Posner v. Firemen's Ins. Co.

• Decision Date: 07 May 1964
• Docket Number: Gen. No. 49102
• Citation: Posner v. Firemen's Ins. Co., 199 N.E.2d 44, 49 Ill.App.2d 209 (Ill. App. 1964)
• Parties: Henry POSNER et al., Plaintiffs-Appellants, 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, an Illinois corporation, Defendants-Appellees.
• Court: Appellate Court of Illinois

Page 44

199 N.E.2d 44

49 Ill.App.2d 209

Henry POSNER et al., Plaintiffs-Appellants, 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, an Illinois corporation Defendants-Appellees.

Gen. No. 49102.

Appellate Court of Illinois, First District, Third Division.

May 7, 1964.

William Elden, Chicago, for appellants.

Clausen, Hirsh, Miller & Gorman, Chicago, for appellees.

SULLIVAN, Justice.

This is an appeal from an order of the trial court allowing motions to dismiss made by the appellees, hereinafter referred to as defendants, and the Reserve Insurance Company, and entering judgment in their favor.

Defendants and Reserve Insurance Company issued fire insurance policies in varying amounts to Midwest Triangle Paint Works, Inc., covering the contents contained in the one-story brick building located at 7433-35 South Ashland Avenue, Chicago, Illinois. On December 31, 1958, while said policies were in full force and effect, a fire occurred destroying the goods covered thereby. Plaintiffs brought an action on the said policies on July 25, 1961, and the order appealed from was entered on December 12, 1962.

No appeal was prosecuted as to the judgment in favor of Reserve Insurance Company, and it was dropped from the appeal by the rather unconventional method of eliminating the company's name from the heading of the case.

A slip was attached to the policies of Transcontinental Insurance Company and the Firemen's Insurance Company containing the following language:

'LOSS PAYABLE CLAUSE

'Loss, if any, to be adjusted only with the Insured named herein and payable to the Insured and Iroquois Company, 176 W. Adams Street, Chicago, Illinois, as their respective interests may appear, subject, nevertheless, to all the terms and conditions of the policy.'

The policy issued by Underwriters at Lloyd's, London, had a slip attached containing identical language with the exception that the street address of the Iroquois Company did not appear. All three of these slips contained an additional paragraph stating that they were attached to and formed a part of the respective policies. The complaint identified the plaintiffs as 'doing business as the Iroquois Company.' If plaintiffs have any cause of action, it must depend upon the above mentioned slips, as the name of the Iroquois Company does not appear elsewhere in the policies sued upon, and the individual plaintiffs' names appear nowhere in said policies.

The policies of Transcontinental Insurance Company and Firemen's Insurance Company contain clauses reading,

'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after the inception of the loss.'

The policy of Underwriters at Lloyd's, London, was a warranty policy containing a clause which reads:

'WARRANTY CLAUSE

'Warranted same terms and conditions as and to follow settlements of the policy or policies of the

'FIREMANS INSURANCE COMPANY

'(hereinafter referred to as the 'Warranty Company') and that the Warranty Company has at the time of any loss $7,500.00 (subject only to the reduction by amount of loss not reinstated) on the identical subject matter and risk, and identically the same proportion on each separate part thereof. Warranted that the premium rate charged hereunder is not less than the Warranty Company rate.

'This policy is subject without notice to the same conditions, endorsements, assignments and alterations of rates as are, or may be, assumed in the Warranty Company's insurance upon which this policy is based and shall be deemed to include such risks of Lightning and/or Explosion as are included in that insurance.'

It is so clear that it is unnecessary to cite authority for the proposition, that, under the terms of the 'Warranty Clause,' the policy of Underwriters at Lloyd's, London, was subject to the same twelve month limitation for the bringing of suit as were the policies of Transcontinental Insurance Company and Firemen's Insurance Company unless said 'Warranty Clause' does not sufficiently identify the Firemen's Insurance Company as the 'Warranty Company.'

It is apparent from the record that there is a variance between the name of the 'Warranty Company' (Firemans Insurance Company) as set forth in the 'Warranty Policy' and that of defendant, Firemen's Insurance Company. Plaintiffs argue that, because of this variance, the one year limitation on the commencement of suit does not apply to the policy of Underwriters at Lloyd's London. This point was not raised by the plaintiffs until they filed their reply brief in this court, and they cannot now rely upon it. Appellate Court Rule 7, subd. IV, Chap. 110, sec. 201.7, Ill.Rev.Stat., 1963, (in force at the time of the filing of plaintiffs' reply brief) reads in part as follows:

'No alleged error or point not contained in the brief shall be raised afterwards, either by reply brief or in oral or printed argument or on petition for rehearing.

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'Reply Brief, if any, shall be confined strictly to the points presented by the brief of the appellee.'

Since this point was raised in direct violation of the quoted portion of the rule, we will not consider it.

On January 6, 1960, more than one year after the loss, Midwest Triangle Paint Works, Inc., the named insured, filed action in the Municipal Court of Chicago to recover upon the policies here involved and the policy of Reserve Insurance Company. Upon motion filed by defendants in that case, summary judgments were granted in their favor because of failure on the part of the insured to file suit within the twelve month period allotted by the policies. On Midwest's appeal to this court (Midwest Triangle Paint Works, Inc. v. Firemen's Ins. Co., 36 Ill.App.2d 65, 183 N.E.2d 562), we affirmed the ruling of the trial court as to the defendants involved in the present appeal and reversed and remanded as to Reserve Insurance Company because of the existence of a question of fact on the matter of waiver on the part of Reserve.

Plaintiffs, on July 25, 1961, before rendition of this court's decision in the Midwest case, but more than two and one-half years after the loss, filed its own action against the defendants and Reserve Insurance Company on the same insurance policies upon which Midwest Triangle Paint Works, Inc., had based its earlier case. The insurers filed motions to dismiss urging that the plaintiffs, as loss payees, were mere appointees and were subject to the same defense which defeated the insured in the prior case, and, that, at any rate, the present action had not been brought within the twelve month period allotted by the policies for the bringing of a cause of action. Their motions were allowed by the trial court, and the order appealed from was entered on December 12, 1962, such date being after this court's decision in the Midwest case.

Plaintiffs urge (1) that as loss payees they had a contract of insurance with the defendants which was distinct from that which existed between the insurance companies and Midwest Triangle Paint Works, Inc.; (2) that the twelve month limitation for the bringing of a suit applied only to the insured, and (3) that the following language set out in the policies...