| NOTICE Decision filed 12/30/04. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. |
NO. 5-03-0487
| SANDRA S. MATHIS, Plaintiff-Appellee, v. LUMBERMEN'S MUTUAL CASUALTY Defendant-Appellant. | ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Madison County No. 02-L-205 |
JUSTICE HOPKINS delivered the opinion of the court:
This cause comes before this court on a permissive appeal, pursuant to Supreme CourtRule 308(a) (155 Ill. 2d R. 308(a)), of the following question certified by the trial court:
"Where a homeowner's insurance policy contains a one[-]year suit[-]filinglimitation, can a Department of Insurance administrative regulation, that requires aninsurer to advise [the insured] of the number of days the limitations period was tolledunder 50 [Ill. Adm. Code] Section 919.80([d])(8)([C]), form the basis of an insurer'salleged waiver of the extended contractual limitation suit[-]filing time period?"
The defendant, Lumbermen's Mutual Casualty Insurance Company (Lumbermen's),issued a homeowner's insurance policy to the plaintiff, Sandra Mathis. The policy waseffective from June 6, 2000, to June 6, 2001. On July 16, 2000, Mathis's home at 1417 ThirdStreet, Madison, Illinois, was destroyed by fire. Mathis reported her loss to Lumbermen's. By letter dated December 7, 2000, Lumbermen's denied her claim, finding misrepresentationand arson.
On January 31, 2002, Mathis filed a two-count complaint against Lumbermen's,alleging a breach of contract and defamation. On April 1, 2002, Lumbermen's filed a motionto dismiss Mathis's complaint under section 2-619(5) of the Code of Civil Procedure (735ILCS 5/2-619(5) (West 2002)). Lumbermen's claimed that Mathis's breach-of-contract claimwas time-barred because her policy contained a one-year contractual time limitation for filingsuit and her complaint was filed beyond the one-year time limitation. The time limitationprovision in the policy stated as follows:
"Suit Against Us. No action can be brought unless the policy provisions havebeen complied with and the action is started within one year of the date of loss.
However, this one[-]year period is extended by the number of days betweenthe date proof of loss is submitted and the date the claim is denied in whole or inpart."
The last sentence of the time limitation provision is based upon section 143.1 of theIllinois Insurance Code (215 ILCS 5/143.1 (West 2002)), which provides, in pertinent part:
"Whenever any policy or contract for insurance *** contains a provisionlimiting the period within which the insured may bring suit, the running of suchperiod is tolled from the date proof of loss is filed, in whatever form is required bythe policy, until the date the claim is denied in whole or in part." 215 ILCS 5/143.1(West 2002).
The record on appeal does not include a record of the hearing on the motion todismiss. However, Lumbermen's claims, and Mathis does not dispute, that at the hearing onthe motion to dismiss Mathis argued that Lumbermen's waived or was estopped fromasserting the contractual one-year time limitation because Lumbermen's failed to complywith the Department of Insurance's rules and regulations, specifically, section919.80(d)(8)(C) of Title 50 of the Illinois Administrative Code, which provides:
"When the period within which the insured may bring suit under a residentialfire and extended coverage policy is tolled in accordance with Section 143.1 of the[Illinois Insurance] Code [(215 ILCS 5/143.1 (West 2002))], the company, at the timeit denies the claim, in whole or in part, shall advise the insured in writing of thenumber of days the period was tolled[] and how many days are left before theexpiration of the time to bring suit." 50 Ill. Adm. Code