Illinois Insurance Guaranty Fund v. Nwidor

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Appellate Court Date: 2018.07.19

14:44:23 -05'00'

Illinois Insurance Guaranty Fund v. Nwidor, 2018 IL App (1st) 171378

Appellate Court THE ILLINOIS INSURANCE GUARANTY FUND, Plaintiff-

Caption Appellee, v. ISRAEL P. NWIDOR, Individually; PHILLIP

CARRINGTON, as Guardian of the Estate of James Carrington, a

Disabled Person; and CHICAGO CARRIAGE CAB

CORPORATION, d/b/a Chicago Taxi Association, Inc., an Illinois

Corporation, Defendants (Chicago Carriage Cab Corporation,

Defendant-Appellant).

District & No. First District, Third Division

Docket No. 1-17-1378

Filed May 23, 2018

Decision Under Appeal from the Circuit Court of Cook County, No.

Review 2014-CH-008848; the Hon. Sanjay Tailor, Judge, presiding.

Judgment Affirmed.

Counsel on Jeffrey J. Scolaro and Lisa M. Roccanova, of Daley Mohan Groble,

Appeal P.C., of Chicago, for appellant.

Bryan G. Schumann, of Lewis Brisbois Bisgaard & Smith LLP, of

Chicago, for appellee.

Panel PRESIDING JUSTICE COBBS delivered the judgment of the court,

with opinion.

Justices Howse and Lavin concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, the Illinois Insurance Guaranty Fund (IIGF), brought a declaratory judgment

action in the circuit court of Cook County against defendants, which included the Chicago

Carriage Cab Corporation, d/b/a Chicago Taxi Association, Inc. (Chicago Cab). IIGF sought a

determination of Chicago Cab’s insurance coverage in an underlying lawsuit. Finding that

Chicago Cab was not covered, the trial court granted summary judgment in favor of IIGF. On

appeal, Chicago Cab contends (1) waiver or estoppel barred IIGF from asserting lack of

coverage, (2) the trial court erred in granting summary judgment in favor of IIGF, and (3) the

trial court abused its discretion in denying Chicago Cab’s motion to reconsider. We affirm.

¶2 I. BACKGROUND

¶3 A. Underlying Carrington Action

¶4 On October 5, 2011, Israel P. Nwidor, a Chicago Cab employee, was driving a 2007 Ford

Crown Victoria taxi, owned by Chicago Cab. The taxi collided with a motorcycle being

operated by James Carrington. In April 2012, Phillip Carrington, as guardian of the estate of

James, brought a personal injury action against Chicago Cab and Nwidor. Chicago Cab owned

a commercial automobile liability insurance policy, No. 11UCC2060, issued by the Ullico

Casualty Company (Ullico). Chicago Cab tendered its defense to Ullico, which retained

defense counsel. An appearance on behalf of Chicago Cab was filed in August 2012. In

January 2013, Carrington filed the instant amended complaint against Nwidor, Chicago Cab,

and related corporate entities. Carrington alleged that Nwidor and Chicago Cab negligently

owned, operated, and maintained the subject taxi, which proximately resulted in James’s

severe and permanent injuries.

¶5 On May 30, 2013, Ullico went into liquidation. In a letter dated June 7, 2013, IIGF notified

Chicago Cab of the liquidation. The letter informed Chicago Cab that IIGF would assume

responsibility for Ullico’s obligations to its Illinois policyholders and claimants, subject to the

limitations and conditions of the Illinois Insurance Guaranty Fund, codified as article XXXIV

of the Illinois Insurance Code (215 ILCS 5/532 et seq. (West 2014)). The letter advised

Chicago Cab that it had to satisfy certain prerequisites before IIGF could “proceed to

investigate, adjust, compromise, settle and pay covered claims as provided for, and in

accordance with our governing statutory requirements.” (Emphasis added.) The letter also

included the following:

“IIGF specifically asserts and maintains a reservation of rights related to any payments

it may make in respect to your company. IIGF also asserts and maintains an absolute

reservation of rights in respect to any policy related issues which may be discovered or

disclosed. IIGF reserves the right to seek reimbursement from you for any and all

payments *** that IIGF may make in respect of your company if, because of *** any

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pertinent statutory or policy limitation or condition, it is discovered or decided that the

relevant claims were not ‘covered claims.’ ”

In a June 24, 2013, letter, IIGF requested information from Chicago Cab and repeated the

above-quoted language.

¶6 In a third letter, dated September 26, 2013, IIGF informed Chicago Cab that the Ullico

liquidator had provided IIGF with “initial computerized data references, and in some but not

all instances, file materials as well,” but that it was still “missing critical information necessary

for us to process claims.” The letter also noted as follows:

“In addition to any prior reservation of rights issued by Ullico Insurance Company,

IIGF is conducting the handling of the above referenced matter under a full and

complete reservation of rights under the terms and conditions of the Ullico insurance

policy. *** Nothing in this letter should be viewed as a waiver of any rights or defenses

IIGF may have under the Illinois Insurance Code, under the pertinent insurance

policies or otherwise which rights and defenses are hereby reserved.”

¶7 In a fourth letter, dated May 6, 2014, IIGF informed Chicago Cab that IIGF had obtained

the Ullico policy, which included “endorsement number 11,” in effect at the time of the

accident. Generally, the policy provided coverage only for covered automobiles, and

endorsement No. 11 deleted coverage for the subject taxi, vehicle identification number (VIN)

2FAFP71W67X124521. The letter explained: “since it appears that the policy affords no

coverage for the deleted auto due to endorsement number 11 and the general policy

provisions,” IIGF “fully reserves all rights under the policy and Illinois law *** to deny any

obligation to pay for any defense or indemnity” on behalf of Chicago Cab or Nwidor. The

letter further explained that the IIGF provisions of the Insurance Code obligate IIGF to pay

only a “covered claim,” which refers to a loss within the coverage of a liability insurance

policy, and any loss outside of such coverage is not a covered claim. For these reasons, and for

any additional reasons as the investigation continued, IIGF would continue to pay for the

defense of Chicago Cab and Nwidor but under a reservation of rights, including the right to file

a declaratory judgment action. The underlying Carrington action was and remains stayed.

¶8 B. Instant Declaratory Judgment Action

¶9 On May 23, 2014, IIGF filed the instant complaint for declaratory relief, with the Ullico

policy attached. The Ullico policy shows coverage for the subject taxi bearing City of Chicago

Taxicab Medallion No. 2975. Endorsement No. 11 shows that on September 22, 2011, that

vehicle was removed from coverage and replaced with a different vehicle (VIN

1FMCU4K3XCKA59559) bearing the same medallion. Endorsement No. 11 had an effective

date of September 30, 2011. IIGF alleged that the subject taxi was deleted from coverage under

the Ullico policy prior to the October 5, 2011, accident. IIGF further alleged that since the

Ullico policy provides no liability coverage for the subject taxi, there consequently could be no

“covered claim” as defined by the IIGF provisions in the Insurance Code. 215 ILCS 5/534.3(a)

(West 2014). Accordingly, IIGF sought a declaration that it did not have a duty to defend or

indemnify Chicago Cab or Nwidor in the underlying action, and that IIGF was entitled to

reimbursement from Chicago Cab for defense costs.

¶ 10 Chicago Cab filed an answer and three affirmative defenses. The answer denied the

complaint’s salient allegations. In its first affirmative defense, Chicago Cab asserted that the

subject taxi was still covered under the Ullico policy on the day of the underlying accident.

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Chicago Cab alleged as follows. Ullico insured Chicago Cab’s fleet of taxis, including the

subject taxi affixed with medallion No. 2975. Without mentioning endorsement No. 11,

Chicago Cab alleged that, based on City of Chicago regulatory custom and practice, the City of

Chicago taxicab medallion license card (Hard Card) was not issued to the replacement vehicle

until October 7, 2011, two days after the underlying accident. Therefore, according to Chicago

Cab, the subject taxi was still covered at the time of the accident. Consequently, Chicago Cab

presented a covered claim.

¶ 11 In its second affirmative defense, Chicago Cab posited that 25 months elapsed from the

April 2012 filing of the original complaint in the underlying action to May 6, 2014, when IIGF

issued a reservation of rights letter. Chicago Cab alleged that Ullico and IIGF waived a lack of

coverage by waiting 25 months before IIGF issued a reservation of rights letter or filed a

declaratory judgment action of any kind. In its third affirmative defense, Chicago Cab alleged

that it detrimentally relied on the actions of Ullico and IIGF and, consequently, IIGF and

Ullico should be estopped from asserting a lack of coverage.

¶ 12 In August 2016, IIGF filed a motion for summary judgment, in which it argued that, as a

matter of law, insurance coverage for the subject taxi was removed on September 30, 2011, the

effective date of endorsement No. 11 of the Ullico policy. Therefore, according to IIGF, the

subject taxi was not covered at the time of the October 5, 2011, underlying accident. IIGF also

argued that it did not waive denial of coverage or is estopped from asserting lack of coverage.

¶ 13 In its response, Chicago Cab asserted that “[t]he policy and endorsement language only

tells a part of the story, and clearly does not reflect the true rights, duties, and obligations

contemplated by the Contracting Parties.” Chicago Cab contended that IIGF ignored the

regulatory procedures, past negotiations, business practices, and mutual contractual intent of

the contracting parties and of the taxi insurance industry in general. Chicago Cab argued that

there were “myriad issues of fact as to how and when” insurance coverage was transferred

from the subject taxi to the replacement vehicle. According to Chicago Cab, these material

issues of fact precluded summary judgment. Chicago Cab also argued that its affirmative

defenses of waiver and estoppel raise questions of material fact that preclude summary

judgment.

¶ 14 On January 5, 2017, at the close of a hearing, the trial court granted IIGF’s motion for

summary judgment. Chicago Cab filed a motion to reconsider, which the trial court denied.

Chicago Cab timely appeals. Additional pertinent background will be discussed in the context

of our analysis of the issues.

¶ 15 II. ANALYSIS

¶ 16 This matter is before us on the grant of summary judgment in favor of IIGF. Summary

judgment is appropriate only where “the pleadings, depositions, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

(West 2014). A trial court’s entry of summary judgment and the construction of an insurance

policy are both reviewed de novo. Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 370-71

(2007).

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¶ 17 A. Waiver and Estoppel

¶ 18 In the trial court, Chicago Cab directed this contention at both Ullico and IIGF. Chicago

Cab contended that the 25-month period between the filing of the original complaint and

IIGF’s fourth reservation of rights letter constituted waiver of and estoppel from asserting a

lack of coverage under the policy. However, before this court, Chicago Cab directs this

contention solely at IIGF. Chicago Cab now argues that, based on the 11-month period

between Ullico’s liquidation and IIGF’s fourth reservation of rights letter, (1) IIGF has waived

a lack of policy coverage and (2) IIGF should be estopped from asserting a lack of coverage.

¶ 19 At the outset, we note IIGF’s contention that there was no delay on its part at all. According

to IIGF, it issued its first reservation of rights letter to Chicago Cab on June 7, 2013, which was

only within one week of Ullico’s liquidation. IIGF argues that it “properly reserved all of its

rights from the very beginning while it continued to investigate the matter.”

¶ 20 This contention lacks merit. A reservation of rights must adequately inform the insured of

the rights which the insurer intends to reserve. “Accordingly, bare notice of a reservation of

rights is insufficient; the notice must make specific reference to the policy defense which

ultimately may be asserted ***.” Royal Insurance Co. v. Process Design Associates, Inc., 221

Ill. App. 3d 966, 973 (1991). In the case at bar, IIGF’s first three reservations of rights letters

each contained a bare, boilerplate declaration of an “absolute” or a “full and complete”

reservation of rights “in respect to any policy related issues which may be discovered or

disclosed.” It was not until IIGF’s fourth reservation of rights letter, dated May 6, 2014, that

IIGF informed Chicago Cab of the coverage issue for the subject taxi. Therefore, we will

analyze Chicago Cab’s contentions based on the alleged 11-month delay.

¶ 21 In the context of insurance law, the doctrines of “waiver” and “estoppel” are closely akin

and may often coexist. However, waiver and estoppel are two separate and distinct doctrines.

Salloum Foods & Liquor, Inc. v. Parliament Insurance Co., 69 Ill. App. 3d 422, 427-28

(1979). Waiver consists of an express or implied voluntary and intentional relinquishment of a

known right. In contrast, estoppel refers to an abatement, by operation of law, of the insurer’s

rights where it would be inequitable to permit their assertion. National Discount Shoes, Inc. v.

Royal Globe Insurance Co., 99 Ill. App. 3d 54, 59 (1981). Normally, waiver and estoppel are

questions for the trier of fact. However, where there is no dispute as to the material facts and

only one inference can be drawn therefrom, summary judgment is appropriate. See, e.g., Aetna

Casualty & Surety Co. v. Oak Park Trust & Savings Bank, 168 Ill. App. 3d 1000, 1004 (1988);

Florsheim v. Travelers Indemnity Co., 75 Ill. App. 3d 298, 307 (1979).

¶ 22 Absent a reservation of rights, an insurer waives all questions of policy coverage when it

assumes an insured’s defense and “ ‘recognizes the continued validity of the policy.’ ”

American States Insurance Co. v. National Cycle, Inc., 260 Ill. App. 3d 299, 306 (1994)

(quoting Kenilworth Insurance Co. v. McDougal, 20 Ill. App. 3d 615, 620 (1974)). However,

an insurer cannot assert a policy defense until it is aware of the facts giving rise to that defense,

and an insurer will not be found to have waived rights of which it was unaware. Id. at 307.

Moreover, an insurer who wishes to reserve its rights under a policy must notify the insured

without delay or with reasonable promptness. A long delay without explanation in asserting a

policy defense is an element in determining the reasonableness of an insurer’s conduct.

However, such a delay alone is normally not enough to constitute a waiver. In determining

whether a “delay” is reasonable, it is implicit that some part of the time, reasonable in relation

to the status of the pending litigation, must be allowed to the insurer to evaluate its position and

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determine what route it will follow. Id. at 306. Since waiver is based on the unilateral conduct

of the insurer, prejudicial reliance by the insured is not required. Id.; Salloum Foods, 69 Ill.

App. 3d at 428-29.

¶ 23 Applying these principles to the case at bar, we conclude that IIGF did not waive denial of

coverage under the policy. In its June 7, 2013, letter, IIGF notified Chicago Cab that it would

assume responsibility for Ullico’s obligations. At that time, however, IIGF obviously was

unaware of the facts pertaining to policy coverage. Consequently an intention to waive does

not follow. Further, the entire 11-month period cannot be considered a “delay.” In its

September 26, 2013, letter, IIGF informed Chicago Cab that it still lacked necessary

information to process the claim. It was not until May 6, 2014, that IIGF stated that the

liquidator had “[r]ecently” provided it with endorsement No. 11. Thus, in light of the factual

posture of this case, we do not believe that the approximate seven months between IIGF’s

September 26, 2013, letter and its May 6, 2014, reservation of rights letter was an unreasonable

delay. We fail to see how IIGF’s conduct constituted an intentional relinquishment of a known

right.

¶ 24 Turning to estoppel, Chicago Cab alleged in its third affirmative defense that it “relied on

[IIGF’s] representation that it would be defended and indemnified and, therefore, did not take

an active part in the defense of the Carrington Action.” Chicago Cab further alleged that it was

prejudiced by the inability “to be involved in decisions related to the defense of the Carrington

Action,” and “to monitor the potential economic impact that the Carrington Action might

have.” Chicago Cab alleged that IIGF’s actions also prejudiced its “potential ability to settle

the Carrington Action.”

¶ 25 Generally, where a complaint against the insured alleges facts within or potentially within

the coverage of the insurance policy and when the insurer takes the position that the policy

does not cover the complaint, the insurer must (1) defend the suit under a reservation of rights

or (2) seek a declaratory judgment that there is no coverage. If the insurer fails to take either of

these actions, it will be estopped from later raising policy defenses to coverage. State Farm

Fire & Casualty Co. v. Martin, 186 Ill. 2d 367, 371 (1999). In these circumstances, proof of

prejudice is not required. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill.

2d 127, 157-58 (1999).

¶ 26 However, “a different form of equitable estoppel *** arises once an insurer actually

assumes an insured’s defense without reserving its rights.” Id. at 158 (collecting cases). Where,

as in this case, the insurer initially undertakes the duty to defend but later reserves rights or

files a declaratory judgment action, the insurer will not be estopped from asserting lack of

coverage unless prejudice exists. Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 195

(1976); United Farm Family Mutual Insurance Co. v. Frye, 381 Ill. App. 3d 960, 969 (2008).

Typically, the insured asserts prejudice on the ground that it surrendered the right to control its

defense and completely relied for its entire defense upon the insurer. American States

Insurance Co., 260 Ill. App. 3d at 308. However, “[p]rejudice will not be conclusively

presumed from the mere entry of appearance and assumption of the defense.” Peppers, 64 Ill.

2d at 196. The insured has the burden of establishing prejudicial reliance by clear, concise, and

unequivocal evidence. Frye, 381 Ill. App. 3d at 369-70; American States Insurance Co., 260

Ill. App. 3d at 308.

¶ 27 In the case at bar, we fail to see how Chicago Cab was prejudiced by IIGF’s representation

and assertion of lack of coverage. Chicago Cab does not complain that IIGF’s representation

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was defective. Also, Chicago Cab has not offered any evidence to show how it was injured by

IIGF’s alleged delay in reserving its rights. Indeed, the underlying action was and remains

stayed. There is nothing in the record other than Chicago Cab’s bare assertion that it was

prejudiced by surrendering its defense to IIGF. This is merely a legal conclusion and not a

statement of fact. We conclude that Chicago Cab failed to establish prejudice. See Mid-State

Savings & Loan Ass’n v. Illinois Exchange, Inc., 175 Ill. App. 3d 265, 272 (1988); American

States Insurance Co., 260 Ill. App. 3d at 310; Old Mutual Casualty Co. v. Clark, 53 Ill. App. 3d

274, 279 (1977). We hold that IIGF is not estopped from asserting lack of policy coverage.

¶ 28 B. “Covered Claim”

¶ 29 We agree with Chicago Cab that the crux of this case turns on the date that coverage under

the Ullico policy was transferred from the subject taxi to the replacement vehicle. Chicago Cab

contends that coverage was transferred on October 7, 2011, and, therefore, the subject taxi was

still covered under the policy at the time of the October 5, 2011, accident. IIGF contends that

coverage was transferred on September 30, 2011, and, therefore, the subject taxi was not

covered at the time of the accident. At the least, according to Chicago Cab, a genuine issue of

material fact exists as to this issue.

¶ 30 When construing an insurance policy, a court’s primary objective is to ascertain and give

effect to the intentions of the parties as expressed by the words of the policy. Rich, 226 Ill. 2d at

371; Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993).

“An insurance policy, like any contract, is to be construed as a whole, giving effect to every

provision, if possible, because it must be assumed that every provision was intended to serve a

purpose.” Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). The

court must take into account the type of insurance provided, the nature of the risks involved,

the overall purpose of the contract (Rich, 226 Ill. 2d at 371; Crum & Forster, 156 Ill. 2d at

391), and the particular factual setting in which the policy was issued. Nicor, Inc. v. Associated

Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 417 (2006). If the words in the policy

are unambiguous, they must be given their plain and ordinary meaning, and the policy will be

applied as written, unless it contravenes public policy. Rich, 226 Ill. 2d at 371. A policy term is

not considered ambiguous “merely because the parties can suggest creative possibilities for its

meaning. Rather, ambiguity exists only if the term is susceptible to more than one reasonable

interpretation.” Nicor, 223 Ill. 2d at 417; see Young v. Allstate Insurance Co., 351 Ill. App. 3d

151, 157-58 (2004).

¶ 31 In the case at bar, the Ullico policy was in effect from January 1, 2011, to January 1, 2012.

Endorsement No. 1, dated January 1, 2011, lists the 813 taxis covered under the policy. Each

taxi is identified by medallion number, year, make, and VIN. Each month thereafter, an

endorsement labelled “Policy Change” listed, by medallion number, taxis identified by VIN

that were removed from coverage and replaced with different vehicles. According to IIGF,

endorsement No. 11 clearly shows that on September 22, 2011, coverage for the subject taxi

was transferred to the replacement vehicle. Further, the “change effective” date was September

30, 2011.

¶ 32 However, Chicago Cab contends that “IIGF’s position ignores the understanding” between

Chicago Cab and Ullico. Chicago Cab points to taxi rules promulgated by the City of Chicago

Department of Business Affairs and Consumer Protection (BACP). Chicago Cab argues that it

could not operate the replacement vehicle until it completed the change of equipment (COE)

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administrative and inspection process, and was issued a Hard Card to be placed in the vehicle.

It was only after the issuance of the Hard Card could Chicago Cab physically remove the metal

medallion from the subject taxi and bolt it on the replacement vehicle. According to Chicago

Cab, endorsement No. 11 “was processed ‘early’ (i.e., September 22, 2011)” so that Chicago

Cab “would have it in hand to submit to the BACP prior to the October 7, 2011 COE

inspection. Coverage of the [subject taxi] continued until it was replaced on October 7,

2011—the date when the BACP issued the ‘Hard Card’ for the [replacement vehicle].”

¶ 33 We cannot accept this argument. It is quite established that evidence of custom and usage is

only admissible to explain uncertain or ambiguous terms of a contract. When contract terms

are clear, those terms alone determine the obligations of the parties. Gray v. Mundelein

College, 296 Ill. App. 3d 795, 805 (1998); Bielecki v. Painting Plus, Inc., 264 Ill. App. 3d 344,

358 (1994). “Usage or custom is admissible to explain or make clear what a contract means but

not to contradict a meaning obvious on the face of the instrument.” Hufford v. National

Retailer-Owned Grocers, Inc., 16 Ill. App. 2d 1, 7-8 (1957). One will not be permitted to prove

a custom or usage that would effectively add to an express agreement a condition or limitation

that is inconsistent with the agreement itself. Ambarann Corp. v. Old Ben Coal Corp., 395 Ill.

154, 164 (1946).

¶ 34 In endorsement No. 11, Ullico and Chicago Cab plainly and unambiguously agreed that

coverage for medallion No. 2975 would transfer on September 22, 2011, effective September

30, 2011. Further, there is no reason to ignore the integration provision in the policy, which

provides that the policy contains “all of the agreements” between Ullico and Chicago Cab

“concerning the insurance afforded,” and that the “policy’s terms can be amended or waived

only by endorsement issued by [Ullico] and made a part of this policy.” See Air Safety, Inc. v.

Teachers Realty Corp., 185 Ill. 2d 457, 464 (1999) (stating that “where parties formally

include an integration clause in their contract, they are explicitly manifesting their intention to

protect themselves against misinterpretations which might arise from extrinsic evidence”).

Chicago Cab’s argument would render meaningless the policy’s monthly endorsements that

identify when coverage begins and ends for any of the swapped taxis. “[A] court will not

rewrite a contract to suit one of the parties, but will enforce the terms as written. [Citation.]

There is a strong presumption against provisions that easily could have been included in the

contract but were not.” Wright v. Chicago Title Insurance Co., 196 Ill. App. 3d 920, 925

(1990). Chicago Cab’s invocation of custom and usage is unavailing.

¶ 35 We note that Chicago Cab raised an alternative contention in its response to IIGF’s motion

for summary judgment: that “a mutual mistake of fact” occurred when endorsement No. 11

was written. At the hearing on IIGF’s motion for summary judgment, the trial court found:

“There is in my view no legal or factual support for the argument that there was a mutual

mistake of fact.” Before this court, Chicago Cab asks for reformation of endorsement No. 11

“to reflect the true intent of the contracting parties.”

¶ 36 The party seeking reformation of a written instrument must establish that there had been a

meeting of the minds resulting in an actual agreement between the parties; however, when the

agreement was reduced to writing, some agreed-upon provision was omitted or one not agreed

upon was inserted, either through a mutual mistake or through mistake of one party and fraud

by another. Great American Federal Savings & Loan Ass’n v. Grivas, 137 Ill. App. 3d 267,

274 (1985); Sheldon v. Colonial Carbon Co., 116 Ill. App. 3d 797, 800 (1983). “ ‘[T]he action

is to so change the instrument as written as to conform it to the contract agreed upon, by

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inserting the provisions omitted or striking out the one inserted by mutual mistake.’ ”

Suburban Bank of Hoffman-Schaumburg v. Bousis, 144 Ill. 2d 51, 58-59 (1991) (quoting

Harley v. Magnolia Petroleum Co., 378 Ill. 19, 28 (1941)). There is a presumption that a

written instrument conforms to the intention of the parties thereto. Therefore, in an action for

reformation, the proponent’s burden of proof is clear and convincing evidence. Bousis, 144 Ill.

2d at 59; Grivas, 137 Ill. App. 3d at 274; Sheldon, 116 Ill. App. 3d at 800.

¶ 37 Chicago Cab essentially argues that the “real” agreement between it and Ullico provided

that the effective coverage transfer date for replaced taxis was not the effective date plainly

identified on the monthly endorsements but rather was the date on which BACP chose to issue

a Hard Card for any particular taxi. The trial court rejected this contention, as do we. Chicago

Cab subsequently proffered affidavit testimony, which we discuss below, that the Hard Card

date of issuance customarily governs the date of coverage. However, this affidavit testimony

does not establish that this alleged custom and practice was reduced to a writing that would

constitute a prior contract. We uphold the trial court’s grant of summary judgment in favor of

IIGF.

¶ 38 C. Motion to Reconsider

¶ 39 Chicago Cab filed a motion to reconsider based on newly discovered evidence. The trial

court denied the motion, and Chicago Cab assigns error. The purpose of a motion to reconsider

is to bring to the trial court’s attention newly discovered evidence that was not available at the

time of the hearing, changes in the law, or errors in the trial court’s previous application of

existing law. Where the motion to reconsider is based on new evidence, facts, or legal theories

not presented in the prior proceedings, our standard of review is abuse of discretion. Horlacher

v. Cohen, 2017 IL App (1st) 162712, ¶¶ 79-80; Compton v. Country Mutual Insurance Co.,

382 Ill. App. 3d 323, 330-31 (2008).

¶ 40 Chicago Cab attached to its motion to reconsider affidavits from two taxi associations and

an insurer of Chicagoland taxis. In its motion, Chicago Cab asserted that the affidavits “testify

to the custom and practice of the hard card governing the date of coverage for taxis in

Chicago.” Before this court, Chicago Cab contends that each affiant “unequivocally swears

that custom and practice in the industry is that the ‘hard card’ date of issuance dictates the

policy change.”

¶ 41 We must first determine whether this information qualifies as newly discovered evidence.

In the context of this case, newly discovered evidence is evidence that was not available prior

to the hearing on the motion for summary judgment. A trial court should not allow a litigant to

stand mute, lose a motion, and then frantically gather evidentiary material to show that the

court erred in its ruling. Horlacher, 2017 IL App (1st) 162712, ¶¶ 82, 84; Compton, 382 Ill.

App. 3d at 331; Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 65 (2001).

¶ 42 This is precisely what Chicago Cab attempts to do here. Before this court, Chicago Cab

asserts that the affiants “were not willing to be involved in the litigation, as they believed the

trial court would uphold the custom and practice of the taxicab industry that [Chicago Cab] had

followed. It was only after the adverse summary judgment ruling that [Chicago Cab] could

obtain these affidavits.” Thus, by Chicago Cab’s own admission, its proffered affidavits are

not “newly discovered evidence.” We cannot say that the trial court abused its discretion in

denying Chicago Cab’s motion to reconsider.

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¶ 43 III. CONCLUSION

¶ 44 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 45 Affirmed.

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