Appellate Law

American Access Casualty Appeal Waived By Invited Error

By Steven R. Merican

Christine Siwek had an accident when she was driving Jerrold Erickson?s car. Christine told the Illinois Department of Transportation about the accident, and identified American Access Casualty Company as her insurer.
American told the Department that Christine?s policy had been canceled.

Christine claimed she never received a policy cancellation, so she sued American Access. She asked the trial court for a declaration that her policy with American Access covered her for the accident.

American Access raised affirmative defenses, claiming essentially that Christine hadn?t paid for the policy. Christine asked the court to dismiss American?s defenses, which it did four times.

When American filed its fourth amended affirmative defenses, Christine made a motion to dismiss the defenses. She also asked the trial court for summary judgment and for an award of attorney fees under Section 155 of the Illinois Insurance Code.

On the day of the hearing on Christine?s requests, American Access presented a letter conceding that Christine?s policy was in effect at the time of the accident. The trial court then entered judgment against American Access, and awarded Christine her attorney fees.

American Access appealed. The company claimed the trial court should not have dismissed the affirmative defenses, should not have awarded summary judgment, and should not have awarded attorney fees to Christine.

Pointing to the doctrine of ?invited error,? the First District Illinois Appellate Court ruled that American waived its arguments concerning its affirmative defenses and Christine?s summary judgment. So the appellate court refused to consider them. Here is the court?s analysis:

[T]he doctrine of invited error prohibits any party from complaining of an error on appeal "'which that party induced the court to make or to which that party consented.'"

It is quite clear that American made the strategic decision not to appeal from the dismissal of its affirmative defense, not to further challenge the plaintiffs' contention that they were entitled to insurance coverage for Siwek's accident, and to affirmatively certify to the Secretary of State that such insurance was indeed in effect. It was only after American took these actions that the trial court granted the plaintiffs' summary judgment motion, and only then did the plaintiffs and the Secretary of State seek an agreed order from the trial court dismissing the remaining count of the complaint. Under such circumstances, we refuse to further consider American's assertions that the trial court committed any error in dismissing its affirmative defenses or in ultimately granting summary judgment to the plaintiffs.

Read the whole opinion, Siwek v. White, No. 1-07-2600 (2/27/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on June 15, 2009 (boomark / email).