Safeway Insurance Co. v. Ebijimi

2018 IL App (1st) 170862 (Ill. App., 2018)

Words & Phrases

Estoppel

Trial Judge

Anna Demacopolous

Appellate Judge

Mikva

Holding

Affidavit of insured’s counsel included facts supporting affirmative defenses of waiver and estoppel.

Fact Summary

Beatrice Ebijimi demanded arbitration under her mother Dada Ebijimi’s policy with Safeway Insurance Company (Safeway) after Beatrice was injured by an uninsured motorist. Safeway sued Beatrice and Dada (the Ebijimis), seeking a stay of arbitration and a declaration that it had no obligation to settle or arbitrate the Ebijimis’ uninsured motorist claim. The trial court denied the Ebijimis’ motion for substitution of judge, struck the affidavit of the Ebijimis’ attorney attached to their opposition to summary judgment, and granted summary judgment to Safeway, finding that the Ebijimis failed to satisfy several conditions of the policy.

 We find no error in the trial court’s denial of the motion for substitution of judge. But we find that the trial court erred in striking all of defense attorney’s affidavit filed in support of the Ebijimis’ response to Safeway’s motion for summary judgment. When we consider those portions of the affidavit that should not have been struck, we do not agree that Safeway was entitled to summary judgment. We also find the trial court should not have dismissed the Ebijimis’ counterclaim or third-party complaint against insurer's counsel, Parillo, Weiss & O'Halloran. We affirm in part, reverse in part, and remand for further proceedings.

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