United States District Court, N.D. Illinois, Eastern Division
JORDAN MOZER & ASSOCIATES, LTD., an Illinois corporation, Plaintiff,
GENERAL CASUALTY COMPANY OF WISCONSIN, a Wisconsin corporation, Defendant.
BRADLEY P. NELSON ONE OF THE ATTORNEYS FOR PLAINTIFF
PLAINTIFF'S MOTION FOR JUDGMENT ON COUNT V
PURSUANT TO SECTION 155 OF THE ILLINOIS INSURANCE
Ronald A. Guzman
Jordan Mozer & Associations, Ltd. (“Mozer”),
by and through its attorneys, hereby moves for judgment in
its favor on Count V of Plaintiff's Complaint, pursuant
to Section 155 of the Illinois Insurance Code. In support of
this Motion, Plaintiff states as follows:
matter was tried before a jury between October 24 and
November 2, 2017. The jury returned a verdict in
Plaintiff's favor, awarding Plaintiff $1, 390, 716.64 on
Plaintiff's claims for coverage under its insurance
policy, including $278, 752 for lost business income and $1,
111, 964.64 for extra expenses.
addition to the claims tried to the jury, Plaintiff has
asserted, in Count V of its Complaint, a claim pursuant to
Section 155 of the Illinois Insurance Code, 215 ILCS §
5/155. That claim is for the Court to decide and was not
submitted to the jury.
Section 155 provides in relevant part that:
(1) In any action by or against a company wherein there is in
issue the liability of a company on a policy or policies of
insurance or the amount of the loss payable thereunder, or
for an unreasonable delay in settling a claim, and it appears
to the court that such action or delay is vexatious and
unreasonable, the court may allow as part of the taxable
costs in the action reasonable attorney fees, other costs,
plus an amount not to exceed any one of the following
(a) 60% of the amount which the court or jury finds such
party is entitled to recover against the company, exclusive
of all costs;
(b) $60, 000;
(c) the excess of the amount which the court or jury finds
such party is entitled to recover, exclusive of costs, over
the amount, if any, which the company offered to pay in
settlement of the claim prior to the action.
215 ILCS § 5/155.
determining whether General Casualty acted vexatiously or
unreasonably for purposes of Section 155, the Court should
look to the totality of the circumstances. Valdovinos v.
Gasllant Ins. Co., 314 Ill.App.3d 1018, 1021, 733 N.E.2d
886 (2d Dist. 2000). Factors to consider include the
insurer's attitude, whether, as here, the insured was
forced to sue to recover, and whether, also as here, the
insurer offered a unreasonably small amount to settle the
claim without an adequate explanation for its position.
Id., 314 Ill.App.3d at 1021-22.
evidence at trial in this case established that General
Casualty vexatiously and unreasonably denied and delayed
Mozer's claims. Plaintiff's insurance adjusting
expert, Edward McKinnon, testified that General
Casualty's handling of Mozer's claims fell far below
standard customs and practices in the industry and
substantially below the standards and practices followed by
similarly situated insurance companies.
the extra expense claim in particular, General Casualty acted
vexatiously and unreasonably by, for example, telling Mozer
repeatedly that its relocation and moving costs were covered
under the Policy, and then, after Mozer
moved, reversing its position and refusing to pay one cent of
the relocation expenses or costs to equip and operate the
replacement premises. The evidence that General Casualty told
Mozer many times its move was covered was undisputed, as was
the evidence ...