2012 IL App (1st) 110554
Ill. App. Ct.2012Background
- Fire damaged plaintiff's home; policy secured by mortgagee Homecomings (force-placed) underwrites plaintiff's dwelling coverage of $124,000 with excess liability sharing; Hanover policy provides $100,000 dwelling + $15,000 contents with pro rata liability; both policies cover the loss; Hanover paid $56,854.64 (44.45%); defendant's payment capped at final due of $23,709.56 after deductible; Homecomings disbursed $18,951.55 and halted further disbursements; March 28, 2007 letter stated excess coverage but not a denial; plaintiff filed a five-count complaint in 2009 asserting breach of contract, Consumer Fraud Act, and declaratory relief; trial court dismissed on 2-619 grounds based on one-year policy endorsement; court held tolling under 143.1 but denied denial status; appellate court reversed and remanded; issues included preemption under Insurance Code §155 and independence of Consumer Fraud Act claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 143.1 tolling applies to the endorsement provision | Burress-Taylor argues tolling began when proof of loss was filed | Defendant argues denial occurred March 28, 2007, triggering the period | Tolling applied; March 28 letter not a denial |
| Whether the March 28, 2007 letter constitutes a denial | Letter did not deny the claim; tolling continues | Letter signals status and final due but not denial | Letter not a denial; tolling remains valid |
| Whether estoppel can bar reliance on the limitation period | Defendant's failure to comply with notice allows estoppel | No estoppel shown without denial or misrepresentation | Estoppel not reached because letter was not denial; issue preserved but not decisive |
| Whether Consumer Fraud Act claim is preempted by Insurance Code §155 | Claim independent of breach; seeks deceptive practices | Claim premised on contract; preempted | Consumer Fraud Act claim not preempted; independent and viable |
| Whether the Consumer Fraud Act claim is independent of breach of contract | Plaintiff pled separate and independent fraud elements | Claim derived from breach of policy promises | Claim independent; not precluded by §155 |
Key Cases Cited
- Mathis v. Lumbermen’s Mutual Casualty Insurance Co., 354 Ill. App. 3d 854 (Ill. App. 2004) (section 143.1 tolling purpose; tolling ends on denial)
- American Access Casualty Co. v. Tutson, 409 Ill. App. 3d 233 (Ill. App. 2011) (reinforces tolling interpretation of 143.1)
- Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513 (Ill. 1996) (distinguishes tort basis from contract and §155 preemption)
- Young v. Allstate Insurance Co., 351 Ill. App. 3d 151 (Ill. App. 2004) (insurer conduct can give rise to independent tort; but not mere bad faith)
- Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100 (Ill. 2005) (breach of contract promise alone not Consumer Fraud Act claim)
- Salloum Foods & Liquor, Inc. v. Parliament Insurance Co., 69 Ill. App. 3d 422 (Ill. App. 1979) (estoppel based on misleading insurer conduct can bar timely suit)