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Florsheim v. Travelers Indemnity Co.





APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND S. SARNOW, Judge, presiding.


The plaintiff filed a belated claim against her property insurer; the trial court granted the insurer's motion for summary judgment on the grounds the one-year period of limitations had expired. The principal issue on appeal is whether the plaintiff's belief that the insurer would reconsider its denial of liability if she produced evidence proving the claim was covered excused the untimely filing of the suit. A minor issue is whether the plaintiff's claim for punitive damages for the defendant's allegedly wrongful denial of liability was properly dismissed.

On December 16, 1977, the plaintiff Florsheim filed a verified complaint against Travelers Indemnity Company of Illinois (Travelers) alleging in count I that she had been insured under a homeowner's policy issued by Travelers for the period August 21, 1976, through August 21, 1977, which policy was attached to the complaint; that on or about August 23, 1976, the plaintiff discovered that a Vasarely painting owned by her and kept in her residence had been severely damaged and that numerous stains or spots were visible on the surface of the painting; that the painting was insured by the policy; that on or about August 23, 1976, plaintiff notified Travelers of the loss and that she had performed all terms and conditions of the policy; and that she had repeatedly demanded that Travelers reimburse her for the loss. The plaintiff in count I sought to recover $60,000 plus interest and costs, including attorney's fees. In count II, the plaintiff, in addition to the allegation in count I, alleged that a fiduciary relationship existed between the insurer and the insured and that the defendant wilfully and wantonly breached its fiduciary duties by deliberately and wrongfully denying that the policy applied to the loss; the plaintiff in count II sought to recover $100,000 punitive damages and such other relief as the court deemed just. The policy attached to the complaint provided that any suit on the policy must be brought within one year of the inception of the loss.

The defendant in an unverified answer denied that the plaintiff performed all of the policy conditions and specifically alleged that suit was not timely and asked for the complaint to be dismissed. It also in a separate motion sought to have count II dismissed for failure to state a cause of action. Thereafter it filed a motion for summary judgment on the grounds that there was no issue of fact and it was entitled to judgment as a matter of law. The deposition of Florsheim and the affidavit of defendant's claims adjuster were attached. The deposition disclosed that Florsheim discovered the loss on August 16, 1976, after a painter had painted her house. She reported it immediately to her insurance brokers. She also immediately called certain persons including Tim Lennon at the Art Institute to try to determine the cause of the spots. Lennon later informed her he had recreated the spots on a picture by spilling turpentine on it. The insurance company denied coverage on May 20, 1977, on the theory that the loss was caused by a latent defect; specifically that some salad oil had been spilled on the canvas before the paint was applied. When plaintiff received the letter from Travelers she called one of the art experts Travelers had consulted and he told her "it would never hold up in court." She then had the picture photographed by infrared and ultraviolet light.

Florsheim also stated in her deposition that she had been away on trips the month of October 1976, from January 17 to February 13, 1977, from March 18 to March 22, 1977, and from July 19 to August 21, 1977. She did not consult an attorney until September 1977. As far as she could remember no one from the company told her she would not have to file her claim within one year from the date of the loss.

The plaintiff in her affidavit in opposition to the motion for summary judgment alleged in part:

1. that she was 82 years old;

2. that after she filed her claim with Travelers they investigated the loss for approximately nine months during which time they consulted with various experts;

3. that Travelers denied liability relying on the opinion of one expert that salad oil had been spilled on the unfinished canvas;

4. that since Travelers had consulted with various experts as to the cause of damage she believed that if Travelers was given conclusive photographic evidence that the damage could not have been caused by a substance rising to the surface of the painting, but instead had been splattered by a substance coming from outside, then Travelers would at least consider such evidence;

5. that accordingly immediately after learning of the salad oil theory, she retained Mr. Barry Bauman of the Art Institute of Chicago to take ultraviolet and infrared photographs of the Vasarely which revealed that the foreign material had entered through the front of the painting and had seeped into the paint surface, rather than coming from underneath the paint surface as suggested by Mr. Berger;

6. that photographic evidence conclusively disproved the theory on which Travelers denied liability since that theory rested entirely on the assumption that the substance had come from underneath the paint layer;

7. that soon after receiving the photographs from Mr. Bauman she made these photographs available to Travelers for their examination; however, Travelers refused to even examine these photographs on the grounds that the one-year policy limitation had expired;

8. that from the inception of the loss until December 2, 1977, she believed that the Travelers would pay her claim, and that she never read any policy provision requiring that suit be brought within one year. Moreover, at no time did anyone from the Travelers or anyone ...

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