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11/12/87 Christopher Stoller, v. Paul Revere Life Insurance

November 12, 1987

CHRISTOPHER STOLLER, PLAINTIFF-APPELLEE

v.

PAUL REVERE LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

517 N.E.2d 5, 163 Ill. App. 3d 438, 115 Ill. Dec. 40 1987.IL.1668

Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiff, Christopher Stoller, brought an action in the circuit court of Cook County against defendant, the Paul Revere Life Insurance Company. Plaintiff sought specific performance on a disability income insurance policy that he bought from defendant. At the close of a bench trial, the trial court entered judgment for plaintiff and awarded him damages, attorney fees and costs.

Defendant appeals, contending that (1) the trial court committed reversible error in denying its motion for a change of venue, (2) plaintiff could not enforce the policy, (3) the trial court's findings were against the manifest weight of the evidence, and (4) plaintiff was not entitled to attorney fees for vexatious delay because a bona fide dispute existed between it and plaintiff.

We reverse and remand.

The record shows that plaintiff was a travelling salesman. His home base was the Wellington Corporation, with offices in Chicago, Illinois. Plaintiff was paid on a commission basis, between 5% and 10% of his sales. Defendant issued to plaintiff a disability income insurance policy on March 12, 1980. The policy paid monthly benefits of $2,000 for total disability and a lesser amount for partial disability, based on lost income.

On February 23, 1982, plaintiff flew to Dallas, Texas, to attend a sales convention. After arriving at the airport, plaintiff boarded a bus bound for his hotel. The bus malfunctioned. Plaintiff testified that he stood in the aisle of the bus to see what was happening. The bus stopped abruptly, causing plaintiff to fall on his back. Plaintiff claimed that he injured his back in the fall.

On March 23, 1982, plaintiff notified defendant of his injury pursuant to the policy. Defendant's physician examined plaintiff on July 6, 1982. After notifying defendant of his injury, plaintiff received from defendant three monthly checks, each for $2,000. Defendant stopped sending the checks in August 1982. Plaintiff contacted an employee of defendant's in its claims department, who told him that defendant's physician concluded that he was well enough to return to work.

Plaintiff brought this action for specific performance on January 21, 1983. He filed an amended complaint on September 6, 1984, which he subsequently amended a second time. On February 10, 1986, defendant moved for a change of venue. The trial Judge denied the motion, finding that he had already made substantive rulings in the case.

The cause proceeded to a bench trial. On July 7, 1986, the court entered judgment for plaintiff and awarded him damages totaling $93,815.71, in addition to attorney fees and costs. Defendant appeals.

Defendant first contends that the trial court committed reversible error in denying its motion for a change of venue. The record shows that defendant made its motion on February 10, 1986. The trial Judge found ...


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