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Broadnax v. Morrow

January 14, 2002

WILLIE G. BROADNAX, PLAINTIFF-APPELLANT,
v.
DAVID G. MORROW, AS AGENT FOR MORROW & WELLS, LTD., AN ILLINOIS CORPORATION; MORROW & WELLS, LTD., AN ILLINOIS CORPORATION, AS PRINCIPAL, FOR DAVID G. MORROW; AND ROUSH INSURANCE SERVICES, INC., AN INDIANA CORPORATION, AS PRINCIPAL, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Macon County No. 99L152 Honorable James A. Hendrian, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

Released for publication February 25, 2002.

WILLIE G. BROADNAX, PLAINTIFF-APPELLANT,
v.
DAVID G. MORROW, AS AGENT FOR MORROW & WELLS, LTD., AN ILLINOIS CORPORATION; MORROW & WELLS, LTD., AN ILLINOIS CORPORATION, AS PRINCIPAL, FOR DAVID G. MORROW; AND ROUSH INSURANCE SERVICES, INC., AN INDIANA CORPORATION, AS PRINCIPAL, DEFENDANTS-APPELLEES.

Appeal from Circuit Court of Macon County No. 99L152 Honorable James A. Hendrian, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

PUBLISHED

 After his insurance company refused to pay a fire claim, plaintiff, Willie Broadnax, brought a negligence cause of action against insurance agent David Morrow, insurance agency Morrow & Wells, Ltd., and Roush Insurance Services, Inc. (Roush). The trial court granted defendants' motions to dismiss because Broadnax failed to file the negligence claim within the two-year statute of limitations period. The trial court denied Broadnax's motion to reconsider, and this appeal followed. We affirm.

I. BACKGROUND

In April 1995, plaintiff, Willie Broadnax, applied for an insurance policy from Morrow & Wells, Ltd., to cover a building located in downtown Decatur. During Broadnax's initial conversations with his insurance agent, David Morrow, he told Morrow he was in the process of purchasing the building and he had plans to renovate it and open a package liquor business on the premises. Morrow contacted Roush, an Indiana corporation, which in turn contacted Acceptance Indemnity Insurance Company (Acceptance), which ultimately issued the policy to Broadnax on April, 14, 1995. The policy had a $70,000 limit of liability. On October 5, 1995, a fire occurred at the building, causing damage in excess of $70,000. Broadnax notified Morrow of the fire, and on October 23, 1995, Morrow helped Broadnax file a proof of loss claim with Acceptance. Sometime before May 10, 1996, Acceptance denied Broadnax's claim. On May 10, Acceptance filed a declaratory judgment action, seeking a declaration of no coverage due to Broadnax's failure to comply with a vacancy provision of the policy.

Broadnax filed a breach of contract action against Acceptance on August 5, 1996, for failure to provide coverage under the policy. On November 26, 1996, Acceptance filed its answer, asserting as an affirmative defense the policy provision regarding vacancy. Acceptance filed a motion for summary judgment on July 17, 1997, and the trial court granted the motion on October 27, 1997. The trial court cited Broadnax's failure to comply with the vacancy provision of the insurance policy. This court affirmed the trial court's judgment in Broadnax v. Acceptance Indemnity Insurance Co., No. 5-97-0957 (September 29, 1998) (unpublished order under Supreme Court Rule 23).

On September 1, 1999, Broadnax filed a negligence action against David Morrow, Morrow & Wells, Ltd., and Roush. The negligence claim asserted defendants were negligent for obtaining an insurance policy containing an exclusionary endorsement which did not allow for vacancy or for the premises to be unoccupied, when the defendants allegedly knew or should have known the property would be vacant and unoccupied for a period in excess of 30 days because Broadnax was in the process of renovating and remodeling.

Defendants filed motions to dismiss because Broadnax failed to file his negligence claim within the two-year statute of limitations period. 735 ILCS 5/13-214.4 (West 1998). Broadnax did not file a response to defendants' motions to dismiss; and on October 25, 1999, the trial court dismissed Broadnax's claim with prejudice, finding the two-year statute of limitations period had expired. On November 23, 1999, Broadnax filed a motion to reconsider the dismissal of his claim. The trial court denied the motion and stated:

"Plaintiff did not respond to [d]efendants' [m]otion to [d]ismiss[,] which was filed on September 28, 1999, and ruled on October 25, 1999[,] pursuant to the [c]court's docketing order. That [p]laintiff has failed to show why the matter set forth in his [m]otion to [r]econsider could not have been presented to the [c]court or that such matters are new and previously unknown to the [p]laintiff or could not have been timely discovered."

Broadnax appeals, contending (1) the trial court erred when it granted defendants' motions to dismiss based on the running of the statute of limitations; and (2) the trial court abused its ...


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