Appeal from the Circuit Court of Cook County; the Hon. CHESTER
J. STRZALKA, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. Defendant appeals from a $2,400 judgment, after a bench trial, in favor of plaintiff, the beneficiary of life insurance and accident insurance policies. Each policy was for $1,000 and the court added $300 for attorneys' fees for unreasonable refusal to pay and $100 for interest. Defendant raises two points on appeal: (1) the failure of plaintiff to comply with the terms and conditions of each of the two insurance policies precludes recovery at this late date; and (2) the trial court erred in assessing attorneys' fees against defendant for its refusal to pay plaintiff.
On November 2, 1961, Clarence Penn, husband of the plaintiff, disappeared while on a hunting trip near Rockford, Illinois. On November 9, 1961, attorney Clinton O. Sims, a friend of plaintiff, wrote a letter to defendant in the following language:
Please be advised that your insured Clarence Penn of 6920 South Harvard was lost in the Pecatonica River on or about the 2nd day of November, 1961, at about 3:52 a.m. Mr. Penn fell in the river while traversing its banks with three companions who witnessed his death. To date his body has not been recovered.
You will note that we are enclosing the premiums for payment of the insurance policies.
It is suggested that this office be contacted as to your requirements for payment under the policies for the benefits. Please let me hear from you regarding this matter at your earliest convenience.
On January 2, 1962, defendant sent Sims claim and proof of loss (death) forms as prescribed by the two policies covering the decedent. Plaintiff testified that pursuant to Mr. Sims' advice she sent the sheriff's statement to defendant. She sent it with a short letter on November 3 or 4, 1961, by registered mail. She also testified that she did not give Sims permission to write to the defendant nor did she give him any money to pay premiums. Some time later Sims called her and told her that he had a statement of claim; and she went over and picked it up. It was a blank from defendant to be filled out by her. About eight months or a year later she saw Attorney Altieri and gave him the forms but he told her that there was nothing he could do. Robert Johns, secretary-treasurer of defendant, testified that the letter from Sims dated November 9, 1961, was acknowledged by defendant on January 2, 1962; that no other communication was had with plaintiff until June 14, 1963, when Attorney Campbell contacted the defendant and detailed some of the facts of decedent's death. A subsequent letter dated September 19, 1963, from Campbell was received by defendant. It enclosed a newspaper story of the accident and a photocopy of a report by Deputy White to the Sheriff of Winnebago County. The report described the drowning and fixed the place as "near Trask Bridge." Attached to it were the statements of three witnesses. There was no explanation of the delay in making the claim nor any reference to any prior notice. The secretary-treasurer of defendant further testified that a determination was made two years after the date of death that defendant would not pay the claim.
Defendant first argues that plaintiff's failure to comply with the terms and conditions of each of the insurance policies precludes recovery at the present time. There are two policies involved in this case, an accident policy and a life policy; we shall consider the questions raised by each separately.
(1) The Accident Policy. The relevant provisions of the accident policy are as follows:
NOTICE OF CLAIM: Written notice of claim must be given to the Company within twenty days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible. Notice given by or on behalf of the Insured or the beneficiary to the Company at its General Office in Chicago, Illinois, or to any authorized agent of the Company, with information sufficient to identify the Insured, shall be deemed notice to the Company.
CLAIM FORMS: The Company, upon receipt of a notice of claim, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not furnished within fifteen days after giving of such notice the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting, within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, the character and the extent of the loss for which claim is made.
PROOFS OF LOSS: Written proof of loss must be furnished to the Company at its said office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within ninety days after the termination of the period for which the Company is liable and in case of claim for any other loss within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required.
Since the defendant did not provide proof of loss forms within fifteen days after it received notice of loss, it was only necessary that plaintiff file within ninety days "written proof covering the occurrence, the character and the extent of the loss for which the claim is made." According to the policy this proof could be made within a year "if it was not reasonably possible" to give it within ninety days. Plaintiff claims that her testimony ...