Illinois Life & Health Insurance Guaranty Ass'n v. Boozell
Annotate this Case
No. 1--96--2239
ILLINOIS LIFE AND HEALTH INSURANCE ) Appeal from the
GUARANTY ASSOCIATION, ) Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
)
v. )
)
)
MARK BOOZELL, Illinois Director )
of Insurance, )
)
Defendant, )
)
and )
)
REVERE COPPER AND BRASS INCORPORATED )
TAX DEFERRED SAVINGS PLAN AND TRUST, ) Honorable
) Stephen A. Schiller,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the opinion of the court:
Defendant Revere Copper and Brass Incorporated Tax Deferred
Savings Plan and Trust (the Trust) appeals from an order of the
circuit court reversing the determination of the Illinois Director
(Director) of the Department of Insurance that the Trust was an
Illinois resident for purposes of the Illinois Life and Health
Insurance Guaranty Law (Guaranty Law) (215 ILCS 5/531.01 et seq.
(West 1993)) and was entitled to coverage from plaintiff Illinois
Life and Health Guaranty Association (Association). On appeal, the
Trust contends that: (1) the issue of residency under the Guaranty
Law is a question of fact and the trial court's determination that
the Trust was not a resident of Illinois was against the manifest
weight of the evidence; (2) alternatively, if residency is a
question of law, the Director's decision was entitled to deference
by the trial court; and (3) assuming arguendo that the Trust was
not a resident of Illinois, the trial court erred in failing to
rule whether the Association was required to determine in which
other state the Trust was a resident. For the reasons set forth
below, we affirm.
The Trust was created on January 1, 1985, to administer
retirement benefits for the employees of Revere Copper and Brass,
Inc. (Revere Copper and Brass) and related companies. The trust
agreement was executed in Illinois and provided that it be
construed, enforced and regulated under Illinois law.
In 1988 and 1989, the Trust entered into three guaranteed
investment or group annuity contracts with Inter-American Insurance
Company of Illinois (Inter-American). When the first contract was
obtained, Revere Copper and Brass's activities in Illinois were
carried out by Revere Ware, Inc., all of the Trust's trustees lived
in Illinois, the Trust's bank account was in Illinois and the
majority of the Trust's beneficiaries lived in Illinois. In late
1988, the assets of Revere Ware, Inc. were sold. In April 1989,
most of the Illinois beneficiaries were "cashed out" of the Trust.
On December 23, 1991, Inter-American became insolvent and was
liquidated. Pursuant to the Guaranty Law, the Association then
became responsible for all contracts issued by Inter-American to
persons covered by the Guaranty Law. The Guaranty Law provides
that in the event of an insurer's insolvency, residents' and
certain nonresidents' claims under their insurance policies are
covered by the Association. The facts existing at the time of
Inter-American's liquidation concerning the Trust were: (1) the
Trust's three trustees lived in Florida, New Hampshire and
Massachusetts; (2) there was no record of where or how the trustees
communicated about the Trust; (3) the Trust did not maintain an
office in any state; (4) the Trust's bank account remained in
Illinois; (5) the majority of the beneficiaries were employees of
Revere Graphic Products, Inc. in Massachusetts; and (6) the Trust's
administrative records were kept in Pennsylvania.
On June 23, 1992, the Trust made a claim to the Association
for coverage for the Inter-American contracts pursuant to the
Guaranty Law. On May 25, 1994, the Association notified the Trust
that coverage was denied because the Trust was not a resident of
Illinois as defined in the Guaranty Law. The Trust appealed the
Association's decision to the Director, who assigned the case to a
hearing officer. The parties submitted briefs in which they agreed
to all material facts. The parties further agreed that the Trust
was a non-natural "person" as defined in the Guaranty Law and that
its principal place of business controlled in determining whether
it was a resident of Illinois at the time of Inter-American's
insolvency. No hearing was held. The hearing officer subsequently
determined that: (1) the Trust was a resident of Illinois at the
time of Inter-American's insolvency for the purposes of the
Guaranty Act; (2) the definition of residence was ambiguous because
"[c]ourts have applied different meanings to the term 'Resident'
when determining the statutory intent of the term"; and (3) while
historical significance (past events and conditions) is discounted
under the Guaranty Law "based on the statutes [sic] requirement
that residence be determined at the time of the [insurer's]
insolvency," here the insurance contracts were obtained in Illinois
by an Illinois trust from an Illinois insurer and the facts
existing at the time of the insolvency did not outweigh that
"correlation." The Director subsequently adopted the hearing
officer's findings of fact, conclusions of law and recommendations,
reversed the Association's decision denying the Trust coverage and
ordered that the Association provide coverage.
In November 1995, the Association filed a complaint for
administrative review against the Director and the Trust, seeking
reversal of the Director's order. In its brief in support of its
complaint, the Association argued that the issue of residency under
the Guaranty Law was a question of law and that deference need not
be granted to the Director's decision. The Association further
argued that the Director's conclusion that the Trust was a resident
of Illinois was not supported by the evidence because the Trust's
only contacts with Illinois as of December 1991, when Inter-
American became insolvent, were the Inter-American contracts and
the Illinois bank account. The Association also argued that it was
not "necessary or appropriate" for the trial court to determine in
which other state the Trust was a resident because the court's
decision would not be binding on any other state's guaranty
association.
The Director filed his answer to the Association's complaint,
which consisted of a certified copy of the administrative file, and
requested that the trial court dismiss the complaint with
prejudice.
In its response to the Association's brief in support of its
complaint, the Trust argued that the Director correctly determined
that it was a resident of Illinois for purposes of the Guaranty Law
and that the trial court should affirm the Director's decision.
While the Trust agreed that the issue of residency was a question
of law, it argued that the trial court should give deference to the
Director's decision on this issue. The Trust further argued that
given the lack of a physical location of administrative activities
by the Trust on the date of Inter-American's insolvency, the
Director appropriately considered other factors, including the
prior location of the Trust's activities, i.e., Illinois.
Alternatively, the Trust argued that if the Trust's residence was
found not to be in Illinois, the trial court should rule that the
Association was required by the Guaranty Law to determine the state
of its residence.
In May 1996, the trial court heard arguments on the
Association's complaint. The Association maintained that, pursuant
to the Guaranty Law: (1) one can only be a resident of one state;
(2) the place of residence of a non-natural person is its principal
place of business; and (3) one must be a resident of a state at the
time of the insurer's insolvency. According to the Association,
these three requirements provide "focal points" of time and place
for determining residency. The Association contended that the
Trust was not a resident of Illinois at the time of Inter-
American's insolvency and, therefore, the Trust was not entitled to
coverage under the Guaranty Law. The Association also argued that
if the trial court determined that the Trust was an Illinois
resident based on facts existing outside of the "focal points" of
time and place, the Trust could make claims against other states'
guaranty associations and improperly receive double recovery. The
Association lastly argued that the trial court should make its
decision without deference to the Director because the Director had
no special expertise in interpreting the Guaranty Law and that the
Association was not required to determine the state of the Trust's
residency pursuant to the Guaranty Law if the Trust was not an
Illinois resident.
The Director argued that he relied on the legislative intent
of the Guaranty Law in holding that the Trust was a resident of
Illinois. He stated that he analyzed factors to determine which
were the most significant in light of the Guaranty Law's statutory
scheme and the intent of the legislature. The Director conceded
that the Guaranty Law "discounted" prior events because of the
statute's requirement that the residence of an insured be
determined at the time of the insurer's insolvency. However, he
argued that in this case the "correlation" between an Illinois
trust obtaining insurance contracts from an Illinois insurer was
the most significant factor. He further stated that because the
statute requires a single state of residency and no other state
could be established as the situs of residency from the record, the
"status quo is *** Illinois and *** nothing that has been further
introduced outweighs that historical evidence."
The Trust agreed with the Director that the question of where
a principal place of business of an insured is located was a
question of law. The Trust argued, however, that there was no
single place where the business of the Trust was conducted, and
further stated:
"[W]hat we were left with was the fact that
the trust was created in Illinois law, under
Illinois law, that our trust documents
specifies application of Illinois law. The
checking account is a relatively minor issue,
but I think it shows that it was certainly the
trust's intention that it still had some
connection to Illinois. Most of its assets, I
think, were in these GAC contracts."
The trial court held that the Trust was not a resident of
Illinois under the Guaranty Law. The court noted that the
Director's decision was "predicated on historical facts as opposed
to where residence of the Trust happen[ed] to [exist] on the day of
the insolvency." While the court agreed that the Trust had a
residence in Illinois at one time, it found that the Trust did not
conduct any of its operations in Illinois at the time of Inter-
American's insolvency. The court further found that it was not its
function to determine the Trust's state of residency outside of
Illinois. The court opined, however, that Pennsylvania was the
Trust's most likely state of residence because the Trust's records
were kept there. More specifically, the court stated:
"No, the records, Pennsylvania would seem
to provide a better nexus in terms of
residence because that is all there is.
Everything else is product, that is, people
being paid. ***
But if a question came up in terms of,
are things being divided up as they should be?
Are the right people receiving checks? ***
It would appear that no case is really
made for Illinois there. To the extent a case
can be made anywhere, it would seem to center
on Pennsylvania, if for no other reason that
you would inevitably have to go to
Pennsylvania to resolve anything, wouldn't
you?
***
*** As was the case in Kroblin[, 461 N.W.2d 175 (Iowa 1990)], the formal nexus to
Illinois in terms of an underlying contract
with a choice of law clause endures, but
nothing having anything to do of any
significant nature at all with regard to the
performance under that contract takes place in
Illinois. The organization that the trust
relates to has long departed Illinois. The
trust is administered by trustees who reside
in different states, not in Illinois. They
have chosen to operate through contract
relationships which appear to be centered in
Pennsylvania.
It is not my function to place it
anywhere, but it seems undisputed that the
trust continues to perform functions and those
functions are performed from someplace outside
of Illinois.
*** But residence, I think, in looking
at all of the tests or all of the criteria
that Kroblin suggests to be applied, indicates
that residence is someplace where the thing
lives and breaths [sic]. To the extent this
thing lives and breaths [sic], it seems to be
doing most of it outside of the State of
Illinois these days.
I take particular note of the fact that
in Kroblin, like the choice of laws clause in
the underlying trust agreement, there was a
formal home in terms of structure within the
state of Iowa, but real operations to the
extent they were anywhere [were] in Oklahoma.
Well, same extent. Real operations to the
extent there are any are outside of the State
of Illinois."
Accordingly, the trial court reversed the Director's decision and
remanded the cause with instructions that the Director affirm the
decision of the Association. This appeal followed.
On appeal, the Trust first argues that the issue of residency
under the Guaranty Law is a question of fact and, therefore, the
trial court erred in failing to consider whether the Director's
decision was against the manifest weight of the evidence. The
Association argues that residency under the Guaranty Law is a
question of law because such a "determination involved an
interpretation of the statutory definition of 'resident' in the
Guaranty Association Law and a legal conclusion drawn from
undisputed facts" and, therefore, the standard of review is de
novo.
We first observe that the Trust's "manifest weight of the
evidence standard of review" argument has been raised for the first
time on appeal and is contrary to its position in the trial court
and its notice of appeal to this court. More specifically, during
the hearing on the Association's complaint, counsel for the Trust
told the court that the "[p]rincipal place of business, from what
we can tell, is a legal conclusion." (Emphasis added.) In the
Trust's response to the Association's complaint, the Trust further
stated: "Accordingly, this action involves only the issue of
whether the Guaranty Law was correctly interpreted by the Director.
As this appears to be a question of law, the Association correctly
states the rule that a reviewing court is not bound by an
administrative agency's conclusions of law." (Emphasis added.) In
the Trust's notice of appeal to this court, it also states "that
this matter involves only an issue of law, there being no facts in
dispute between the parties." (Emphasis added.) In light of these
statements and the fact that it is well settled that if a party
fails to raise an issue in the trial court, it may not be raised
for the first time on appeal (Eagan v. Chicago Transit Authority,
158 Ill. 2d 527, 534, 634 N.E.2d 1093 (1994)), we hold that the
Trust has waived this issue on appeal.
Notwithstanding the Trust's waiver, we briefly note that in a
case in which the facts are not in dispute, the legal effect given
to the facts by the administrative body becomes a matter of law
that is judicially reviewable. Walgreen Co. v. Selke, 230 Ill.
App. 3d 442, 448, 595 N.E.2d 89 (1992). Here, the facts are not
in dispute. This case involves the application of the facts to the
Guaranty Law's residency requirement provision. Therefore, the
issue of whether the Trust is a resident of Illinois for the
purpose of the Guaranty Law is a question of law, and the standard
of review is de novo.
The Trust next argues that the definition of "resident" in the
Guaranty Law is ambiguous because it does not define "principal
place of business" and that the Director's decision was entitled to
deference by the trial court. The Association argues that
deference is usually not accorded an agency's decision unless "the
courts have previously reviewed an agency's interpretation of the
law in a long line of cases addressing factual circumstances,"
which it contends is not the situation here. Therefore, the
Association maintains that the Director's decision was not entitled
to deference by the trial court. The Trust counters that the
existence of prior judicial interpretations of an agency's ruling
is not a prerequisite to granting deference to the agency's
conclusions.[fn1]
Under the Administrative Review Law (735 ILCS 5/3-101, et seq.
(West Supp. 1996)), where the facts are undisputed, the proper
standard of review of an agency's legal conclusions is not the
manifest weight of the evidence, but rather "whether the agency's
decision is arbitrary, unreasonable and not supported by sufficient
evidence." Obasi v. Department of Professional Regulation, 266
Ill. App. 3d 693, 699, 639 N.E.2d 1318 (1994). While a court of
review is not bound by an agency's interpretation of a statute,
"courts will give substantial weight and deference to an
interpretation of an ambiguous statute by the agency charged with
the administration and enforcement of the statute" because the
agency's "interpretation expresses an informed source for
ascertaining the legislative intent." Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 97-98, 606 N.E.2d 1111 (1992). However, "'[w]here the language of [an] act is
certain and unambiguous the only legitimate function of the courts
is to enforce the law as enacted by the legislature.'" Abrahamson,
153 Ill. 2d at 91, quoting Certain Taxpayers v. Sheahen, 45 Ill. 2d 75, 84, 256 N.E.2d 758 (1970).
In the case at bar, the Director's interpretation of the
sections of the Guaranty Law at issue here has never been addressed
by Illinois courts. Section 531.03, entitled "Coverage and
limitations," provides, in pertinent part:
"(1) This Article shall provide coverage
for the policies and contracts specified in
paragraph (2) of this Section:
***
(b) to persons who are owners of or
certificate holders under such policies or
contracts; or, in the case of unallocated
annuity contracts, to the persons who are
contract holders, and who
(i) are residents of this State ***."
215 ILCS 5/531.03 (West Supp. 1996).
Section 531.05, entitled "Definitions," provides, in pertinent
part:
"As used in this Act:
***
(13) 'Resident' means any person who
resides in this State at the time the insurer
is determined to be impaired or insolvent and
to whom contractual obligations are owed. A
person may be a resident of only one state
which, in the case of a person other than a
natural person, shall be its principal place
of business." (Emphasis added.) 215 ILCS
5/531.05 (West 1993).
We reject the Trust's argument that the definition of resident
in the Guaranty Law is ambiguous and that the Director's decision
was entitled to be accorded deference. We find that a
straightforward reading of the Guaranty Law's definition of
resident is unambiguous. The Guaranty Law defines the residence of
a non-natural person to be the state in which it has its principal
place of business at the time of the insurer's insolvency.
Principal place of business is a legal term that has been
interpreted by the courts on many occasions and "[t]he law assumes
that the legislature in enacting new law is 'aware of judicial
decisions concerning prior and existing law and legislation.'"
People ex rel. Sklodowski v. State, 284 Ill. App. 3d 809, 819, 674 N.E.2d 81 (1996), quoting Niven v. Siqueira, 109 Ill. 2d 357, 367,
487 N.E.2d 937 (1985). Therefore, we believe that the legislature
intended that whatever factors Illinois courts use to determine the
principal place of business of a non-natural person are applicable
in determining residence under the Guaranty Law. Accordingly,
based on the lack of ambiguity in the definition of resident in the
Guaranty Law, and the fact that the residence of a non-natural
person is a question of law, we hold that the trial court was not
required to accord deference to the Director's conclusions of law.
The next issue is whether the trial court properly determined
that the Trust was not a resident of Illinois, as defined by
section 531.05(13) of the Guaranty Law (215 ILCS 5/531.05(13) (West
1993)). The Trust first argues that "[p]rincipal place of business
is not a term used in reference to trusts" in determining residence
and, therefore, maintains that section 272 of the Restatement
(Second) of Conflicts is applicable, under which the "'principal
place of business' of a trust must be the place of administration."
The Trust further argues that the Director, in determining that it
was a resident of Illinois, properly relied on the facts that the
Trust was created in Illinois, the Trust originally served
primarily Illinois residents, the trustees originally all lived in
Illinois and the Trust entered into contracts with an Illinois
insurance company. According to the Trust, "the Director is
required to focus upon the fundamental reliance of the Trust upon
the protections of Illinois law by the trustees when these
investments [annuity contracts] were originally purchased." The
Trust also argues that an entity's residence under the Guaranty Law
should not change until proven changed.[fn2]
The Association argues that the trial court properly reversed
the Director's decision because he misapplied the Guaranty Law when
he considered "historical facts" (facts that occurred prior to the
insurer's insolvency) in finding that the Trust was a resident of
Illinois. The Association further argues that the Director's
interpretation of the Guaranty Law could lead to improper double
recovery by insureds from different states. The Trust counters
that other sections of the Guaranty Law protect against double
recovery.
Factors to be considered in determining an entity's principal
place of business are the location of offices responsible for the
main activities of the entity, the location where the business of
the entity is carried out, the location of business decision-
making, the residences of trustees and beneficiaries, and the
"nerve center" of the entity. See, e.g., People v. First National
Bank, 364 Ill. 262, 4 N.E.2d 378 (1936); Celenese Corporation of
America v. Vadalia Warehouse Corp., 424 F.2d 1176 (7th Cir. 1970);
Kroblin Refrigerated Xpress, Inc. v. Iowa Insurance Guaranty
Association, 461 N.W.2d 175 (Iowa 1990). Here, the statute further
limits the consideration of these factors to those existing at the
time of an insurer's insolvency. 215 ILCS 5/531.05(13) (West
1993). Because of the temporal nature of the definition of
resident, we interpret the statute as precluding reliance on where
the entity's principal place of business was prior to the
insolvency of the insurer. Moreover, the statute plainly does not
provide for a "person's" initial reliance or expectation
(historical facts) as a basis for determining an entity's principal
place of business.
In the case at bar, the Director, in determining that the
Trust was a resident of Illinois, relied on Kroblin. In Kroblin,
the court determined that a corporation which was chartered in Iowa
and maintained registered corporate offices in Iowa was not a
resident of Iowa entitled to coverage by the Iowa Insurance
Guaranty Association because its main offices were located in
Oklahoma, pertinent decisions were made in Oklahoma and there was
a correlation between the payment of claims and the collection of
assessments in Oklahoma. In the present case, the Director found
that the Trust was a resident of Illinois because, notwithstanding
"that historical significance is discounted based upon the statutes
[sic] requirement that residence be determined at the time of the
insolvency at issue," the Trust was an "Illinois trust" which had
obtained insurance contracts from an Illinois insurer and these
facts outweighed the "existing factors" at the time of Inter-
American's insolvency.
We find that the trial court did not err in reversing the
Director's decision. The Director, after recognizing that
historical factors are to be discounted in determining whether the
Trust was a resident of Illinois, proceeded to base his decision
almost solely on historical facts (the location of the purchase of
the insurance contracts and that the Trust's activities,
beneficiaries and trustees were formerly located in Illinois), and
found that those facts outweighed the statutorily mandated
consideration of the Trust's principal place of business based on
the facts existing at the time of Inter-American's insolvency.
Those existing facts were that none of the trustees or
beneficiaries lived in Illinois, there was no record that the
trustees communicated about the Trust in Illinois, the Trust did
not maintain an office in Illinois, the Trust's records were kept
in Pennsylvania and, notwithstanding that the Trust had a bank
account in Illinois, there was no evidence of any activity in that
account. We agree with the trial court, as it so aptly remarked,
that "it seems undisputed that the trust continues to perform
functions and those functions are performed from someplace outside
of Illinois" and "[t]o the extent *** [the Trust] lives and breaths
[sic], it seems to be doing most of it outside of the State of
Illinois these days."
Because the principal place of business is determined by the
place of the operations of an entity, where it transacts business
and the place of its administration, the Trust cannot be said to be
a resident of Illinois based on the facts before us; there simply
are no facts, as there were in Kroblin, to indicate any significant
activities taking place in Illinois. Accordingly, we also reject
the Director's analysis that if residence cannot be firmly
established in any other state, residence under the Guaranty Law
should be determined by the state in which the entity previously
had its residence; if the Trust does not conform to the statute's
requirement of having its principal place of business in Illinois
at the time of it's insurer's insolvency, it is irrelevant for
coverage under the Guaranty Law which other state it has its
principal place of business, except possibly if it falls within the
statute's nonresident provision, as discussed below.
We further briefly observe that even were we to accept the
Trust's argument that, pursuant to the Restatement, the "'principal
place of business' of a trust must be the place of administration
of a trust" and the settlor's intent of what state law should
govern, we would still find that under the Restatement the Trust
could not be found to be a resident of Illinois. More
specifically, the Trust relies on First National Bank, 364 Ill. at
268, where the court stated:
"In order to determine where the
administration of the trust is located ***,
consideration must be given to the provisions
of the trust instrument, the residence of the
trustees, the residences, if any, of the
beneficiaries, the location of the properties
and the location where the business of the
trust is to be carried on."
Because the Guaranty Law here requires that a determination of
residency be made at the time of the insolvency of an insurer,
consideration of the trust agreement's choice of law provision
indicating the settlor's intent was a historical fact that must be
discounted. Further, as stated above, the remaining factors listed
in First National Bank simply have not been established in
Illinois.
We also reject the Trust's argument that residence should not
change until it is proven changed. The Trust relies on O'Boyle v.
Personnel Board of Chicago, 119 Ill. App. 3d 648, 456 N.E.2d 998
(1983), in support of its argument, where the court found that
"[a]ffirmative acts of abandonment of the former domicile must be
proved to sustain the abandonment required to effect a change of
domicile." 119 Ill. App. 3d at 655. However, O'Boyle is
inapplicable to the present case. In O'Boyle, an individual's
domicile, rather than a non-natural person's principal place of
business, was at issue. In determining an individual's domicile,
the intent of the individual is a factor to be considered, whereas
intent is not a factor in determining the residence of a non-
natural person under the Guaranty Law. Additionally, residence and
domicile are not synonymous terms and the legal definition of
residence varies according to its statutory context. See, e.g.,
Huber v. Resnick, 107 Ill. App. 3d 529, 542, 437 N.E.2d 828 (1982)
("Unlike 'domicile,' which one has continually from the moment of
birth, a person need not at all times have a permanent abode, or
'residence'"); In re Marriage of Passiales, 144 Ill. App. 3d 629,
634, 494 N.E.2d 541 (1986) ("The term 'residence' as used in the
divorce statute is not synonymous with domicile, but denotes a
'permanent abode' or the place one considers as home"). Moreover,
a non-natural person's principal place of business is determinative
of residence under the Guaranty Law. Accordingly, we hold that the
trial court properly determined that the Trust was not a resident
of Illinois at the time of Inter-American's insolvency.
Lastly, the Trust argues that the Guaranty Law requires the
Association to determine a nonresident's state of residence to
establish whether the nonresident is covered by the exception to
the residence requirement in the Guaranty Law. The Association
argues that it need not determine a nonresident's state of
residence because this determination is not binding on any other
state's guaranty association.
In order for a nonresident to be covered by the Guaranty Law,
four criteria must be met: (1) the nonresident's insurer must be
domiciled in Illinois; (2) the insurer cannot have held a license
or certificate of authority in the nonresident's state of
residence; (3) the other state must have a guaranty association;
and (4) the nonresident may not be eligible for coverage under the
other state's guaranty law. 215 ILCS 5/531.03(1)(b)(ii)(A)-(D)
(West Supp. 1996). This nonresident exception in the Guaranty Law
is very narrow. The Trust fails to cite to any Illinois case law
interpreting this provision and our research reveals none, making
this an issue of first impression. Although a determination of
whether a nonresident is a "covered person" under the Guaranty Law
would require a determination of the location of the nonresident's
residence, it does not follow that the Association is required to
make this determination for every claim it considers. The Guaranty
Law simply contains no provision requiring that the Association
consider the issue of a claimant's qualified nonresident status if
it is not raised by a claimant. "When the legislature is silent,
a court may not fill a void through judicial interpretation."
Gabriel Builders, Inc. v. Westchester Condominium Association, 269
Ill. App. 3d 1065, 1068, 645 N.E.2d 453 (1994). We hold,
therefore, that because the Trust did not argue or present any
evidence to the Association that it fell within the nonresident
exception to the Guaranty Law, the Association was not required to
determine whether the Trust was a qualified nonresident and, hence,
was not required to consider in which state outside of Illinois the
Trust was a resident.
For the reasons stated, we affirm the order of the circuit
court.
Affirmed.
WOLFSON, P.J., and CERDA, J., concur.
[fn1]The Trust also argues, relying on American Surety Co. v.
Jones, 384 Ill. 222, 231-232, 51 N.E.2d 122 (1943), that the
Director's "acts *** are final and will not ordinarily be disturbed
by the courts." However, American Surety is inapplicable here
because there our supreme court found that the decision to hold a
particular hearing was discretionary and the Director's granting of
a certificate of authority was not subject to judicial review. 384 Ill. at 231. In contrast, the final decisions of the Director in
applying the Guaranty Law are judicially reviewable. 215 ILCS
5/531.11(3).
[fn2]The Association argues that the Trust waived the argument
that residence does not change until proven changed by failing to
raise it in the trial court. However, the record shows that this
argument was briefly raised in the trial court by the Director's
attorney.
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