Safeway Insurance Co. v. Ebijimi, 117 N.E.3d 1227

On Jan. 20, 2006 Beatrice Ebijimi was injured by an uninsured motorist; she submitted an uninsured-motorist (UM) claim under her mother Dada’s Safeway policy and demanded arbitration (Mar. 13, 2006).
Safeway requested standard proof: completed UM claim forms, independent medical exam (IME), sworn statements, and proof the tortfeasor (Patricia Tyson) was uninsured (including IDOT certification).
Ebijimis’ counsel (Robert Langendorf) obtained an Affirmative Insurance letter indicating policy cancellation, sent it to Safeway’s counsel, and alleged repeated telephone statements from Safeway’s counsel that Safeway would not act without an IDOT certification and that further steps would be futile.
AAA arbitration was filed in Feb. 2008 but closed for nonpayment of Safeway’s share of fees; counsel later refiled arbitration in Feb. 2013 and Safeway still did not pay; Safeway sued for declaratory judgment and to stay arbitration (May 7, 2013).
Trial court: denied substitution of judge; struck Langendorf’s entire affidavit; granted summary judgment for Safeway finding failure to satisfy Conditions 3 (notice) and 10 (proof/IME/oath); dismissed counterclaim and third-party complaint.
Appellate court: affirmed denial of judge substitution; held trial court improperly struck material parts of Langendorf’s affidavit; reversed summary judgment and dismissals; remanded for further proceedings on estoppel/waiver issues and counter/third-party pleadings.

Issue	Plaintiff's Argument (Safeway)	Defendant's Argument (Ebijimis)	Held
Substitution of judge	Motion untimely; court had made substantive rulings and movant had chance to "test the waters"	Denied right to substitute judge as of right	Affirmed denial (no error)
Motion to strike Langendorf affidavit	Affidavit violates Ill. S. Ct. R. 191(a): conclusory, hearsay, lacks foundation	Affidavit contains personal-knowledge facts about communications that create factual disputes	Trial court erred to strike affidavit in whole; some conclusory paragraphs properly stricken but key paragraphs should have been retained
Summary judgment re: policy conditions (Notice, Proof/IME)	Policy conditions unmet; no coverage; summary judgment proper	Safeway induced reliance by insisting on IDOT certification (not a policy condition), so estoppel/waiver preclude relying on those conditions	Reversed summary judgment: genuine issues of material fact exist on estoppel and waiver; notice likely satisfied; remand
Dismissal of counterclaim and third-party complaint	Summary judgment mooted counter/third-party claims; no cause of action under §155 against opposing counsel/firm	Counterclaim remained pending; third-party claims may allege consumer fraud and other theories	Reversed dismissals; counterclaim remains pending; third-party complaint may proceed or be amended on remand (but §155 applies only to insurers)

Travelers Insurance Co. v. Eljer Mfg., 197 Ill. 2d 278 (Illinois Supreme Court) (summary judgment is a drastic remedy and reviewed de novo)
Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90 (Illinois Supreme Court) (standard of review for summary judgment)
Murphy v. Urso, 88 Ill. 2d 444 (Illinois Supreme Court) (only tainted portions of affidavit should be stricken)
West American Ins. Co. v. Yorkville Nat’l Bank, 238 Ill. 2d 177 (Illinois Supreme Court) ("as soon as practicable" notice can tolerate long delay)
Davis v. United Fire & Casualty Co., 81 Ill. App. 3d 220 (insured estopped insurer from later relying on failure-to-provide-documents defense after insurer gave flat denial)
Heneghan v. State Sec. Ins. Co., 195 Ill. App. 3d 447 (insurer estopped from invoking arbitration delay where insurer’s conduct induced forbearance)
Emcasco Ins. Co. v. Alvarez, 110 Ill. App. 2d 307 (demand for arbitration does not automatically excuse failure to submit to medical exam where insurer did not induce inaction)
Chatham Corp. v. Dann Ins., 351 Ill. App. 3d 353 (elements of estoppel in insurance context)