Melrose Park Sundries v. Carlin

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-0162 Rel

Case Date: 03/30/2010

Preview:SECOND DIVISION FILED: March 30, 2010 No. 1-09-0162 MELROSE PARK SUNDRIES, INC., Plaintiff-Appellant, v. DON CARLINI, Defendant-Appellee. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 07 L 1072 The Honorable Lee Preston, Judge Presiding.

JUSTICE HOFFMAN delivered the opinion of the court: The plaintiff, Melrose Park Sundries, Inc. (Melrose Park), appeals from an order of the circuit court granting summary

judgment in favor of the defendant, Don Carlini (Carlini),1 on the plaintiff's claim of negligence. For the reasons that follow, we

affirm the judgment of the circuit court. The pleadings, depositions, and written discovery established the following relevant facts. Melrose Park was the corporate owner of a packaged liquor and sundries store at 2318 West North Avenue in Melrose Park, Illinois. Melrose Park and the commercial

1

Carlini died after the complaint was filed but before Pursuant to section 2-1008(b) of the

service was accomplished.

Code of Civil Procedure (735 ILCS 5/2-1008(b) (West 2006)) (the Code), his widow, Barbara Carlini, was appointed special representative of his estate for purposes of defending the action.

No. 1-09-0162 building in which it was located were owned by Faye Alport

(Alport), who was the sole officer, director, and shareholder. Constantino A. Taddeo (Taddeo) was responsible for overseeing the day-to-day operations of the store from its opening in

approximately February 2004 until it ceased operation in January 2008. Prior to the opening of the store, Alport and Taddeo met

with Carlini, a licensed insurance producer, and requested that he obtain insurance for the store. Alport made the decision to

purchase insurance through Carlini because he had provided the insurance to her husband and his previous businesses for many years, but Taddeo was responsible for paying the insurance

premiums.

The insurance policies obtained by Carlini for Melrose

Park provided coverage for "liquor liability" and various other forms of coverage for the business and its premises, but did not include workers' compensation insurance coverage. These policies

were issued on January 23, 2004, and were subsequently renewed in 2005 for the policy period expiring January 23, 2006. On October 9, 2005, Sharon Sullivan was injured while working at the Melrose Park store. Melrose Park did not have workers'

compensation insurance at the time of Ms. Sullivan's injury. Initially, expenses. Alport and Taddeo this jointly paid Sullivan's medical and

However,

arrangement

eventually

ceased,

Sullivan subsequently filed a claim for workers' compensation benefits. 2

No. 1-09-0162 Alport testified at her deposition that, prior to the

establishment of Melrose Park, her husband, who died in 2000, and her son operated a business known as Melpark Drugs and Liquors in the same location. According to Alport, her husband had been doing

business with Carlini for more than 20 years, and Carlini obtained the insurance for Melpark Drugs and Liquors as well as for the family's other businesses and several commercial properties. Alport also testified that she and Taddeo met with Carlini once before Melrose Park opened to discuss the insurance for the store. At that meeting, she asked Carlini to "make sure that all

of the requirements for insurance [were] taken out, including the building, * * * the liquor, any type of liability policy."

According to Alport, Carlini said that he would "handle it," and she did not have any further discussion with him about the

insurance policies that he obtained for Melrose Park.

Alport

admitted that she never specifically requested that Carlini procure workers' compensation insurance for the business, nor did she inquire as to whether workers' compensation insurance was needed. Alport also acknowledged that she did not read or review the policies obtained by Carlini, and she did not discuss Melrose Park's insurance with him when the policies were renewed. Alport

further stated that she had more than 30 years of retail and drugstore experience, and she owned a jewelry store, which was located in the building adjacent to Melrose Park. In approximately 3

No. 1-09-0162 2003, she specifically requested that Carlini procure workers' compensation insurance for the jewelry store, and he did so. However, she did not direct Carlini to obtain workers' compensation insurance for Melrose Park, as she had done for the jewelry business. Alport also stated that Taddeo was responsible for

hiring the employees for the business, and she did not recall whether any employees had been hired when she and Taddeo met with Carlini to arrange for the purchase of insurance. Taddeo testified at his deposition that he and Alport met with Carlini once before Melrose Park opened to discuss the insurance coverage for the store. According to Taddeo, his participation in

that discussion was limited to asking Carlini whether he was going to take care of the insurance, and Carlini responded that he would. Taddeo testified that the issue of workers' compensation was not specifically addressed, and neither he nor Alport explicitly

requested that Carlini obtain workers' compensation insurance. Taddeo also stated that Carlini came into the store after the initial meeting, and he asked whether they were "covered on

everything." Though Carlini responded in the affirmative, they did not discuss what "everything" encompassed. Taddeo testified that

he did not read or review the insurance policies that were obtained by Carlini. In January 2007, Melrose Park brought suit against Carlini, alleging that he was negligent in failing to obtain or offer to 4

No. 1-09-0162 obtain workers' compensation insurance for Melrose Park and in failing to advise that such insurance was required by law. The

complaint also alleged that Carlini's negligent conduct proximately caused Melrose Park to suffer damages in that it was required to pay the lost wages and medical expenses of Sullivan and was subject to fines and penalties imposed by the Illinois Workers'

Compensation Commission. contending that Melrose

Carlini moved for summary judgment, Park had failed to present evidence

establishing a duty to procure workers' compensation insurance. The circuit court granted the motion for summary judgment, and this appeal followed. On appeal, Melrose Park argues that the summary judgment against it must be reversed because the circuit court erred in determining that Carlini had no duty to obtain workers'

compensation insurance. Summary judgment

We disagree. is appropriate where the pleadings,

depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006); Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228, 864 N.E.2d 176 (2007). Although a plaintiff need not prove his

case during a summary judgment proceeding, he must present some evidentiary facts to support each element of his cause of action. 5

No. 1-09-0162 Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1069, 793 N.E.2d 68 (2003). This court reviews the grant or denial of summary judgment de novo. Murray, 224 Ill. 2d at 228.

In order to recover on a claim for negligence, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256, 720 N.E.2d 1068 (1999). The determination of whether the defendant

owed the plaintiff a duty of care is a question of law to be determined by the court. Marshall v. City of Centralia, 143 Ill. Where no duty is owed, there is no

2d 1, 6, 570 N.E.2d 315 (1991).

negligence, and the plaintiff is precluded from recovery as a matter of law. Washington v. City of Chicago, 188 Ill. 2d 235, The question of whether a duty exists

239, 720 N.E.2d 1030 (1999).

turns in large part on public policy considerations. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 457-58, 665 N.E.2d 826 (1996). Statutes enacted by the legislature are expressions of State Farm Mutual Automobile Insurance Co. v.

public policy.

Smith, 197 Ill. 2d 369, 372, 757 N.E.2d 881 (2001). In 1996, the General Assembly enacted Public Act 89-638 (Pub. Act 89-638,

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