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11/09/89 Harold Pick, v. Associated Indemnity

November 9, 1989





547 N.E.2d 555, 191 Ill. App. 3d 121, 138 Ill. Dec. 388 1989.IL.1771

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.


Plaintiff, Harold Pick, appeals from the entry of summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005) in favor of defendant, Associated Indemnity Corporation. We will consider the following two issues: (1) whether plaintiff's action against defendant was barred by the limitation period in his insurance policy; and (2) whether it was proper to grant summary judgment on the issue of plaintiff's compliance with certain policy provisions. For the following reasons, we reverse and remand.

On August 30, 1985, plaintiff filed a two-count complaint and alleged that defendant issued a homeowner's insurance policy to plaintiff and his wife, Dolores Pick, covering their residence and its contents for the period of December 19, 1981, to December 19, 1982. The policy included coverage for theft and disappearance of personal property in the residence. The insured property included jewelry and art pieces.

On December 6, 1982, plaintiff discovered that some of the insured personal property was either missing or stolen. Plaintiff immediately contacted the local police and his insurance agent. On March 2, 1983, plaintiff submitted to defendant a sworn statement in proof of loss claiming $282,472 as a result of "thefts [or] mysterious disappearance." Plaintiff submitted a revised proof of loss on December 27, 1983, reducing the claim to $253,362. Attached to both proofs of loss were lists of the items missing with their description and replacement value. On September 10, 1984, defendant denied plaintiff's claim.

Plaintiff alleged that his estranged wife "precluded" herself from the claim and that any recovery under the policy should be plaintiff's alone. Plaintiff and his wife were in the midst of divorce proceedings at this time. Plaintiff alleged that he complied with all the terms and conditions of the policy and sought judgment in the amount of $253,362.

In count II of the complaint, plaintiff alleged that because defendant's conduct was willful and wanton, plaintiff was entitled to punitive damages and attorney fees.

The insurance policy issued by defendant was attached to plaintiff's complaint and contained a provision limiting the time to bring suit against the insurance company to one year.

Defendant filed an answer denying the material allegations of the complaint and asserted three affirmative defenses alleging that plaintiff did not comply with certain provisions in the insurance policy. First, the policy required the insured to prepare an inventory of the personal property involved and attach bills, receipts, and related documents. Also, the insured was required to provide requested records and documents for photocopying. Second, the insured was required to submit to an examination under oath. And third, an action could only be brought against the insurance company if the insured complied with the policy provisions and the action was started within one year after the loss.

Defendant moved for summary judgment based on plaintiff's failure to comply with the policy provisions. Attached to the motion was a letter dated April 6, 1983, from defendant to plaintiff requesting certain documents relating to the loss, including (1) personal Federal and State income tax returns from 1978 through 1982, (2) personal financial statements from 1980 through 1982, (3) receipts, cancelled checks, and related documents involving the property, (4) property settlement agreements from previous divorces, (5) photographs, films, and videotapes of the scene of the occurrence or the property involved, and (6) a list of prior insurance claims and related documents from 1967 to date.

In response to the motion, plaintiff filed his own affidavit and stated the following facts. Plaintiff was in the business of auctioneering and appraising fine art, and he acquired numerous objects of art and paintings which were stored in his basement. On December 6, 1982, he discovered the property was missing. He filed a proof of loss on March 2, 1983, which he revised on December 27, 1983. Plaintiff stated that many of the documents requested by defendant did not exist or if they did, they "were not capable of being produced because of the . . . divorce proceedings." There were no receipts or vouchers for the personal property which was the subject of the claim. His claim was denied on November 1, 1983, because he failed to produce documents and attend an examination under oath. Subsequently, defendant withdrew the denial of the claim. Due to "conflicting schedules," plaintiff was not examined under oath until January 4, 1984, but the examination had to be adjourned about 1 1/2 hours because his attorney had a time conflict. On September 10, 1984, his claim was denied a second time. Plaintiff stated defendant's attorney told him that the claim would be ...

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