Appeal from the Circuit Court of Kane County; the Hon. Richard
F. Weiler, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 31, 1986.
Plaintiff, Dean F. Weeks, appeals from a judgment of the circuit court of Kane County in favor of defendant, Aetna Insurance Company. We affirm.
Plaintiff was insured under a disability policy issued by defendant when he suffered a multiple fracture of his right heel on June 16, 1976. The policy provided a $125-per-week benefit for total disability. Total disability was defined as follows:
"If such injuries shall, within thirty days after the date of accident, wholly and continuously disable the Insured and prevent him from performing every duty pertaining to his occupation, the Company will pay periodically weekly indemnity at the rate specified in the Schedule above for the period of such continuous total disability, but for not exceeding one hundred four consecutive weeks. After the payment of weekly indemnity for one hundred four weeks as aforesaid the Company will continue the payment of weekly indemnity at the same rate thereafter so long as the Insured shall be wholly and continuously disabled by such injuries from engaging in any substantially gainful occupation or employment for wage or profit for which he is qualified or may become qualified."
Defendant paid plaintiff a total of $33,625 in total disability benefits for the period from plaintiff's accident through June 1, 1981.
The primary issue at the bench trial in this case was whether plaintiff was still totally disabled under the terms of his policy after June 1, 1981. On this question the trial judge stated in a letter informing counsel of his decision:
"I feel, after listening to the evidence and, in particular, the plaintiff's own testimony, that plaintiff has failed to qualify under the terms of the contract document to show that he is wholly and continually disabled, and for that reason I find in favor of the defendant and against the plaintiff."
A motion by plaintiff for reconsideration was denied and this appeal followed.
Plaintiff raises four issues on appeal. Plaintiff argues that (1) defendant was vexatious and unreasonable in its handling of plaintiff's claim, (2) defendant had, and failed to meet, the burden of proving plaintiff's disability had ceased, (3) the court erred in admitting into evidence the income tax returns of the insurance agency plaintiff owned "and by finding plaintiff not disabled under the policy," and (4) "[d]efendant did not produce competent proof as to those activities or occupations for which Mr. Weeks might become qualified and, thereby, failed to sustain its burden of proof."
• 1 Plaintiff first argues that defendant was vexatious and unreasonable in its handling of plaintiff's claim and that "[t]he trial court failed to consider plaintiff's demand for remedies under Ch. 73, Par. 767, Illinois Revised Statutes." (Ill. Rev. Stat. 1981, ch. 73, par. 767.) Defendant argues, inter alia, that liability under the insurance policy must be established before plaintiff could be entitled to penalties under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767). Plaintiff responds to this claim arguing that while it was formerly true that only a prevailing party could be granted penalties under section 155, an amendment to the statute has eliminated that requirement. (Compare Ill. Rev. Stat. 1975, ch. 73, par. 767, with Ill. Rev. Stat. 1981, ch. 73, par. 767.) It is unnecessary to decide this legal issue because plaintiff's contentions in the trial court required defendant to be liable under the policy before plaintiff could be entitled to penalties under section 155.
In the trial court, plaintiff never contended that he was entitled to section 155 relief even if defendant was not liable under the insurance policy. This was true even as late as plaintiff's memorandum in support of his motion for reconsideration of the trial court's finding for defendant. Most significantly, in his complaint, plaintiff's allegation relative to section 155 was:
"That said failure, neglect, and refusal of Defendant to pay the Plaintiff the several sums of money due and owing to him in accordance with the terms of said policy were, and are, vexatious and without reasonable cause."
From this it is clear that the acts alleged by plaintiff to be vexatious and unreasonable were defendant's "failure, neglect, and refusal" to pay to plaintiff benefits owed plaintiff under the insurance policy. It follows that defendant could not have committed this alleged vexatious and unreasonable conduct if the benefits were not owed to plaintiff. Consequently, once the trial court determined that plaintiff was not entitled to further benefits under the policy, that finding necessarily meant that plaintiff could not be entitled to penalties under section 155 on ...