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Jordan Mozer & Associates, Ltd. v. General Casualty Co. of Wisconsin

United States District Court, N.D. Illinois, Eastern Division

November 7, 2017

JORDAN MOZER & ASSOCIATES, LTD., an Illinois corporation, Plaintiff,
v.
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 CODE

          Hon. Ronald A. Guzman

         Plaintiff 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:

         1. This 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.

         2. In 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.

         3. 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 amounts:
(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.

         4. In 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.

         5. The 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.

         6. With 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 ...


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