JUSTICE O'MALLEY delivered the opinion of the court:

Defendant and third-party plaintiff, Todd M. Carroll (Todd), appeals fromthe order of the circuit court of Carroll County denying his motion for summaryjudgment and granting plaintiff General Casualty Company's (General Casualty)cross-motion for summary judgment. Todd also appeals the trial court's orderdismissing as time-barred his third-party complaint against third-partydefendants Clark Carroll (Clark) and Law Insurance Agencies (Law). We affirm inpart, reverse in part, and remand the cause.

General Casualty filed a declaratory judgment action against Carroll TilingService, Inc. (Carroll Tiling), and Todd, seeking a determination that it was notrequired to provide workers' compensation coverage to Todd for the policy periodof April 1, 1999, to April 1, 2000. After the parties completed discovery,General Casualty and Todd filed cross-motions for summary judgment.

The undisputed facts in the record show that Todd was an employee ofCarroll Tiling. On May 14, 1999, he was injured while performing his duties forCarroll Tiling. Todd filed a workers' compensation claim against Carroll Tiling. General Casualty denied coverage and initiated this declaratory judgment action.

General Casualty was Carroll Tiling's workers' compensation insurancecarrier. Carroll Tiling obtained its workers' compensation policies throughClark. Clark worked for Law, and Law, in turn, was General Casualty's agent. In 1993, Carroll Tiling first obtained workers' compensation insurance fromGeneral Casualty. At that time, J. Craig Carroll (Craig), Todd's father andpresident of Carroll Tiling, was excluded from coverage under the workers'compensation policy. (We note that the efficacy of this withdrawal, either fromthe operation of the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq.(West 2000)) or from insurance coverage, is not raised by any party and weexpress no position on it.)

In 1997, Carroll Tiling sought to reduce its premium costs for workers'compensation insurance. On September 15, 1997, Todd, who was Carroll Tiling'svice president, and his mother, Vianne Carroll (Vianne), Carroll Tiling'ssecretary, both executed a written form requesting to be excluded from coverageunder General Casualty's workers' compensation policy. The form was entitled"Illinois Workers Compensation Benefits Rejection Form" and provided:

"If you are either the sole owner of your business or a businesspartner, Illinois'[s] workers compensation law automatically applies toyou. This means that you are automatically covered under your businessworkers compensation policy and that your payroll will be included when wecalculate the premium for your policy.

If you do not want to be covered under this policy, you mustspecifically reject the coverage by signing this form and returning it toyour agent."

In October 1997, General Casualty issued an endorsement, effective for the April1, 1997, to April 1, 1998, policy period, listing Todd and Vianne as individualsexcluded from coverage under the workers' compensation policy. Instead ofproviding a single endorsement sheet showing that Todd, Vianne, and Craig wereexcluded from the workers' compensation insurance policy, General Casualtycreated a second endorsement sheet listing only Todd and Vianne. Craig waslisted as excluded on another typewritten endorsement. As a result of excludingTodd and Vianne from the coverage of its workers' compensation insurance policy,Carroll Tiling's premiums were reduced by $1,236.

At the same time that Todd and Vianne were excluded from workers'compensation coverage, Clark advised Carroll Tiling to obtain major medicalinsurance. A policy providing major medical insurance covering Todd wassubsequently purchased.

The record demonstrates that, following the exclusion of Todd from workers'compensation insurance coverage, Carroll Tiling did not pay any premiumassociated with Todd's salary. In fact, Vianne specifically noted on an April28, 1998, audit form that Todd was excluded from coverage.

When the workers' compensation policy was renewed for the period April 1,1999 to April 1, 2000, General Casualty sent to Carroll Tiling a copy of thepolicy, which did not indicate that Todd was excluded from coverage; theexclusion endorsement listed only Craig as being excluded from coverage. GeneralCasualty explained that the omission occurred when the physical policy wasassembled for renewal and the person assembling the endorsements looked only fora single exclusion endorsement. Through happenstance, that person came upon thetypewritten exclusion of Craig first. As a result, the renewal policy wasassembled with only Craig being listed on the exclusion endorsement. GeneralCasualty maintains that Craig, Vianne, and Todd were shown as excluded fromcoverage on its computerized records. General Casualty maintains that theexclusion of Todd (and Vianne) was consistent with its billing practices afterSeptember 1997, to charge no premium for Todd's salary, as well as consistentwith the audits of Carroll Tiling's salaries performed after September 1997.

The record demonstrates that at no time after September 1997 did anyonefrom Carroll Tiling ever request, either orally or in writing, to reinstatecoverage for Todd under Carroll Tiling's workers' compensation policy. Likewise,no one from Carroll Tiling ever requested, either orally or in writing,specifically to exclude Todd from coverage at any time after September 1997.

When Todd was injured, he filed a workers' compensation claim, promptingGeneral Casualty's denial of coverage and the institution of this declaratoryjudgment action. Thereafter, Todd filed a third-party complaint against Clarkand Law. This complaint was filed both individually and as assignee of CarrollTiling. Todd alleged that Clark and Law breached their fiduciary duties to himand Carroll Tiling by failing to inform Todd that his election to be excludedfrom coverage in 1997 would be renewed each year and by failing to make sure thatTodd was covered by workers' compensation insurance.

Todd and General Casualty filed cross-motions for summary judgment. Thetrial court denied Todd's motion and granted General Casualty's motion, findingthat, by the terms of the contract at issue, unless a party took action to cancelthe contract, it automatically renewed for the following year with the same termsin place as were used in the previous year. Because there were no furthernegotiations to change or modify the terms of coverage between Carroll Tiling andGeneral Casualty, the court found that Todd was excluded from coverage by virtueof the September 1997 exclusion election. The trial court held that GeneralCasualty had clearly and convincingly proved that the failure to include Todd onthe physical copy of the exclusion endorsement was a clerical error.

In addition, Clark and Law filed a motion to dismiss, alleging that thetwo-year statute of limitations had run and that Todd's claim was time-barred. The court agreed, finding that the cause of action accrued no later than thefirst renewal following Carroll Tiling's election to exclude Todd from workers'compensation coverage. Todd timely appeals.

On appeal, Todd contends that the trial court erred by granting GeneralCasualty's motion for summary judgment. Summary judgment is appropriate wherethe pleadings, depositions, admissions, affidavits, and exhibits on file, whenviewed in the light most favorable to the nonmoving party, show that there is nogenuine issue of material fact and that the moving party is entitled to judgmentas a matter of law. 735 ILCS 5/2--1005(c) (West 2000); Jones v. Chicago HMOLtd., 191 Ill. 2d 278, 291 (2000). We review the trial court's grant of summaryjudgment de novo. Jones, 191 Ill. 2d at 291. Our function on an appeal from thegrant of summary judgment is limited to determining whether the trial courtcorrectly found that no genuine issue of material fact existed and, if that wasthe case, whether the trial court correctly entered judgment as a matter of law. State Farm Insurance Co. v. American Service Insurance Co., 332 Ill. App. 3d 31,36 (2002). Where the parties have filed cross-motions for summary judgment, theyagree that there are no factual issues present and that the cause presents onlylegal issues to resolve. State Farm, 332 Ill. App. 3d at 36. The court mustdetermine for itself, nevertheless, that there are no factual issues sufficientto preclude summary judgment, after which the court may determine the issuespresented as questions of law. State Farm, 332 Ill. App. 3d at 36.

As an initial matter, we note that Todd's initial argument appears to bebased on a faulty premise. Todd repeatedly argues that the trial courtdetermined "reformation [of the insurance contract] to be inappropriate" and that"it was not considering parol evidence." Todd then constructs his argument asif this court is bound to give deference to the trial court's determination onthe issues of reformation and parol evidence. We emphasize that our review isde novo and, therefore, we give no deference to the trial court's determinationof those issues; rather, if necessary, we determine the relevance andapplicability of those issues ourselves.

That said, we turn to Todd's contention that the trial court erred ininterpreting the workers' compensation policy as allowing General Casualty toexclude Todd from coverage in the absence of a written exclusion included withthe written policy sent to Carroll Tiling. Todd points to the provision of thepolicy that states:

"This policy includes at its effective date the Information Page andall endorsements and schedules listed there. It is a contract ofinsurance between you (the employer named in Item 1 of the InformationPage) [Carroll Tiling] and us (the insurer named on the Information Page)[General Casualty]. The only agreements relating to this insurance arestated in this policy. The terms of this policy may not be changed orwaived except by endorsement issued by us to be part of this policy."

Todd interprets the above-quoted passage as limiting the agreement to that whichis embodied in the written policy delivered to Carroll Tiling. According toTodd, the fact that General Casualty did not include an exclusion endorsementlisting Todd as excluded leads to the conclusion that Todd was covered by theworkers' compensation insurance policy. We disagree.

The construction of an insurance policy presents a question of law. StateFarm Mutual Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436, 441 (1998). When construing an insurance policy, the court is to ascertain and give effectto the intention of the parties as expressed in the agreement, according theterms used in the policy their plain and ordinary meanings. Villicana, 181 Ill.2d at 441. The court is to apply those terms as written, reading the policy asa whole and considering the type of insurance, the nature of the risks involved,and the overall purpose of the contract. Villicana, 181 Ill. 2d at 442. Last,the provisions of the policy are to be construed liberally in favor of theinsured and against the insurer. Villicana, 181 Ill. 2d at 442.

While we are in agreement with Todd that the provision he cites limits theterms of the insurance contract to those contained in the policy, we do not agreethat this provision ends our inquiry into the terms of the policy. On thecontrary, reading the policy as a whole, we note that the policy also providesthat General Casualty:

"may elect not to renew the policy. [General Casualty] will mail to eachnamed insured and to the broker or agent of record not less than 60 daysnotice stating when the nonrenewal will take effect. If [General Casualtydoes] not give 60 days but instead give[s] between 31 and 60 days, thepolicy will automatically be extended for 60 days. If [General Casualty]fail[s] to give 31 days notice, the policy will automatically be extendedfor one year." (Emphasis added.)

General Casualty reads this provision to mean, and we agree, that, where thepolicy is automatically renewed, it continues in force with exactly the sameprovisions as were in effect for the preceding year.

Therefore, in reviewing the language of the policy and the factual record,we note that in 1997 Todd agreed to allow Carroll Tiling to exclude him fromcoverage under its workers' compensation insurance policy. The record furtherdemonstrates that in each of the next two years, the policy automaticallyrenewed, with all of the terms intact from the previous year. The record isbarren of any further discussions between General Casualty and Carroll Tilingregarding any changes to the policy, as would be expected from the automaticoperation of the renewal provision. We also note that the renewal informationsheet of the policy indicates that endorsement WC000308, the officer exclusion,is a part of the policy. Each renewal policy also included the same provisionsas the preceding year's policy.

The factual record also indicates that, following the exclusion of Toddfrom workers' compensation coverage, Carroll Tiling did not pay any workers'compensation premium to cover Todd's salary. This information, however, isoutside the four corners of the contract. Generally, extrinsic evidenceregarding the terms of an unambiguous written agreement is inadmissible. O'Brienv. Cacciatore, 227 Ill. App. 3d 836, 845 (1992). Here, we find that the policywas ambiguous as a result of the merger clause and the automatic renewalprovision. Literally, the agreement consists only of whatever writings aredelivered to the insured. The issue here, however, is how the merger provisioninteracts with the automatic renewal provision where the writings delivered tothe insured do not reflect the terms of the agreement for the previous year andthe agreement has been automatically renewed. Based on this ambiguity, the courtcould properly consider extrinsic evidence to resolve this issue. Moreover, weread General Casualty's argument as suggesting that Todd's election to beexcluded from coverage was fraudulent or that it made a mistake in assembling thephysical policy to deliver to Carroll Tiling. Extrinsic evidence, such as thepremium payment information here, is admissible under an exception to the parolevidence rule where it is introduced to prove mistake or fraud. O'Brien, 227Ill. App. 3d at 845. As a result, we may consider the extrinsic evidence offeredby General Casualty to assist in resolving the ambiguity arising from theoperation of the merger and automatic renewal provisions.

Thus, the policy between Carroll Tiling and General Casualty appears toexclude Todd from coverage under the policy. Generally, and in the absence ofany special circumstances, the effect of the exclusion would be to relieveGeneral Casualty from paying workers' compensation insurance benefits on Todd'sbehalf.

This exclusion, however, comes in the context of workers' compensationinsurance and raises another question, namely, whether an employer can excludean employee from workers' compensation insurance. Turning to the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)), we find that, undercertain circumstances, an employee may be removed not only from insurancecoverage but also from the protection of the Act altogether. Section 3(17)(b)provides:

"The corporate officers of any domestic or foreign corporationemployed by the corporation may elect to withdraw themselves asindividuals from the operation of this Act. Upon an election by thecorporate officers to withdraw, written notice shall be provided to theinsurance carrier of such election to withdraw, which election shall beeffective upon receipt by the insurance carrier of such written notice. A corporate officer who thereafter elects to resume coverage under the Actas an individual shall provide written notice of such election to theinsurance carrier which election shall be effective upon receipt by theinsurance carrier of such written notice. For the purpose of thisparagraph, a 'corporate officer' is defined as a bona fide President, VicePresident, Secretary or Treasurer of a corporation who voluntarily electsto withdraw." 820 ILCS 305/3(17)(b) (West 2000).

(The version of section 3(17)(b) of the Act in effect in 1997 at the time ofTodd's election to withdraw himself from insurance coverage contained languagelimiting its effect to small businesses. The subsequent amendment of section3(17)(b) does not affect our analysis, as there is no issue raised regardingwhether Carroll Tiling's officers were eligible to utilize section 3(17)(b) ofthe Act.) Section 3(17)(b) of the Act allows a person who happens to be a bonafide president, vice president, secretary, or treasurer of a corporation towithdraw from the operation of the Act simply by notifying his insurer inwriting. In other words, by withdrawing from the protection of the Act, theperson cannot file a claim for workers' compensation benefits should the personotherwise qualify for them.

General Casualty has consistently asserted that Todd withdrew himself fromthe operation of the Act when, on September 15, 1997, he signed the form entitled"Illinois Workers Compensation Benefits Rejection Form." Similarly, Todd hasmaintained that the form was ineffective to withdraw him from the operation ofthe Act. Additionally, Todd argues that there is a genuine issue of materialfact surrounding the issue of whether he was a bona fide corporate officer asdefined in section 3(17)(b) of the Act. We will therefore examine the rejectionform in detail.

As noted above, the form is entitled "Illinois Workers CompensationBenefits Rejection Form." It further bears the legend, in large bold type,"NOTICE TO BUSINESS OWNERS OR PARTNERS," as well as the logo for the GeneralCasualty Companies. The form also contains one signature line for a soleproprietor and four signature lines for business partners. Finally, the formstates that Illinois workers' compensation law applies to the sole owner orbusiness partner and that the business's workers' compensation insuranceautomatically provides coverage. The form continues, "If you do not want to becovered under this policy, you must specifically reject the coverage by signingthis form." Nowhere does the form indicate that the signer will be withdrawingfrom the operation of the Act and be foreclosed from claiming benefits under theAct; instead the signer appears to withdraw only from insurance coverage with nomention being made of rejecting all workers' compensation benefits under the Act.

We find Todd's arguments to be the more persuasive here. The form appliesto insurance coverage only, with no mention of withdrawal from the operation ofthe Act or rejection of benefits under the Act. Further, that the rejection formis directed to a sole proprietor or business partner is also problematic. Whilethere is a dispute as to Todd's status as a corporate officer, there is nodispute that Todd was neither a partner in Carroll Tiling nor its soleproprietor.

In addition to the issues arising from the face of the rejection form, therequirements of section 3(17)(b) of the Act are not satisfied by the language ofthe form. Section 3(17)(b) states that the "corporate officers of any domesticor foreign corporation employed by the corporation may elect to withdrawthemselves as individuals from the operation of this Act" (820 ILCS 305/3(17)(b)(West 2000)) by providing written notice to the insurer. As the officers arewithdrawing from the operation of the Act, section 3(17)(b) implies that thewritten notice should inform both the officers as well as the insurer that thewithdrawal is from the Act and not only the insurance coverage. We hold,therefore, that the rejection form was ambiguous concerning Todd because itpurported to withdraw him from workers' compensation insurance coverage only andnot from the operation of the Act and because it was not directed to him in anyproper capacity. Applying the principles of insurance contract construction tothe ambiguous rejection form, we must construe the rejection form in Todd's favorand against General Casualty. See American States Insurance Co. v. Koloms, 177Ill. 2d 473, 479 (1997) (ambiguity to be construed against insurer); Ramirez v.State Farm Mutual Automobile Insurance Co., 331 Ill. App. 3d 77, 81 (2002)(same). Thus, at best, Todd's signature on the rejection form served to expresshis assent to being withdrawn from coverage under Carroll Tiling's workers'compensation insurance policy. The form did not withdraw Todd from the operationof the Act.

This conclusion raises a further question of whether an employer and itsinsurer are able to exclude an employee from insurance coverage under the Act. Under the Act, in order to assure that it will be able to pay its workers'compensation benefits, an employer may self-insure its workers' compensationliability, post a bond or other security to cover its workers' compensationliability, insure its entire workers' compensation liability through the purchaseof an insurance policy, or make some other arrangement to secure its liabilitythat is approved by the Industrial Commission. 820 ILCS 305/4(a) (West 2000). If the employer chooses to procure an insurance policy, such a policy constitutesthe "[i]nsurance of the obligations accepted by or imposed upon employers underlaws for workers' compensation." 215 ILCS 5/4(2)(d) (West 2000). By choosingto purchase insurance, therefore, Carroll Tiling purchased it for all of itsemployees, including Todd. As the rejection form was ineffective to withdrawTodd from the operation of the Act, it stands to reason that he was still underthe protection of the Act at the time of his injury.

This leads naturally to the issue of the effect the form has upon GeneralCasualty's obligation to Carroll Tiling and its employees. In other words, theissue becomes whether the withdrawal of Todd from insurance coverage was effective.

The Act provides that "[e]very policy of an insurance carrier, insuring thepayment of compensation under this Act shall cover all the employees and theentire compensation liability of the insured." 820 ILCS 305/4(a)(3) (West 2000). This provision, when read with the requirement that insurance obtained for anemployer's workers' compensation benefits liability must cover the entirety ofits liability, leads to the conclusion that the Act prohibits the withdrawal ofan individual employee from insurance coverage as well as prohibits an employerand its insurer from selectively omitting an employee from the coverage of apolicy an insurer has issued to an employer. This conclusion is borne out by theAct's command, "[a]ny provision in any policy, or in any endorsement attachedthereto, attempting to limit or modify in any way, the liability of the insurancecarriers issuing the same except as otherwise provided herein shall be whollyvoid." 820 ILCS 305/4(a)(3) (West 2000). As the rejection form was ineffectiveto withdraw Todd from the operation of the Act, and as the Act prohibits removinghim from insurance coverage, we hold that the rejection form was also ineffectivein removing him from coverage under the workers' compensation insurance policyissued by General Casualty. This conclusion is borne out by the considerationthat the Act prohibits General Casualty from issuing an insurance policy forfewer than all of Carroll Tiling's employees who are not bona fide corporateofficers who have properly withdrawn from the operation of the Act pursuant tosection 3(17)(b) of the Act. As it purported to do so by the endorsementexcluding Todd, the exclusion of Todd was void under section 4(a)(3) of the Act. As a result, Todd continued to be covered by the General Casualty insurancepolicy at the time of his accident.

General Casualty contends that an employer is free to remove an employeefrom insurance coverage at any time it wishes. According to General Casualty,the liability of the employer under the Act is not coextensive with that of theinsurer. As a result, the language of the policy is the sole determinant of theinsurer's liability. In support of this position, General Casualty relies uponBrodek v. Indemnity Insurance Co. of North America, 292 Ill. App. 363 (1937), Jennings v. Bituminous Casualty Corp., 47 Ill. App. 2d 243 (1964), and OhioCasualty Insurance Co. v. Southwell, 284 Ill. App. 3d 1019 (1996), While thecases generally support General Casualty's contention that the court must lookat the contract language to determine the insurer's liability, both the cases andGeneral Casualty's argument have little bearing on the issue here, namely, whatis the insurer's liability where it has acquiesced, even inadvertently, to anemployer's apparent violation of the requirements of the Act by seeking toprocure a workers' compensation insurance policy that does not provide coverageto a certain employee.

Brodek resolved a claim at law seeking to recover for an occupationaldisease. The plaintiff did not bring a workers' compensation claim. Theinsurance policy at issue covered only workers' compensation liability andspecifically declined to cover any other liability. Brodek, 292 Ill. App. at274. Because the claim brought in Brodek was clearly outside the coverage of theinsurance policy, it is distinguishable from this case.

Jennings is distinguishable, but it also provides some small guidance. There, the plaintiff was found not to be an employee of the employer and theinsurer was not required to provide a defense to the employer, as the defendantwas clearly outside the coverage of the insurance policy. Jennings, 47 Ill. App.2d at 249. The plaintiff argued that the insurer was estopped to deny coveragebecause it had accepted premiums based in part on the plaintiff's salary. Thecourt held that the acceptance of premiums was not a sufficient act or failureon the part of the insurance company to estop the insurer to point out that theplaintiff was not an employee of the employer. Jennings, 47 Ill. App. 2d at 251. Here, there is no question that Todd was an employee and would be otherwisecovered by the insurance policy. Further, Jennings can be read to support theposition that the payment of the premium is not determinative of coverage and,conversely, the nonpayment of the premium is similarly not determinative ofexclusion.

Southwell is also distinguishable. There, the issue was whether to applyIllinois or California law to a claim that occurred in Illinois. The plaintiffargued that Illinois law prohibited an insurer from limiting the territorialityof its insurance policy. The court decided that California law, which had nosuch prohibition, applied and that the insurance policy did not apply. Southwell, 284 Ill. App. 3d at 1023-24. Here, there is no choice-of-law issue,and the issue is squarely one of the interpretation of the Illinois Act. Southwell provides no guidance.

We note that General Casualty does not directly confront the issue we deemto be dispositive, namely, the effect on the insurer's liability of an attemptto exclude an employee from insurance coverage. Instead, General Casualtyasserts that the Act does not mandate any liability for an insurer, but only for the employer. We disagree. The Act provides that an insurer may be made a partyto an employee's workers' compensation claim. 820 ILCS 305/4(g) (West 2000). Additionally, it specifies that an insurance policy is to cover all of anemployer's employees. 820 ILCS 305/4(a)(3) (West 2000). Thus, the reach of theAct "goes beyond even the employer, to the insurance carrier, in order to protectthe injured worker." Employers Mutual Cos. v. Skilling, 256 Ill. App. 3d 567,573 (1994), rev'd in part on other grounds, 163 Ill. 2d 284 (1994).

General Casualty argues that Todd was a bona fide corporate officerpursuant to section 3(17)(b) of the Act and that the benefits rejection formoperated to withdraw him from the operation of the Act. Todd maintains that hewas no more than a sham officer given the title of vice president with no realcommensurate duties to correspond with his title. As we have determined that thebenefits rejection form was ineffective, both as written and because, as written,it violates the public policy embodied in the Act, we need not pass upon Todd'sstatus as a corporate officer.

Because we have found that Todd was still covered by the General Casualtyinsurance policy despite his signature on the benefits rejection form, we holdthat the trial court erred by granting summary judgment in favor of GeneralCasualty and denying summary judgment to Todd. As a result of our determination,we need not address Todd's remaining issues with respect to General Casualty'smotion for summary judgment. We now turn to the trial court's dismissal ofTodd's third-party claims against Clark and Law.

Todd argues that the trial court erred by dismissing his third-partycomplaint against Clark and Law on the basis that it was not timely. In histhird-party complaint, Todd alleged that Clark and Law breached their fiduciaryduties to Carroll Tiling and to Todd by failing to inform Todd that he might beexcluded from coverage after signing the exclusion election in 1997 and byfailing to procure coverage for Todd thereafter. (We note that Todd's claimsagainst Clark and Law are raised both individually and as assignee of CarrollTiling.) Clark and Law filed a motion to dismiss pursuant to section 2--619 ofthe Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2000)). We reviewde novo the grant of a section 2--619 motion to dismiss. Indiana Insurance Co.v. Machon & Machon, Inc., 324 Ill. App. 3d 300, 302 (2001).

Clark and Law argue that, under section 13--214.4 of the Code (735 ILCS5/13--214.4 (West 2000)), Todd's third-party complaint was not filed within twoyears of accrual. Todd argues that his causes of action against Clark and Lawaccrued upon his injury but that the discovery rule tolled the two-year statuteof limitations until General Casualty's denial of workers' compensation coverageto Todd. The issues we are to decide, therefore, are the date at which Todd'scauses of action against Clark and Law accrued and whether the discovery ruleshould be employed to toll the statute of limitations, keeping in mind whetherthe claim is Todd's individually or the claim is Carroll Tiling's assigned toTodd.

Section 13--214.4 provides:

"Actions against insurance producers, limited insurancerepresentatives, and registered firms. All causes of action brought byany person or entity under any statute or any legal or equitable theoryagainst an insurance producer, registered firm, or limited insurancerepresentative concerning the sale, placement, procurement, renewal,cancellation of, or failure to procure any policy of insurance shall bebrought within 2 years of the date the cause of action accrues." 735 ILCS5/13--214.4 (West 2000).

Section 13--214.4 thus requires that "all causes of action brought by any personor entity under any theory against an insurance producer shall be brought withintwo years of the date the cause of action accrues." (Emphasis in original.) Machon, 324 Ill. App. 3d at 303.

Generally, accrual of a cause of action in tort has been treateddifferently from accrual of a cause of action in contract. Machon, 324 Ill. App.3d at 303. Most causes of action in tort accrue when the plaintiff suffersinjury; causes of action in contract and causes of action in tort arising out ofa contractual relationship accrue at the time of the breach of the contract. Machon, 324 Ill. App. 3d at 303. This distinction serves to prevent theplaintiff from waiting after a breach of contract in order to increase hisdamages. Machon, 324 Ill. App. 3d at 303.

We consider first Todd's individual claim against Clark and Law. Here,Todd claims that Clark and Law breached their fiduciary duties to Todd. Toddalleges that Clark and Law both breached their fiduciary duties when they failedto inform Todd about the effects of signing the exclusion election (this breachoccurred in 1997) and failed to provide workers' compensation coverage to Toddafter the 1997 exclusion from coverage ended. Because the policy automaticallyrenewed with the same terms as the preceding year, Clark and Law would have hadto procure such coverage beginning on April 1, 1998. Thus, the breach of theirduties allegedly occurred on April 1, 1998, the renewal date of the policy,requiring Todd's third-party complaint against Clark and Law to have been filedby April 1, 2000. As the third-party complaint was not filed until May 2001, itis untimely under section 13--214.4. In addition, Clark and Law failed toprocure coverage for Todd at the beginning of the next renewal period, April 1,1999. By a similar analysis, this claim is still untimely, because thelimitations period expired on April 1, 2001, and Todd's claim was not filed untilMay, 2001, after the limitations period expired.

Todd argues that his claims against Clark and Law are not time-barredbecause he did not discover them until General Casualty denied his workers'compensation claim. Todd argues that this was the earliest date at which hecould have discovered his individual claim against Clark and Law because thepolicy delivered to Carroll Tiling was consistent with Todd's understanding thathe was not excluded from coverage. (It should be remembered that the writtenpolicies delivered to Carroll Tiling did not list Todd as being excluded fromworkers' compensation coverage; only Craig was listed as excluded.) We agreethat the discovery rule operates to toll the limitations period in this case.

In Broadnax v. Morrow, 326 Ill. App. 3d 1074 (2002), the court employed thediscovery rule in regard to a plaintiff's claim against his insurance agent. There, the plaintiff had procured fire insurance and filed a claim after hisbuilding was damaged in a fire. The insurance company denied coverage becausethe plaintiff had not complied with a vacancy provision of the policy and, on May10, 1996, filed a declaratory judgment action seeking a declaration of nocoverage. On September 1, 1999, the plaintiff filed a negligence action againstthe insurance agent for obtaining a policy that did not allow the plaintiff toleave his building vacant. Broadnax, 326 Ill. App. 3d at 1076-77. The court,determining that the relationship between the plaintiff and the insurance agentwas fiduciary, held that the discovery rule applied. Broadnax, 326 Ill. App. 3dat 1079. The court concluded that the limitations period commenced on May 10,1996, the date on which the insurer filed the declaratory judgment action,because on that date, the plaintiff knew or reasonably should have known that thepolicy procured by the insurance agent contained a vacancy provision with whichthe plaintiff had not complied. Broadnax, 326 Ill. App. 3d at 1081.

We find Broadnax to be directly on point. Here, Todd alleges that Clarkand Law had a fiduciary obligation to make sure that he was covered by workers'compensation insurance. He alleges that the written policies delivered toCarroll Tiling did not indicate that he was excluded from coverage. Todd alsoalleges that it was only on February 8, 2000, when General Casualty filed itsdeclaratory judgment action, that Todd knew or reasonably should have known thatClark and Law had not procured for him workers' compensation insurance coverage. Accepting these allegations as true, as we must when reviewing a motion todismiss, we hold that, on February 8, 2000, the tolling of the statute oflimitations ceased and Todd's two-year period for filing this action commenced. Because Todd's individual claims against Clark and Law were filed on May 9, 2001,the third-party complaint was filed within the two-year period pursuant tosection 13--214.4 of the Code. The trial court erred by dismissing Todd'sindividual third-party claims against Clark and Law.

Clark and Law attempt to distinguish Broadnax. Clark and Law argue thatBroadnax retains the date of breach as the date of accrual of the cause ofaction. That may be true, but they ignore the fact that Broadax employed thediscovery rule to toll the statute of limitations. Thus, Broadnax stands for theproposition that, when an insurance agent owes a fiduciary duty to an insured,a cause of action for breach of that duty accrues at the time of the breach, butthe statute of limitations is subject to tolling by application of the discoveryrule. In other words, the insured's cause of action would not be premature iffiled before incurring damages. Nevertheless, under the facts of Broadnax andunder the facts alleged in Todd's third-party complaint, the statute oflimitations also is tolled until discovery of the breach, which here and inBroadnax occurred as of the filing of the declaratory judgment action by theinsurer.

Clark and Law do not address the effect of employing the discovery rule totoll the running of the statute of limitations, instead focusing only upon thedate of breach of their alleged fiduciary duty to Todd. We find that Broadnaxproperly controls our determination of whether Todd's individual third-partyclaims were timely filed.

We now consider Todd's assigned claims. Todd makes essentially the samematerial allegations as in his individual claims. We find the assigned claimsto be materially different from the individual claims for the purposes of ourstatute of limitations analysis. Craig testified in his deposition that he knewthat Todd had elected to withdraw himself from the operation of the Act. Hetestified that he knew Todd had not elected to resume coverage under the Act andhad never made that request of General Casualty. At the time of the renewal ofthe workers' compensation insurance policy, Craig testified that Todd was not andwould not be covered by the insurance. Thus, here, Carroll Tiling had actualknowledge that Todd would not be covered. (We note that, in light of ourdetermination that Todd's withdrawal was ineffective and that General Casualty'sinsurance policy still provided coverage for Todd, it would appear that histhird-party claims are moot. That issue, however, is not before us. We areasked to review only whether the trial court properly granted Clark and Law'smotion to dismiss on the basis that the claims were time-barred and make nostatement as to the ultimate merits and viability of Todd's third-party claims.) Because it had actual knowledge of Todd's exclusion from coverage under theworkers' compensation insurance policy, Carroll Tiling cannot invoke thediscovery rule to toll the running of the statute of limitations.

Clark and Law argue that Broadnax reaffirmed the date of breach as the dateof accrual of a cause of action arising out of a tort (breach of fiduciary duty)based on a contractual relationship. We agree. Thus, we hold that CarrollTiling's claims against Clark and Law accrued as of the date of the breach,namely, the date of renewal when Clark and Law allegedly failed to procurecoverage for Todd. The workers' compensation insurance policy automaticallyrenewed on April 1, 1998, and April 1, 1999. Thus, the latest date CarrollTiling's claims could have been filed was April 1, 2001. Todd filed his assignedclaim against Clark and Law on May 14, 2001, which was after the statute oflimitations had expired. (We note that Todd also alleges, in the assigned claim,that Clark and Law failed to advise Carroll Tiling of the effect of electing tobe excluded from the operation of the Act. This breach occurred on September 15,1997, and, because Carroll Tiling had actual notice of Todd's election, that isanother accrual date for the claim against Clark and Law. The statute oflimitations for the claim based on Clark's and Law's alleged failure to advisetherefore expired on September 15, 1999.) We hold, therefore, that the trialcourt properly dismissed Todd's assigned third-party claims against Clark andLaw.

For the foregoing reasons, we reverse the judgment of the circuit court ofCarroll County granting General Casualty's motion for summary judgment anddenying Todd's cross-motion for summary judgment. We reverse the trial court'sdismissal as untimely of Todd's individual third-party complaint but affirm thedismissal of Todd's assigned third-party complaint based on Carroll Tiling'srights against Clark and Law. We remand this cause to the circuit court ofCarroll County for the entry of an order denying General Casualty's motion forsummary judgment and granting Todd's cross-motion for summary judgment and forfurther proceedings consistent with this order.

Affirmed in part and reversed in part; cause remanded.

BOWMAN and GILLERAN JOHNSON, JJ., concur.

JUSTICE O'MALLEY delivered the opinion of the court:

General Casualty filed a petition for rehearing alleging that this court overlookedand misapprehended certain points. We allowed General Casualty's petition for rehearing. We note that, generally, General Casualty seeks simply to reargue the points we decidedagainst it on appeal. Therefore, we will not further consider those points. GeneralCasualty does, however, develop an argument on rehearing that is not repetitive and thatalleges that we failed to properly apply the holding of D. Mayer Landscaping, Inc. v.Industrial Comm'n, 328 Ill. App. 3d 853 (2002), to the facts of this case. Accordingly,we will address General Casualty's contentions on this point.

In D. Mayer, the decedent was the president of a landscaping business. In 1995,he was killed when his lawnmower tipped over and crushed him while he was mowing on ahill. His wife, the claimant, sought workers' compensation benefits, but her claim wasdenied because the decedent was an excluded corporate officer under section 3(17)(b) ofthe Act (820 ILCS 305/3(17)(b) (West 2000)). D. Mayer, 328 Ill. App. 3d at 855.

The appellate court noted that the circuit court's initial judicial review invokedthe dual capacity doctrine to find that the decedent was covered by the Act as an employeeeven if the decedent had elected to withdraw from the Act as an officer. D. Mayer, 328Ill. App. 3d at 856. The court disposed of this contention by noting that section3(17)(b) of the Act allowed the officers to " 'withdraw themselves as individuals fromthe operation' " of the Act. D. Mayer, 328 Ill. App. 3d at 858, quoting 820 ILCS305/3(17)(b) (West 1998). According to the court, this meant that the officer withdrewhimself in all capacities, officer or employee, such that there would be no coverage underthe Act regardless of the nature of the work being performed at the time of the injury. D. Mayer, 328 Ill. App. 3d at 858.

Next, the court found that the claimant had waived consideration of her argumentthat the written notice was ineffective to withdraw the decedent from the operation ofthe Act. D. Mayer, 328 Ill. App. 3d at 859. Last, the court held that, as a result ofthe decedent's decision to withdraw himself from the operation of the Act, the claimantdid not have an independent right to recover benefits under the Act. D. Mayer, 328 Ill.App. 3d at 859-60. In determining that the claimant had no claim for benefits as asurvivor because there was no statutory basis for such a survivor's claim, the courtstated that, "pursuant to the language in section 3(17)(b) of the Act, if an officerelects to not be covered by a workers' compensation policy, the Act does not apply atall." D. Mayer, 328 Ill. App. 3d at 860.

General Casualty argues that D. Mayer controls the outcome of the instant case. General Casualty argues that the court's holding that, "if an officer elects to not becovered by a workers' compensation policy, the Act does not apply at all," is dispositiveof Todd's arguments on appeal. We agree that the quoted phrase would be dispositive, butonly if we ignored what D. Mayer was called upon to decide. Looking at what was decidedin D. Mayer demonstrates that the issue we are called upon to decide here was neitherpresented nor decided in D. Mayer. Further, in focusing on the purportedly dispositivephrase, General Casualty ignores the court's pronouncement that "[t]he insurance policycannot form a basis for exclusion unless the Act so authorizes. As a result, thestatutory exclusion controls the nature of the exclusion under the insurance policy." D. Mayer, 328 Ill. App. 3d at 858-59. This passage undercuts General Casualty's argumentand demonstrates that the language of the Act requires that an officer withdraw himselffrom the operation of the Act. Thus, our holding is consistent both with the Act and withD. Mayer.

In D. Mayer, the court decided whether the survivor-claimant had an independentbasis for recovery under the Act and whether the dual capacity doctrine allowed thesurvivor-claimant to recover on the decedent's behalf. Significantly, the court expresslyrefused to consider the claimant's arguments on the sufficiency of the written notice,holding that they were waived. D. Mayer, 358 Ill. App. 3d at 859. Here, the sufficiencyof notice comprises the primary issue in this case. As D. Mayer expressed no judgmenton that issue, it cannot be considered to be controlling here.

In addition, we note that General Casualty misapprehends the basis of our decision. The Act provides:

"The corporate officers of any domestic or foreign corporation employed bythe corporation may elect to withdraw themselves as individuals from the operationof this Act. Upon an election by the corporate officers to withdraw, writtennotice shall be provided to the insurance carrier of such election to withdraw,which election shall be effective upon receipt by the insurance carrier of suchwritten notice." 820 ILCS 305/3(17)(b) (West 2000).

Here the written notice did not provide that Todd was withdrawing from the operation ofthe Act. Thus, it was not effective to withdraw Todd from the operation of the Act.

Further, the fact that General Casualty created the form and it became a part ofthe insurance contract compounds the problem for General Casualty, because even if theform were ambiguous, we would construe it against General Casualty. Thus, in our view,the fact that the words used on the form served only to withdraw Todd from insurancecoverage and not from the operation of the Act controls the outcome. This central premiseof our holding remains unaddressed by General Casualty in its petition for rehearing anddoes not conflict with D. Mayer, where there was no issue about the efficacy andsufficiency of the decedent's notice to withdraw from the operation of the Act. As aresult, we issue this supplemental opinion on rehearing which clarifies our decision, butour original holding remains unchanged.

For all of the foregoing reasons, the judgment of the circuit court of CarrollCounty is affirmed in part and reversed in part, and the cause is remanded for furtherproceedings consistent with both this opinion and supplemental opinion.

Affirmed in part and reversed in part; cause remanded.

BOWMAN and GILLERAN JOHNSON, JJ., concur.