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Lundquist v. Illinois Life & Accident Ins. Co.

FEBRUARY 8, 1960.

RODNEY DEAN LUNDQUIST, ET AL., PLAINTIFFS-APPELLEES,

v.

ILLINOIS LIFE & ACCIDENT INSURANCE COMPANY, AN ILLINOIS CORPORATION, AND BLUE BANNER SERVICE AGENCY, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from the County Court of Winnebago county; the Hon. FRED J. KULLBERG, Judge, presiding. Reversed and remanded. JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

This is a suit on several individual policies of insurance, the complaint consisting of 25 separate Counts, one Count for each individual plaintiff, against the defendant insurance company and its agent, for the alleged maternity benefits due thereunder. The defendants moved to strike and dismiss the Complaint but the Court denied the motion. The defendants then answered, denying substantially all the allegations, and, in addition, pleaded a special defense asserting that each policy was cancelled as of January 1, 1957, in accordance with its terms, by letter, dated December 17, 1956, mailed each plaintiff, prior to the respective times any loss, within the meaning of the policies, had been sustained. No reply or answer was made by the plaintiffs to this special defense. The Complaint, so far as it relates to the plaintiffs Raymond E. Norsen, Albert W. Abraham and Betty J. Carter, being Counts II, III and IV, the case having gone to trial only as to those plaintiffs, and that being the only matter with which this appeal is concerned, charged that while the respective plaintiffs were covered for maternity benefits by respective policies of insurance issued by the defendants, the plaintiffs (or the plaintiffs' wives) respectively, gave birth to children after January 1, 1957, and as a result were confined to a hospital and received medical attention, and that the defendants have refused to pay the sixty ($60) Dollars maternity benefit allegedly due each under each policy. The jury found for the plaintiffs and assessed damages in the sum of $60 each, the defendants' motions for directed verdicts having been denied. Final judgments for those respective plaintiffs were entered on the verdicts, upon an express finding that there is no just reason for delaying appeal (Ch. 110, Ill. Rev. Stats., 1959, par. 50 (2), the post trial motions of the defendants were heard and denied, and the defendants appeal.

The defendants' theory is that the Court erred in refusing to grant the defendants' motions for directed verdict and post trial motions, because the policies had been effectively cancelled as of January 1, 1957, in accordance with their terms, prior to the time any subsequent loss, within the meaning thereof, was sustained by the respective plaintiffs under the coverage for maternity benefits, the respective births of the children having all occurred after January 1, 1957, though in each case the mothers were pregnant as of January 1, 1957.

The plaintiffs-appellees argued orally in this Court, pursuant to leave and by agreement, but filed no brief. The evidence is not set out in the abstract, but there is an agreed statement of facts to this effect:

"On December 17, 1956, plaintiffs were each covered by an individual policy of insurance issued by the defendant corporations.

"On December 17, 1956, the defendant corporations sent a letter to each of some eleven hundred policyholders covered by a like policy, informing each policyholder that as of January 1, 1957, their specific policy was cancelled in accordance with the terms and provisions of their policy. The letters were duly received by each policyholder.

"On the effective date of cancellation each of the plaintiffs (or in some instances the plaintiffs' wives) were pregnant. They subsequently gave birth to children, and brought claim under the cancelled policy for pregnancy benefits."

Count II of the Complaint, relating to Raymond E. Norsen, one of the plaintiffs-appellees with which this appeal is concerned, alleged, so far as material:

"2. That on or about January 1, 1954, in consideration of payment by the plaintiff to the defendant Blue Banner Service Agency of Two and 50/100 ($2.50) Dollars, the plaintiff was covered for accident, sickness, disease, and maternity benefits for a period of one (1) month, commencing on January 1, 1954, according to policy of insurance with said Defendants, bearing policy No. IF 21811 H.

"3. That on or about September 2, 1957, plaintiff's wife gave birth to a child. She was confined to the Rockford Memorial Hospital, and there received medical attention.

"5. The plaintiff has duly performed all the conditions of the policy to be performed by him insofar as he has been allowed to do so by the defendants. The defendants, without cause or provocation, cancelled out the above insurance policy, when the liability under the Maternity Benefit writing had become fixed. The plaintiff at all times was willing and able to pay the further monthly premiums on said policy."

Count III, relating to Albert W. Abraham, another plaintiff-appellee here concerned, alleged, so far as material:

"2. That on or about January 1, 1954, in consideration of payment by the plaintiff to the defendant, Blue Banner Service Agency, of Two ($2.00) Dollars, the plaintiff was covered for accident, sickness, disease, and maternity benefits for a period of one (1) month, commencing on January 1, 1954.

"3. That on or about February 6, 1957, plaintiff's wife gave birth to a child. She was confined to the St. Joseph's Hospital, and ...


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