Midwest Triangle Paint Works, Inc. v. Firemen's Ins. Co.

• Decision Date: 28 March 1962
• Docket Number: Gen. No. 48500
• Citation: 183 N.E.2d 562,36 Ill.App.2d 65
• Parties: MIDWEST TRIANGLE PAINT WORKS, INC., an Illinois corporation, Plaintiff-Appellant, v. FIREMEN'S INSURANCE COMPANY, a New Jersey corporation authorized to do business in the State of Illinois, Transcontinental Insurance Company, a New York corporation authorized to do business in the State of Illinois, Underwriters At Lloyd's London, an Illinois corporation, and Reserve Insurance Company, an Illinois corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 562

183 N.E.2d 562

36 Ill.App.2d 65

MIDWEST TRIANGLE PAINT WORKS, INC., an Illinois corporation Plaintiff-Appellant, v. FIREMEN'S INSURANCE COMPANY, a New Jersey corporation authorized to do business in the State of Illinois Transcontinental Insurance Company, a New York corporation authorized to do business in the State of Illinois Underwriters At Lloyd's London, an Illinois corporation, and Reserve Insurance Company, an Illinois corporation Defendants-Appellees.

Gen. No. 48500.

Appellate Court of Illinois, First District, Third Division.

March 28, 1962.

William Elden, Chicago, for appellant.

Samuel T. Klaskin and Harvey H. Howard, Chicago, for Reserve Ins. Co., defendant-appellee.

Clausen, Hirsh, Miller & Gorman, Chicago, Jerome H. Torshen, Chicago, of counsel, for appellees.

SCHWARTZ, Justice.

This is an appeal from a summary judgment for defendants in a suit on policies insuring plaintiff against loss by fire. Three of the defendants joined in a single brief. The Reserve Insurance Company filed a separate brief. Each policy contains a provision limiting the time for institution of suit to twelve months after loss.

Plaintiff sustained a fire loss on December 31, 1958. Suit was instituted on January 6, 1960, more than one year after the loss. Defendants' motion for summary judgment is based on the ground that this is beyond the limitation period fixed by the policy. Plaintiff's position is that the defense was waived. The trial court heard the matter on defendants' verified motion, which included excerpts from a deposition of president of plaintiff, plaintiff's verified reply and the affidavit of plaintiff's attorney in support thereof.

The principal question is whether a genuine issue of fact was made on the question of waiver. Plaintiff relies on the affidavit filed by its attorney, and we will here state the substance thereof. It avers that the attorney had a conversation with one Mavon, described as the chief adjuster for defendants. In this conversation he asked Mavon whether it would be necessary to start a law suit in order to obtain any money under this policy. Mavon's reply was that all that would be necessary would be to obtain adequate proof of the actual cash value of the property destroyed. If appears from plaintiff's reply to defendants and from the affidavit that after plaintiff filed a proof of loss early in the year (which was rejected), a meeting was held in which adjusters from all the insurance companies were present, and a method of ascertaining the actual cash value was suggested as being acceptable to defendants. In reliance upon this, plaintiff avers that it began a thorough investigation and filed new proofs of loss on October 12, 1959. These were rejected by all the defendants except Reserve Insurance Company, on November 18, 1959. A letter accompanying the return contained the following statement:

'Please be advised that said insurance companies deny any and all liability to you in the amount of $31,756.34 claimed in said instruments purporting to be proofs of loss or in any other amount whatsoever.'

Photostats of receipts for letters sent plaintiff in care of its attorney and receipts for a copy sent directly to the company showed the receipt by the attorney on November 19, 1959, and by the company on November 23, 1959.

In construing the affidavit upon which the waiver is based, we must take into account the provision in the policy of limitation of sixty days from the date of loss for the filing of proof of loss. The affidavit states a case for waiver of time for the filing of proof of loss, but it contains nothing upon which may be predicated a claim that the period of limitation in which to commence suit was waived. While courts are not disposed favorably toward a defense based upon a failure to comply literally with all the technical requirements of an insurance contract, a court must adhere to a reasonable interpretation of its provisions. The policies were in the standard form prescribed by the Director of Insurance of Illinois, pursuant to authority given by statute (Ill.Rev.Stat., ch. 73, § 1009 (1961)).

The general rule that ambiguous provisions are to be construed strictly against the insurer does not apply to provisions of a policy prescribed by statute. Gallopin v. Continental Casualty Co., 290 Ill.App. 8, 7 N.E.2d 771. However, such provisions as are in the standard form literally prescribed by statute may be waived and the insurer by its conduct estopped from asserting them. Lumbermen's Mut. Ins. Co. v. Slide Rule & Scale Engineering Co., 79 F.Supp. 394 (S.D.Ill.1948) aff'd, 177 F.2d 305 (7th Cir. 1949); Mims v. Mutual Benefit Health & Accident Assoc., 319 Ill.App. 239, 48 N.E.2d 796; Colby v. Great American Casualty Co., 272 Ill.App. 273; cf. Dickirson v. Pacific Mutual Life Ins. Co., 319 Ill. 311, 150 N.E. 256. Indeed it has been held that even a provision stating that no provision may be waived unless in writing attached to the policy may itself be waived by the insurer. Gipps Brewing Corp. v. Central Manufacturers' Mut. Ins., 147 F.2d 6 (7th Cir. 1945) construing Illinois law. So may one providing that an agent has no power to waive a provision be waived by that very agent. Travelers Ins. Co. v. Eviston, 110 Ind.App. 143, 37 N.E.2d 310 (1941) also construing Illinois law. Therefore, just as even a constitutional right may be waived, Shepard v. Barron, 194 U.S. 553, 24 S.Ct. 737, 48 L.Ed. 1115 (1904); H. P. Coffee Co. v. R. F. C., Em.App., 215 F.2d 818 (1954); Kausal v. George F. Nord Bldg. Corp., 129 F.2d 173 (7th Cir. 1942); ...