is very little [Brumit] could have done to be more dil igent.” State Auto, 245 F. Supp. 3d at 1061. On the contrary, the undisputed facts reveal that Brumit did nothing other than glance at his policy during the 21 months after he hit Menard. He did not call anyone to try to determine whether a claim might be filed against him. Instead, he relied upon his own assumptions that Menard was not badly injured to determine that he wouldn’t have to notify State Auto. But of course, “an insured’s subjective beliefs must give way to an objective 12 No. 17 1700 standard of reasonableness based on all the circumstances.” Kerr, 670 N.E.2d at 768. A reasonable driver would have at least called his insurance agent to determine whether the ac cident should have been reported. Because Brumit failed to do even that, we conclude he was not diligent and weigh this fac tor in favor of State Auto. 5. Prejudice to State Auto The final factor we consider is to what extent Brumit’s de lay prejudiced State Auto.3 Brumit says early notification would have made no difference, because the evidence would not have been any different if he had called State Auto the day after the accident. But that is not necessarily true. As the Illi nois Supreme Court explained, a notice provision “affords the insurer an opportunity to make a timely and thorough inves tigation and to gather and preserve possible evidence.” Bar rington Consol. High Sch., 319 N.E.2d at 27. This case involves latent injury and the potential interaction between the acci dent and a pre existing medical condition, so early notifica tion would have given State Auto the opportunity to do its own investigation into Menard’s injuries. Perhaps State Auto could have gathered medical evidence that would help it de fend against a claim that the accident caused the severe inju ries alleged in the state court complaint. Because of Brumit’s failure to comply with the notice provision, we will never know. That is the problem. 3 We note that the Illinois Supreme Court has held that an insurer need not prove that it was prejudiced in order to insist upon compliance with a notice requirement. Livorsi Marine, 856 N.E.2d at 346 (“[E]ven if there is no prejudice to the insurer, a policyholder still must give reasonable notice according to the terms of the insurance policy.”). No. 17 1700 13 Moreover, compliance with the notice provision would have allowed State Auto to contact Menard to determine her willingness to settle. While Menard claimed at her deposition that she would not have settled, that might not have been the case had she been contacted by a State Auto representative in the weeks after the accident. As the Illinois appellate court put it, “[p]erhaps settlement would have been discouraged, and perhaps not. In our view, having the right to so act is part of the benefit of the prompt notice provision.” Am. Family Mut. Ins. Co. v. Blackburn, 566 N.E.2d 889, 896 (Ill. App. Ct. 1991). Brumit’s breach exposed State Auto to significant uncertainty and deprived it of the benefit it expected to receive from the notice provision. Therefore, we hold that State Auto was prej udiced and weigh this factor in its favor. 6. Summation of the Yorkville Factors We conclude that each of the factors for consideration un der Illinois law weighs in favor of a finding that Brumit’s 21 month delay was unreasonable as a matter of law. Brumit breached a mandatory notice provision without a reasonable excuse. As a small business owner with two years of college and multiple insurance policies, he was sophisticated enough to understand that striking a person with his truck might lead to an insurance claim or a lawsuit. But instead of notifying State Auto, he relied on his own assumptions that turned out to be wrong. In doing so, he deprived State Auto of the op portunity to do its own investigation into the accident and the source of Menard’s injuries. That mistake means he cannot now rely on State Auto’s defense in Menard’s lawsuit. 14 No. 17 1700 III. Conclusion Insurance policies are contracts like any other. The job of a court when presented with a contractual dispute is to de termine the rights and responsibilities of the parties under the contract. In this case, it was Brumit’s responsibility to no tify State Auto that he had been in an accident that might lead to a claim. He failed to do so, and his failure was inex cusable under Illinois law. Therefore, under the terms of the contract, State Auto has no duty to defend or indemnify Bru mit in the personal injury suit arising out of the accident. State Auto is entitled to declaratory relief to that effect. REVERSED
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