APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
540 N.E.2d 960, 184 Ill. App. 3d 838, 133 Ill. Dec. 94 1989.IL.903
Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. PINCHAM and COCCIA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Plaintiff Wabash Power Equipment Company (Wabash) appeals from an order of the circuit court of Cook County dismissing its declaratory judgment action against defendant International Insurance Company (International), which sought a determination that International was required to indemnify it under the policy issued to it by International for the loss of theft of a boiler and auxiliary equipment. In dismissing the action, the trial court found that Wabash failed to file its complaint within one year from the date of loss as required by the terms of its policy. On appeal, Wabash argues that the court erred in applying the statute of limitations period provided in section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.1), rather than the general statute of limitations period for written contracts as provided by section 13-206 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-206). Wabash further contends that the date of discovery its loss, rather than the actual date of loss should control in computing the timeliness of filing its action and, accordingly, the court erred in applying the latter. For the reasons set forth below, we affirm.
In 1975 Wabash purchased the boiler and auxiliary equipment at issue here. It subsequently dismantled the boiler and placed it and the auxiliary equipment in storage at a railroad yard leased to it and located near St. Petersburg, Florida. Unbeknownst to Wabash, the boiler and equipment were stolen from the railroad yard in 1985 during the months of March and April. Wabash did not learn of the theft until July 1986. On July 8, 1986, Wabash gave notice of the loss to International and also notified the local police of the theft. Wabash then commenced an extensive investigation to learn the identities of all persons responsible for the theft and, after acquiring sufficient information, filed a proof of loss with International on August 8. On October 7, International sent a letter to Wabash declining coverage. On November 21, Wabash filed a complaint for declaratory judgment. The complaint was dismissed without prejudice on June 4, 1987, pursuant to the motion of International. A second amended complaint filed by Wabash was similarly dismissed on December 3, 1987, and this appeal followed.
The policy at issue here contains two separate contractual limitation periods -- one for fire and the other for theft. The fire section provides:
"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss."
The theft section provides:
"No suit on this policy shall be valid unless the insured has complied with all policy requirements and the suit is commenced within one (1) year (unless a longer period is provided by applicable statute):
a. following the date of loss . . .." (Emphasis added.)
The policy also requires Wabash to "[give] notice to the police when a theft is discovered." (Emphasis added.)
In dismissing Wabash's action for failure to file suit within one year, the trial court held that the tolling statute extending the contractual limitation period contained in section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.1) was the "applicable statute" ...