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01/30/98 HARVEY FRUIT MARKET v. HARTFORD INSURANCE

January 30, 1998

HARVEY FRUIT MARKET, INC., KONSTANTINOS KOKKINIS, AND ZENOPHON LABOS, ONE OR MORE D/B/A HARVEY FRUIT MARKET AND DELI, INC., PLAINTIFFS-APPELLANTS,
v.
HARTFORD INSURANCE COMPANY OF ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Kenneth L. Gillis, Judge Presiding.

The Honorable Justice Quinn delivered the opinion of the court. Greiman, P.j. and Theis, J. concur.

The opinion of the court was delivered by: Quinn

The Honorable Justice QUINN delivered the opinion of the court:

On April 19, 1992, a fire destroyed the Harvey Fruit Market and the contents therein. Plaintiffs, Harvey Fruit Market, Inc., Konstantinos Kokkinis, and Zenophon Labos, one or more d/b/a Harvey Fruit Market and Deli, Inc., subsequently filed a claim which was denied by defendant, Hartford Insurance Company of Illinois, due to a finding of arson, misrepresentation, and fraud. Plaintiffs then filed a complaint for breach of contract, which was dismissed by the trial court pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 1994). On appeal, we address the following issues: (1) when did plaintiffs' loss occur; and (2) whether the insurance policy's time limitation on lawsuits was tolled when plaintiffs provided notice of loss on the day of the fire.

For the following reasons, we affirm.

The relevant facts are as follows. Defendant issued plaintiffs an insurance policy, effective December 1, 1991, to December 2, 1992. The policy covered, among other items, plaintiffs' building, business personal property, money and securities, and loss of income sustained over 12 consecutive months. The policy included the following specific provisions:

"2. Duties of the Named Insured After a Loss

a. give immediate notice of such loss to the Company;

***

e. submit to the Company within 60 days after requested a signed, sworn statement of loss ***

***

8. Suit

No suit shall be brought on this policy unless the insured has complied with all the policy provisions and has commenced the suit within one year after the loss occurs."

On April 19, 1992, a fire destroyed the Harvey Fruit Market and the contents therein. That same day, plaintiffs contacted their insurance carrier, defendant, to inform defendant of the loss. Defendant assigned an adjuster to the claim the same day. On April 20, 1992, the adjuster prepared an internal memorandum which stated that the loss for business personal property and business income was to be determined in the future. Plaintiffs filed a sworn statement of loss on July 28, 1992, and defendant denied the plaintiffs' claim on October 25, 1993, due to a finding of arson, misrepresentation, and ...


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