delivered the opinion of the court:
The circuit court granted summary judgment to defendant Founders Insurance Company on its counterclaim in a declaratory action filed by plaintiff Mid-Century Insurance Company contesting its duty to indemnify its insured for liability arising from a traffic accident. Each insurance company provided automobile insurance to Bryan and Daniella Berry, who are not parties to this appeal, having signed a stipulation not to contest the declaratory judgment action. The underlying suit arose when Bryan Berry, while driving his Chevrolet Cavalier, collided with Lisa Villarreal, a pedestrian, on February 23, 2005. Prior to the accident, Founders had issued an automobile insurance policy covering the Berrys’ Cavalier. The Berrys also held an insurance policy with Mid-Century, which they believed covered their Dodge Durango; however, Mid-Century issued the policy listing the Cavalier as the covered vehicle. Lisa Villarreal filed a personal injury suit against Bryan, which Founders settled for $100,000. Following the filing of cross-motions for summary judgment, Judge Rita Mary Novak found in favor of Founders on its counterclaim, ruling that Mid-Century owed an equitable contribution of $50,000 for the settlement. We hold that equitable contribution cannot be imposed on Mid-Century because the insurance contract between the Berrys and Mid-Century did not provide coverage for the Cavalier at the time of Bryan’s accident. We enter summary judgment in favor of Mid-Century in its declaratory action and reverse.
BACKGROUND
In an evidence deposition, Daniella Berry testified that prior to 2005, the Berrys insured both their Chevrolet Cavalier and their Dodge Durango with Mid-Century under separate policies. Each policy came up for renewal in January 2005. The Berrys decided to allow the insurance policy on the Cavalier to lapse in February by not paying the premium. On February 7, 2005, the Berrys were issued a binder for an automobile policy by Founders covering the Cavalier. The Founders policy was issued the following day. The Berrys intended to continue the coverage with Mid-Century on the Durango.
In its amended complaint for a declaratory judgment, Mid-Century admitted that it cancelled the Berrys’ policy on the Cavalier on February 2, 2005, for nonpayment of premiums. While Mid-Century points to the “undisputed fact” that Daniella’s “intent [was] to let the policy for the Chevy Cavalier vehicle operated by her husband, involved in the February 23, 2005[,] motor vehicle occurrence lapse,” its sole mention of the Durango policy in its motion for summary judgment is relegated to a footnote: “Daniella and Bryan Berry had a policy of insurance with Mid-Century insuring another vehicle, a Durango [,] which is not at issue in this litigation.”
According to Daniella’s deposition testimony, sometime in early February 2005, a Mid-Century agent informed the Berrys via a telephone call that due to the agent’s error, the policy covering their Durango had lapsed at the same time as the policy covering the Cavalier. The agent instructed the Berrys to send in a payment of $250 to Mid-Century to reinstate the Durango policy. After making the payment, the Berrys received an insurance card from Mid-Century, listing the Durango as the covered vehicle. However, Mid-Century’s declaration of insurance, dated February 10, 2005, and titled a “reinstatement,” listed the Cavalier as the insured vehicle, which, though mailed to the Berrys, went unread.
On February 23, 2005, Bryan, while driving the Cavalier, collided with Lisa Villarreal, a pedestrian. Bryan duly reported the accident to Founders. On March 14, 2005, Daniella cancelled the Mid-Century policy, which she believed covered the Durango, to obtain coverage for both vehicles from a single insurance company. Mid-Century’s notice of cancellation, issued March 14, 2005, listed the Cavalier as the covered vehicle.
On December 22, 2006, Lisa Villarreal filed suit against Bryan for the personal injuries she received in the accident. In March 2007, Bryan sent Mid-Century a copy of the Villarreal lawsuit involving the Cavalier. In April 2007, Mid-Century sent Bryan a letter denying coverage for the February 23, 2005, accident. On September 27, 2007, Ms. Villarreal settled her lawsuit against Bryan for $100,000, the per-person liability limit under the Founders policy, which Founders satisfied on October 16, 2007. The Mid-Century policy provided the same liability limit.
In April 2008, Mid-Century filed its declaratory action, in which Founders filed its counterclaim for equitable contribution. Judge Novak, relying on the Illinois Supreme Court decision in Copley v. Pekin Insurance Co.,
ANALYSIS
Summary judgment is warranted when “the pleadings, depositions, and admissions on file, together with any affidavits, when viewed in the light most favorable to the nonmovant, reveal there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Midwest Trust Services, Inc. v. Catholic Health Partners Services,
While Mid-Century’s overall claim is that its policy provided no coverage for the Berrys’ Cavalier at the time of the traffic accident, it asserts two narrower issues on appeal: (1) the “automatic termination provision” in its policy voids coverage for the accident; and (2) it received untimely notice of the accident. Founders responds that the circuit court properly entered summary judgment on its counterclaim because the “automatic termination provision” is ambiguous and not self-executing and the circuit court properly rejected the “notice” issue because reasonable notice was given under the circumstances.
Overlapping Coverage Question
Setting aside for the moment the precise issues raised by the appellant Mid-Century, we find it necessary to first address on our de novo review whether this case falls within the holding of our supreme court’s decision in Copley v. Pekin Insurance Co.,
Although the parties did not address this threshold issue of coverage in the trial court and both parties proceed before us under the assumption that the two policies provided overlapping insurance coverage, it is within our discretion to address this possibly dispositive issue. See 155 Ill. 2d R. 366(a)(5) (a reviewing court may, in its discretion, “enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief’). In an effort to refine the preliminary issue before us, prior to oral argument, we directed the parties to file supplemental briefs on whether there was a meeting of the minds between the Berrys and Mid-Century to reinstate the lapsed insurance contract. The supplemental briefs, however, fail to discuss the position the Berrys would likely have taken on appeal. See People v. Givens,
While generally issues not raised at the circuit court level are considered waived, “a reviewing court does not lack authority to address unbriefed issues and may do so *** when a clear and obvious error exists in the trial court proceedings.” Givens,
Instead, our analysis is aimed at deciding whether equitable contribution applies under the circumstances in this case. We believe the passive role of the Berrys in the litigation below skewed the circuit court’s analysis from determining the intention behind the “reinstatement” policy issued by Mid-Century on February 10, 2005, to one centering on the counterclaim filed by Founders.
We begin our analysis by addressing whether the insurance contract entered into between the Berrys and Mid-Century provided coverage for the Cavalier, as Mid-Century and Founders presume, or the Durango, as the Berrys and the agent for Mid-Century agreed in seeking and making the premium payment, in order to provide “for a just result and for the maintenance of a sound and uniform body of precedent.” Hux v. Raben,
“An insurance policy is a contract, and the general rules governing the interpretation of other types of contracts also govern the interpretation of insurance policies.” Hobbs v. Hartford Insurance Co. of the Midwest,
The undisputed facts of this case compel us to consider whether a mutual mistake of fact occurred between the Berrys and Mid-Century that undermines the presumption of the two insurance companies before us that the reinstated insurance policy by Mid-Century afforded coverage to the Cavalier, rather than the Durango. If a mutual mistake of fact occurred regarding the coverage provided by the insurance contract, the contract will be interpreted consistent with the intentions of the parties. Beddow v. Hicks,
A mutual mistake of fact occurs when the parties reach a good-faith agreement, but that agreement “is not expressed in the written reduction of the agreement” due to error. Beynon Building Corp. v. National Guardian Life Insurance Co.,
There is no dispute that the Berrys sought to continue coverage for only the Durango when both of their automobile policies with Mid-Century were up for renewal in January 2005. The Berrys had an existing policy providing coverage for the Durango and only needed to keep the premium current to continue the coverage. The agent for Mid-Century that called the Berrys regarding the lapse of their policy expressed the intention to reinstate the Durango policy upon receipt of the premium payment. Consistent with this shared intention between the Berrys and Mid-Century that the reinstated policy would provide coverage for the Durango, the Berrys received an insurance card from Mid-Century that identified the Durango as the covered vehicle. The mistake shared by the contracting parties is that the “reinstatement” policy identified the Cavalier, rather than the Durango, as the covered vehicle. 1
If the Berrys were before us seeking to reform the Mid-Century policy to provide coverage for the Durango, their contention would appear to be on solid legal ground. “Where the contracting parties to a policy of insurance make a mistake and the policy fails to express the real contract between them, and provisions other than those intended are inserted or omitted, equity has the right to grant relief by reformation of the contract.” Stoltz v. National Indemnity Co. of Omaha, Nebraska,
The Berrys, as the insured under the Mid-Century policy, however, are not before us, having stipulated to accept the outcome in the declaratory action. Consequently, we do not have the benefit of all the parties to the Mid-Century policy “ ‘to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.’ ” Givens,
With the Berrys absent, Founders seeks to stand in the shoes of the Berrys to enforce an insurance policy that, according to its written terms, covered the Berrys’ Cavalier at the time of Bryan’s accident. However, there can be no real dispute that the actual agreement between the Berrys and Mid-Century was for coverage of the Durango. It is also clear that the Berrys never intended for the Cavalier to be covered under two different insurance policies providing the same liability protection. Their clear intention in February 2005 was to cover each vehicle under different policies from separate insurance companies. Founders, while claiming to stand in the shoes of the Berrys, does not provide us with any reason that the Berrys, contrary to their expressed intentions, would elect to have two automobile insuranee policies from two separate companies providing the same liability limit of $100,000 per person. With identical policies from two different insurance companies, the Berrys would be paying double premiums without receiving any additional benefit.
It seems clear that if the Berrys were before us, they would likely take the same position they took before the circuit court: the Mid-Century “reinstatement” policy was meant to provide liability coverage for the Durango. Under slightly different facts, the Berrys would likely assert a claim that the Mid-Century policy should be reformed based upon their clear intent at the time of the reinstatement of the Mid-Century policy. If the two policies provided the same coverage for the Cavalier, it would necessarily mean that the Durango was not covered by an insurance policy during the time the Cavalier was covered by Mid-Century and Founders. Had the accident occurred while Bryan had been driving the Durango rather than the Cavalier, the Berrys, rather than Founders, would be involved in this case, arguing for reformation of the insurance contract consistent with the intentions of the parties at the time the policy was reinstated, i.e., arguing for coverage of the Durango to allow the Berrys to seek indemnification under the policy’s liability protection. Stolz,
The record before us is barren of any evidence, other than the written policy itself, that the Mid-Century policy was meant to provide coverage for the Cavalier. The Berrys provided no such testimony and Mid-Century does not claim it understood the Berrys, at the time they paid to reinstate the lapsed policy, sought such coverage. The facts are not in dispute: the policy with Mid-Century was reinstated on February 10, 2005, to continue coverage for the Berrys’ Durango. The insurance policy issued by Mid-Century was not meant to provide coverage for the Cavalier; rather, we conclude that a mutual mistake of fact as to the vehicle covered occurred between Mid-Century and the Berrys, the only parties to the insurance contract at the center of this litigation. The evidence is uncontested that neither the Berrys nor Mid-Century intended the Cavalier to be covered by the Mid-Century policy. Though the issue on Mid-Century’s duty to defend and indemnify the Berrys had the Durango been involved in the accident is not raised by the underlying lawsuit, that possibility informs us on the real issue before us: whether the supreme court’s Copley decision triggers equitable contribution under the circumstances present in this case.
In Copley, the insured, Copley, purchased a new fire insurance policy over certain real property, but, at the time, did not cancel his existing one. The two policies had different coverage limits. Following a fire while both policies were in effect, the insurance company with the preexisting policy, Pekin, denied Copley’s claim for losses based on the common law doctrine of cancellation by substitution. Copley,
Following a bench trial, the trial court held Pekin’s policy was in effect at the time of the fire. Pekin “had failed to establish the requisites of the doctrine of cancellation by substitution.” Copley,
The appellate court took a contrary view regarding Pekin’s satisfaction of the doctrine of cancellation by substitution. Copley,
Ultimately, the supreme court applied the general principles of contract law to reject Pekin’s position that the doctrine of cancellation by substitution can be invoked by “the subjective intent of one of the parties.” Copley,
Mid-Century’s Cancellation Clause
For support of its first issue on appeal, Mid-Century relies on the supreme court’s reference in Copley to a cancellation “in accordance with the terms of the insurance contract” (Copley,
Although Mid-Century seeks to invoke the cancellation clause of its policy, the cancellation clause has no application here because, as we determined, the policy should have issued to provide coverage for the Durango and, therefore, the cancellation clause was never triggered by “other insurance *** obtained on your insured car.” The cancellation clause applied only if coverage applied to the Cavalier, but the Berrys never sought such coverage under the “reinstatement” policy issued by Mid-Century. Because the cancellation clause was never invoked, we need not resolve the validity of the cancellation clause itself. 2
We do observe, however, that a shared intent of the contracting parties evidenced by an insurance contract’s cancellation clause does not necessarily transfer to the moment when “other insurance is obtained.” If we were to apply the cancellation clause literally based on the purchase of the Founders policy, a strong argument could be made that Mid-Century nullified the cancellation by accepting the premium payment by the Berrys in February 2005, even though it was unaware of the Founders policy. See Librizzi v. State Farm Fire & Casualty Co.,
It is also fair to say that the requisite mutual consent, required by our supreme court in Copley to cancel the policy as written to provide coverage of the Cavalier, is doubtful. “[MJutual consent requires an agreement between the insured and the insurer that both parties are to be excused from the insurance contract.” Copley,
To be clear, we find the cancellation clause does not apply here because the “reinstatement” policy of Mid-Century was not meant to provide coverage for the Berrys’ Cavalier. We conclude that equitable contribution does not apply under the facts of this case because, unlike in Copley, the two policies at issue did not cover the same property owned by the Berrys. Copley,
CONCLUSION
We reverse the circuit court’s summary judgment order finding in favor of Founders on its counterclaim that Mid-Century pay an equitable contribution of $50,000 in the settlement of the underlying suit where the two policies did not provide liability coverage for the same property. Instead, we grant Mid-Century’s motion for summary judgment.
Reversed.
McBRIDE and R. GORDON, JJ., concur.
Notes
In fact, in its motion for summary judgment, Mid-Century argued “it is undisputed that the Berrys chose to cancel their policy with Mid Century insuring the vehicle Bryan Berry was operating at the time of the February 23, 2005, motor vehicle occurrence.” Yet, Mid-Century failed to advance this position to its logical conclusion that if the policy covering the Cavalier was no longer in effect at the time of the accident, then the policy that was reinstated covered the Durango, which Daniella canceled in March 2005.
founders challenges as ambiguous the cancellation clause of the Mid-Century policy under the circumstances present here because the Founders policy came into existence prior to the reinstatement of the Mid-Century policy.