Florsheim v. Travelers Indem. Co. of Illinois

• Decision Date: 09 August 1979
• Docket Number: No. 79-87,79-87
• Citation: 393 N.E.2d 1223,30 Ill.Dec. 876,75 Ill.App.3d 298
• Parties: , 30 Ill.Dec. 876 Lillian H. FLORSHEIM, Plaintiff-Appellant, v. TRAVELERS INDEMNITY CO. OF ILLINOIS, a Connecticut Corporation, Defendant- Appellee.
• Court: United States Appellate Court of Illinois

Page 1223

393 N.E.2d 1223

75 Ill.App.3d 298, 30 Ill.Dec. 876

Lillian H. FLORSHEIM, Plaintiff-Appellant, v. TRAVELERS INDEMNITY CO. OF ILLINOIS, a Connecticut Corporation, Defendant- Appellee.

No. 79-87.

Appellate Court of Illinois, First District, Fourth Division.

Aug. 9, 1979.

Sonnenschein, Carlin, Nath & Rosenthal, Harold C. Hirshman, Howard B. Prossnitz, Chicago, for plaintiff-appellant.

Lev & Sneckenberg, William J. Sneckenberg, Chicago, for defendant-appellee.

ROMITI, Justice:

The plaintiff filed a belated claim against her property insurer; the trial court granted the insurer's motion for summary judgment on the grounds the one-year period of limitations had expired. The principal issue on appeal is whether the plaintiff's belief that the insurer would reconsider its denial of liability if she produced evidence proving the claim was covered excused the untimely filing of the suit. A minor issue is whether the plaintiff's claim for punitive damages for the defendant's allegedly wrongful denial of liability was properly dismissed.

On December 16, 1977 the plaintiff Florsheim filed a verified complaint against Travelers Indemnity Company of Illinois (Travelers) alleging in Count I that she had been insured under a homeowner's policy issued by Travelers for the period August 21, 1976 through August 21, 1977 which policy was attached to the complaint; that on or about August 23, 1976 the plaintiff discovered that a Vasarely painting owned by her and kept in her residence had been severely damaged and that numerous stains or spots were visible on the surface of the painting; that the painting was insured by the policy; that on or about August 23, 1976 plaintiff notified Travelers of the loss and that she had performed all terms and conditions of the policy; and that she had repeatedly demanded that Travelers reimburse her for the loss. The plaintiff in Count I sought to recover $60,000 plus interest and costs, including attorney's fees. In Count II, the plaintiff, in addition to the allegation in Count I, alleged that a fiduciary relationship existed between the insurer and the insured and that the defendant wilfully and wantonly breached its fiduciary duties by deliberately and wrongfully denying that the policy applied to the loss; the plaintiff in Count II sought to recover $100,000 punitive damages and such other relief as the court deemed just. The policy attached to the complaint provided that any suit on the policy must be brought within one year of the inception of the loss.

The defendant in an unverified answer denied that the plaintiff performed all of the policy conditions and specifically alleged that suit was not timely and asked for the complaint to be dismissed. It also in a separate motion sought to have Count II dismissed for failure to state a cause of action. Thereafter it filed a motion for summary judgment on the grounds that there was no issue of fact and it was entitled to judgment as a matter of law. The deposition of Florsheim and the affidavit of defendant's claims adjuster were attached. The deposition disclosed that Florsheim discovered the loss on August 16, 1976, after a painter had painted her house. She reported it immediately to her insurance brokers. She also immediately called certain persons including Tim Lennon at the Art Institute to try to determine the cause of the spots. Lennon later informed her he had recreated the spots on a picture by spilling turpentine on it. The insurance company denied coverage on May 20, 1977 on the theory that the loss was caused by a latent defect; specifically that some salad oil had been spilled on the canvas before the paint was applied. When plaintiff received the letter from Travelers she called one of the art experts Travelers had consulted and he told her "it would never hold up in court." She then had the picture photographed by infra-red and ultra-violet light.

Florsheim also stated in her deposition that she had been away on trips the month of October 1976, from January 17 to February 13, 1977, from March 18 to March 22, 1977 and from July 19 to August 21, 1977. She did not consult an attorney until September 1977. As far as she could remember no one from the company told her she would not have to file her claim within one year from the date of the loss.

The plaintiff in her affidavit in opposition to the motion for summary judgment alleged in part:

1. that she was 82 years old;

2. that after she filed her claim with Travelers they investigated the loss for approximately nine months during which time they consulted with various experts;

3. that Travelers denied liability relying on the opinion of one expert that salad oil had been spilled on the unfinished canvas;

4. that since Travelers had consulted with various experts as to the cause of damage she believed that if Travelers was given conclusive photographic evidence that the damage could not have been caused by a substance rising to the surface of the painting, but instead had been splattered by a substance coming from outside, then Travelers would at least consider such evidence;

5. that accordingly immediately after learning of the salad oil theory, she retained Mr. Barry Bauman of the Art Institute of Chicago to take ultra-violet and infra-red photographs of the Vasarely which revealed that the foreign material had entered through the front of the painting and had seeped into the paint surface, rather than coming from underneath the paint surface as suggested by Mr. Berger;

6. that photographic evidence conclusively disproved the theory on which Travelers denied liability since that theory rested entirely on the assumption that the substance had come from underneath the paint layer;

7. that soon after receiving the photographs from Mr. Bauman she made these photographs available to Travelers for their examination; however, Travelers refused to even examine these photographs on the grounds that the one-year policy limitation expired;

8. that from the inception of the loss until December 2, 1977, she believed that the Travelers would pay her claim, and that she never read any policy provision requiring that suit be brought within one year. Moreover, at No time did anyone from the Travelers or anyone acting on their behalf call such a policy provision to her attention;

9. that from July 19, 1977 through August 21, 1977 she was on vacation in Aspen, Colorado, and therefore she was out-of-town during a significant portion of the period from May 20, 1977 through August 23, 1977 when Travelers claims she should have filed suit;

10. that when she requested a copy of the policy from her insurance agent, the agent was unable to find it as indicated by his letter of November 8, 1977. However, when she retained an attorney to request the policy, her insurance agent found the policy one week later.

The plaintiff also moved for judgment on the pleadings on the grounds that the defendant's answer was not properly verified (which was true) and that, therefore, the allegations of the complaint must be deemed admitted.

Arguments on all of the motions were heard on November 6, 1978. The plaintiff's motion was not disposed of since the defendant claimed it had filed a properly verified answer. (This, in fact, was not accurate; the answer in question was not filed until November 13, 1978, one day before the plaintiff took this appeal.) After argument the court ruled that the suit on Count I was barred by the one-year period of limitations and that Count II must fall since one cannot recover punitive damages without recovering actual damages.

I.

The plaintiff alleged in her complaint that she had complied with all the conditions of the policy. That same complaint disclosed, however, that in fact the policy required suit to be brought within one year from the inception of the loss and that it was not. A pleading which affirmatively shows a breach of the policy by the plaintiff without alleging a waiver of such breach is defective and subject to dismissal. (20A Appleman, Insurance Law and Practice § 11845.) If the insured relies on the waiver or estoppel it must be pleaded or it cannot be invoked (Beck v. Capitol Life Insurance Co. (1977), 48 Ill.App.3d 937, 6 Ill.Dec. 641, 363 N.E.2d 170; Hartford Accident & Indemnity Co. v. D. F. Bast, Inc. (1977), 56 Ill.App.3d 960, 14 Ill.Dec. 550, 372 N.E.2d 829; Johnson v. Johnson (1975), 26 Ill.App.3d 64, 324 N.E.2d 450; East St. Louis Lumber Co. v. United States Branch of London Assurance Corp. (1927), 246 Ill.App. 574, Cert. den.; Ill.Rev.Stat.1977, ch. 110, par. 43(4)), and where the recovery sought is based solely upon the performance of the policy conditions, the plaintiff cannot thereafter shift her position and rely on a waiver or estoppel which has not been alleged. (Feder v. Midland Casualty Co. (1925), 316 Ill. 552, 147 N.E. 468.) Here, however, the defendant waived any objection that the matter was not in issue by failing to object when the plaintiff raised it in her answer to the motion for summary judgment. Beck v. Capitol Life Insurance Co. (1977), 48 Ill.App.3d 937, 6 Ill.Dec. 641, 363 N.E.2d 170.

II.

It is well settled that a contractual limitation requiring suit to be brought within a specific period of time is valid if reasonable even though the period provided by general statute of limitations as to suits on written contract is longer. (20 Appleman, Insurance Law and Practice § 11601; See Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill.2d 361, 12 Ill.Dec. 168, 369 N.E.2d 875.) Consequently, an action brought after the expiration of the one-year period is barred unless the insurer by its conduct is precluded from raising the defense.

The plaintiff contends that the insurer cannot rely on the limitation period where it would be unjust, inequitable or unconscionable to the insured to permit it and that the basic issue is whether the "salad oil theory" is so far fetched that the plaintiff could have...