Appeal from the Circuit Court of Kankakee County; the Hon.
Daniel Gould and the Hon. Roger A. Benson, Judges, presiding.
PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This action was brought by plaintiff, Dennis Dickman, for recovery of property damage occasioned by two windstorms under an insurance policy issued by defendant, Country Mutual Insurance Company. The circuit court of Kankakee County dismissed the complaint on the grounds that the limitations period contained in the policy had run as to the first windstorm. The trial court then permitted the plaintiff to file an amended complaint with regard to the second windstorm. Following a hearing on the merits the trial court entered judgment for the defendant.
On June 20, 1978, and at all relevant times thereafter, the plaintiff was insured under a Multi-Purpose Farm-Owners Policy of Insurance issued by the defendant. On September 17, 1978, a barn located on the plaintiff's premises was allegedly damaged by a windstorm. Following this occurrence, notice was given to the defendant of the loss.
The defendant then requested that the plaintiff contact a local contractor chosen by the defendant in order to obtain an estimate of the damages. On April 3, 1979, the contractor determined the barn was beyond repair. Thereafter, in July of 1979, the defendant engaged an engineer to examine the barn. He determined the barn was in very good condition.
The defendant contends that it then contacted the plaintiff and orally denied his claim on or about July 30, 1979. The plaintiff denies this contention and states that he first learned of the denial one year and one day from the date of the loss when he phoned the defendant on September 18, 1979.
In November of 1979, the plaintiff had the barn examined by an architect who found wind damage. Subsequently, in February of 1980, the plaintiff contacted the Illinois Department of Insurance and in March he received the Department's response which included for the first time a written denial of the claim by the defendant.
On June 7, 1980, a second windstorm allegedly damaged the plaintiff's barn. The plaintiff filed a claim regarding this second occurrence which was later denied in writing.
A complaint was filed in January of 1981, alleging damage to the barn as a result of both storms. A motion to dismiss the complaint was filed by the defendant based upon the failure of the plaintiff to file suit within the one year limitations period contained in the insurance policy. The motion was granted in its entirety on this basis. A motion for rehearing was then filed by the plaintiff on the grounds that the second storm was not so barred. The court allowed the filing of an amended complaint relative to the second storm only and after a trial, the court entered judgment in favor of the defendant.
The issue which the plaintiff has requested we review is whether the trial court erred in granting the defendant's motion to dismiss in that there was a disputed factual issue as to the applicability of the insurance policy limitations period.
• 1 In deciding the merits of a motion to dismiss, a trial court cannot determine disputed factual issues solely upon affidavits and counteraffidavits. In such situations, the parties must be afforded an opportunity to present evidence as provided by statute. Stevens v. O'Bryant (1979), 74 Ill. App.3d 239, 392 N.E.2d 935.
It is apparent, based upon the affidavits filed relative to the motion to dismiss, that there is a disputed factual issue, specifically, when the plaintiff received notification of the defendant's denial of coverage. Consequently, we must decide whether or not this is a relevant fact in determining the propriety of the trial court's action.
The plaintiff argues that the limitations period contained in the policy was impliedly waived by the defendant and that this implied waiver or waiver by estoppel was a result of not receiving notification of the denial of coverage, either orally or in writing, until after the limitations period had run. The defendant counters this argument by claiming that even if notification was given the plaintiff after the limitations period had run, the defendant was under no obligation to so notify the plaintiff based upon the absence of any notification requirement in the insurance policy.
With reference to all insurance companies, the Illinois legislature has declared certain acts to be improper claims practices if committed without just cause and either knowingly or with such frequency as to indicate a persistent tendency to engage in that type of conduct. (Ill. Rev. Stat. 1981, ch. 73, pars. 766.5, 766.6.) One of those acts is the failure to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed. Ill. Rev. Stat. 1981, ch. 73, par. 766.6(i).
• 2 We believe that this provision evidences a strong legislative intent to impose a duty upon insurance companies to either affirm or deny coverage within a reasonable period of time after notification of a claim. This reasonable period of time would certainly fall well before the contractual limitations period had run. Therefore, we find that the defendant was ...