The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Evaluation Systems, Inc. ("Evaluation Systems") sues Aetna Life
Insurance Company ("Aetna"), seeking recovery of (1) $75,000 in
insurance proceeds (Count I) and (2) statutory damages under
Illinois Insurance Code § 155 (Ill.Rev.Stat. ch. 73, § 767) for
Aetna's "vexatious and unreasonable" refusal to pay (Count II).
Two motions have been submitted and briefed by the parties:
1. Aetna's under Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss
Complaint Count II; and
2. Evaluation Systems' under Rule 9(c) to strike Aetna's
Answer to Complaint ¶¶ 10 and 12.
For the reasons stated in this memorandum opinion and order,
Aetna's motion is denied and Evaluation Systems' is granted.
Aetna received and cashed the $563.25 check. It then sent
Evaluation Systems a December 1, 1981 form letter:
Thank you for your payment of $563.25. To pay the current
premium due, an additional payment of $50.25 is needed.
Enclosed is a self-addressed envelope for your convenience.
Once we receive your additional payment, we will apply your
checks to pay your November premium due of $613.50.
If we can be of any further assistance, please contact us.
Unfortunately the letter was mailed to Evaluation Systems' old
address (the one listed in the Policy application).*fn3
Consequently the letter never reached Evaluation Systems, but
was returned to Aetna with the statement "Moved 3 yrs. ago"
written on the envelope.
At that point Aetna made no further effort to locate Evaluation
Systems, which (from the incomplete information now before the
Court) had apparently relocated from Chicago to a Chicago
suburb. Instead Aetna mailed the original letter to Naess,
whose home address had also been listed in the Policy
application. In response Naess' wife Vreni wrote Aetna December
15, 1981 that one of the three Evaluation Systems partners had
previously ousted the other two (including Naess) from the
company. She asked whether "any regulation on your books"
prevented continuation of insurance under those circumstances.
Aetna's next move (two months later) was to send a "Notice of
Lapse" to the same former Evaluation Systems address it had
already been told was wrong by the postal authorities. Its
February 19, 1982 letter read in part:
The annual premium of $613.50 due November 20, 1981 was not
received by us within the time allowed for payment.
Consequently, protection has ceased in accordance with the
terms of the policy.
Not surprisingly, this letter too never reached Evaluation
On the same date Aetna sent the second letter, it mailed a
$563.25 refund check to a different (but also incorrect)
address that had been provided Aetna by its Chicago office.
Nothing about any claimed lapse accompanied the ...