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Posner v. Firemen's Ins. Co.

MAY 7, 1964.

HENRY POSNER, ET AL., AS TRUSTEES FOR KAREN L. POSNER AND MARC S. POSNER, D/B/A THE IROQUOIS CO., PLAINTIFFS-APPELLANTS,

v.

FIREMEN'S INSURANCE COMPANY, A NEW JERSEY CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF ILLINOIS, TRANSCONTINENTAL INSURANCE COMPANY, A NEW YORK CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF ILLINOIS, UNDERWRITERS AT LLOYD'S, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Municipal Court of Chicago; the Hon. NICHOLAS MATKOVIC, Judge, presiding. Order and judgment affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order of the trial court allowing motions to dismiss made by the appellees, hereinafter referred to as defendants, and the Reserve Insurance Company, and entering judgment in their favor.

Defendants and Reserve Insurance Company issued fire insurance policies in varying amounts to Midwest Triangle Paint Works, Inc., covering the contents contained in the one-story brick building located at 7433-35 South Ashland Avenue, Chicago, Illinois. On December 31, 1958, while said policies were in full force and effect, a fire occurred destroying the goods covered thereby. Plaintiffs brought an action on the said policies on July 25, 1961, and the order appealed from was entered on December 12, 1962.

No appeal was prosecuted as to the judgment in favor of Reserve Insurance Company, and it was dropped from the appeal by the rather unconventional method of eliminating the company's name from the heading of the case.

A slip was attached to the policies of Transcontinental Insurance Company and the Firemen's Insurance Company containing the following language:

Loss Payable Clause

Loss, if any, to be adjusted only with the Insured named herein and payable to the Insured and Iroquois Company, 176 W. Adams Street, Chicago, Illinois, as their respective interests may appear, subject, nevertheless, to all the terms and conditions of the policy.

The policy issued by Underwriters at Lloyd's, London, had a slip attached containing identical language with the exception that the street address of the Iroquois Company did not appear. All three of these slips contained an additional paragraph stating that they were attached to and formed a part of the respective policies. The complaint identified the plaintiffs as "doing business as the Iroquois Company." If plaintiffs have any cause of action, it must depend upon the above mentioned slips, as the name of the Iroquois Company does not appear elsewhere in the policies sued upon, and the individual plaintiffs' names appear nowhere in said policies.

The policies of Transcontinental Insurance Company and Firemen's Insurance Company contain clauses reading,

No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after the inception of the loss.

The policy of Underwriters at Lloyd's, London, was a warranty policy containing a clause which reads:

Warranty Clause

Warranted same terms and conditions as and to follow settlements of the policy or policies of the Firemans Insurance Company (hereinafter referred to as the "Warranty Company") and that the Warranty Company has at the time of any loss $7,500.00 (subject only to the reduction by amount of loss not reinstated) on the identical subject matter and risk, and identically the same proportion on each separate part thereof. Warranted that the premium rate charged hereunder is not less than the Warranty Company rate.

This policy is subject without notice to the same conditions, endorsements, assignments and alterations of rates as are, or may be, assumed in the Warranty Company's insurance upon which this policy is based and shall be deemed to include such risks ...


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