Safeco Insurance Company v. Jelen

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-06-0681 Rel

Case Date: 04/10/2008

Preview:No. 3-06-0681 _________________________________________________________________ Filed April 10, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 SAFECO INSURANCE COMPANY as subrogee of IOLA BEDNAR, ) Appeal from the Circuit Court ) of the Ninth Judicial Circuit ) Warren County, Illinois, and Plaintiff-Appellant, ) from the Circuit Court of Cook ) County, Illinois, First ) Municipal District v. ) ) No. 05-L-25 (Warren County) ) 05-MI-16476 (Cook County) ) SUSAN M. JELEN, AVIS RENT A ) Honorable CAR SYSTEM, INC., STEVEN E. ) Gregory McClintock GREGORY, JEFF GREGORY, and ) Judge Presiding, Warren County STANLEY GREGORY, ) ) Honorable ) Cassandra Lewis Defendants-Appellees. ) Judge Presiding, Cook County _________________________________________________________________ JUSTICE LYTTON delivered the Opinion of the Court: _________________________________________________________________ Plaintiff, Safeco Insurance Company, brought an action against defendants, Susan Jelen, Avis Rent A Car System, Inc., Steven Gregory, Jeff Gregory and Stanley Gregory, for subrogation to recover medical expenses it paid on behalf of its insured, Iola Bednar, after Bednar was injured in an automobile accident. The

complaint was initially filed in Cook County and then transferred to Warren County. Defendants filed motions to dismiss pursuant to

sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004); 735 ILCS 5/2-619 (West 2004)). trial court granted the motions. The

Safeco appeals, arguing that the

trial court erred in (1) granting the 2-615 motions to dismiss, (2) granting the 2-619 motions to dismiss, and (3) transferring the case to Warren County. We affirm in part and reverse in part.

On May 12, 2004, Iola Bednar, a Minnesota resident, was injured in an automobile accident in Warren County, Illinois. Bednar was a passenger in a minivan that collided with a truck driven by Steven Gregory and owned by Jeff and Stanley Gregory. The Gregorys are all residents of Illinois. The minivan was driven by Susan Jelen, a Minnesota resident, and owned by Avis Rent A Car System, Inc., a company licensed to do business in Illinois. Bednar was insured by Safeco Insurance Company, a company licensed to do business in Illinois and Minnesota. As a result of

the accident, Safeco paid $20,000 for Bednar's medical expenses. Safeco brought suit, as subrogee of Bednar, against Jelen, Avis and all three Gregorys to recover the $20,000 it paid on Bednar's behalf. In the complaint, Safeco alleged that Jelen was negligent

in driving the minivan (Count I), that Avis was legally responsible for Jelen's negligence based on an agency theory (Count II), that Steven Gregory was negligent in driving the truck (Count III), and that Jeff and Stanley Gregory were legally responsible for Steven's negligence based on a theory of agency (Counts IV and V). Safeco initially filed its complaint in Cook County. The

Gregorys filed a motion to transfer venue and then requested the court to treat the motion as a motion to transfer on the grounds of forum non conveniens. basis. 2 The trial court granted the motion on that

After the case was transferred to Warren County, defendants filed numerous motions to dismiss. Jelen and Avis moved to dismiss Counts I and II of the complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)), alleging that Minnesota's nofault law should be applied to bar Safeco's subrogation claims. The Gregorys adopted and joined that motion. Jeff and Stanley

Gregory also filed motions to dismiss Counts IV and V of the complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2004)), alleging that Steven was not acting as their agent or employee at the time of the accident. The motions were supported

by affidavits from all three Gregorys, stating that Steven was using the vehicle for his own personal use when the accident occurred. The trial court granted defendants' 2-615 motions to dismiss, finding that Safeco's subrogation claim was a contract claim governed by Minnesota law, which precluded Safeco from seeking subrogation. The trial court also granted Jeff and Stanley

Gregory's 2-619 motion to dismiss, finding that there was no agency liability.

ANALYSIS I. 2-615 MOTIONS TO DISMISS A. Safeco argues that the trial court erred in granting the 2-615 motions to dismiss Counts I through III of its complaint, asserting that Illinois law should be applied in this case, and that under 3

Illinois law, it can proceed on its subrogation claim.

Defendants

respond that the trial court properly granted their motions to dismiss because Minnesota law should apply to preclude Safeco's claim for subrogation. The pivotal issue in this case is whether Safeco's subrogation claim is a tort claim or a contract claim. Resolution of this If

issue determines whether Illinois or Minnesota law applies.

Minnesota law applies, Safeco may not seek subrogation against any of the defendants because Minnesota law forbids it. See Minn.

Stat.

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