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Fuller v. American Standard Ins. Co.
State: Illinois
Court: 5th District Appellate
Docket No: 5-02-0478 Rel
Case Date: 10/21/2003
Rule 23 Order filed
August 27, 2003;
Motion to publish granted
October 21, 2003

NO. 5-02-0478

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

____________________________________________________________________________

GARY FULLER and DOREE FULLER,

               Plaintiffs-Appellants,

v.

AMERICAN STANDARD INSURANCE
COMPANY OF WISCONSIN,

               Defendant-Appellee.

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Appeal from the
Circuit Court of
St. Clair County.


No.  98-MR-99

Honorable
Stephen R. Rice,
Judge, presiding.

 ________________________________________________________________________

JUSTICE MAAG delivered the opinion of the court:

The plaintiffs, Gary and Doree Fuller, were involved in an automobile accident withan underinsured driver on September 18, 1997, wherein Gary sustained personal injuries.The injuries were caused by the underinsured driver's negligence. It is undisputed that theinsurer for the underinsured driver paid to the plaintiffs the limits of the bodily injuryliability coverage afforded under that policy. The plaintiffs then made a claim against thedefendant, American Standard Insurance Company of Wisconsin, for underinsured-motoristcoverage. The defendant denied the claim. The plaintiffs filed a complaint for a declaratoryjudgment and for a vexatious and unreasonable refusal to pay, pursuant to the IllinoisInsurance Code (Code) (215 ILCS 5/155 (West 1996)). Each party filed a cross-motion fora summary judgment on the issue of liability. On June 21, 2002, the circuit court entered anorder granting the defendant's motion for a summary judgment and denying the plaintiffs'motion for a summary judgment. The plaintiffs appeal.

The relevant facts are as follows. When the plaintiffs initially purchased an automobile policy from the defendant, they opted for the defendant's monthly premiumpayment plan, which is known as the "Amplan". The Amplan specifically states as follows:

"MONTHLY PREMIUM PAYMENTS FOR PERSONAL LINESACCOUNT-Your account begins with an initial payment of two months [sic]premium for each policy plus an Amplan charge to cover costs related to your accountpayments. The third month's payment is due approximately 30 days from the day youopened your account. Thereafter, each monthly payment pays your insurance twomonths in advance of your current due date."

Hence, pursuant to the Amplan, the plaintiffs were required to pay at least two months ofpremiums to initiate the insurance policy. Thereafter, the plaintiffs were billed on a monthlybasis. According to the terms of the Amplan, the insurance was to be paid 60 days inadvance.

The plaintiffs failed to pay the premium that was due on February 20, 1997. OnFebruary 28, 1997, the defendant mailed a notice of cancellation advising the plaintiffs thatthe policy would be cancelled on March 20, 1997, for a lack of payment. The plaintiffs paidthe premiums before March 20, 1997, which prevented the policy from being cancelled. OnApril 20, 1997, the next premium was due. The plaintiffs failed to make this payment. Thedefendant sent another cancellation notice listing May 20, 1997, as the cancellation date forthe nonpayment of the premium. The policy was not cancelled because the plaintiffs paidthe premium before the threatened cancellation date. The plaintiffs then failed to make theMay 20, 1997, premium payment. The plaintiffs were sent a notice of cancellation warningof a June 20, 1997, cancellation date. This time, the plaintiffs did not make the paymentbefore the cancellation date, and the policy was cancelled on June 20, 1997. The policy wasreinstated on July 2, 1997, when the defendant received the plaintiffs' check dated June 28,1997. The amount that the plaintiffs paid covered their insurance from July 2, 1997, toAugust 2, 1997. On July 10, 1997, the defendant sent another notice of cancellation becausethe plaintiffs had failed to make the double premium payment that was required to initiatethe policy. This notice stated that the policy would be cancelled on August 2, 1997, if anadditional payment was not received. Since the plaintiffs made no further payments beforethe August 2, 1997, cancellation date, the policy was cancelled a second time. On August7, 1997, the defendant sent a notice of cancellation to the lienholder.

On September 18, 1997, Gary was injured in an automobile accident that was causedby an underinsured driver. Gary sustained a broken right leg and incurred medical bills,disability, and pain and suffering. As a result of this accident, the plaintiffs soughtcompensation under the underinsured-motorist coverage with the defendant. The defendantdenied the claim, stating that the plaintiffs' coverage had been properly and lawfullycancelled for the nonpayment of the premium prior to September 18, 1997.

In her deposition, Doree testified that she did not recall receiving the cancellationnotice in the mail. She noted in her deposition that if she had received it, she would havedisregarded the notice because she had previously made her payment in June 1997. Doreeclaimed that she contacted her insurance agency prior to September 18, 1997, because shewas concerned that she had not received a recent bill. Doree stated that a secretary at theoffice told her not to worry about the matter until she received a bill.

The plaintiffs filed a complaint for a declaratory judgment on March 20, 1998. Thereafter, the plaintiffs filed an amended complaint adding a cause of action against thedefendant under the Code (215 ILCS 5/155 (West 1998)). On March 1, 2000, the defendantfiled a motion for a summary judgment. On October 31, 2000, the plaintiffs filed a motionfor a summary judgment on liability. The circuit court entered its order on June 21, 2002,granting the defendant's motion for a summary judgment and denying the plaintiffs' motionfor a summary judgment on liability. The plaintiffs filed a timely notice of appeal.

Appellate courts apply a de novo standard when reviewing summary judgment rulings.Where there are no genuine issues of material fact, a summary judgment is a proper methodof disposing of a cause. A summary judgment is appropriate only when the pleadings,depositions, admissions, and affidavits on file, if any, show that there is no genuine issue ofmaterial fact and that the moving party is entitled to a judgment as a matter of law. Inresponse to a motion for a summary judgment, a plaintiff is not required to establish his orher case as he or she would at a trial, but he or she must present some factual basis thatwould arguably entitle him or her to a judgment. Roe v. Jewish Children's Bureau ofChicago, 339 Ill. App. 3d 119, 129, 790 N.E.2d 882, 891 (2003).

The plaintiffs claim that the circuit court's June 21, 2002, order granting thedefendant's motion for a summary judgment and denying the plaintiffs' motion for a summaryjudgment was erroneous because the cancellation notice was ambiguous and did notreasonably inform the plaintiffs that the insurance policy was in danger of being cancelled. For these reasons, the plaintiffs claim that the policy was in effect on the date of thecollision. We disagree.

According to section 143.14 of the Code (215 ILCS 5/143.14 (West 1996)), "Nonotice of cancellation of any policy of insurance *** shall be effective unless mailed by thecompany to the named insured and the mortgage or lien holder, at the last mailing addressknown by the company." And section 143.15 of the Code provides, "[W]here cancellationis for nonpayment of premium, the notice of cancellation must be mailed at least 10 daysbefore the effective date of the cancellation." 215 ILCS 5/143.15 (West 1996).

In the instant case, there is no dispute that the defendant sent a notice to the plaintiffson July 10, 1997, that stated as follows:

"0700-8176-01-60-SPPA-IL 90.27

94 GEO GEM

0700-8176-02-63-SPPA-IL 91.43

93 FORD ARO

AMPLAN MONTHLY CHARGE 6.76

AMOUNT DUE 07-02-97 188.46

AMOUNT DUE 08-02-97 188.46

TOTAL AMOUNT DUE 376.92

OUR RECORDS SHOW WE HAVE NOT RECEIVED YOUR PREMIUM. EACHPOLICY DESCRIBED ABOVE WILL BE CANCELLED ON 08-02-97 AT THEHOUR SPECIFIED IN THE POLICY. HOWEVER, RECEIPT OF $376.92 BYAMERICAN FAMILY ON OR BEFORE 08-02-97 WILL RESTORECONTINUOUS PROTECTION. TO REISSUE YOUR INSURANCE AFTER 08-02-97, PLEASE CONTACT YOUR AGENT." (Emphasis added.)

The defendant sent the aforementioned notice of cancellation because the plaintiffshad failed to make the double premium payment that was required to initiate the policy thathad been cancelled. This notice stated that the policy would be cancelled on August 2, 1997,if an additional payment was not received. Since the plaintiffs made no further paymentsbefore the August 2, 1997, cancellation date, the policy was cancelled a second time. OnAugust 7, 1997, the defendant sent a notice of cancellation to the lienholder. On September18, 1997, Gary was injured in an automobile accident.

The plaintiffs claim that when dealing with the cancellation of a policy for thenonpayment of a premium, Illinois courts hold insurance companies to a strict standard. SeeTextile Maintenance v. Industrial Comm'n, 263 Ill. App. 3d 866, 871, 636 N.E.2d 748, 751(1994). The plaintiffs also state that the forfeiture of an insurance contract for thenonpayment of a premium is not favored in the law, and courts are prompt to seize uponcircumstances that indicate a waiver of a forfeiture. See Van Hulle v. State Farm MutualAutomobile Insurance Co., 44 Ill. 2d 227, 232, 254 N.E.2d 457, 461 (1969). The plaintiffsalso contend that the notice of cancellation was ambiguous and, therefore, ineffective tocancel the plaintiffs' policy of insurance, because on the reverse side of the Amplan finalnotice it stated as follows: "If you have already sent your payment, please disregard thisnotice and accept our thanks." The plaintiffs contend that since they had mailed theirpayment on July 2, 1997, they thought that their insurance had been paid. We disagree.

This is a simple case of an insurance policy that was effectively cancelled for thenonpayment of the premium. Although the plaintiffs' attorney attempted to pose confusingquestions about the notice of cancellation in an effort to create an ambiguity where noneexisted, the circuit court and this court have examined the deposition testimony and find thatalthough the questions were confusing, the documents themselves were not ambiguous. Despite being warned in the cancellation notice that their policy would end on August 2,1997, the plaintiffs did not make another premium payment to the defendant until afterGary's automobile accident on September 18, 1997, approximately 1

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