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MgGee v. State Farm Fire And Casualty Co.

July 31, 2000

TODD D. MCGEE, PLAINTIFF-APPELLANT,
v.
STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANT-APPELLEE (PREMIER BUILDING CONTRACTORS, INC., INTERVENING PLAINTIFF AND COUNTERDEFENDANT; TODD MCGEE AND STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANTS AND COUNTERPLAINTIFFS).



Appeal from the Circuit Court of Du Page County. No. 97--L--063 Honorable Edward R. Duncan, Jr. Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

Plaintiff, Todd McGee, filed a complaint against defendant, State Farm Fire and Casualty Company, seeking an award pursuant to section 155 of the Illinois Insurance Code (the Insurance Code) (215 ILCS 5/155 (West 1998)). Defendant filed a motion to dismiss pursuant to section 2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619 (West 1998)). The trial court granted defendant's motion, and plaintiff timely appeals. Intervening plaintiff, Premier Building Contractors, Inc. (Premier), is not a party to this appeal. We reverse and remand.

Because defendant argues that an examination of the common-law record provides evidence sufficient to defeat plaintiff's claim, we set forth the procedural history of this case in some detail. On January 15, 1996, plaintiff's home was damaged by a fire. Plaintiff reported the loss to defendant, his insurer. Plaintiff contracted with Premier, a public adjuster, to negotiate a settlement with defendant on his behalf. Plaintiff subsequently canceled his contract with Premier, rehired Premier, and canceled his contract with Premier a second time. Although plaintiff accepted payments for temporary housing and personal property loss, the parties were unable to reach an agreement regarding plaintiff's claim for damage to the dwelling.

On January 3, 1997, defendant sent a letter to plaintiff's attorney demanding an appraisal in accordance with the insurance contract. The letter also contained the following statement:

"Please be advised that the one year period in which to file suit has not been extended. The policy language pertaining to Suit Against Us is as follows:

8. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss or damage. This one year period is extended by the number of days between the date that the proof of loss was filed and the date the claim is denied in whole or in part.

Therefore, [plaintiff] has until January 15, 1997, in which to file suit against us."

On January 15, 1997, plaintiff filed a three-count complaint for breach of contract against defendant, alleging that defendant owed him $183,960 for the cost of repair to the dwelling, $33,700 for loss of use of the dwelling, and $2,686 for damage to personal property. On April 28, 1997, defendant tendered to plaintiff a check in the amount of $96,750.69 payable to plaintiff, his mortgagee, and Premier. On May 8, 1997, plaintiff returned the check to defendant with a letter stating that he disputed Premier's interest in the insurance proceeds. The letter further stated that, although defendant believed he was entitled to a greater sum, he would be willing to accept a check payable only to him and his mortgagee as partial payment.

On June 2, 1997, Premier filed a petition to intervene, alleging that it was entitled to 10% of any recovery plaintiff might receive from defendant. On the same date, defendant filed a motion to dismiss and compel an appraisal, arguing that plaintiff's suit was premature because an appraisal was a condition precedent to filing a breach of contract action. Defendant also filed a motion for leave to file a complaint for interpleader alleging that defendant was indifferent to the claims of plaintiff, his mortgagee, and Premier, that $96,750.69 represented the actual cash value of the damage to the dwelling, and that it was willing to tender that amount to the court for ultimate disbursement to the remaining parties. The trial court granted Premier's petition to intervene and continued the matter for hearing on defendant's motions.

On July, 7, 1997, the trial court denied defendant's motion to dismiss plaintiff's complaint, ordered the parties to submit to appraisal, stayed the contract action pending completion of the appraisal, and denied defendant's motion to file a complaint for interpleader.

On September 10, 1997, plaintiff presented a motion for the court- ordered selection of an umpire, alleging that the parties' appraisers had verbally agreed to the selection of an umpire as required by the appraisal provision of the insurance contract but that defendant's appraiser had refused to confirm the selection in writing. The trial court found that the issue might be moot and continued a hearing on the motion. The record reveals that on September 10, 1997, the parties' appraisers agreed in writing to the selection of an umpire.

On November 11, 1997, the appraisers entered an award settlement of $197,247, including $188,071 for loss of the dwelling, $2,949 for loss of contents, and $6,227 for additional living expenses. Plaintiff's appraiser dissented and stated the total loss was $225,163.07.

On January 7, 1998, the trial court vacated the stay of proceedings entered on July 7, 1997, pursuant to the agreement of the parties. On February 4, 1998, defendant filed a motion to dismiss plaintiff's complaint, alleging that it had paid the appraisal award in full with the exception of $25,000 that it held in response to Premier's claim pending direction from the court. Defendant argued that its liability under the insurance policy and any liability under the complaint had been discharged by payment.

The matter was continued several times while the court resolved various motions involving discovery violations and ...


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