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Walker v. Valor Insurance Co.

June 05, 2000

ANGELA WALKER, PLAINTIFF-APPELLEE,
v.
VALOR INSURANCE COMPANY, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Presiding Justice O'mara Frossard

Appeal from the Circuit Court of Cook County Honorable Ellis E. Reid, Judge Presiding.

Defendant, Valor Insurance Company, appeals the trial court's grant of summary judgment against it and in favor of plaintiff, Angela Walker, in regard to defendant's denial of plaintiff's insurance claim for the total loss of her vehicle in a fire. Plaintiff purchased an insurance policy from defendant that included coverage for property damage to her vehicle. After her vehicle was allegedly stolen and set on fire, she filed an insurance claim under the policy to recover damages. Defendant denied plaintiff's insurance claim, citing several violations of the insurance policy. Plaintiff then brought a six-count complaint against defendant and her insurance broker, Insure One, that alleged causes of action for declaratory judgment (count I), breach of contract (count II), violation of section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 1998)) (count III), defamation (count IV), intentional infliction of emotional distress (count V) and negligent infliction of emotional distress (count VI). Following plaintiff's motion for summary judgment on each count of the complaint against defendant only, the trial court granted summary judgment on count I, dismissed count II, and denied plaintiff's motion on counts III through VI. The trial court further awarded plaintiff damages of $5,715 and found no just reason to delay enforcement of appeal of its grant of summary judgment against defendant on count I. On appeal, defendant argues that because genuine issues of material fact exist as to whether plaintiff torched her own vehicle, the trial court erred in granting summary judgment and awarding plaintiff damages on count I of the complaint. We reverse and remand.

Count I of plaintiff's complaint alleged that, in April 1997, plaintiff renewed a policy of automobile insurance from defendant for her 1991 Pontiac Sunbird automobile. Plaintiff originally purchased this policy from defendant in December 1995. The policy period lasted from April 20, 1997, to October 20, 1997, and plaintiff made all periodic payments of premium. On June 9, 1997, plaintiff discovered that her automobile was not where she parked it the night before and reported the car stolen to the Chicago police department. Plaintiff alleged that on June 9 she also contacted defendant to report that her car had been stolen.

Plaintiff next alleged that, on July 7, 1997, the Chicago police department notified her that they had located her automobile and towed it to an auto pound. Plaintiff went to the auto pound and saw that her automobile had been incinerated and was a total loss. Plaintiff informed defendant of this loss. Defendant then began an investigation of the damages to the vehicle, which included obtaining two oral statements from plaintiff. On October 29, 1997, defendant sent plaintiff a letter denying her claim. Plaintiff attached the letter to her complaint. The letter listed the following provisions of the insurance policy as relevant:

"Part V- PHYSICAL DAMAGE

Definitions:

[F]orcible entry means making felonious entry by actual force and violence evidenced by visible marks on the exterior of the automobile or the premises on which the automobile is garaged, at the point of entry.

Exclusions: The policy does not apply under Part V: (n) to loss due under Coverage (G) if evidence exists that forcible entry was not required to gain access to the automobile. Conditions

3. Notice* * * In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place, and circumstances thereof, and the names and addresses of the injured and of the available witnesses, shall be given by and for the insured to the company as soon as practicable. In the event of theft the insured shall also promptly notify the police.

The policy shall be null and void and of no benefit or effect whatsoever as to any claim arising thereunder in the event that the * * * statements in the application or in any claim against the company shall prove to be false or fraudulent in nature."

We note the forcible entry provision limits the conditions of coverage; however, plaintiff did not challenge this language as being ambiguous or inconsistent with other policy provisions. Based on the terms of the policy, defendant listed in the letter three reasons for denying plaintiff's claim: (1) plaintiff's intentional and fraudulent statements about the claim and within her application for insurance; (2) no evidence of a forced entry into the vehicle; and (3) evidence that the steering wheel and ignition had not been defeated.

Plaintiff further alleged in count I of her complaint that she performed all duties under the insurance policy and that defendant has not performed its duties. Plaintiff sought a "judicial determination" or a "declaration by the trier of fact , that * * * [defendant] had no reasonable basis to deny the Claim [sic] for the stolen and incinerated Sunbird Auto." Plaintiff filed her complaint on August 21, 1998, and defendant answered the complaint on December 1, 1998. In its answer, defendant admitted that it insured plaintiff's vehicle at the time of the loss, that plaintiff reported the loss to defendant, and that defendant denied plaintiff's claim of loss.

On January 14, 1999, plaintiff served on defendant her first request to admit facts pursuant to Supreme Court Rule 216. 134 Ill. 2d R. 216. Plaintiff asked defendant to admit the following facts relevant to count I:

"3. On or about July 7, 1997, plaintiff Angela Walker arrived at the Chicago Police Department auto pound to ...


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