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Sizelove v. Ina Ins. Co. of N. Amer.

OPINION FILED MARCH 11, 1982.

DONALD F. SIZELOVE, PLAINTIFF-APPELLANT,

v.

INA INSURANCE COMPANY OF NORTH AMERICA ET AL., DEFENDANTS-APPELLEES. — (THE WESTERN FIRE INSURANCE COMPANY ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of McLean County; the Hon. JAMES A. KNECHT, Judge, presiding.

JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:

Plaintiff brought a declaratory judgment action seeking to have the court declare that certain fire insurance policies were in effect on the date his building was destroyed by fire. The trial court granted summary judgment to INA and Hartford, holding that plaintiff's purchase of new policies shortly before the fire coupled with plaintiff's communication to the insurer of plaintiff's intent to cancel his existing policies operated to cancel the existing policies under the doctrine of cancellation by substitution. Plaintiff appeals from that order.

Plaintiff owned land and a building located in Bloomington. The building and its contents were destroyed by fire on January 23, 1979.

Shortly after purchasing the property, plaintiff obtained fire insurance through a local agency, the Frisch-Hodnett Agency. Frisch-Hodnett contacted another local agency, Capen, Frank, Proctor and Bowles (CFPB), and asked if CFPB would procure the insurance. CFPB obtained policies in an aggregate amount of approximately $125,000. Plaintiff also obtained additional coverage totaling $55,000 through another local agent, Bernard Jacobs.

In the fall of 1978, plaintiff asked John Bova of Clemens and Associates to obtain new and different coverage in an amount of $300,000 and to take steps to place plaintiff's insurance coverage with Bova. Bova contacted several insurance companies and obtained four policies with aggregate coverage totaling $300,000.

Bova received these policies on January 11, 1979. On that date, he sent a letter to C. William Frank of CFPB. Bova wrote:

"Bill: We did get the policies changed and we would appreciate any return premiums be forwarded to our office. We got the fire and comprehensive general liability coverages. Thank you. John Bova."

Frank's secretary telephoned Bova on January 18, 1979. Bova was out of town. Frank's secretary left a message for Bova to call CFPB. When Bova returned on January 22, 1979, he called Frank's secretary. She told him that either the original policies or lost policy releases would be needed in order to cancel the existing policies.

On January 22, 1979, Frank's secretary sent the following memorandum to John Bova:

"Please have Don Sizelove sign the attached lost policy releases and we will order cancellation effective 11-15-78. Please type in a policy number for each under the reason for cancellation in case the insuring companies get huffy over our late request. Thank you for your help."

On that same date, she sent the following letters to INA and Hartford: To INA:

"We have been advised that the insured purchased duplicate coverage from another agent effective 11-15-78. As soon as I get lost policy release and new policy number, I'll forward on to you."

To Hartford:

"Please be advised that we will be sending above back to you for cancellation effective 11-15-78. Insured purchased from Clemens and Associates. As soon as I ...


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