Preview
Hearing Date: 8/6/2024 10:00 AM FILED
Location: Richard J Daley Center 4/8/2024 9:50 AM
Judge: Wilson, Thaddeus L IRIS Y. MARTINEZ
CIRCUIT CLERK
COOK COUNTY, IL
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, 2024CH02936
COUNTY DEPARTMENT, CHANCERY DIVISION Calendar, 1
27155442
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
SANDBOX MUTUAL INSURANACE )
COMPANY, f/k/a Saskatchewan Mutual )
Insurance Company, )
)
Plaintiff, )
v. ) No. 2024CH02936
)
CE DESIGN, LTD., on behalf of a certified class, )
and HOMEGROWN ADVERTISING, INC., )
)
Defendants. )
COMPLAINT
Plaintiff, Sandbox Mutual Insurance Company, f/k/a Saskatchewan Mutual Insurance
Company, by and through its attorneys, Tressler LLP, and for its Complaint against CE Design,
Ltd. and Homegrown Advertising, Inc. states as follows:
1. Pursuant to 735 ILCS § 5/2-701, this action seeks a declaration as to competing
judgments entered in favor of Sandbox in Saskatchewan, Canada and Defendant CE Design, Ltd.
in Illinois.
2. As alleged herein, the Saskatchewan judgments have priority over the Illinois
judgment.
PARTIES
3. Plaintiff Sandbox Mutual Insurance Company (“Sandbox”) is an insurance
company based in Saskatoon, Saskatchewan, Canada, and was formerly known as Saskatchewan
Mutual Insurance Company (“SMI”).
4. Defendant CE Design, Ltd. (“CE Design”) is an active Illinois corporation based in
Rolling Meadows, Illinois whose business was litigating TCPA claims.
5. Defendant Homegrown Advertising, Inc. (“Homegrown”) is a defunct Canadian
marketing company based in Regina, Saskatchewan.
6. Jurisdiction is conferred by 735 ILCS 5/2-209 in that the Defendant CE Design
resides and/or transacts business in Illinois.
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
7. Venue is proper in Cook County pursuant to 735 ILCS 5/2-101 because CE Design
is based in and did business in Cook County.
FACTS
The Policy
8. SMI issued a commercial liability insurance policy to Homegrown effective from
September 15, 2004 to January 21, 2005 (“the Policy”). The Policy provided coverage for bodily
injury and property damage, with a $500 deductible per occurrence, excluded liability arising for
advertising and had policy limits of $2 million.
The Underlying Lawsuit
9. In May 2005 CE Design sued Homegrown in a class action lawsuit filed in the
Circuit Court of Lake County, Illinois (“Circuit Court”), Case No. 04 L 1048, asserting claims for:
(1) violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., (2)
common law conversion, and (3) statutory unfair practice. The claims arose from Homegrown
allegedly planning a fax broadcast campaign which sent over 23,000 faxes in mass to residents
throughout the United States in late 2004.
10. After Homegrown was served with CE Design’s First Amended Complaint, and
contrary to its obligations under the Policy, Homegrown failed to notify SMI of the case and
retained its own counsel in Illinois, who entered an appearance on behalf of Homegrown on August
19, 2005. SMI was not notified of the case until May 2006. Despite the fact that SMI had nothing
to do with sending the subject faxes, CE Design decided to target SMI to try to collect money from
its receipt of the fax.
2
CE Design’s Judgment Against Homegrown
11. On October 26, 2006, CE Design filed a motion for preliminary approval of a
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
settlement agreement between it and Homegrown. By its terms the settlement agreement is
enforceable only against the Policy. As part of the agreement, Homegrown assigned all of its
rights under the policy to CE Design. The settlement agreement provided for a consent judgment
against Homegrown for $5,000,000, but enforceable only against SMI. The settlement agreement
further provided that each class member, including CE Design, would receive a pro rata share of
the amount recovered from SMI, not to exceed $500, with one-third of the recovery going to Class
Counsel and an incentive award of $4,000 going to CE Design.
12. On November 28, 2006, an order was entered by the Circuit Court certifying the
settlement class, preliminarily approving the settlement and class notice.
13. On February 15, 2007, the settlement was approved and a judgment entered in CE
Design’s favor, and against Homegrown, in the amount of $5 million, to be satisfied only from the
SMI Policy (“Illinois Judgment Against Homegrown”).
CE Design’s Judgment Against SMI
14. On March 26, 2007 CE Design mailed a citation to discover assets to SMI. On
April 10, 2007 SMI’s outside Canadian counsel, Rod Rath, sent a letter to the Circuit Court Clerk
advising that SMI denied coverage on the claim.
15. On April 26, 2007, CE Design filed a motion for turnover of the Policy proceeds
and noticed that motion for presentment only five business days later on May 3, 2007. The notice
of motion represented that CE Design was serving SMI’s representative, Rod Wotherspoon, by
regular mail, contrary to the Circuit Court local rule, which required CE Design to send notice to
SMI’s counsel. However, neither SMI nor its counsel received either the notice or the motion.
3
16. On May 3, 2007, Class Counsel appeared in court on the motion alone. The trial
court granted CE Design’s motion and entered a default judgment against SMI in the amount of
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
$5,095,031 (“Illinois Judgment Against SMI”).
17. The Order prepared by Class Counsel and entered by the Circuit Court represented
that “due notice of the citation proceeding having been given,” which was not true.
The Saskatchewan Court Refuses CE Design’s Attempt to Enforce the SMI Judgment
18. On October 1, 2007 CE Design filed a petition in Saskatchewan, Canada (Queen’s
Bench Action 1195 of 2007) seeking to enforce and collect the Judgment Against SMI pursuant to
the Foreign Judgments Enforcement Act of Saskatchewan. SMI was served with and opposed CE
Design’s petition.
19. CE Design’s petition was heard on November 20, 2007.
20. On January 8, 2008, the Queen’s Bench for Saskatchewan entered a final and
conclusive judgment in favor of SMI on CE Design’s petition, finding that CE Design failed to
provide SMI with adequate notice of the request for judgment against SMI in Illinois and dismissed
CE Design’s petition, CE Design v. SMI, [2008] S.J. No. 164, 315 Sask. R. 91. 31 (“First
Saskatchewan Judgment).
21. In its reasons for dismissing the petition the Queen’s Bench held:
[c]learly our Act contemplates that a foreign judgment entered by default
cannot be registered unless the party in Saskatchewan has received notice
in a meaningful fashion that will allow it to respond to the claim. . . Before
May 3, 2007 there was no proceeding in which SMI had been subject to an
actual claim. The settlement agreement created an action which made SMI
subject to a potential claim in the event that it was found by a court of
competent jurisdiction that their insurance policy covered the loss claimed.
The notice of commencement of action (the May 3, 2007 motion) was never
received by SMI and on that basis the application to register the judgment
must fail.
22. The Queen’s Bench rejected the suggestion that service in accordance with Illinois
rules governed the matter, holding:
4
To interpret s. 4(d) of the Act to mean that so long as service was carried
out in accordance with the foreign jurisdiction requirement, notice could be
deemed to have been received in accordance with the foreign rules, would
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
still not assist the applicant in this case. Firstly, it appears to me that the
legislation requires actual notice if it is to have any relevance to the
objective behind the section. Deemed notice would not allow SMI an
opportunity to respond. Secondly, deemed notice could not occur until after
April 26. That would not be in my opinion sufficient time to respond to this
application by May 3 in any meaningful fashion as contemplated by s. 4(d).
23. The Queen’s Bench also awarded costs in favor of SMI and against CE Design in
the amount of $1,000. CE Design did not file any appeal from that ruling. That Judgment is final,
conclusive and enforceable under the laws of Saskatchewan.
24. Despite the entry of that judgment, CE Design subsequently attempted to collect on
the Illinois Judgment Against SMI in Illinois. In November 2013 CE Design served a citation to
discover assets on TD Ameritrade at its office in Schaumburg, Illinois, and in that citation CE
Design represented that $8,073,852.96 remained unsatisfied on that judgment. CE Design also
never paid the costs awarded to SMI on the First Saskatchewan Judgment.
CE Design Goes Back to Illinois and SMI’s Jurisdiction Defense is Rejected
25. On December 4, 2007, CE Design filed a motion for leave to issue a second citation
to discover assets to SMI with respect to the Illinois Judgment Against SMI (“Second Citation”).
In that motion, CE Design admitted that SMI did not receive CE Design’s motion for turnover.
That motion was granted on December 7, 2007.
26. CE Design filed its second citation notice on December 11, 2007.
27. SMI was served with CE Design’s Second Citation on January 2, 2008. SMI then
retained Illinois counsel, James K. Borcia (“Borcia”), who filed his appearance on January 25,
2008. Borcia also filed at that time a motion to dismiss CE Design’s Second Citation on grounds
that SMI was not subject to personal jurisdiction in Illinois and that Canada, not Illinois, was the
appropriate forum for the dispute between CE Design and SMI.
5
28. On April 8, 2010, the trial court granted SMI’s motion to dismiss CE Design’s
Second Citation on personal jurisdiction grounds. CE Design appealed that order, and the Second
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
District reversed, finding that Rath’s letter to the court constituted a responsive pleading, and in
turn waived SMI’s personal jurisdiction objection. CE Design v. Homegrown Advertising, 409
Ill.App.3d 1164 (2nd Dist. 2011), appeal denied, 367 Ill.Dec. 618 (2013). However, in that
decision the Second District held that “[o]n remand, [SMI] still has an opportunity to present its
defense that the insurance policy did not cover intentional acts by defendants, and thus, [SMI] is
not obligated to pay plaintiff.” Id. at *8. SMI timely sought leave to appeal that order, which was
denied.
The Circuit Court Rejects SMI’s Attempt to Vacate the Illinois SMI Judgment
29. After the case was remanded, on July 18, 2013, the trial court granted CE Design’s
motion to reinstate the SMI Judgment and gave SMI leave to file a new petition to vacate the
reinstated judgment. SMI filed a petition to vacate the judgment under 735 ILCS 5/2-1401.
30. The parties subsequently filed cross-motions for judgment on the pleadings on
SMI’s petition. On May 12, 2015, the trial court denied SMI’s motion for judgment on the
pleadings and granted in part and denied in part CE Design’s motion for judgment on the pleadings
on the petition. In that ruling, the trial court, over SMI’s objection, applied Illinois law, rejected
SMI’s coverage defenses, except for on the issues of the reasonableness of the settlement and
policy limits, and found that certain of SMI’s defenses were barred by the mend the hold doctrine.
The trial court also set further briefing on SMI’s policy deductible and late notice defenses.
31. On November 20, 2015, CE Design filed a motion in the trial court for summary
judgment on SMI’s remaining defenses.
32. On January 25, 2019, the trial court entered an order granting CE Design’s motion
for summary disposition on that issue. SMI timely appealed that final judgment.
6
SMI Successfully Gets a Declaration of No Coverage in Saskatchewan
33. On February 13, 2008, SMI filed a separate proceeding in the QBS Court against
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
CE Design and Homegrown seeking a declaration that there is no coverage under the Policy for
CE Design’s claims (“QBS Coverage Action”). CE Design and Homegrown were timely served
with notice of that proceeding. Homegrown failed to appear in that action, and a default was
entered against it in the QBS Court on March 8, 2008.
34. On September 15, 2008, CE Design filed a motion to dismiss in the QBS Court,
arguing lack of personal jurisdiction and that the Illinois court had exclusive jurisdiction over the
matter. That motion was denied.
35. SMI subsequently filed a motion for summary judgment on its coverage action in
the QBS Court. CE Design filed a motion to strike, or in the alternative stay, SMI’s coverage
action, which SMI opposed.
36. On April 5, 2019, the QBS Court entered final orders denying CE Design’s motion
to strike or stay and granting SMI’s motion for summary judgment on the coverage issues (“Second
Saskatchewan Judgment”).
37. SMI then filed a motion in the trial court to include those decisions in the record
for this appeal, which the trial court granted. Those decisions were filed in the trial court on April
18, 2019.
38. On April 18, 2019, CE Design filed an appeal of the QBS Court’s rulings to the
Court of Appeal for Saskatchewan (“Court of Appeal”). On January 22, 2021, the Court of Appeal
ruled on CE Design’s appeal, ruling in favor of SMI and dismissed CE Design’s appeal with costs.
CE Design v. Saskatchewan Mut. Ins., 2021 SKCA 14, 2021 CarswellSask34.
39. In that ruling, the Court of Appeal ruled SMI had no duty to defend or indemnify
Homegrown, finding: (1) CE Design did not allege an accident, (2) sending the faxes was
intentional, not an accident, (3) the damage as plead was not unexpected or unintended, (4) the
7
claim was excluded from coverage by the expected or intended exclusion, (5) the trial court did
not err in finding that Homegrown waived coverage, and (6) the settlement entered into without
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
SMI’s consent waived coverage. CE Design did not appeal the Court of Appeal ruling. Id.
40. As a result, those rulings are now final, conclusive and enforceable judgments on
the merits finding no coverage for these claims under the applicable law, the law of Saskatchewan.
Registration of the Saskatchewan Judgments
41. On February 11, 2019, SMI registered the Saskatchewan Judgments in this Court,
Case No. 19 L 050071.
The Second District Affirms the Lake County Trial Court’s Ruling
42. On February 22, 2022, the Second District, undertaking a de novo review, entered
an order affirming the trial court, finding that the trial court did not error in denying SMI’s petition
for relief from judgment. SMI filed a petition for rehearing on March 10, 2022, which was denied
on March 17, 2022.
43. SMI subsequently petitioned the Illinois Supreme Court for leave to appeal, which
was denied.
The Competing Judgments
44. There are now competing judgments over the same claim and involving the same
insurance policy.
45. The Saskatchewan Judgments have priority over the Illinois Judgment Against SMI
because the Policy was issued in Saskatchewan, and the claim arose in Saskatchewan.
WHEREFORE, Plaintiff, Sandbox Mutual Insurance Company, respectfully requests that
the Court:
A. declare the Saskatchewan Judgments are enforceable in Illinois;
B. declare the Saskatchewan Judgments have priority;
8
C. enjoining Defendants from taking any action to enforce the Illinois Judgment
Against Plaintiff; and
FILED DATE: 4/8/2024 9:50 AM 2024CH02936
D. grant Plaintiff such other and further relief that the Court deems proper under the
facts and circumstances, including but not limited to costs.
SANDBOX MUTUAL INSURANCE COMPANY
By: /s/ James K. Borcia
One of Its Attorneys
James K. Borcia
Tressler LLP
233 S. Wacker Drive, 61st Floor
Chicago, Illinois 60606
(312) 627-4000
Firm No. 46239
(8260-1) 4877-2195-8560, v. 1
9
Preview
Hearing Date: 8/6/2024 10:00 AM FILED Location: Richard J Daley Center 4/8/2024 9:50 AM Judge: Wilson, Thaddeus L IRIS Y. MARTINEZ CIRCUIT CLERK COOK COUNTY, IL IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, 2024CH02936 COUNTY DEPARTMENT, CHANCERY DIVISION Calendar, 1 27155442 FILED DATE: 4/8/2024 9:50 AM 2024CH02936 SANDBOX MUTUAL INSURANACE ) COMPANY, f/k/a Saskatchewan Mutual ) Insurance Company, ) ) Plaintiff, ) v. ) No. 2024CH02936 ) CE DESIGN, LTD., on behalf of a certified class, ) and HOMEGROWN ADVERTISING, INC., ) ) Defendants. ) COMPLAINT Plaintiff, Sandbox Mutual Insurance Company, f/k/a Saskatchewan Mutual Insurance Company, by and through its attorneys, Tressler LLP, and for its Complaint against CE Design, Ltd. and Homegrown Advertising, Inc. states as follows: 1. Pursuant to 735 ILCS § 5/2-701, this action seeks a declaration as to competing judgments entered in favor of Sandbox in Saskatchewan, Canada and Defendant CE Design, Ltd. in Illinois. 2. As alleged herein, the Saskatchewan judgments have priority over the Illinois judgment. PARTIES 3. Plaintiff Sandbox Mutual Insurance Company (“Sandbox”) is an insurance company based in Saskatoon, Saskatchewan, Canada, and was formerly known as Saskatchewan Mutual Insurance Company (“SMI”). 4. Defendant CE Design, Ltd. (“CE Design”) is an active Illinois corporation based in Rolling Meadows, Illinois whose business was litigating TCPA claims. 5. Defendant Homegrown Advertising, Inc. (“Homegrown”) is a defunct Canadian marketing company based in Regina, Saskatchewan. 6. Jurisdiction is conferred by 735 ILCS 5/2-209 in that the Defendant CE Design resides and/or transacts business in Illinois. FILED DATE: 4/8/2024 9:50 AM 2024CH02936 7. Venue is proper in Cook County pursuant to 735 ILCS 5/2-101 because CE Design is based in and did business in Cook County. FACTS The Policy 8. SMI issued a commercial liability insurance policy to Homegrown effective from September 15, 2004 to January 21, 2005 (“the Policy”). The Policy provided coverage for bodily injury and property damage, with a $500 deductible per occurrence, excluded liability arising for advertising and had policy limits of $2 million. The Underlying Lawsuit 9. In May 2005 CE Design sued Homegrown in a class action lawsuit filed in the Circuit Court of Lake County, Illinois (“Circuit Court”), Case No. 04 L 1048, asserting claims for: (1) violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., (2) common law conversion, and (3) statutory unfair practice. The claims arose from Homegrown allegedly planning a fax broadcast campaign which sent over 23,000 faxes in mass to residents throughout the United States in late 2004. 10. After Homegrown was served with CE Design’s First Amended Complaint, and contrary to its obligations under the Policy, Homegrown failed to notify SMI of the case and retained its own counsel in Illinois, who entered an appearance on behalf of Homegrown on August 19, 2005. SMI was not notified of the case until May 2006. Despite the fact that SMI had nothing to do with sending the subject faxes, CE Design decided to target SMI to try to collect money from its receipt of the fax. 2 CE Design’s Judgment Against Homegrown 11. On October 26, 2006, CE Design filed a motion for preliminary approval of a FILED DATE: 4/8/2024 9:50 AM 2024CH02936 settlement agreement between it and Homegrown. By its terms the settlement agreement is enforceable only against the Policy. As part of the agreement, Homegrown assigned all of its rights under the policy to CE Design. The settlement agreement provided for a consent judgment against Homegrown for $5,000,000, but enforceable only against SMI. The settlement agreement further provided that each class member, including CE Design, would receive a pro rata share of the amount recovered from SMI, not to exceed $500, with one-third of the recovery going to Class Counsel and an incentive award of $4,000 going to CE Design. 12. On November 28, 2006, an order was entered by the Circuit Court certifying the settlement class, preliminarily approving the settlement and class notice. 13. On February 15, 2007, the settlement was approved and a judgment entered in CE Design’s favor, and against Homegrown, in the amount of $5 million, to be satisfied only from the SMI Policy (“Illinois Judgment Against Homegrown”). CE Design’s Judgment Against SMI 14. On March 26, 2007 CE Design mailed a citation to discover assets to SMI. On April 10, 2007 SMI’s outside Canadian counsel, Rod Rath, sent a letter to the Circuit Court Clerk advising that SMI denied coverage on the claim. 15. On April 26, 2007, CE Design filed a motion for turnover of the Policy proceeds and noticed that motion for presentment only five business days later on May 3, 2007. The notice of motion represented that CE Design was serving SMI’s representative, Rod Wotherspoon, by regular mail, contrary to the Circuit Court local rule, which required CE Design to send notice to SMI’s counsel. However, neither SMI nor its counsel received either the notice or the motion. 3 16. On May 3, 2007, Class Counsel appeared in court on the motion alone. The trial court granted CE Design’s motion and entered a default judgment against SMI in the amount of FILED DATE: 4/8/2024 9:50 AM 2024CH02936 $5,095,031 (“Illinois Judgment Against SMI”). 17. The Order prepared by Class Counsel and entered by the Circuit Court represented that “due notice of the citation proceeding having been given,” which was not true. The Saskatchewan Court Refuses CE Design’s Attempt to Enforce the SMI Judgment 18. On October 1, 2007 CE Design filed a petition in Saskatchewan, Canada (Queen’s Bench Action 1195 of 2007) seeking to enforce and collect the Judgment Against SMI pursuant to the Foreign Judgments Enforcement Act of Saskatchewan. SMI was served with and opposed CE Design’s petition. 19. CE Design’s petition was heard on November 20, 2007. 20. On January 8, 2008, the Queen’s Bench for Saskatchewan entered a final and conclusive judgment in favor of SMI on CE Design’s petition, finding that CE Design failed to provide SMI with adequate notice of the request for judgment against SMI in Illinois and dismissed CE Design’s petition, CE Design v. SMI, [2008] S.J. No. 164, 315 Sask. R. 91. 31 (“First Saskatchewan Judgment). 21. In its reasons for dismissing the petition the Queen’s Bench held: [c]learly our Act contemplates that a foreign judgment entered by default cannot be registered unless the party in Saskatchewan has received notice in a meaningful fashion that will allow it to respond to the claim. . . Before May 3, 2007 there was no proceeding in which SMI had been subject to an actual claim. The settlement agreement created an action which made SMI subject to a potential claim in the event that it was found by a court of competent jurisdiction that their insurance policy covered the loss claimed. The notice of commencement of action (the May 3, 2007 motion) was never received by SMI and on that basis the application to register the judgment must fail. 22. The Queen’s Bench rejected the suggestion that service in accordance with Illinois rules governed the matter, holding: 4 To interpret s. 4(d) of the Act to mean that so long as service was carried out in accordance with the foreign jurisdiction requirement, notice could be deemed to have been received in accordance with the foreign rules, would FILED DATE: 4/8/2024 9:50 AM 2024CH02936 still not assist the applicant in this case. Firstly, it appears to me that the legislation requires actual notice if it is to have any relevance to the objective behind the section. Deemed notice would not allow SMI an opportunity to respond. Secondly, deemed notice could not occur until after April 26. That would not be in my opinion sufficient time to respond to this application by May 3 in any meaningful fashion as contemplated by s. 4(d). 23. The Queen’s Bench also awarded costs in favor of SMI and against CE Design in the amount of $1,000. CE Design did not file any appeal from that ruling. That Judgment is final, conclusive and enforceable under the laws of Saskatchewan. 24. Despite the entry of that judgment, CE Design subsequently attempted to collect on the Illinois Judgment Against SMI in Illinois. In November 2013 CE Design served a citation to discover assets on TD Ameritrade at its office in Schaumburg, Illinois, and in that citation CE Design represented that $8,073,852.96 remained unsatisfied on that judgment. CE Design also never paid the costs awarded to SMI on the First Saskatchewan Judgment. CE Design Goes Back to Illinois and SMI’s Jurisdiction Defense is Rejected 25. On December 4, 2007, CE Design filed a motion for leave to issue a second citation to discover assets to SMI with respect to the Illinois Judgment Against SMI (“Second Citation”). In that motion, CE Design admitted that SMI did not receive CE Design’s motion for turnover. That motion was granted on December 7, 2007. 26. CE Design filed its second citation notice on December 11, 2007. 27. SMI was served with CE Design’s Second Citation on January 2, 2008. SMI then retained Illinois counsel, James K. Borcia (“Borcia”), who filed his appearance on January 25, 2008. Borcia also filed at that time a motion to dismiss CE Design’s Second Citation on grounds that SMI was not subject to personal jurisdiction in Illinois and that Canada, not Illinois, was the appropriate forum for the dispute between CE Design and SMI. 5 28. On April 8, 2010, the trial court granted SMI’s motion to dismiss CE Design’s Second Citation on personal jurisdiction grounds. CE Design appealed that order, and the Second FILED DATE: 4/8/2024 9:50 AM 2024CH02936 District reversed, finding that Rath’s letter to the court constituted a responsive pleading, and in turn waived SMI’s personal jurisdiction objection. CE Design v. Homegrown Advertising, 409 Ill.App.3d 1164 (2nd Dist. 2011), appeal denied, 367 Ill.Dec. 618 (2013). However, in that decision the Second District held that “[o]n remand, [SMI] still has an opportunity to present its defense that the insurance policy did not cover intentional acts by defendants, and thus, [SMI] is not obligated to pay plaintiff.” Id. at *8. SMI timely sought leave to appeal that order, which was denied. The Circuit Court Rejects SMI’s Attempt to Vacate the Illinois SMI Judgment 29. After the case was remanded, on July 18, 2013, the trial court granted CE Design’s motion to reinstate the SMI Judgment and gave SMI leave to file a new petition to vacate the reinstated judgment. SMI filed a petition to vacate the judgment under 735 ILCS 5/2-1401. 30. The parties subsequently filed cross-motions for judgment on the pleadings on SMI’s petition. On May 12, 2015, the trial court denied SMI’s motion for judgment on the pleadings and granted in part and denied in part CE Design’s motion for judgment on the pleadings on the petition. In that ruling, the trial court, over SMI’s objection, applied Illinois law, rejected SMI’s coverage defenses, except for on the issues of the reasonableness of the settlement and policy limits, and found that certain of SMI’s defenses were barred by the mend the hold doctrine. The trial court also set further briefing on SMI’s policy deductible and late notice defenses. 31. On November 20, 2015, CE Design filed a motion in the trial court for summary judgment on SMI’s remaining defenses. 32. On January 25, 2019, the trial court entered an order granting CE Design’s motion for summary disposition on that issue. SMI timely appealed that final judgment. 6 SMI Successfully Gets a Declaration of No Coverage in Saskatchewan 33. On February 13, 2008, SMI filed a separate proceeding in the QBS Court against FILED DATE: 4/8/2024 9:50 AM 2024CH02936 CE Design and Homegrown seeking a declaration that there is no coverage under the Policy for CE Design’s claims (“QBS Coverage Action”). CE Design and Homegrown were timely served with notice of that proceeding. Homegrown failed to appear in that action, and a default was entered against it in the QBS Court on March 8, 2008. 34. On September 15, 2008, CE Design filed a motion to dismiss in the QBS Court, arguing lack of personal jurisdiction and that the Illinois court had exclusive jurisdiction over the matter. That motion was denied. 35. SMI subsequently filed a motion for summary judgment on its coverage action in the QBS Court. CE Design filed a motion to strike, or in the alternative stay, SMI’s coverage action, which SMI opposed. 36. On April 5, 2019, the QBS Court entered final orders denying CE Design’s motion to strike or stay and granting SMI’s motion for summary judgment on the coverage issues (“Second Saskatchewan Judgment”). 37. SMI then filed a motion in the trial court to include those decisions in the record for this appeal, which the trial court granted. Those decisions were filed in the trial court on April 18, 2019. 38. On April 18, 2019, CE Design filed an appeal of the QBS Court’s rulings to the Court of Appeal for Saskatchewan (“Court of Appeal”). On January 22, 2021, the Court of Appeal ruled on CE Design’s appeal, ruling in favor of SMI and dismissed CE Design’s appeal with costs. CE Design v. Saskatchewan Mut. Ins., 2021 SKCA 14, 2021 CarswellSask34. 39. In that ruling, the Court of Appeal ruled SMI had no duty to defend or indemnify Homegrown, finding: (1) CE Design did not allege an accident, (2) sending the faxes was intentional, not an accident, (3) the damage as plead was not unexpected or unintended, (4) the 7 claim was excluded from coverage by the expected or intended exclusion, (5) the trial court did not err in finding that Homegrown waived coverage, and (6) the settlement entered into without FILED DATE: 4/8/2024 9:50 AM 2024CH02936 SMI’s consent waived coverage. CE Design did not appeal the Court of Appeal ruling. Id. 40. As a result, those rulings are now final, conclusive and enforceable judgments on the merits finding no coverage for these claims under the applicable law, the law of Saskatchewan. Registration of the Saskatchewan Judgments 41. On February 11, 2019, SMI registered the Saskatchewan Judgments in this Court, Case No. 19 L 050071. The Second District Affirms the Lake County Trial Court’s Ruling 42. On February 22, 2022, the Second District, undertaking a de novo review, entered an order affirming the trial court, finding that the trial court did not error in denying SMI’s petition for relief from judgment. SMI filed a petition for rehearing on March 10, 2022, which was denied on March 17, 2022. 43. SMI subsequently petitioned the Illinois Supreme Court for leave to appeal, which was denied. The Competing Judgments 44. There are now competing judgments over the same claim and involving the same insurance policy. 45. The Saskatchewan Judgments have priority over the Illinois Judgment Against SMI because the Policy was issued in Saskatchewan, and the claim arose in Saskatchewan. WHEREFORE, Plaintiff, Sandbox Mutual Insurance Company, respectfully requests that the Court: A. declare the Saskatchewan Judgments are enforceable in Illinois; B. declare the Saskatchewan Judgments have priority; 8 C. enjoining Defendants from taking any action to enforce the Illinois Judgment Against Plaintiff; and FILED DATE: 4/8/2024 9:50 AM 2024CH02936 D. grant Plaintiff such other and further relief that the Court deems proper under the facts and circumstances, including but not limited to costs. SANDBOX MUTUAL INSURANCE COMPANY By: /s/ James K. Borcia One of Its Attorneys James K. Borcia Tressler LLP 233 S. Wacker Drive, 61st Floor Chicago, Illinois 60606 (312) 627-4000 Firm No. 46239 (8260-1) 4877-2195-8560, v. 1 9