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Yacko v. Curtis

May 23, 2003

RONALD J. YACKO, PLAINTIFF-COUNTERDEFENDANT-APPELLEE,
v.
BRADLEY R. CURTIS, DEFENDANT-COUNTERPLAINTIFF-APPELLANT, AND BRADLEY R. CURTIS, THIRD-PARTY PLAINTIFF-APPELLANT,
v.
ANTHEM CASUALTY INSURANCE COMPANY, N/K/A SHELBY CASUALTY INSURANCE COMPANY, AN INSURANCE COMPANY LICENSED IN THE STATE OF ILLINOIS, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from Circuit Court of McLean County No. 99L85 Honorable Elizabeth A. Robb, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

PUBLISHED

Third-party plaintiff, Bradley R. Curtis, appeals the entry of summary judgment by the circuit court of McLean County on his claims against third-party defendant, Anthem Casualty Insurance Company (Anthem). We affirm.

I. BACKGROUND

On December 6, 1996, Affirmative Insurance Company (Affirmative), a subsidiary of Anthem, issued Curtis an automobile policy for one year. Premiums were due each month, and Curtis often paid premiums in cash at the office of Terry Woith and Associates, his independent agent. During the policy period, Curtis received three cancellation notices that were followed by reinstatement notices. For example, on February 14, 1997, a cancellation notice was sent to Curtis, while on February 20, a reinstatement of coverage was issued.

In addition, on June 2, 1997, Anthem sent Curtis another cancellation notice, stating Anthem would cancel the policy if payment was not received by June 20, 1997. In mid-July, Anthem received a check for $155 from Curtis. Curtis's credit union dishonored the check for insufficient funds. Later, Curtis sent a payment of $63.82 to Anthem by check dated August 3, 1997. Anthem cashed the check in mid-August. The policy was reinstated by notice dated August 15, 1997, effective August 27, 1997.

On August 18, 1997, Anthem sent a cancellation notice not followed by a reinstatement notice. This notice indicated if the premium due on or before August 31, 1997, was not timely received, the policy would be canceled:

"As you know, you have a premium due 08/31/97. ***

***

If this payment is not received by us before 08/31/97, then this notice will serve as a notice of cancellation for non[]payment of premium effective 08/31/97, at 12:01 a.m. standard time."

Also sent to Curtis on that date was a statement indicating a payment of $229.09 was due on or before August 31, 1997. Anthem did not receive this payment or any payment after the August 3, 1997, check for $63.82 sent by Curtis.

Anthem established by affidavit that it sent Curtis on September 19, 1997, a collection notice for $106.81, the premium due for the period of early August 1997 through August 31, 1997. The September 19, 1997, notice states as follows: "Recently, your policy with our company was canceled. Prior to that cancellation, there was a balance due for insurance protection you have already received. The premium due is $106.81." In his deposition, Curtis admitted receiving this notice.

On October 17, 1997, Curtis was in an automobile accident that allegedly resulted in damages to Ronald J. Yacko. When Curtis inquired about coverage under the policy, Anthem responded the policy was canceled and Curtis was not covered on October 17, 1997.

On June 22, 1999, Yacko filed suit, alleging a claim of negligence against Curtis. Later, on December 1, 2000, Curtis filed an amended third-party complaint against Anthem. Curtis claimed Anthem improperly denied his claim and failed to provide coverage and representation.

By motion dated July 23, 2001, Anthem moved for summary judgment on Curtis's claim. Anthem maintained the policy by Curtis had been canceled due to nonpayment of premium and thus Curtis was not covered on the date of the collision with Yacko. Curtis claimed he was covered by the policy. Curtis presented testimony from Terry Woith, the insurance agent who worked with Curtis. Woith, who worked in the insurance industry since 1988, testified she believed the policy was in effect on October 17, 1997, and the August 18, 1997, cancellation notice could be discarded because the August 15, 1997, reinstatement stated the reinstatement was effective August 27, 1997. Woith testified she received no other notices regarding Curtis's policy after August 27, 1997.

The circuit court agreed with Anthem and granted Anthem's motion after finding "Anthem has established the requisite cancellation notices were mailed according to law."

Curtis appeals.

II. ANALYSIS

We review the grant of summary judgment de novo. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390, 620 N.E.2d 1073, 1077 (1993). On summary judgment, we view all evidence in the light most favorable to the non-movant. Boldini v. Owens Corning, 318 Ill. App. 3d 1167, 1170, 744 N.E.2d 370, 372 (2001). Summary judgment is inappropriate if a material question of fact exists. It is proper, however, "when the pleadings, depositions, admissions, and affidavits demonstrate no genuine issue of material fact exists and the movant ...


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