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03/30/88 First National Bank of v. Mutual Trust Life

March 30, 1988





522 N.E.2d 70, 122 Ill. 2d 116, 118 Ill. Dec. 615 1988.IL.451

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. John L. Davis, Judge, presiding.


JUSTICE WARD delivered the opinion of the court.


The plaintiff, First National Bank of Decatur, filed a complaint on September 24, 1985, in the circuit court of Macon County against the defendant, Mutual Trust Life Insurance Company, to recover as the assignee on a life insurance policy that had been given as collateral to the Bank by the insured. The defendant (hereafter, Mutual) forfeited the policy on September 16, 1983, after the insured had failed to pay the premium that was due May 1, 1983. The plaintiff (hereafter, the Bank) alleged that, as the assignee, it should have been notified by Mutual that a premium was due on the policy. The trial court allowed Mutual's motion to dismiss, stating that the complaint failed to state a cause of action. The appellate court, with one Justice Dissenting, affirmed (149 Ill. App. 3d 743), and we granted the Bank's petition for leave to appeal (107 Ill. 2d R. 315).

As this appeal is before the court on the defendant's motion to dismiss, all well-pleaded facts and all reasonable inferences from them will be considered as true. (Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 67; Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7.) The complaint alleges that Mutual had issued a $100,000 insurance policy on the life of Angelo G. Drakos, to whom the Bank had made a loan. The life insurance policy was issued October 1, 1979. Drakos, on April 7, 1980, had assigned the right to the proceeds of the life insurance policy to the Bank as collateral for a $38,000 loan. The assignment was received and acknowledged by Mutual on April 14, 1980. Drakos died on May 16, 1985, and the Bank promptly filed a claim for his life insurance benefits.

Mutual notified the Bank that Drakos' policy had been terminated on September 16, 1983, for failure to pay the May 1, 1983, premium. The complaint alleges that the first the Bank learned of the termination of the policy was through this notice of forfeiture. The complaint alleges that Mutual had failed to notify the Bank, as the assignee, that a premium was due, which the plaintiff contends was required by section 234(1) of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 846). The complaint does not allege that Mutual failed to notify Drakos of the premium due, and the plaintiff acknowledged in oral argument that Drakos received notice of the premium due. The complaint also alleges there has been a vexatious and unreasonable delay by Mutual in paying the proceeds of the policy.

The part of section 234(1) with relevance here provides:

"No life company doing business in this State shall declare any policy forfeited or lapsed within six months after default in payment of any premium installment or interest or any portion thereof, nor shall any such policy be forfeited or lapsed by reason of nonpayment when due of any premium, installment or interest, or any portion thereof, required by the terms of the policy to be paid, within six months from the default in payment of such premium, installment or interest, unless a written or printed notice stating the amount of such premium, installment, interest or portion thereof due on such policy, the place where it shall be paid and the person to whom the same is payable, shall have been duly addressed and mailed with the required postage affixed, to the person whose life is insured, or the assignee of the policy, (if notice of the assignment has been given to the company) at his last known post office address, at least fifteen days and not more than forty-five days prior to the day when the same is due and payable, before the beginning of the period of grace, . . .. Such notice shall also state that unless such premium or other sums due shall be paid to the company or its agents the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value or paid-up policy as provided for by the policy." Ill. Rev. Stat. 1983, ch. 73, par. 846(1).

Thus, the statute provides that the policy may not be forfeited or lapsed for nonpayment of premiums in less than six months of default where the insurer has given no premium-due notice, unless the surrender value of the policy or other policy provisions permit the insurance coverage to be extended beyond six months.

The insurance policy here provides:

" Default. Any premium after the first which is not paid on or before its due date is in default. The policy will then terminate except as provided under the Grace Period, Automatic Premium Payment, and Non-Forfeiture Provisions."

The Bank contends that, as the assignee of the policy, it was entitled to a notice of premium due from Mutual under section 234(1) before the policy could be forfeited or lapsed. A premium-due notice sent to the insured was not sufficient, the Bank argues, because Mutual had been notified of the assignment of the policy to the Bank, and section 234(1) expressly provides that the assignee of a policy is entitled to receive notice where the insurer has knowledge of the assignment. Thus, the Bank says, Mutual ...

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