The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
State Farm Mutual Automobile Insurance Co. v. Du Page County, 2011 IL App (2d)
100580
Appellate Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Caption Plaintiff, v. DU PAGE COUNTY and DU PAGE COUNTY STATE’S
ATTORNEY’S OFFICE, Defendants-Appellees (State Farm Fire and
Casualty Company, Plaintiff-Appellant; Frank Radostits, as Independent
Executor of the Estate of Jane E. Radostits, Deceased, Defendant).
District & No. Second District
Docket No. 2–10–0580
Filed June 16, 2011
Held In an action arising from an automobile accident that occurred when a
(Note: This syllabus county employee was driving a county vehicle while intoxicated and
constitutes no part of the crossed the center line and crashed into plaintiff’s insured, the trial
opinion of the court but court’s denial of plaintiff’s motion for judgment on the pleadings and
has been prepared by the granting the county’s motion to dismiss was affirmed, since the county
Reporter of Decisions for was self-insured and was not a “carrier,” it did not have a “policy of
the convenience of the insurance” and it was not primarily liable to an insured for a loss under
reader.) a policy of insurance for purposes of equitable subrogation, the public
policy of protecting government funds applied, and based on the fact
that plaintiff could not show that the county was a primary insurance
carrier, the principle of horizontal exhaustion requiring an insured to
exhaust all available primary insurance before any excess insurance was
implicated did not apply, especially when the county vehicle plaintiff’s
insured was driving was not covered by the automobile policies issued
to plaintiff’s insureds and plaintiff’s umbrella policy provided primary
coverage with regard to the loss at issue.
Decision Under Appeal from the Circuit Court of Du Page County, No. 08–MR–1374;
Review the Hon. Kenneth L. Popejoy, Judge, presiding.
Judgment Affirmed.
Counsel on Michael Resis, Glen E. Amundsen, Richard T. Valentino, and Ellen L.
Appeal Green, all of SmithAmundsen LLC, of Chicago, for appellant.
James G. Sotos, Elizabeth A. Ekl, and Jeffrey N. Given, all of James G.
Sotos & Associates, Ltd., for appellees.
Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Hutchinson and Schostok concurred in the judgment and
opinion.
OPINION
¶1 In this case, plaintiff State Farm Fire & Casualty Company (State Farm) sought equitable
subrogation and reimbursement from defendant Du Page County (County), a self-insured
municipality, after State Farm settled a lawsuit. The lawsuit alleged that an employee of the
County struck and injured another driver while the employee was intoxicated and driving a
vehicle owned by the County. State Farm appeals the trial court’s denial of its motion for
judgment on the pleadings and granting of the County’s motion to dismiss. On appeal State
Farm argues that: (1) the trial court erred by denying State Farm’s motion for judgment on
the pleadings, because State Farm was entitled to equitable subrogation and reimbursement
against the County; and (2) the County was required to pay a settlement within the $2 million
retained limit of its insurance program, under principles of horizontal exhaustion. We affirm.
¶2 I. FACTS
¶3 A. Car Accident
¶4 On May 11, 2007, the County’s employee, Jane Radostits, was killed when she was
involved in a car accident with Michelle Lubinski, who was injured. At the time of the
accident, Jane was deputy chief of the criminal prosecutions bureau in the Du Page County
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State’s Attorney’s office. She was driving a 2003 Impala, owned by the County, an Illinois
municipality. After her death, Jane’s husband, Frank Radostits, was appointed independent
executor of her estate (Jane’s estate).
¶5 B. The Lubinski Lawsuit
¶6 Lubinski filed a complaint, followed by a first amended complaint (complaint), against
Jane’s estate, the County, and Joseph Birkett, Du Page County State’s Attorney. Lubinski
alleged that, during the morning of the day of the accident, certain Du Page County complex
buildings were evacuated as a result of a bomb threat. Shortly after the evacuation, Jane left
the complex with her supervisor, Jeffrey Kendall, to take care of personal errands together
in the Wheaton area.
¶7 Lubinski’s complaint also alleged that Kendall contacted other members of the Du Page
County State’s Attorney’s office and told them of plans to go to the Kona Grill in Oak Brook
for lunch and drinks. Kendall drove Jane in his County-owned vehicle to the Kona Grill,
arriving sometime before 11:30 a.m. By 12:45 p.m., seven other members of the Du Page
County State’s Attorney’s office joined Kendall and Jane at the Kona Grill. Jane drank
between four and seven lemon martinis and one beer between 11:30 a.m. and 3 p.m. After
witnessing Jane consume numerous intoxicating drinks, and knowing that Jane was
intoxicated, Kendall drove Jane to the County-owned 2003 Impala, which was parked in the
Du Page County complex lot. As Jane drove home, she used a Du Page County cell phone
to call Kendall and discuss an upcoming court proceeding.
¶8 The complaint alleged that Jane then tried to make another cell phone call. At about the
same time, Jane crossed into oncoming traffic on Winfield Road and struck Lubinski’s
vehicle. Jane was traveling over 80 miles per hour in a 45-mile-an-hour zone. At the time of
the accident, Jane had a blood alcohol concentration of 0.25, over three times the Illinois
legal limit. Lubinski suffered multiple catastrophic injuries due to the accident.
¶9 Count III of Lubinski’s complaint alleged “negligence, respondeat superior,” against
Birkett in that Jane was acting within the scope of her employment and that Birkett was
liable for Jane’s negligence in violating her driving duties. Count III also alleged that Birkett
was liable for Kendall’s actions because he was acting within the scope of his employment
when he negligently entrusted Jane to drive. Birkett denied liability.
¶ 10 Count IV of Lubinski’s complaint alleged “willful and wanton misconduct, respondeat
superior,” against Birkett for the actions of both Jane and Kendall. Birkett denied liability.
¶ 11 Jane’s estate filed a counterclaim and/or third-party complaint against the County and
Birkett. The County and Birkett denied that Jane’s estate was entitled to such relief.
¶ 12 C. Insurance Policies
¶ 13 At the time of the accident the Radostitses were named insureds on three car insurance
policies issued by State Farm Mutual Automobile Insurance Company (State Farm car
policies). These three State Farm car policies did not provide coverage for the 2003 Impala.
Also, at the time of the accident, the Radostitses were named insureds on a personal liability
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umbrella policy issued by State Farm (State Farm umbrella policy).
¶ 14 The State Farm umbrella policy provided:
“1. Coverage L - Personal Liability. If you are legally obligated to pay damages for
a loss, we will pay your net loss minus the retained limit. Our policy will not exceed the
amount shown on the Declarations as Policy Limits – Coverage L – Personal Liability.”
“ ‘[N]et loss’ means:
a. the amount you are legally obligated to pay as damages for bodily injury,
personal injury or property damage; and
b. All reasonable expenses you incur in the investigation, settlement and defense of
a claim or suit at our request[.]”
“ ‘[R]etained limit’ means:
a. the total limits of liability of your underlying insurance[.]”
“Other Insurance. This policy is excess over all other valid and collectible
insurance.”
¶ 15 At the time of the accident, the County was a self-insured municipality with a retained
limit up to $2 million, pursuant to section 9–103 of the Local Governmental and
Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/9–103 (West 2006)). In
excess of the $2 million retained self-insurance, the County also had an insurance policy
issued by Lexington Insurance Company, with a limit of liability of $20 million, in excess
of $10 million in liability coverage under a policy issued by Everest National Insurance
Company.
¶ 16 D. Settlement of the Lubinski Lawsuit
¶ 17 Lubinski settled her claims against Jane’s estate, with State Farm paying $400,000 on
behalf of Jane’s estate. Lubinski and Jane’s estate settled their claims against the County and
Birkett, with the County paying Lubinski $100,000. Jane’s estate, the County, and Birkett
released all claims they had or could have had against each other, without any admission of
liability by any party and without affecting State Farm’s impending declaratory judgment
claims in this case. The entire Lubinski lawsuit was dismissed with prejudice on August 4,
2009.
¶ 18 E. State Farm’s Complaint for Declaratory Judgment
¶ 19 On September 14, 2009, State Farm filed its four-count second amended complaint for
declaratory judgment (State Farm’s complaint), which alleged that the County was self-
insured up to $2 million and had insurance in excess of the $2 million self-insurance. Count
I, titled “Declaratory Judgment (Car Policies),” sought a declaration that State Farm had no
liability for coverage of Lubinski’s injuries or damages under the State Farm car policies
issued to Jane. Count II, titled “Declaratory Judgment (Personal Liability Umbrella Policy),”
sought a declaration that State Farm had no liability under its umbrella policy.
¶ 20 Count III, titled “Equitable Subrogation,” alleged the following. The 2003 Impala and
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Jane were covered by the County’s self-insurance. The County’s insurance was primary to
any coverage provided by the State Farm umbrella policy and, as a result, the County owed
a duty to defend and indemnify Jane’s estate in the Lubinski lawsuit. State Farm sought a
declaration that it was entitled to recoup $400,000 from the County for the settlement it paid
to Jane’s estate.
¶ 21 Count IV, titled “Reimbursement,” sought a declaration that the County owed Jane’s
estate a duty to defend against the Lubinski lawsuit and owed State Farm reimbursement for
defense costs of $45,128.56.
¶ 22 In its answer, the County denied that: (1) counts I and II applied to the County; (2) either
the 2003 Impala or Jane was covered by the County’s self-insurance; (3) the County bore any
financial liability for or responsibility to Jane’s estate; (4) the County owed a duty to defend
or indemnify Jane’s estate; (5) the County’s self-insurance was “valid or collectible
insurance” for purposes of State Farm’s umbrella policy’s “other insurance” provision; (6)
State Farm was entitled to recover $400,000 from the County in connection with the
settlement of the Lubinski lawsuit; and (7) the County must reimburse State Farm for its
defense costs. The County also raised affirmative defenses, including that Jane was not
acting within the scope of her employment at the time of the accident.
¶ 23 F. Cross-Motions
¶ 24 In November 2009, the County filed a motion to dismiss pursuant to section 2–615(a) of
the Code of Civil Procedure (Code) (735 ILCS 5/2–615(a) (West 2008)) and State Farm filed
a motion for judgment on the pleadings pursuant to section 2–615(e) of the Code (735 ILCS
5/2–615(e) (West 2008)). The County sought dismissal with prejudice of counts III and IV
of State Farm’s complaint. State Farm sought entry of judgment in its favor on all counts of
its complaint.
¶ 25 G. Trial Court’s Rulings
¶ 26 The trial court ruled as follows: regarding count I, titled “Declaratory Judgment (Car
Policies),” the trial court granted State Farm’s motion, ruling that its car policies did not
provide coverage for the 2003 Impala; regarding count II, titled “Declaratory Judgment
(Personal Liability Umbrella Policy),” the trial court denied State Farm’s motion. State Farm
later voluntarily dismissed this count.
¶ 27 Regarding counts III and IV, titled “Equitable Subrogation” and “Reimbursement,”
respectively, the trial court denied State Farm’s motion, ruling that there were genuine issues
of material fact precluding judgment on the pleadings in State Farm’s favor, particularly as
to whether Jane was acting within the scope of her employment at the time of the accident.
However, the trial court granted the County’s motion as to counts III and IV, ruling that State
Farm could not meet the elements of equitable subrogation or reimbursement.
¶ 28 State Farm filed a timely notice of appeal, appealing the trial court’s dismissal of counts
III and IV and denying judgment on the pleadings to State Farm on the same counts.
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¶ 29 II. ANALYSIS
¶ 30 On appeal State Farm argues that the trial court erred by denying judgment on the
pleadings to State Farm and granting judgment to the County. State Farm’s motion for
judgment on the pleadings related to its equitable-subrogation and reimbursement counts. A
motion seeking judgment on the pleadings pursuant to section 2–615 of the Code is like a
motion for summary judgment, but it is limited to the pleadings. Pekin Insurance Co. v.
Wilson, 237 Ill. 2d 446, 455 (2010). Judgment on the pleadings is proper where the pleadings
disclose that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. Pekin, 237 Ill. 2d at 455. A section 2–615 motion to dismiss,
on the other hand, should be granted where the plaintiff can prove no set of facts that would
entitle him to recover. King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 266
(2003). To resolve a motion on the pleadings, a court must “consider as admitted all well-
pleaded facts set forth in the pleadings of the nonmoving party, and the fair inferences drawn
therefrom.” (Internal quotation marks omitted.) Pekin, 237 Ill. 2d at 455. A complaint
includes exhibits, such as contracts, that are attached to it. American Family Mutual
Insurance Co. v. W.H. McNaughton Builders, Inc., 363 Ill. App. 3d 505, 511 (2006). We
review de novo a trial court’s decision on a section 2–615 motion. See Heastie v. Roberts,
226 Ill. 2d 515, 530-31 (2007). We now consider whether the trial court erred by denying
State Farm judgment on its equitable-subrogation and reimbursement counts and by
dismissing those counts.
¶ 31 A. Equitable Subrogation
¶ 32 State Farm argues that it is entitled to equitable subrogation against the County. The
County counters that State Farm cannot establish that it is entitled to equitable subrogation,
because the County is not an insurer. For the reasons set forth below, we agree with the
County.
¶ 33 Equitable subrogation is a remedial device that prevents unjust enrichment. American
Family Mutual Insurance Co. v. Northern Heritage Builders, L.L.C., 404 Ill. App. 3d 584,
588 (2010). The right of equitable subrogation arises when a party pays a debt for which
another is primarily liable and that in equity and good conscience should have been
discharged by the latter. See North American Insurance Co. v. Kemper National Insurance
Co., 325 Ill. App. 3d 477, 481 (2001). Like subrogation in general, it is a device where a
party who pays a debt or claim of another succeeds to the rights of the other with respect to
the debt or claim the party paid. See North American Insurance Co., 325 Ill. App. 3d at 481.
¶ 34 A plaintiff insurance carrier claiming a right to equitable subrogation must establish that:
(1) the defendant carrier is primarily liable to the insured for a loss under a policy of
insurance; (2) the plaintiff carrier is secondarily liable to the insured for the same loss under
its policy; and (3) the plaintiff carrier discharged its liability to the insured and, at the same
time, extinguished the liability of the defendant carrier. Home Insurance Co. v. Cincinnati
Insurance Co., 213 Ill. 2d 307, 323 (2004).
¶ 35 Regarding the first requirement, State Farm argues that the County is primarily liable for
the settlement that State Farm paid to Lubinski. The County argues that it is not primarily
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liable, because it is a self-insured municipality.
¶ 36 While Illinois courts have decided closely related issues, this precise issue is one of first
impression. Antiporek v. Village of Hillside, 114 Ill. 2d 246 (1986), Aetna Casualty & Surety
Co. of Illinois v. James J. Benes & Associates, Inc., 229 Ill. App. 3d 413 (1992), and Yaccino
v. State Farm Mutual Automobile Insurance Co., 346 Ill. App. 3d 431 (2004), all discuss a
pool of self-insured municipalities known as “IRMA.”1
¶ 37 In Antiporek, our supreme court held that IRMA is essentially self-insurance. Antiporek,
114 Ill. 2d at 250. In Antiporek, the plaintiff filed a complaint against the Village of Hillside,
alleging that the plaintiff’s daughter was injured when she slid on property owned and
maintained by the village. The trial court entered judgment for the plaintiff although the
village raised the affirmative defense of immunity pursuant to the Act. Antiporek, 114 Ill. 2d
at 248. When the plaintiff filed her complaint, the Act granted certain immunities to local
public entities but such immunities were waived if an entity was protected by a “policy of
insurance” issued by an insurance “company” (Ill. Rev. Stat. 1983, ch. 85, par. 9–103(c)).
Antiporek, 114 Ill. 2d at 247. The appellate court reversed. The supreme court affirmed the
appellate court, holding that a municipality’s participation in IRMA did not result in a waiver
of immunity from tort liability, because IRMA was “tantamount” to self-insurance. The
court, explaining the purpose behind the immunity waiver rule, stated that, in the case of
commercial insurance, “the immunity is waived since government funds are no longer in
jeopardy and immunity would inure to the benefit of private investors who have assumed the
risk of insurers.” Antiporek, 114 Ill. 2d at 250. However, “when a municipality self-insurers
[sic], it bears all risks itself, and settlements or awards are paid directly from government
coffers.” Antiporek, 114 Ill. 2d at 250. The court then held: “IRMA provides a totally
different type of protection–one tantamount to self-insurance within the meaning of section
9–103.” Antiporek, 114 Ill. 2d at 250. Thus, the village had not waived its immunities from
the plaintiff’s lawsuit. Antiporek, 114 Ill. 2d at 251.
¶ 38 Next, this court held that IRMA, a pool of self-insured municipalities, did not have the
same obligation to contribute to a settlement as a commercial carrier, because IRMA was not
a private insurance carrier. Aetna, 229 Ill. App. 3d at 421. Citing Antiporek, we stressed the
importance of IRMA’s purpose of preserving government funds. Aetna, 229 Ill. App. 3d at
420.
¶ 39 Subsequently, we held that IRMA, which issued business automobile coverage to the
City of West Chicago, was not an “insurer.” Yaccino, 346 Ill. App. 3d at 440. Therefore, the
uninsured motorist (UM) coverage provided by a commercial carrier to its insured, rather
than the UM coverage provided by IRMA, was the primary coverage for injuries suffered by
the insured when he was struck by an uninsured vehicle while in a city police car. Yaccino,
346 Ill. App. 3d at 440. Again, we relied on public policy interests in protecting public funds.
Yaccino, 346 Ill. App. 3d at 440.
¶ 40 In this case, the County is a self-insured municipality. The holdings of Antiporek, Aetna,
and Yaccino and the courts’ reasoning provided therein lead us to the conclusion that the
1
The “Intergovernmental Risk Management Agency.” Aetna, 229 Ill. App. 3d at 413.
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County, like IRMA, is not an insurer or an insurance company, nor does it provide insurance
coverage. Accordingly, State Farm cannot establish the first requirement of equitable
subrogation, which is that the defendant must be a carrier that is primarily liable to the
insured for a loss under a policy of insurance.
¶ 41 We recognize, and State Farm notes, that Antiporek, Aetna, and Yaccino address IRMA,
a pool of self-insured municipalities and not a lone self-insured municipality like the County
in this case. However, the public policy of protecting government funds is greater served in
this case than in the IRMA cases. The risk to a single municipality is greater than that to a
pool of many. Thus, public policy supports the conclusion that a self-insured municipality
is not an insurer or an insurance company and, therefore, not a carrier of insurance.
¶ 42 Further, State Farm cannot establish that the County was liable to itself for a loss under
a policy of insurance. An insurance policy is a contract requiring two parties, an insurer and
an insured. Self-insurance does not involve an insurer and an insured, because they are one
and the same. See Pritza v. Village of Lansing, 405 Ill. App. 3d 634, 644 (2010). Thus,
government self-insurance does not include a policy of insurance. See Pritza, 405 Ill. App.
3d at 644. Because State Farm cannot establish that the County is a “carrier” and that it had
a “policy of insurance,” State Farm cannot establish the first requirement of equitable
subrogation.
¶ 43 State Farm argues that the public policy rationale of Antiporek, Aetna, and Yaccino does
not apply here, because the County chose to “privately insure risks above a retained limit”
by purchasing excess insurance to cover liabilities beyond its $2 million self-insurance. The
County wrongly asserts that this argument has been forfeited because State Farm raises it for
the first time on appeal. State Farm raised this argument in its response to the County’s
motion to dismiss; thus, we will address this argument here. The distinction that State Farm
makes does not diminish the importance of the public policy rationale expressed in
Antiporek, Aetna, and Yaccino to this case. State Farm’s complaint acknowledged that the
County was self-insured up to $2 million and that State Farm sought only $445,128.56 from
the County. Although the County secured private insurance above its retained self-insurance
limit of $2 million, the $445,128.56 sought by State Farm did not approach the County’s
retained self-insurance limit. Therefore, State Farm sought only government funds. Thus, the
public policy rationale of protecting such funds, expressed in Antiporek, Aetna, and Yaccino,
is applicable to this case. However, if the amount involved in the settlement had exceeded
the County’s self-insurance limit and the County’s commercial insurers had become
involved, then State Farm arguably would have been seeking nongovernment funds and the
circumstances might have been different.
¶ 44 State Farm cites Chicago Hospital Risk Pooling Program v. Illinois State Medical Inter-
Insurance Exchange (CHRPP), 325 Ill. App. 3d 970 (2001), to support its argument that this
case is not like Antiporek, Aetna, or Yaccino, because the County shifted risks above $2
million to commercial excess carriers. CHRPP is distinguishable from the case at bar. In
CHRPP, the appellate court held that a risk management pool for hospitals was not pure self-
insurance and thus could seek equitable subrogation from a private insurance carrier.
CHRPP, 325 Ill. App. 3d at 983. In CHRPP the court did not consider the public policy
rationale discussed in Antiporek, Aetna, and Yaccino, “because the hospitals, although
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nonprofit institutions, were not public entities and, therefore, there was no risk that public
funds would be expended to pay claims” (Yaccino, 346 Ill. App. 3d at 440). In this case, State
Farm seeks subrogation from the County in an amount that would come entirely from public
funds. Thus, CHRPP is distinguishable based on the fundamental fact that government funds
were not implicated.
¶ 45 B. Horizontal Exhaustion
¶ 46 Next, State Farm argues that the County was required to pay a settlement within the $2
million retained limit of its “insurance program,” under principles of horizontal exhaustion.
¶ 47 The general principle of horizontal exhaustion requires an insured to exhaust all available
primary insurance before any excess insurance may be invoked. State Automobile Mutual
Insurance Co. v. Habitat Construction Co., 377 Ill. App. 3d 281, 293 (2007). Thus, an excess
carrier need not contribute to a settlement until the limits of a primary insurance carrier are
exhausted. Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227
Ill. 2d 102, 115 (2007).
¶ 48 In this case, State Farm fails to recognize that the County is a self-insured municipality
and, therefore, it is not an insurer, a provider of an insurance policy, or a carrier for any
purpose. See Aetna, 229 Ill. App. 3d at 422. Accordingly, State Farm cannot establish that
the County is a primary insurance carrier such that the principle of horizontal exhaustion
applies to this case.
¶ 49 State Farm argues that Illinois courts have treated self-insurance as primary insurance for
purposes of horizontal exhaustion. State Farm cites the following cases to support its
argument: Missouri Pacific R.R. Co. v. International Insurance Co., 288 Ill. App. 3d 69
(1997), Outboard Marine Corp. v. Liberty Mutual Insurance Co., 283 Ill. App. 3d 630
(1996), and United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d 598
(1994). These cases are distinguishable because each involves private or commercial entities
or pools, not public entities or pools. This is a distinction of paramount importance for public
policy reasons already discussed above, i.e., the importance of protecting government funds.
¶ 50 State Farm also argues that its coverage was excess. To support this argument, State
Farm asserts that, under its umbrella policy, the Radostitses had a duty to maintain three
underlying car insurance policies at all times, and one of the umbrella policy conditions
stated that the umbrella coverage was “excess over all other valid and collectible insurance.”
¶ 51 An insurance policy is a contract and its construction is a question of law, which we
review de novo. See Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 174 (2008).
If the words in a contract are unambiguous, we must give them their plain and ordinary
meaning. See Barth, 228 Ill. 2d at 174.
¶ 52 The State Farm umbrella policy provided:
“You [the Radostitses] agree that the underlying insurance policies listed below:
(1) Are in full force and will be continued in force for at least the limits shown.
(2) Insure all land motor vehicles and watercraft owned by, rented by, or regularly
furnished to you.”
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The “Required Underlying Insurance Policies” are “Automobile Liability,” “Recreational
Motor Vehicle Liability Including Passenger Bodily Injury,” “Personal Residential Liability
Coverage,” and “Watercraft Liability.” The State Farm umbrella policy provided, “When
shown on the Declarations as ‘REQUIRED UNDERLYING INSURANCE POLICIES’,
these terms are defined as follows: ***.” The State Farm umbrella policy then contained the
following definition: “ ‘AUTOMOBILE LIABILITY’ means your policy ***.” (Emphasis
added.)
¶ 53 The policy also provided, “Other Insurance. This policy is excess over all other valid
and collectible insurance.”
¶ 54 Thus, the State Farm umbrella policy establishes that the “underlying insurance” was
other insurance that State Farm required the Radostitses to acquire, including liability
insurance for motor vehicles regularly furnished to them. The parties agree that the
Radostitses did acquire the three State Farm car policies; however, the County-owned 2003
Impala that Jane was driving during the accident was not listed on any of the declaration
pages of these car policies. Thus, the parties also agree that the three State Farm car policies
did not cover the loss at issue. Because the County was not an insurer and the State Farm car
policies did not provide coverage, there was no “other valid and collectible insurance.”
Accordingly, the State Farm umbrella policy was primary and not excess. We also note that,
because State Farm’s umbrella policy was primary and not excess, State Farm cannot
establish either the first or the second requirement of equitable subrogation.
¶ 55 In addition, although State Farm does not develop its argument regarding reimbursement,
we note that it cannot establish that it was “an excess insurer called upon to make payments
that should have been made by [the] primary insurers.” Schal Bovis, Inc. v. Casualty
Insurance Co., 315 Ill. App. 3d 353, 360-61 (2000). Thus, the trial court properly dismissed
State Farm’s claim seeking reimbursement. See Schal Bovis, 315 Ill. App. 3d at 360-61.
¶ 56 C. The County’s Payment to Lubinski
¶ 57 State Farm also argues that the County’s payment of $100,000 to Lubinski was made on
its own behalf and did not release Jane’s estate. State Farm argues that, therefore, “[h]aving
made a payment, the County Defendants should not now be heard to deny responsibility for
their employee when their liability was predicated on her fault in causing the accident.” State
Farm does not develop this argument, nor does it cite to any authority to support this
argument. Thus, we consider it forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008); see
also Dillon v. Evanston Hospital, 199 Ill. 2d 483, 493 (2002) (an issue not clearly defined
or supported by citation to relevant authority fails to satisfy the requirements of Supreme
Court Rule 341(h)(7) and is forfeited on appeal).
¶ 58 State Farm also argues in this section of its brief that the “County’s insurance program”
must be considered “underlying insurance” because the underlying three State Farm car
policies issued to the Radostitses covered the County-owned 2003 Impala. Therefore,
according to State Farm, the “County Defendants remained primarily liable for the loss.”
This is circular and conclusory reasoning. As we have already determined, because the
County was not an insurer and the State Farm car policies did not provide coverage, there
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was no “other valid and collectible insurance.” Accordingly, the State Farm umbrella policy
was primary coverage.
¶ 59 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.
¶ 60 Affirmed.
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