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09/12/88 Amad Omar, D/B/A Metro v. St. Paul Fire & Marine

September 12, 1988





529 N.E.2d 686, 175 Ill. App. 3d 77, 124 Ill. Dec. 705 1988.IL.1363

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.


PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.


Plaintiff brought an action against the defendants, two insurance brokers, an insurance agent, and an insurance company seeking recovery for an alleged theft from his jewelry store. The trial court granted motions for summary judgment in favor of the insurance company, the insurance agent and one of the insurance brokers and plaintiff appeals from these orders. *fn1

The plaintiff Amad Omar (Omar) and John Cosenza owned a retail jewelry store, Metro Gold, Ltd., in Hickory Hills, Illinois. In September 1983, Cosenza retained defendant Claudia Coco (Coco), an insurance broker, to obtain a specialized type of insurance known as jewelers block coverage for the jewelry store. Since Coco had never placed jewelers block coverage before, she contacted an insurance wholesaler, defendant Williams Insurance Agency (Williams), where she dealt with Hilbert Herman (Herman), a vice-president of the agency. Herman contacted defendant, Illinois R. B. Jones, Inc. , an insurance agency acting on behalf of several insurance companies in placing coverage. IRBJ sought to place the coverage with one of its clients, defendant St. Paul Fire & Marine Insurance Company (St. Paul). Coco's request for coverage was approved by St. Paul and a binder and insurance policy were issued through its agent, IRBJ, effective January 17, 1984. The policy was subsequently issued on February 8, 1984, retroactive to January 17, 1984, and ran for a one-year term. The policy did not contain a provision for the automatic renewal of coverage.

On November 26, 1984, Rose Faleni, an underwriter for IRBJ, sent to Herman a notice as to the fact that the Metro Gold policy would expire within two months along with an application to be completed by the insured prior to the expiration date. On November 30, 1984, Herman forwarded the new application to Coco for completion by the plaintiff. During the first week of December, 1984, Coco telephoned plaintiff and advised him that she had an insurance application for him that needed to be completed and signed. Plaintiff responded that his partner, John Cosenza, had left the business in September 1984 and plaintiff was unsure whether Metro Gold would remain in business. Coco cautioned plaintiff that if he chose to stay in business and elected to continue his coverage he would have to complete the application prior to the expiration date of the current policy. During the month of December 1984, Coco contacted plaintiff numerous times to inquire whether he had decided to remain in business and renew his insurance coverage. Plaintiff responded that he was unsure and, on one occasion, told Coco that he would perhaps make a decision after the holidays. Coco reminded plaintiff that the application must be completed and returned prior to January 17, 1985, or coverage would terminate. When plaintiff failed to return the application, coverage under the St. Paul policy lapsed on January 17, 1985.

On January 23, 1986, one week after the expiration of the St. Paul policy, Coco received plaintiff's signed application form, along with a $500 check made payable to Coco and dated January 18, 1985. Coco forwarded the application to Herman, who received it on January 25, 1985. Herman transmitted the application to IRBJ with a cover letter, dated January 25, 1985, requesting a quote for coverage. IRBJ advised Herman upon receipt of the application that the inventory percentages contained on the application did not total 100% and that this information would be required before submission of the application to St. Paul. IRBJ did not submit the policy application to St. Paul.

On January 31, 1985, plaintiff alleged that Metro Gold's safe was broken into and the contents removed. Plaintiff advised Coco of the loss the following day and on February 4, 1985, Coco notified Herman. At that time Herman advised Coco that there was no coverage for the loss. On March 27, 1985, St. Paul notified plaintiff that his claim would not be accepted since coverage had expired on January 17, 1985.

On April 26, 1985, plaintiff filed a complaint against Coco, Williams, IRBJ and St. Paul. Plaintiff alleged that an agreement to review the

At the outset, we note that all the appellees in the case at bar have filed motions to dismiss arguing that this court lacks jurisdiction to hear this appeal since plaintiff's notice of appeal was not timely filed. Appellees cite the decision of Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, where our supreme court held that the timely filing of a post-trial motion will not toll the running of a 30-day period for filing a timely notice of appeal based upon a Rule 304(a) (107 Ill. 2d R. 304(a)) finding that there was no just reason to delay enforcement or appeal. Further, the Elg court, in a modified opinion, specifically held that the interpretation of Rule 304(a) which it adopted would be applied only prospectively to those cases where the notice of appeal was filed or due to be filed on or after the date the decision was announced, November 16, 1987.

In the case at bar, at the time the trial court entered summary judgment in favor of defendants on June 2, 1986, pursuant to Rule 304(a), the court found that there was no just reason to delay enforcement or appeal. Thereafter, on June 27, 1986, plaintiff filed a post-trial motion to vacate the summary judgment orders which the trial court denied on December 1, 1986. On December 23, 1986, the trial court denied the motion to vacate, and plaintiff filed his notice of appeal from that order on December 23, 1986. Under this chronology, because of the prospective application of Elg, its holding is inapplicable to the case before us, where the notice of appeal from the summary judgment orders would have been due on July 2, 1986, clearly prior to the November 16, 1987, date for enforcement of the Elg holding.

We first address the arguments raised by plaintiff on appeal concerning St. Paul and IRBJ. On appeal, plaintiff argues that his coverage under the original policy continued in effect where St. Paul failed to provide him with statutory notice of its intent not to renew. Plaintiff relies on section 143.17 of the ...

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