Cincinnati Insurance Co. v. Chapman, 975 N.E.2d 203

CIC filed a declaratory judgment action in March 2010 seeking a ruling that it had no duty to defend or indemnify Phoenix for the underlying TCPA and related claims brought by Chapman.
Chapman had previously sued Phoenix alleging TCPA violations, Illinois Consumer Fraud claims, and common law conversion; the underlying TCPA matter settled in August 2009.
A December 7, 2010 status hearing and ongoing discovery prompted discussions of potential cross-motions for summary judgment, with no substantive ruling on the TCPA exclusion yet.
On December 8, 2010 Chapman moved for substitution of judge as of right under 735 ILCS 5/2-1001(a)(2), asserting all conditions were satisfied and no ruling on substantial issues had occurred.
CIC opposed the motion as untimely and argued Chapman waited to move after learning of a similar judge’s ruling in Vehicle Alignment, suggesting testing of the waters rather than an immediate right.
The circuit court denied the motion on January 10, 2011, and subsequently certified a Rule 308 question to this court; the court criticized potential wave of similar cases and discussed TCPA phase classifications.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether substitution of judge as of right was proper before a substantial ruling.	Chapman argues right to substitution should be granted because no ruling occurred yet and delay would not be prejudicial.	CIC contends the motion was untimely and should be denied since Chapman had opportunity to test the judge’s disposition in related matters.	Yes; substitution of judge as of right should have been granted.
Whether the circuit court’s sua sponte disclosure of a prior ruling tainted the process.	Chapman contends the judge’s prior-ruling disclosure to counsel did not constitute testing of waters and violated the remedy.	CIC asserts no improper disclosure occurred and that timing affected rule-application.	The court disapproved the sua sponte disclosure as improper and found it undermined the right.

In re Hoellen, 367 Ill. App. 3d 240 (Ill. App. 2006) (limits on denial when no testing of waters occurred; liberal construction of rights)
Beahringer v. Hardee's Food Systems, Inc., 282 Ill. App. 3d 600 (Ill. App. 1996) (liberal construction of substitution rights)
In re Estate of Gay, 353 Ill. App. 3d 341 (Ill. App. 2004) (testing waters principle for substitutions)
In re Marriage of Abma, 308 Ill. App. 3d 605 (Ill. App. 1999) (one substitution of judge as of right; discretion and timing considerations)
Fosse v. Pensabene, 362 Ill. App. 3d 172 (Ill. App. 2005) (Rule 308 certified-question review; de novo standard)
Indiana Ins. Co. v. Vehicle Alignment, Brake & Tires, Inc., No. 09 CH22676 (Cir. Ct. Cook Co. (2010)) (similar TCPA exclusion case; insurer prevailed)