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American Access Casualty Co. v. Tutson

April 22, 2011

AMERICAN ACCESS CASUALTY COMPANY, PLAINTIFF-APPELLEE,
v.
FELICIA TUTSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 08 CH 29395 Honorable Sophia H. Hall, Judge Presiding.

JUSTICE CAHILL delivered the judgment of the court, with opinion. Justices McBride and R.E. Gordon concurred in the judgment and opinion.

OPINION

The core issue in this case is whether section 143.1 of the Illinois Insurance Code (Code) (215 ILCS 5/143.1 (West 2006)) tolls a contractual limitation provision when the insured, Felicia Tutson, supplied the insurer, American Access Casualty Company, with information sufficient to constitute a proof of loss and American Access did not deny her claim within the two-year limitation period. We find that it does and that Tutson's demand for arbitration was timely filed. We reverse the trial court's order granting American Access's cross-motion for summary judgment and remand with directions.

On January 28, 2006, Tutson was a passenger in a car driven by Ronald Gates, who was insured under American Access's policy. They were involved in a hit-and-run traffic accident.

Tutson was injured in the accident. Gates provided her with his insurance information.

Tutson filed a claim with American Access on February 2, 2006, and received a claim number. She forwarded the claim number to her attorney, who on April 13, 2006, sent a lien letter to American Access, notifying it of the claim. On April 21, 2006, American Access sent a letter to Tutson's attorney, acknowledging receipt of the lien letter and including an "Accident Report Form" that sought basic information about Tutson's claim. American Access did not identify the "Accident Report Form" as a proof of loss form. Tutson did not complete the "Accident Report Form" and return it to American Access.

About a year later, on March 19, 2007, American Access notified Tutson's attorney that it was in possession of the police report from the traffic accident. On May 14, 2007, Tutson's attorney provided American Access with her medical bills and records and made a written demand for payment of the policy's $20,000 limit. On May 23, 2007, American Access acknowledged receipt of the demand letter and asked Tutson to submit to an examination under oath required by the policy. American Access directed Tutson to contact the law firm of Parillo, Weiss & O'Halloran. On August 13, 2007, Tutson gave a sworn statement to an attorney from that firm.

On August 23, 2007, American Access sent a letter to Tutson's attorney, asking for the ambulance invoice and the name and unit numbers of the police officers and paramedics involved with Tutson's claim at the time of the accident. The letter said "[u]pon receipt of the requested information we will then be in a position to evaluate your client's personal injury claim." The letter also said "[a]t this time we are unable to accept or reject your demand" for payment of the policy's limit.

On November 16, 2007, Tutson's attorney gave American Access an itemized ambulance bill, a paramedics report and an "Incident Detail" from the Chicago fire department. The police report in American Access's possession identified the police officers involved and their beat and star numbers. American Access did not ask for more information or for the "Accident Report Form" during the remainder of the two-year limitation period. American Access also did not deny Tutson's claim during those two years.

On June 9, 2008, Tutson's attorney made a demand for arbitration under the policy. The demand was made after the expiration of the policy's two-year limitation period, which provides:

"Legal Action Against the Company Under This Part B - 'Uninsured Motorists' Coverage. No suit, action or arbitration proceedings for recovery of any claim may be brought against this Company until the insured has fully complied with all the terms of this policy. Further, any suit, action or arbitration will be barred unless commenced within two (2) years after the date of the accident."

The policy also provides:

"Arbitration. If any person making claim hereunder and the Company do not agree that both the vehicle(s) and the driver(s) of the vehicle(s) with which any person making claim has had an accident, or do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle because of bodily injury to an insured or damage to an automobile described in the policy or do not agree to the amount payable hereunder, then these matters shall be submitted to arbitration."

American Access filed a complaint for declaratory judgment on August 12, 2008, arguing it was not obligated to arbitrate or settle Tutson's claim because she did not demand arbitration within two years of her accident as required by the policy. American Access sought a ruling that Tutson's claim was excluded under the terms of the policy and that it was not obligated to arbitrate or settle the claim. American Access ...


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