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08/10/94 CINDY KAY DRAPER v. FRONTIER INSURANCE

August 10, 1994

CINDY KAY DRAPER, N/K/A CINDY KAYE STOKSTAD, PLAINTIFF-APPELLANT,
v.
FRONTIER INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago County. No. 93-MR-15. Honorable Alford R. Penniman, Judge, Presiding.

Released for Publication September 13, 1994.

Woodward, Inglis, Geiger

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

Plaintiff, Cindy Kaye Draper, sought a declaration that defendant, Frontier Insurance Company, owed her benefits under a life insurance policy it issued to her late husband, James Draper. Plaintiff alleged that, while James Draper was alive, defendant wrongfully "terminated" the policy and that, as a named beneficiary, she was entitled to collect because the policy was still in force. The trial court dismissed the complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1992)) because the suit was filed outside the 10-year limitation period (735 ILCS 5/13-206 (West 1992)). Plaintiff appeals.

On appeal, plaintiff advances two arguments for why the court erred in dismissing her complaint. First, the limitations period did not begin until James Draper's death, as only then did plaintiff acquire the right to sue on the policy. Second, even if her cause of action accrued when James Draper acquired a cause of action for wrongful termination of the policy, the accrual date was at least arguably less than 10 years before plaintiff filed suit.

We hold that: (1) plaintiff's cause of action for wrongful cancellation accrued when her husband's identical cause of action accrued; and (2) the trial court erred in concluding on the limited evidence that the date of accrual was more than 10 years before plaintiff filed her complaint. We reverse the order of dismissal and remand the cause for further proceedings.

On January 20, 1993, plaintiff filed a complaint alleging the following facts. James Draper's policy provided for the waiver of premiums if the insured provided proof that he had become totally disabled. On April 1, 1981, James Draper became totally disabled. He submitted proof of the disability, but, on or about January 26, 1983, defendant wrongfully allowed the policy to lapse. James Draper died November 1, 1989. Because defendant's "cancellation" of the policy was improper, the policy was still in force, and plaintiff was entitled to recover thereunder.

A copy of the policy is attached to the complaint. The policy provides that all premiums are due and payable in advance and that "except as otherwise provided herein, the policy shall automatically become void if any premium is not paid when due." There is a grace period of 31 days for the payment of every premium after the first; during this grace period, the policy remains in effect. The policy also specifies that, after the nonpayment of any premium, the policy will be reinstated upon written application if premiums due through the time of reinstatement are paid and satisfactory evidence of insurability is furnished.

Defendant moved to dismiss the complaint, arguing that plaintiff's cause of action accrued on August 28, 1982, when the policy by its terms automatically lapsed because James Draper failed to pay the premium then due. Defendant attached the affidavit of Alberta Dollens, who had reviewed Draper's claim of total disability. Dollens's affidavit states that, by letter of December 16, 1982, she denied Draper's request for a premium waiver. By a letter of January 26, 1983, defendant informed Draper that, because the premium that was due on August 28, 1982, had not been received, the policy had lapsed with no value. Defendant had received no premium payments since August 28, 1982, and no further correspondence about the policy until December 1990, when plaintiff inquired about the policy and defendant responded that no benefits were payable because the policy had lapsed on August 28, 1982.

Attached to Dollens's affidavit is a copy of her letter, dated December 16, 1982, informing James Draper of defendant's belief that it was "unable to waive your premium at this time" because the form Draper submitted did not disclose that he was totally disabled. Also attached is a copy of defendant's January 26, 1983, letter informing James Draper that "since your annual premium * * * due August 28, 1992, has not been received, we have lapsed your policy." The letter states that, upon the payment of the overdue premium and the completion and approval of enclosed reinstatement forms, defendant would reinstate the policy.

After the trial court granted defendant's motion, plaintiff timely appealed. Before we address plaintiff's arguments in detail, we set out guidelines for our review of the judgment.

Section 2-619 provides a means to dispose of issues of law or of easily proved issues of fact. ( Meyers v. Rockford Systems, Inc. (1993), 254 Ill. App. 3d 56, 61, 192 Ill. Dec. 761, 625 N.E.2d 916; Melko v. Dionisio (1991), 219 Ill. App. 3d 1048, 1057, 162 Ill. Dec. 623, 580 N.E.2d 586.) A section 2-619 motion admits all well-pleaded facts in the complaint but does not admit Conclusions of law or Conclusions of fact unsupported by specific allegations. ( Melko, 219 Ill. App. 3d at 1057.) The trial court should grant the motion only if, after construing the documents supporting the motion in the light most favorable to the nonmovant, it finds no disputed issues of fact. ( Meyers, 254 Ill. App. 3d at 61.) The trial court may not weigh the evidence or decide controverted material issues of fact. Melko, 219 Ill. App. 3d at 1057-58.

The parties agree that the applicable limitations period is the 10 years allowed for actions on written contracts. (735 ILCS 5/13-206 (West 1992).) They disagree on when this period started to run. We hold that plaintiff was required to file her complaint within 10 years of the accrual of the cause of action for wrongful cancellation. We reject ...


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