No. 1-18-1031 Fourth Division June 27, 2019 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) XL SPECIALTY INSURANCE COMPANY, ) Appeal from the Circuit Court ) of Cook County. Plaintiff and Counterdefendant-Appellant, ) ) No. 12 CH 28651 v. ) ) The Honorable PERFORMANCE AIRCRAFT LEASING, INC., ) Franklin U. Valderrama, ) Judge Presiding. Defendant and Counterplaintiff-Appellee. ) ) ______________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 The instant appeal arises from an insurance claim filed by defendant, Performance

Aircraft Leasing, Inc., for property damage after one of its airplanes crashed. The insurer,

plaintiff XL Specialty Insurance Company, denied the claim, claiming that defendant had

breached the insurance policy because the copilot of the airplane did not possess sufficient

training. Plaintiff also filed suit, seeking a declaratory judgment that it did not owe defendant

coverage under the policy. The trial court granted summary judgment in favor of defendant

and plaintiff appeals. For the reasons that follow, we reverse. No. 1-18-1031

¶2 BACKGROUND

¶3 I. Complaint

¶4 On July 26, 2012, plaintiff filed a complaint for declaratory judgment, seeking a

declaration that defendant was not entitled to coverage under an insurance policy for a

physical damage claim arising from a plane crash that occurred on June 7, 2012. The

complaint alleged that defendant owned a LearJet 60 airplane that crashed on June 7, 2012, at

the Aspen-Pekin 1 County Airport in Aspen, Colorado, while it was being piloted by Paul

Nemetz and Todd Chilton; the complaint alleged that Nemetz was acting as the pilot in

command or, in the alternative, as the second in command, at the time of the crash.

According to the complaint, upon the airplane’s attempted landing at the airport, the left

wingtip of the airplane struck the runway, causing the airplane to leave the runway and stop

approximately 150 feet from the runway’s center line. Defendant submitted an insurance

claim for the damage to the airplane in the amount of $5 million, claiming that the airplane

was a total loss.

¶5 The complaint alleged that plaintiff had issued defendant a specialty insurance policy,

effective from February 14, 2012, to February 14, 2013, that provided physical damage

coverage for the airplane in the amount of $5 million. The complaint alleged that the policy

contained a condition precedent to coverage providing that, while in flight, the airplane

would only be piloted by pilots meeting the requirements contained in an attached

endorsement to the policy. The complaint further alleged that Nemetz did not satisfy the

requirements contained in the endorsement at the time of the June 7, 2012, flight because he

had not completed “company-approved ground and flight training” within the preceding 12

1 While the complaint refers to “Aspen-Pekin County Airport,” the actual name of the airport is “Aspen-Pitkin County Airport.” 2 No. 1-18-1031

months. Consequently, the complaint alleged that the policy did not provide coverage for any

physical damage to the airplane arising out of that incident. 2

¶6 Attached to the complaint was a copy of the insurance policy, which provided that

“[w]hen in-flight the aircraft will be piloted only by pilots meeting the requirements endorsed

in this Policy.” The endorsement at issue was entitled the “Pilot Warranty Endorsement,” and

provides, in relevant part:

“It is a condition of this insurance that when in-flight, the aircraft will be operated

only by the pilot(s) specified below:

***

Learjet 60:

PIC—Todd Chilton, Dan Greydanus, Ed Wachs or any pilot approved by the

Chief Pilot of the Named Insured or their designee, provided they each have

successfully completed company approved ground and flight training school for the

make and model aircraft within the preceding 12 months of any date he acts as Pilot

in Command.

SIC—Robert Policano, Paul Nemetz provided they each have successfully

completed company approved ground and flight training for a turbine aircraft within

the preceding 12 months of any date he acts as Second in Command. OR Any Pilot

approved by the Chief Pilot of the named insured. With the understanding that: all

turbine pilots are going to simulator school for the make and model they are operating

annually or with respect to a transition pilot minimums of 3,000 hours Total Time

2 The record reflects that, on August 3, 2012, plaintiff paid PNC Equipment Finance, LLC, defendant’s lienholder, $2,509,015.19 to satisfy the lienholder’s lien on the airplane, pursuant to an endorsement of the insurance policy that is not at issue on appeal. Plaintiff later amended its complaint on March 12, 2013, to add a breach of contract count and seek reimbursement of this payment. 3 No. 1-18-1031

with 1,500 hours in Turbine aircraft, and up to 6 months before sending them to

school during that time they would be acting as Second in Command.” (Emphases

omitted.)

¶7 Also attached to the complaint was a sworn statement of proof of loss, dated July 23,

2012, which provided that defendant was making a claim for $5 million based on the total

loss of the airplane as a result of the June 7, 2012, incident.

¶8 II. Answer and Counterclaim

¶9 On September 19, 2012, defendant filed an answer and affirmative defenses, in which

defendant admitted the material allegations concerning the occurrence of the June 7, 2012,

incident; defendant denied the allegation that Nemetz was acting as pilot in command but

admitted that Nemetz was piloting the airplane during the flight, including immediately prior

to the incident. Defendant denied the remaining allegations of the complaint.

¶ 10 Defendant also asserted a counterclaim alleging that it was entitled to coverage for the

incident and that plaintiff wrongfully denied defendant’s insurance claim. Defendant alleged

that Nemetz had satisfied the pilot warranty requirement and had most recently completed

defendant’s approved ground and flight training on March 15, 2012; defendant alleged that

defendant’s approved ground and flight training “consists of reviewing the training manuals

for the LearJet 60 utilized by Flight Safety International, completing Universal school, and

receiving flight training/ground training from chief pilot Todd Chilton.” Defendant also

asserted counts for breach of contract and for bad faith pursuant to section 155 of the

Insurance Code (215 ILCS 5/155 (West 2010)).

¶ 11 Defendant also named as respondents in discovery LL Johns & Associates, Inc. (LL

Johns), and Sean Kallsen, both of whom defendant later converted to third-party defendants.

4 No. 1-18-1031

Defendant alleged that LL Johns and Kallsen, the vice president of LL Johns, were insurance

producers and insurance brokers under Illinois law, and that defendant had retained LL Johns

to procure aviation insurance for defendant. Defendant alleged that, if the trial court found

that defendant was not entitled to coverage under plaintiff’s insurance policy, then LL Johns

and Kallsen breached their duties to defendant in their actions concerning the policy.

¶ 12 Attached to the counterclaim was a letter sent by plaintiff to defendant, which was dated

June 22, 2012, and denied coverage for the property damage to the airplane arising from the

incident. According to the letter, Nemetz last completed a plaintiff-approved training

program in May 2010, over two years before the date of the incident.

¶ 13 Attached to the third-party complaint was a copy of the 2011-2012 insurance policy (the

policy for the immediately preceding policy period), as well as an amendment to that policy.

In the 2011-2012 policy, pilot qualifications were included within the policy itself and

provided, with respect to the airplane at issue:

“Pilot in Command Todd Chilton, Dan Greydanus, and Ed Wachs provided they

each have successfully completed company approved ground and flight training

school for the make and model aircraft within the preceding 12 months of any date he

acts as pilot in command.

Second in Command—Robert Policano, Paul Nemetz and any pilot must

successfully complete Lear 60 simulator school by May 1, 2011 or he will be

removed as the pilot. He must also be accompanied by Todd Chilton as Pilot in

Command.

Any Pilot approved by the Chief Pilot of the Named Insured. With the

understanding that: a) all turbine pilots are going to simulator school for the Make

5 No. 1-18-1031

and Model they are operating annually; b) with respect to a transition pilot minimums

of 3,000 total with 1,500 Turbine, and up to 6 months before sending them to school,

during that time they would be acting as Second in Command.”

¶ 14 The pilot warranty endorsement to the 2011-2012 policy provided the following

amendment as to the second in command:

“Robert Policano or Paul Nemetz provided they each have successfully completed

company approved ground and flight training school: for a turbine aircraft within the

preceding 12 months of any date he acts as Second in Command.” (Emphases

omitted.)

¶ 15 III. First Cross-Motions for Summary Judgment

¶ 16 A. Motions

¶ 17 On June 29, 2015, plaintiff filed a motion for summary judgment, claiming that there was

no genuine issue of material fact that the insurance policy’s pilot warranty endorsement was

a condition precedent to coverage that required certain plaintiff-approved training and that no

such training was approved by plaintiff. Plaintiff further argued that it was entitled to

reimbursement for its satisfaction of the lien on the airplane and that it had not acted in bad

faith, as alleged in defendant’s counterclaim.

¶ 18 On June 30, 2015, defendant filed a cross-motion for summary judgment, claiming that

the undisputed material facts established that defendant complied with the policy, that

defendant was entitled to coverage for its claim, and that plaintiff’s denial of the claim was

unreasonable and vexatious. Accordingly, defendant claimed that it was entitled to summary

judgment on both plaintiff’s complaint and on its counterclaims.

6 No. 1-18-1031

¶ 19 In its motion, defendant claimed that if the court found that Nemetz had not satisfied the

pilot warranty provision of the policy because he had not completed approved training,

summary judgment was nonetheless warranted because Nemetz satisfied the second clause of

the warranty because he had been approved by as a pilot by defendant’s chief pilot, Chilton.

Defendant claimed that the pilot warranty provision used the word “or” in discussing the

requirements for piloting the airplane as second-in-command and argued that, even if Nemetz

did not satisfy the first part of the provision, he satisfied the second.

¶ 20 B. Exhibits

¶ 21 Both parties primarily relied on the same exhibits in support of their respective motions

for summary judgment, including a number of deposition transcripts. As the trial court did

not rely on any of the expert testimony provided by the parties and the parties do not ask us

to do so on appeal, we discuss only the testimony of the parties’ employees and agents and

discuss only the portions of the testimony relevant to the issues on appeal.

¶ 22 In his discovery deposition, Brian Ackland testified that he was a central regional

manager employed with plaintiff, responsible for underwriter management, and underwrote

the insurance policy at issue. While defendant was insured by plaintiff, Ackland directed his

communications concerning that insurance to Kallsen at LL Johns or his assistant; Ackland

testified that he would “[v]ery rarely” communicate directly with an insured as opposed to

communicating through an insurance broker. Ackland testified that he met face-to-face with

defendant’s employees once, in January 2012, when he participated in a meeting concerning

renewal of the policy with Kallsen from LL Johns, as well as Roger Soeldner, Todd Chilton,

and Eddie Wachs from defendant. Ackland recalled that, at this meeting, they discussed the

pilots named in the policy, including Nemetz, and their training; Ackland testified that “there

7 No. 1-18-1031

was a clear discussion about all the pilots, including those named pilots having completed

formal school, formal training in the last 12 months.” Ackland testified that the language

contained in the pilot warranty endorsement was provided by LL Johns, and that the term

“school” was removed between the 2011-2012 policy and the 2012-2013 policy.

¶ 23 In his discovery deposition, 3 Sean Kallsen testified that he was vice president at LL Johns

and was the insurance agent responsible for defendant’s policy; Kallsen testified that all of

LL Johns’ business involved aviation insurance. Kallsen testified that LL Johns would

provide an insurance proposal based on the insured’s requests, as well as confirmation of

coverage, but would not have responsibility for ensuring that defendant’s pilots satisfied the

training requirements set forth in the policy. Kallsen testified that LL Johns had contractual

relationships with aviation insurance companies and owed them fiduciary duties under those

contracts; with respect to defendant, Kallsen testified that LL Johns served as the “conduit

for them to the insurance marketplace for their aircraft exposure.”

¶ 24 In his discovery deposition, Thomas Vargo testified that he was a claims representative

for plaintiff, handling only aviation claims. He became involved with the instant claim only

after the June 7, 2012, incident, and had no part in drafting the insurance policy. Vargo

testified that his responsibility was to conduct a factual investigation and discover

information about a claim, and that he did not make the determination as to whether coverage

existed; after the investigation, the facts would be relayed to counsel, who would make a

determination as to coverage. Vargo testified that, upon his initial review of the facts, “it was

apparent that there was going to be a coverage concern as to whether Mr. Nemetz met the

3 Kallsen’s deposition was taken while LL Johns was a respondent in discovery and prior to defendant filing a third-party complaint against LL Johns. 8 No. 1-18-1031

pilot warranty.” He notified his supervisor of the possible coverage question and received

authorization to retain outside counsel and forward the information to them.

¶ 25 In his discovery deposition, Timothy Geil testified that he was regional claims manager

for Charles Taylor Adjusting (Charles Taylor), a firm that was retained by plaintiff in

connection with the airplane incident. Charles Taylor’s responsibility was to investigate and

gather facts concerning the incident, as well as handling the claim onsite, including

coordinating the cleanup of the site. Geil testified that Charles Taylor did not determine

coverage under the policy.

¶ 26 With respect to training, Geil testified that he requested Nemetz’s pilot documentation

and recurrent training certificates. Geil testified that he first heard of the policy’s training

provisions from Vargo and followed up by looking at the policy. Geil testified that usually,

when he discussed training with Vargo, “it is typically just to advise me that the recurrent

training requirement is a one-year rather than a two-year requirement.” Geil explained that by

“recurrent training,” he was referring to “[g]round and pilot refresher training.” Geil testified

that there were usually a handful of providers that were authorized to provide that kind of

service, but that the training could be provided in-house if approved by the insurance

company. Geil was unaware if plaintiff’s policy provided a list of approved providers or an

approved agenda for training.

¶ 27 In his discovery deposition, Todd Chilton testified that he was chief pilot for the

companies owned by Edward Wachs, which included defendant; in addition to flying

airplanes, his responsibilities included managing the aircraft, scheduling and tracking

maintenance, and training. Chilton testified that he was certified through the Federal Aviation

Administration (FAA) as an airline transport pilot (ATP); he was not a certified flight

9 No. 1-18-1031

instructor. However, Chilton testified that he provided Nemetz with both ground and flight

training.

¶ 28 Chilton testified that he began training Nemetz in 2009. He was able to recall one flight

in 2009 that was taken for the sole purpose of training, but testified that “[e]very flight in an

airplane is a training flight.” Chilton also recalled three occasions between 2009 and 2012 in

which he provided Nemetz with ground training outside the parameters of an operational

flight; he testified that these occasions lasted a few hours and occurred early in Nemetz’s

training, closer to 2009. During the training, they reviewed “[p]rimarily the flight safety

international manual for the aircraft,” and also reviewed the airplane’s flight manual. Chilton

testified that he did not keep a record of any training he provided Nemetz in a logbook or in

any other form, nor was he asked to endorse any such logbook maintained by Nemetz.

¶ 29 Chilton testified that he was present at a meeting in January 2012 concerning renewal of

the insurance policy and that one of the requests made on defendant’s behalf was the removal

of the requirement that the second-in-command pilot attend “a formal school,” which was

incorporated into the renewed policy.

¶ 30 In his discovery deposition, Paul Nemetz testified that, at the time of the incident, he was

certified as an ATP and had been a pilot since 1967, when he was in the military. From 2010

through the time of the incident, he worked as an independent contract pilot, including

piloting airplanes as second-in-command for defendant. Nemetz testified that his last flight

review was conducted in May 2010, and that the FAA did not require him to complete any

additional flight reviews, as he was flying as second-in-command as opposed to a pilot-in-

command; the review included both ground and flight training using a simulator. When asked

whether he had completed any flight reviews after May 2010, Nemetz testified that “[i]n my

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mind the instruction that I was receiving [and] observation in flying and working with Mr.

Chilton, I considered that review.”

¶ 31 Nemetz testified that, prior to his employment with defendant, Chilton informed Nemetz

that he would be providing Nemetz with ground training and flight training on behalf of

defendant; Chilton told Nemetz “how he was generally going to review systems with me,

monitor my performance, how we would go about studying together, reviewing material.

And as we went along, he would just keep me posted on what he was looking for in terms of

my performance and being able to progress to the time where he felt comfortable with me

being in the left seat.” Nemetz did not recall any conversations about anyone sending him to

flight school; he testified that his previous employers had required him to attend school

annually.

¶ 32 Nemetz testified that Chilton expected Nemetz to study flight training materials at home,

with Chilton periodically quizzing Nemetz about the materials; Chilton “expected me, you

know, at my own speed to be reviewing these systems and getting familiar because he was

going to be asking questions of me in more detail. *** This was self-paced.” Nemetz was

unaware of the method by which Chilton evaluated him and did not know whether Chilton

created any documentation indicating that he had successfully passed an evaluation.

¶ 33 Nemetz testified that, in March 2012, he attended a two-day training in Tucson on the

flight management system that was installed on the LearJet 60 airplane; he testified that the

flight management system was not unique to the LearJet 60, but the training would apply to

any airplane that used that type of system.

¶ 34 In his discovery deposition, Edward Wachs testified that he was the sole owner of

defendant. Wachs testified that Chilton was responsible for all training for defendant and that

11 No. 1-18-1031

Wachs had reviewed “all the training regimen” with Chilton. Wachs testified that he was

present at the January 2012 meeting discussing the renewal of the policy, and recalled

discussing qualifications of its pilots. Wachs testified that defendant requested the removal of

the word “school” from the policy with respect to the second-in-command “so that we would

be able to provide training to qualified pilots in our company.” Wachs could not recall if

anyone discussed that Chilton would be providing the training on behalf of defendant. Wachs

testified that training at a flight safety school was expensive, and that he would rather not

incur the expense unless the pilot was full-time or was expected to be moved to a captain

position. Wachs further testified that the more relevant training was the training performed

by defendant, which was specific to defendant’s flight programs.

¶ 35 In an affidavit, Chilton averred that, as defendant’s chief pilot, he provided in-house

training to Nemetz. Chilton averred:

“[Defendant] provided on-going training for Paul Nemetz as each flight provided a

training environment and experience. However, for purposes of the June 7, 2012

flight, Paul Nemetz’s ground and flight training was completed as of March 15, 2012.

[Defendant’s] approved ground and flight training for Nemetz consisted of reviewing

the training manuals for the LearJet 60 utilized by Flight Safety International,

completing Universal school, and receiving flight training and ground training from

me.”

¶ 36 C. Responses

¶ 37 In response to plaintiff’s motion for summary judgment, defendant claimed that the

policy could not be permitted to require plaintiff to approve Nemetz’s training because the

policy was silent as to any specific training requirement. Defendant further claimed that

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plaintiff never approved any training that Nemetz could have completed, rendering the

warranty illusory. Defendant also again raised the argument that Nemetz met the terms of the

pilot warranty under the alternative avenue of being approved by Chilton, defendant’s chief

pilot. Defendant argued that Nemetz did not need to satisfy the “simulator school” portion of

that avenue because the language of that portion of the provision had no recognized meaning

in the aviation insurance industry.

¶ 38 In response to defendant’s cross-motion for summary judgment, plaintiff argued that

Nemetz did not satisfy the second “avenue” for coverage because there was no dispute that

Nemetz did not attend school. Plaintiff further argued that the pilot warranty was a condition

precedent to coverage, not an exclusion, meaning that defendant bore the burden of

establishing that the condition had been satisfied.

¶ 39 D. Trial Court Ruling

¶ 40 On January 21, 2016, the trial court issued a memorandum opinion and order in which it

granted plaintiff’s motion for summary judgment in part and denied defendant’s cross-

motion for summary judgment. As an initial matter, the trial court found that the pilot

warranty was a condition precedent to coverage, meaning that plaintiff was not required to

establish a causal connection between the cause of the loss and the condition precedent. The

court next found that, although “[t]he Pilot Warranty is not a paradigm of clarity,” it was

unambiguous that “company approved ground and flight training” referred to plaintiff-

approved training, not defendant-approved training. However, the court found that plaintiff

had failed to establish that Nemetz did not complete plaintiff-approved ground and flight

training; the court found that Ackland’s testimony, on which plaintiff relied, did not support

that point. Instead, the court found that Ackland merely testified that he had not waived

13 No. 1-18-1031

compliance with training, and testified that he could not recall whether he approved the

training of Wachs or Chilton; he never testified that Nemetz did not complete plaintiff-

approved training.

¶ 41 The trial court next considered defendant’s argument that Nemetz could alternatively

have been qualified under the policy under the second prong of the pilot warranty. The court

found that such an avenue was permissible because the qualifications for operation of the

airplane as second-in-command were set forth in the disjunctive. The court first found that

Nemetz had been approved by Chilton, defendant’s chief pilot. However, the court found that

“this alone does not entitle [defendant] to judgment,” because the provision provided that the

chief pilot’s approval was made with the understanding that pilots were attending simulator

school. The court found that defendant had failed to offer any evidence showing compliance

with this final clause. The court rejected defendant’s argument that the clause was a “ ‘mere

understanding,’ ” not a requirement, agreeing with plaintiff that such an interpretation would

render the clause meaningless. Accordingly, the trial court denied both parties’ motions for

summary judgment on the declaratory judgment counts because it found that both parties had

failed to satisfy their respective burdens to show that there were no genuine issues of material

fact and that they were entitled to judgment as a matter of law.

¶ 42 Similarly, the trial court denied each party’s motion for summary judgment based on

breach of contract, finding that their claims were predicated on prevailing on their coverage

positions. However, the trial court did find that plaintiff was entitled to summary judgment

on defendant’s counterclaim alleging bad faith under section 155 of the Insurance Code.

14 No. 1-18-1031

¶ 43 E. Motion to Reconsider

¶ 44 On March 28, 2016, defendant filed a motion to reconsider the grant of summary

judgment as to the bad-faith count of its counterclaim, as well as seeking clarification of the

trial court’s order as to whether the court’s discussion of the facts and law constituted the law

of the case for purposes of trial.

¶ 45 On September 1, 2016, the trial court denied defendant’s motion to reconsider. The court

made clear that, in its ruling on summary judgment, it had made the following findings: (1)

that the pilot warranty provision was a condition precedent to coverage; (2) that “company

approved ground and flight training” meant plaintiff-approved ground and flight training; (3)

that the second clause of the pilot warranty provision allowed any pilot, including Nemetz, to

operate the airplane as second-in-command if he was approved by defendant’s chief pilot and

complied with simulator school requirements; and (4) that defendant’s chief pilot had

approved Nemetz to operate the airplane as second-in-command. The court further made

clear that, in denying summary judgment, it had found that neither party had submitted any

evidence as to whether Nemetz completed plaintiff-approved ground and flight training and

that defendant had failed to submit any evidence that Nemetz complied with the simulator

school requirements.

¶ 46 IV. Second Motions for Summary Judgment

¶ 47 On October 21, 2016, plaintiff filed a second motion for summary judgment, claiming

that the trial court’s prior orders left open only two issues—whether Nemetz had completed

plaintiff-approved ground and flight training and whether Nemetz had attended simulator

school—and that plaintiff had satisfied its burden of proof on each issue such that summary

judgment in its favor was warranted. With respect to the first issue, plaintiff claimed that

15 No. 1-18-1031

defendant had not submitted any ground and flight training for Nemetz for plaintiff’s

approval between January 2012 and June 7, 2012, meaning that plaintiff had not approved

any such training and Nemetz therefore did not complete plaintiff-approved ground and flight

training as required by the policy. With respect to the second issue, plaintiff claimed that if

defendant had any evidence that Nemetz had attended simulator school, “such information

surely would have been produced by now,” and consequently, defendant could not meet its

burden to establish that Nemetz had attended simulator school as required by the policy.

¶ 48 Attached to the motion for summary judgment were exhibits that had been presented in

the earlier briefing, as well as several additional exhibits. One such exhibit was the affidavit

of Ackland, plaintiff’s underwriter with respect to defendant’s policy, who averred that (1)

between January 2012 and June 7, 2012, defendant did not submit any ground and flight

training for Nemetz to plaintiff; (2) defendant did not request approval for any such training;

(3) plaintiff did not approve any such training; and (4) neither defendant nor Nemetz

submitted any information or documentation pertaining to Nemetz’s attendance at simulator

school. Ackland further averred that plaintiff did not waive either the approval or school

requirements for Nemetz.

¶ 49 On March 13, 2017, defendant filed a response to plaintiff’s motion for summary

judgment and a second cross-motion for summary judgment. Defendant claimed that, since

the policy did not set forth the requirements for approval of defendant’s pilots, the policy

gave plaintiff the unilateral ability to decide pilot qualifications anytime during the policy

period. Defendant argued that this gave plaintiff the power to determine whether coverage

would exist, either by failing to give approval or by withdrawing approval, which rendered

the pilot warranty provision illusory. Additionally, with respect to the second part of the

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provision, defendant claimed that the policy required pilots to attend simulator school

annually—not prior to the date of the accident. Thus, defendant claimed that Nemetz had

satisfied the second part of the pilot warranty clause.

¶ 50 On July 25, 2017, the trial court granted defendant’s motion for summary judgment and

denied plaintiff’s motion for summary judgment. The court first considered defendant’s

arguments concerning the second part of the pilot warranty and agreed with defendant’s

position that there was no requirement that Nemetz complete simulator school prior to the

time a claim is made. The court found:

“Under the plain language of the policy under the pilot warranty’s any pilot

clause, it allows for an insured to complete the required simulator school training

even after an accident has occurred and a claim has been filed so long as the

requirement was fulfilled before the end of the policy period.

As the court previously noted, the parties to an insurance contract may

incorporate in that contract any provisions not in violation of the law as they so

choose. Courts are not warranted under the cloak of construction of a contract in

making a new contract for the parties.

Respectfully, the court finds that that is essentially what [plaintiff] is asking this

court to do by interpreting the contract at issue to require this temporal requirement.

[Plaintiff] asserts that even if the foregoing interpretation is correct, Nemetz did not

attend simulator school and thus failed to fulfill the requirement condition precedent

to coverage.

While the court understands this argument, the court finds this argument

unpersuasive. The policy’s effective period was from February 14, 2012 to February

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14, 2013. The accident occurred on or about June 7th of 2012. And [plaintiff] denied

[defendant’s] claim on or about June 22nd of 2012.

[Plaintiff] having denied [defendant’s] claim within this timeframe, from this

court’s perspective, [defendant] did not have the opportunity to fulfill the simulator

school requirement prior to the termination or the conclusion of the policy period;

nevertheless, *** the any pilot clause does not provide that the requirement of

attendance to simulator school needed to occur prior to an accident.

The court finds that [defendant] satisfied the second portion of the pilot warranty

and it’s undisputed that Nemetz had been approved by the chief pilot. And there was

no requirement that he attend simulator school before June 7th of 2012. Therefore,

the court finds that [defendant] has satisfied its burden to show that there are no

genuine issues of material fact, and that it and not [plaintiff] is entitled to judgment as

a matter of law.”

¶ 51 On August 22, 2017, plaintiff filed a motion to reconsider, arguing that in granting

summary judgment, the trial court (1) failed to give effect to the pilot warranty as a condition

precedent, (2) failed to properly interpret the term “annually” properly, and (3) violated

public policy because it defeated the training requirements and endangered public welfare.

¶ 52 On November 20, 2017, defendant filed a motion for final judgment, requesting that the

trial court enter a final order of judgment that included a judgment for damages. In its

motion, defendant noted that in plaintiff’s pending motion to reconsider, it requested the

inclusion of Rule 304(a) language for purposes of appealing the grant of summary judgment

(Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016)), and stated that “[defendant] submits to the Court

that the appropriate approach would be for the Court to enter final judgment in its favor such

18 No. 1-18-1031

that all issues are resolved between [plaintiff] and [defendant] and, then, if [plaintiff] so

wishes, it can file an appeal.”

¶ 53 On January 12, 2018, the trial court entered an order denying plaintiff’s motion to

reconsider. The court clarified its prior order concerning whether the pilot warranty was a

condition precedent:

“The Second Clause contains two elements: the first is that any pilot be approved by

the named insured’s chief pilot, and the second is that all turbine pilots ‘are going to

simulator school…..annually’. It is only the first element of the Second Clause that is

a condition precedent. The second element, which commences a new sentence, is not

a condition precedent that must be satisfied prior to the inception of insurance

coverage.”

The trial court also noted that plaintiff raised several arguments for the first time in the

motion to reconsider, including its public policy argument and an argument that “annually”

should be interpreted to mean “ ‘within the preceding twelve months,’ ” but addressed those

arguments notwithstanding plaintiff’s forfeiture of them and found them unpersuasive.

¶ 54 On April 23, 2018, the trial court granted defendant’s motion for final judgment, entering

judgment (1) in the amount of $2,490,984.81 for physical damage to the airplane; (2) for

property damage and supplemental payment claim damages; (3) for an award of prejudgment

interest; and (4) for costs. The total judgment entered by the trial court was $3,218,145.94 in

favor of defendant and against plaintiff. The court further found that the order was final and

appealable pursuant to Rule 304(a), and stayed further proceedings pending appeal.

¶ 55 On May 21, 2018, plaintiff filed a notice of appeal, which provided that plaintiff was

appealing “from the judgment of the Circuit Court of Cook County entered on April 23,

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2018, and the orders leading to the entry of that judgment.” The notice of appeal further

provided:

“In the Appellate Court of Illinois, [plaintiff] shall pray that the aforesaid

judgment be reversed and the orders leading to the entry of that judgment vacated,

and that judgment be entered in the Appellate Court of Illinois for [plaintiff]. In the

alternative, [plaintiff] shall pray that the aforesaid judgment be reversed and the

orders leading to the entry of that judgment vacated, and that the cause be remanded

to the Circuit Court for the entry of judgment for [plaintiff]. In the further alternative,

[plaintiff] shall pray that the aforesaid judgment be reversed and the orders leading to

the entry of that judgment vacated, and that the cause be remanded to the Circuit

Court for further proceedings. In the further alternative, [plaintiff] shall pray that the

aforesaid judgment be reversed and the orders leading to the entry of that judgment

vacated, and that it be granted such other and further relief as the Court deems fit and

proper under the circumstances.”

¶ 56 ANALYSIS

¶ 57 On appeal, plaintiff claims that the trial court erred in finding that defendant had

complied with the pilot warranty endorsement. As an initial matter, defendant claims we lack

jurisdiction over the instant appeal because plaintiff’s notice of appeal names only the April

23, 2018, order entering final judgment and does not specifically list either of summary

judgment orders. The filing of a notice of appeal “ ‘is the jurisdictional step which initiates

appellate review.’ ” People v. Smith,

(2008) (quoting Niccum v. Botti,

Marinaccio, DeSalvo & Tameling, Ltd.,

(1998), citing 155 Ill. 2d R. 301).

20 No. 1-18-1031

“Unless there is a properly filed notice of appeal, a reviewing court has no jurisdiction over

the appeal and is obliged to dismiss it.” Smith,

.

¶ 58 Under Illinois Supreme Court Rule 303(b)(2) (eff. July 1, 2017), a notice of appeal “shall

specify the judgment or part thereof or other orders appealed from and the relief sought from

the reviewing court.” “A notice of appeal confers jurisdiction on a court of review to consider

the judgments or parts of judgments specified in the notice of appeal.” General Motors Corp.

v. Pappas,

(2011). Our supreme court has made clear, however, that a

notice of appeal is to be construed liberally. Smith,

. “The notice of appeal

should be considered as a whole and will be deemed sufficient to confer jurisdiction on an

appellate court when it fairly and adequately sets out the judgment complained of and the

relief sought, thus advising the successful litigant of the nature of the appeal.” General

Motors,

. “ ‘Where the deficiency in notice is one of form, rather than

substance, and the appellee is not prejudiced, the failure to comply strictly with the form of

notice is not fatal.’ ” Smith,

(quoting Lang v. Consumers Insurance Service,

Inc.,

(1991)). Thus, our supreme court has long held that a

judgment that is not specified in the notice of appeal is nonetheless reviewable “if it is a ‘step

in the procedural progression leading’ to the judgment specified in the notice of appeal.”

Burtell v. First Charter Service Corp.,

(1979) (quoting Elfman Motors,

Inc. v. Chrysler Corp.,

(3d Cir. 1977)); see In re Marriage of O’Brien,

(finding a denial of petition for substitution of judge was a “step in the

procedural progression leading to the final judgment” specified in the notice of appeal).

¶ 59 In the case at bar, there is no doubt that the summary judgment orders were steps in the

procedural progression leading to the entry of the order listed in the notice of appeal. That

21 No. 1-18-1031

order was an order granting final judgment and determining the amount of damages to which

defendant was entitled, which arises directly from the trial court’s grant of summary

judgment in its favor. We are therefore unpersuaded by defendant’s attempts to style the

summary judgment orders as somehow entirely distinct from the final order granting

defendant relief based on those earlier orders.

¶ 60 We further note that plaintiff’s notice of appeal specified that it was appealing the April

23, 2018, order “and the orders leading to the entry of that judgment” (emphasis added), and

that the relief sought by plaintiff included the entry of judgment in its favor. Thus, plaintiff

made clear that it was appealing orders other than the April 23, 2018, order. Defendant

analogizes the language used by plaintiff to that used in Neiman v. Economy Preferred

Insurance Co.,

(2005), a case in which the notice of appeal was found

insufficient to confer appellate jurisdiction over certain orders. However, that case involved

orders denying a motion to substitute judge and a motion to disqualify a law firm, which the

Neiman court found were “merely ancillary orders of a procedural nature which have no

impact upon the latter substantive orders.” 4 Neiman,

. It is

unpersuasive to say that, in the case at bar, the summary judgment orders were similarly

“merely ancillary orders.” Accordingly, the Neiman court’s holding is completely

inapplicable to the instant case. We also note that defendant places a great deal of weight on

the wording of the “and the orders leading to the entry of that judgment” language,

attempting to compare it to the language used in Neiman and Burtell. While the language is

relevant in analyzing whether certain orders are encompassed by the notice of appeal, the

4 We also note that the Neiman court’s holding as to the motion to substitute judge conflicted with the Second District’s position, and that our supreme court has agreed with the Second District that a motion to substitute judge is a step in the procedural progression leading to the entry of final judgment. See In re Marriage of O’Brien,

. 22 No. 1-18-1031

more important inquiry—conducted by both the Neiman and Burtell courts—is whether the

order itself is considered a step in the procedural progression leading to the order listed in the

notice of appeal. Here, the summary judgment orders clearly were, and we therefore have

jurisdiction to consider them.

¶ 61 Finally, we find unpersuasive defendant’s claim that it was somehow surprised that

plaintiff was appealing the summary judgment orders. Defendant suggests that the trial

court’s denial of plaintiff’s motion to reconsider was “[s]uch a resounding judicial

repudiation of [plaintiff’s] arguments, combined with a strongly-worded reaffirmation of the

court’s grant of summary judgment,” that defendant concluded “that an appeal was very

unlikely.” However, defendant was fully aware of plaintiff’s intent to appeal—in its motion

for a final judgment, defendant acknowledges that in the motion to reconsider, plaintiff

sought Rule 304(a) language so that it could appeal, and even suggested that the appropriate

approach would be for entry of a final judgment first, which would render Rule 304(a)

language unnecessary. It is questionable that defendant would suggest that, after the parties

battled through two rounds of summary judgment, followed by plaintiff losing on a motion to

reconsider, that defendant believed plaintiff would not appeal. Consequently, we find we

have jurisdiction over the instant appeal, and proceed to consider the merits of plaintiff’s

arguments.

¶ 62 As noted, plaintiff claims that the trial court erred in granting defendant’s motion for

summary judgment and finding that the pilot warranty endorsement was satisfied. A trial

court is permitted to grant summary judgment only “if the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law.”

23 No. 1-18-1031

735 ILCS 5/2-1005(c) (West 2016). The trial court must view these documents and exhibits

in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati

Insurance Co.,

(2004). We review a trial court’s decision to grant a

motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance

Co.,

(1992). De novo consideration means we perform the same analysis

that a trial judge would perform. Khan v. BDO Seidman, LLP,

(2011). “ ‘The construction of an insurance policy and a determination of the rights and

obligations thereunder are questions of law for the court which are appropriate subjects for

disposition by way of summary judgment.’ ” Steadfast Insurance Co. v. Caremark Rx, Inc.,

(2005) (quoting Crum & Forster Managers Corp. v. Resolution

Trust Corp.,

(1993)).

¶ 63 “Summary judgment is a drastic measure and should only be granted if the movant’s right

to judgment is clear and free from doubt.” Outboard Marine Corp.,

.

However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary

judgment.” Sorce v. Naperville Jeep Eagle, Inc.,

(1999). The party

moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung,

(2007). The movant may meet his burden of proof either by affirmatively

showing that some element of the case must be resolved in his favor or by establishing “ ‘that

there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas,

(quoting Celotex Corp. v. Catrett,

(1986)). “ ‘The purpose

of summary judgment is not to try an issue of fact but *** to determine whether a triable

issue of fact exists.’ ” Schrager v. North Community Bank,

(2002)

(quoting Luu v. Kim,

(2001)). We may affirm on any basis

24 No. 1-18-1031

appearing in the record, whether or not the trial court relied on that basis or its reasoning was

correct. Ray Dancer, Inc. v. DMC Corp.,

(1992).

¶ 64 On appeal, plaintiff claims that Nemetz failed to satisfy either prong of the pilot warranty

and, therefore, defendant was not entitled to coverage for its loss. As the trial court’s grant of

summary judgment was based on the second prong of the warranty, we consider those

arguments first.

¶ 65 As noted, the insurance policy provided that “[w]hen in-flight the aircraft will be piloted

only by pilots meeting the requirements endorsed in this Policy.” The pilot warranty

endorsement at issue provided, in relevant part:

“It is a condition of this insurance that when in-flight, the aircraft will be operated

only by the pilot(s) specified below:

***

Learjet 60:

PIC—Todd Chilton, Dan Greydanus, Ed Wachs or any pilot approved by the

Chief Pilot of the Named Insured or their designee, provided they each have

successfully completed company approved ground and flight training school for the

make and model aircraft within the preceding 12 months of any date he acts as Pilot

in Command.

SIC—Robert Policano, Paul Nemetz provided they each have successfully

completed company approved ground and flight training for a turbine aircraft within

the preceding 12 months of any date he acts as Second in Command. OR Any Pilot

approved by the Chief Pilot of the named insured. With the understanding that: all

turbine pilots are going to simulator school for the make and model they are operating

25 No. 1-18-1031

annually or with respect to a transition pilot minimums of 3,000 hours Total Time

with 1,500 hours in Turbine aircraft, and up to 6 months before sending them to

school during that time they would be acting as Second in Command.” (Emphases

omitted.)

¶ 66 The parties agree that the provision concerning the second-in-command has two parts.

First is what the parties term the “named pilot” clause, which specifies:

“Robert Policano, Paul Nemetz provided they each have successfully completed

company approved ground and flight training for a turbine aircraft within the

preceding 12 months of any date he acts as Second in Command.”

The second is the “open pilot” or “any pilot” clause, which specifies:

“Any Pilot approved by the Chief Pilot of the named insured. With the understanding

that: all turbine pilots are going to simulator school for the make and model they are

operating annually or with respect to a transition pilot minimums of 3,000 hours Total

Time with 1,500 hours in Turbine aircraft, and up to 6 months before sending them to

school during that time they would be acting as Second in Command.”

¶ 67 The trial court found that these two clauses provided two separate avenues for a pilot to

be qualified as a second-in-command and that Nemetz satisfied the warranty under the

second clause. Plaintiff’s first argument is that the second clause does not apply to Nemetz

and that the two clauses are mutually exclusive. However, plaintiff never raised this

argument in the trial court below. It is well settled that issues not raised in the trial court are

forfeited and may not be raised on appeal. Susman v. North Star Trust Co.,

; see Daniels v. Anderson,

(1994) (“ ‘It has frequently been

held that *** an issue not presented to or considered by the trial court cannot be raised for the

26 No. 1-18-1031

first time on review.’ ” (quoting Kravis v. Smith Marine, Inc.,

(1975))).

Before the trial court, plaintiff never claimed that the second prong of the pilot warranty was

inapplicable, but argued only the merits of defendant’s position concerning that prong.

Accordingly, plaintiff has forfeited any argument that that clause does not apply.

¶ 68 Plaintiff also argues that the trial court erred in finding that the second clause was

satisfied. This argument requires us to interpret the terms of the policy. “An insurance policy

is a contract, and the general rules governing the interpretation of contracts also govern the

interpretation of insurance policies.” Standard Mutual Insurance Co. v. Lay,

. “A court’s primary objective is to ascertain and give effect to the intention of the parties

as expressed in the agreement.” Nicor, Inc. v. Associated Electric & Gas Insurance Services

Ltd.,

(2006). “Where the provisions of a policy are clear and

unambiguous, they will be applied as written [citation] unless doing so would violate public

policy [citation].” Nicor,

.

¶ 69 In the case at bar, the parties do not dispute that Nemetz was approved by Chilton,

defendant’s chief pilot. There is also no dispute that Nemetz did not attend simulator school

during the policy period; the record indicates that Nemetz last completed simulator school in

May 2010, over two years before the crash. Accordingly, the only question is whether

Nemetz satisfied the portion of the policy that required that “all turbine pilots are going to

simulator school for the make and model they are operating annually.” The trial court found

that Nemetz had satisfied this requirement because he had until the end of the policy period

to attend simulator school and was not required to have completed school prior to the

accident.

27 No. 1-18-1031

¶ 70 While we agree with the trial court that the policy permits a pilot to attend simulator

school at any time during the policy period, we cannot agree with its conclusion that this fact

means that Nemetz satisfied the policy’s requirements. The plain and ordinary meaning of

the word “annually” is “once a year; each year.” Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/annually (last visited June 13, 2019). This

implies a recurrent action—something that occurs once a year or each year. This implication

is reinforced by the requirement that the pilot be “going to simulator school” annually,

indicating an ongoing action. Thus, the relevant inquiry is whether Nemetz was going to

simulator school once a year or each year. The record indicates that he was not—the last time

he attended simulator school was in 2010. Accordingly, Nemetz was not “going to simulator

school *** annually” by any stretch of the imagination. The analysis might be different if the

record showed that Nemetz attended simulator school each October, for instance—then, the

fact that he had not attended simulator school during the policy period prior to the June

accident would not be dispositive because his prior history would have established his pattern

of annual attendance. However, the record shows no such thing. Similarly, if this was the

first year that such a requirement was imposed, an argument could be made that Nemetz

would have attended simulator school later in the year but did not have the opportunity to do

so before the claim was denied. Again, however, this is not the case—the record shows that

the annual requirement was included in the 2011-2012 policy. While the policy gives a pilot

the flexibility to attend simulator school at any time during the policy period, the policy

nevertheless requires him to actually do so. Nemetz did not actually do so, either before or

after the accident, and had not done so for several years. We cannot find that these actions

demonstrate that Nemetz was “going to simulator school *** annually” and, consequently,

28 No. 1-18-1031

cannot agree with the trial court’s conclusion that this portion of the pilot warranty was

satisfied.

¶ 71 However, this is not the end of our inquiry, because we may affirm on any basis apparent

in the record, whether relied on by the trial court or not. Ray Dancer,

.

Accordingly, we may affirm the trial court’s grant of summary judgment if we find that

Nemetz satisfied the first part of the pilot warranty clause. This part provided coverage for:

“Robert Policano, Paul Nemetz provided they each have successfully completed

company approved ground and flight training for a turbine aircraft within the

preceding 12 months of any date he acts as Second in Command.”

¶ 72 Before the trial court, defendant argued that “company” was ambiguous, but does not

make this argument on appeal. Instead, defendant argues that the clause is illusory and,

therefore, unenforceable. An illusory promise is a promise for which performance is optional.

DiCosola v. Ryan,

. “An illusory promise appears to be a

promise, but in actuality the promisor has not agreed to do anything.” DiCosola,

. A common type of such promise is where the promisor retains an

unlimited right to determine later the nature or extent of his performance. Dwyer v. Graham,

(1983). Defendant claims that the requirement of plaintiff’s approval of

any ground and flight training program “reserves to [plaintiff] the unilateral, unfettered

ability to decide at any time what training it would approve for Mr. Nemetz so that he would

be covered under this policy. [Plaintiff] could withhold or defer approval to deny a claim no

matter the particulars of any training regimen undertaken by Mr. Nemetz or proposed by

[defendant].” We do not find this argument persuasive.

29 No. 1-18-1031

¶ 73 The pilot warranty requires Nemetz to have completed company-approved ground and

flight training prior to the time he pilots an airplane as second-in-command. Thus, by

definition, any approval would have needed to occur prior to the flight—otherwise, defendant

would have no way of warranting that Nemetz had “successfully completed company

approved ground and flight training” before the flight. Defendant’s claims that the clause

“effectively gave [plaintiff] the post-accident power to decide the terms of the policy so as to

deny coverage” (emphasis in original) are therefore inaccurate.

¶ 74 Additionally, the mere fact that the policy gives plaintiff some discretion does not render

the clause illusory. Implicit in every contract in this state is a duty of good faith and fair

dealing. Diamond v. United Food & Commercial Workers Union Local 881,

(2002). “Good faith requires the party vested with contractual discretion to exercise

it reasonably, and he may not do so arbitrarily, capriciously, or in a manner inconsistent with

the reasonable expectation of the parties.” Bank One, Springfield v. Roscetti,

(1999). Here, plaintiff’s approval of any training program would be subject to

that same duty of good faith and fair dealing. Accordingly, we cannot find that the clause is

illusory and unenforceable.

¶ 75 Since the clause is enforceable, the question, then, is whether Nemetz’s training complied

with the clause. Defendant does not claim that it ever submitted any proposed training

program to plaintiff for approval, and Ackland’s affidavit, attached to plaintiff’s second

motion for summary judgment, avers that plaintiff never received any such request for

approval and did not approve any training program. Consequently, there is no way that

Nemetz can be said to have satisfied the first part of the pilot warranty. Since Nemetz did not

30 No. 1-18-1031

satisfy either part of the pilot warranty, there was no coverage for the airplane at the time of

the crash and the trial court should have entered summary judgment in plaintiff’s favor.

¶ 76 CONCLUSION

¶ 77 For the reasons set forth above, defendant failed to comply with the insurance policy’s

pilot warranty endorsement and the trial court erred in granting summary judgment in

defendant’s favor. The trial court’s judgment is reversed and the cause is remanded to the

trial court with instructions to enter summary judgment in plaintiff’s favor.

¶ 78 Reversed.

31