Vala v. Pacific Ins. Co., Ltd.

• Decision Date: 29 May 1998
• Docket Number: No. 4-97-0190,4-97-0190
• Parties: , 231 Ill.Dec. 64 William VALA, Plaintiff-Appellant, v. PACIFIC INSURANCE COMPANY, LTD., Defendant-Appellee. Fourth District
• Court: United States Appellate Court of Illinois

Page 581

695 N.E.2d 581

296 Ill.App.3d 968, 231 Ill.Dec. 64

William VALA, Plaintiff-Appellant, v. PACIFIC INSURANCE COMPANY, LTD., Defendant-Appellee.

No. 4-97-0190.

Appellate Court of Illinois,

Fourth District.

May 29, 1998.

Almon A. Manson, Lorilea Buerkett, Brown, Hay & Stephens, Springfield, for William Vala.

John A. Beyer, Satter, Beyer, Spires & Bertram, Pontiac, for Pacific Insurance Company.

Justice KNECHT delivered the opinion of the court:

Plaintiff, William Vala, brought suit against defendant, Pacific Insurance Company, for an alleged breach of an insurance contract. He asked for specific enforcement of the contract and for damages as a result of defendant's alleged unreasonable denial of plaintiff's claim under the policy issued by defendant. Defendant filed a motion to dismiss the complaint under sections 2-615 and 2-619 of the Civil Practice Law. 735 ILCS 5/2-615, 2-619 (West 1996). Plaintiff appeals from the dismissal of his complaint pursuant to defendant's motion under section 2-619. Plaintiff argues it was error for the trial court to find his action time-barred. We disagree and find his complaint was time-barred and properly dismissed.

Plaintiff purchased a policy of insurance from defendant covering an office building he owned in Lincoln for the period from April 15, 1994, through October 15, 1994. He contends on June 8, 1994, a severe windstorm and rainstorm caused damage to his property in excess of the $40,000 policy amount and the cause of the loss was a peril covered by the policy.

The policy required in case of loss:

"The insured shall give immediate written notice to [defendant] of any loss, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, furnish a complete inventory of the destroyed, damaged and undamaged property, showing in detail quantities, costs, actual cash value and amount of loss claimed; and within sixty days after the loss, unless such time is extended in writing by [defendant], the insured shall render to [defendant] a proof of loss, signed to and sworn to by the insured, stating the knowledge and belief of the insured as to the following: * * *."

Shortly after the damage occurred, plaintiff made a claim against the policy and provided defendant with some information concerning his loss.

Defendant then had several examinations of the property made by different adjusting firms. On September 26, 1994, plaintiff's claim was denied by defendant. Plaintiff's local insurance agent, Mike Parr, also received a copy of the denial letter and contacted individuals representing defendant objecting to the denial and requesting further investigation be done. Parr was advised to contact Gregory Purtell, claims examiner for First State Management Group, Inc., managing general agent for defendant. Parr telephoned Purtell, who informed him defendant might reconsider the denial of plaintiff's claim.

On October 14, 1994, Parr sent paperwork to Purtell restating the facts of the claim. That same day, at Purtell's instruction, Parr put the request for reconsideration in the form of a letter. Purtell received Parr's letter on October 19 and, upon instruction from defendant, engaged general adjuster R.A. Scheppers to reinvestigate the claim. Scheppers reinspected the property in the presence of Parr and plaintiff on October 26. By letter of November 14, 1994, Scheppers informed plaintiff his claim was still denied by defendant. Plaintiff filed his complaint against defendant on November 6, 1995. Pursuant to defendant's motion, plaintiff's complaint was dismissed on February 24, 1997. Plaintiff filed a timely notice of appeal.

The insurance policy at issue provided any suit or action brought on the policy for the recovery of any claim must be "commenced within twelve months next after inception of the loss." The Illinois Insurance Code (Code) provides such periods of limitations may be tolled only under certain circumstances:

"Whenever any policy or contract for insurance * * * contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part." 215 ILCS 5/143.1 (West 1996).

Plaintiff contends the trial court erred in granting defendant's section 2-619 motion to dismiss based on the period of limitations. A trial court's ruling on a motion to dismiss is reviewed de novo. Apple II Condominium Ass'n v. Worth Bank & Trust Co., 277 Ill.App.3d 345, 348, 213 Ill.Dec. 463, 466, 659 N.E.2d 93, 96 (1995). Because the appellate court is conducting an independent review of the propriety of a trial court's dismissal of a complaint for failure to commence within the time required, it is not required to defer to the trial court's reasoning. Wells v. Travis, 284 Ill.App.3d 282, 285, 219 Ill.Dec. 936, 939, 672 N.E.2d 789, 792 (1996). In conducting de novo review, the appellate court will examine the complaint and all evidentiary material before the trial court at the time of entry of the order construing the evidence and drawing all reasonable inferences in the light most favorable to the plaintiff. See Weidman v. Wilkie, 277 Ill.App.3d 448, 456, 213 Ill.Dec. 900, 905, 660 N.E.2d 157, 162 (1995).

Plaintiff argues that by providing defendant with information pertinent to his loss, he triggered the tolling of the limitations period provided in section 143.1 of the Code and his complaint was timely filed. The policy issued by defendant provides in the event of a loss "within sixty days after the loss, unless such time is extended in writing by [defendant], the insured shall render to [defendant] a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following:" and then lists the information required to be submitted. (Emphasis added.) In his amended response to the motion to dismiss, plaintiff included his sworn affidavit stating he provided defendant with certain information that appears to track what the insurance policy requires be included in an insured's signed and sworn proof of loss. However, this statement does not indicate how this information was transmitted to defendant and nothing in the record indicates plaintiff actually provided defendant with a signed and sworn statement containing this information.

Section 143.1 requires a proof of loss must be filed in the form required by the policy in question before the limitations period provided in the policy will be tolled. 215 ILCS 5/143.1 (West 1996); Davis v. Allstate Insurance Co., 147 Ill.App.3d 581, 584, 101 Ill.Dec. 64, 66, 498 N.E.2d 246, 248 (1986). Filing of other information with an insurance company does not start tolling the running of a policy's one-year limitations period if sworn proof of loss is required by the policy. Vole v. Atlanta International Insurance Co., 172 Ill.App.3d 480, 483, 122 Ill.Dec. 394, 396, 526 N.E.2d 653, 655 (1988).

We are not convinced plaintiff satisfied the policy requirements for proof of loss. Either he did not fulfill the requirements or, viewing the lack of evidence in the record of compliance with the policy provisions in the light most favorable to plaintiff, he filed an incomplete record on appeal. However, because any doubts caused by an insufficient record will be resolved against the appellant (People v. Sechler, 262 Ill.App.3d 226, 227, 199 Ill.Dec. 929, 930, 634 N.E.2d 1283, 1284 (1994)), we cannot infer plaintiff fulfilled the policy requirements of proof of loss necessary to toll the policy's limitations period.

Even if plaintiff had complied with the requirements of his insurance policy in filing a written and sworn proof of loss and the one-year period of limitations for filing suit against defendant was tolled, plaintiff's suit still was filed beyond the limitations period provided. Plaintiff had one year from the date of loss, June 8, 1994, to file suit against defendant. Section 143.1 of the Code states the tolling of the limitations period runs from the date a proof of loss is filed until a claim is denied. 215 ILCS 5/143.1 (West 1996). In this case plaintiff's claim was denied by defendant on September 26, 1994.

The date on which any tolling of the limitations could have begun is not certain as no date is given in the record for when plaintiff supplied defendant with information that could arguably be construed as a proof of loss. Plaintiff simply states in his affidavit it was "within two to three days of the loss." Thus, no accurate computation can be made. However, the loss occurred on June 8, 1994, and assuming plaintiff provided information to defendant on June 11, the time from then until September 26 could be considered tolled. That amounts to 100 days. Therefore, plaintiff had 107 days after June 8, 1995, to file his suit. That would require his suit be filed by September 16, 1995. He did not file suit until November 6, 1995, and the suit is time-barred.

Plaintiff contends defendant's agreement to reinvestigate the loss after its denial of September 26, 1994, should be considered to further toll the limitations period until what he terms the final denial of his claim on November 14, 1994. Plaintiff contends defendant's denial of September 26 was only a "preliminary" denial and denial was not final until November 14. While defendant did agree to look into the claim again, the evidence indicates it did so as a courtesy to plaintiff and never withdrew its original denial. The period of time between plaintiff's receipt of defendant's denial and the reaffirmation of its denial does not constitute time that can be tolled. The tolling ceased upon the date of the original (and never rescinded) denial pursuant to section 143.1.

Plaintiff fears if an insurance company is allowed to reinvestigate a claim as a courtesy without it...