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09/15/89 Louise Thomas, v. Allstate Insurance Company

September 15, 1989

LOUISE THOMAS, PLAINTIFF-APPELLANT

v.

ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

545 N.E.2d 162, 189 Ill. App. 3d 1, 136 Ill. Dec. 638 1989.IL.1428

Appeal from the Circuit Court of Cook County; the Hon. Alfred J. Paul, Judge, presiding.

APPELLATE Judges:

JUSTICE COCCIA delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA

Plaintiff Louise Thomas appeals from an order entered by the circuit court, dismissing her breach of contract claim against defendant Allstate Insurance Company. For the following reasons, we affirm.

Thomas' one-count complaint was filed on December 31, 1987. She alleged therein that her rental property was insured by Allstate. Thomas asserted that on November 13, 1985, while the policy was in effect, certain personal property belonging to her, in the amount of $11,093.90, was stolen. Although she filed a proof of loss, as the policy required, Thomas averred that Allstate committed breach of contract by refusing to reimburse her for the stolen property.

On January 27, 1988, Allstate moved to dismiss Thomas' complaint, pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). Allstate argued that her lawsuit was barred by a limitations clause contained in the rental insurance policy. The policy, a copy of which was attached to Allstate's motion, provided:

"No suit or action may be brought against us unless there has been full compliance with all the terms of this policy. Any suit or action must be brought within one year after the denial of a claim in whole or in part."

According to Allstate, it declined to pay Thomas' claim in a letter dated December 16, 1986. Since her suit was commenced more than one year after declination, Allstate concluded, it was untimely.

An affidavit executed by counsel for Allstate was attached to the motion to dismiss. Counsel alleged that Thomas was examined under oath at his firm after her proof of loss was submitted. Subsequently, Allstate instructed him to prepare a declination letter. This letter, likewise attached to Allstate's motion, stated in part:

"We herewith reject and return to you an instrument purporting to be a Sworn Statement in Proof of Loss rendered by you to the undersigned insurance company in connection with an alleged loss by theft or burglary which is alleged to have been sustained by you on or about November 13, 1985.

Please be advised that said insurance company denies any and all liability to you in the amount of eleven thousand ninety-three and 90/100 Dollars ($11,093.90) claimed in said instrument purporting to be a Sworn Statement in Proof of Loss or, in any other amount whatsoever. This denial of liability is predicated on, among other reasons fraud and false swearing in submission of the Sworn Statement in Proof of Loss and at the examination under oath and in particular with respect to the quantity, identity and value of items allegedly taken.

The rejection of the instrument referred to and the denial of liability are not to be construed by you as a waiver of any of the rights of said insurance company under ...


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