{ "id": 2601827, "name": "Ellen Florence, Plaintiff-Appellant, v. The Travelers Insurance Co. and the Baltimore and Ohio Chicago Terminal Railroad Co., Defendants-Appellees", "name_abbreviation": "Florence v. Travelers Insurance", "decision_date": "1965-05-24", "docket_number": "Gen. No. 49,978", "first_page": "470", "last_page": "481", "citations": [ { "type": "official", "cite": "59 Ill. App. 2d 470" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "105 NE2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "412 Ill 151", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2663600 ], "year": 1952, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0151-01" ] }, { "cite": "111 NE2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "350 Ill App 26", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5108232 ], "year": 1953, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-app/350/0026-01" ] }, { "cite": "53 NE2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "321 Ill App 292", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2423697 ], "year": 1944, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-app/321/0292-01" ] }, { "cite": "92 F2d 829", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1014623 ], "year": 1937, "pin_cites": [ { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/f2d/92/0829-01" ] }, { "cite": "183 NE2d 567", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "36 Ill App2d 61", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5261188 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-app-2d/36/0061-01" ] }, { "cite": "179 NE2d 37", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "33 Ill App2d 233", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5235621, 5233695 ], "year": 1961, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0233-02", "/ill-app-2d/33/0233-01" ] } ], "analysis": { "cardinality": 666, "char_count": 16913, "ocr_confidence": 0.536, "pagerank": { "raw": 2.5356666173618553e-07, "percentile": 0.8128993234740712 }, "sha256": "53aeab62838f31b9e6a787f2975e35ea45d9a56fc99d7b2d20e95c482490f9e5", "simhash": "1:2ff1f6000e088bd6", "word_count": 2722 }, "last_updated": "2023-07-14T16:50:57.656264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN, P. J. and KLTJCZYNSKI, J., concur." ], "parties": [ "Ellen Florence, Plaintiff-Appellant, v. The Travelers Insurance Co. and the Baltimore and Ohio Chicago Terminal Railroad Co., Defendants-Appellees." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nPlaintiff, under a Group Insurance Policy Contract which covered her deceased husband, seeks to collect a $4,000 death benefit. In the alternative, plaintiff seeks damages \u201coccasioned by alleged negligence of defendants in advising the insured with respect to the disability premium waiver provisions of the contract.\u201d Summary judgment orders were entered in favor of defendants, and plaintiff appeals.\nThe orders appealed from were entered on plaintiff\u2019s verified amended statement of claim, Travelers\u2019 verified answer, interrogatories, affidavits and counteraffidavits, and supporting exhibits.\nJessie Florence, plaintiff\u2019s deceased husband, was employed by defendant Baltimore & Ohio Chicago Terminal Railroad Company. During his active employment by the B. & 0., he came within the provisions of \u201cGroup Policy Contract No. GA 23000,\u201d in which defendant, The Travelers Insurance Company, is the \u201cInsurer,\u201d and signatory \u201cEmployers and Brotherhoods collectively\u201d constitute the \u201cPolicyholder.\u201d The policy provided benefits for \u201cqualified\u201d railroad employees and their dependents. The employees do not pay the premiums under the policy. The premiums for such insurance are paid by the participating railroad employers under procedures outlined in the policy*\nSix Articles set forth three basic types of benefits for \u201cqualified employees\u201d and the separate \u201celigibility\u201d requirements applicable to each type of benefit. In each instance, the Article defining the benefit is immediately preceded by an Article prescribing the specific \u201celigibility\u201d requirement which applies to the particular benefit set forth in the Article which follows it. Article VT defines \u201cEligibility for Employee Benefits Described in Article VTI.\u201d Article VII contains the employees\u2019 hospital and surgical benefits. Article VIII defines \u201cEligibility for Dependents\u2019 Benefits Described in Article IX.\u201d Article IX contains the dependents\u2019 hospital, surgical and other medical benefits. Article X defines \u201cEligibility for Life Insurance Benefits\u201d and Article XI contains the $4,000 life insurance benefits. The portions of the \u201cArticles\u201d we are concerned with are as follows.\nArticle VIII, paragraph 1, reads, in relevant part:\n\u201c1. An Employee . . . shall be insured for Dependents Benefits as provided in Article IX hereof during and only during the month following a month for which the signatory Employer by which he is employed is required to make the appropriate payment to the Insurer . . . except that: (i) such payment shall be waived and insurance shall be continued in subsequent consecutive months when the requirements set forth in Paragraph 1 of said Article V cannot be met solely as a result of the Employee\u2019s disability which prevents him from performing work in his regular occupation; . . . provided, however, that . . . (b) no Employee shall be insured after the date on which his employment relationship is terminated other than for retirement, or after the date the Employee has failed to render compensated service for a period of One calendar year. . . (Emphasis supplied.)\nArticle X of the policy prescribes the requirement for \u201cEligibility for Life Insurance Benefits,\u201d and reads, in relevant part:\n\u201cEach Employee . . . shall be insured for an amount of life insurance, determined in accordance with Article XI, during and only during the period that he is insured in accordance with Article VIII, Paragraph 1 of this policy contract; provided, however, . . . (b) that such life insurance shall in no event continue in force after the date the Employee has failed to render compensated service for a period of one calendar year.\u201d (Emphasis supplied.)\nArticle XI provides for $4,000 Life Insurance Benefits and contains a \u201cconversion, privilege,\u201d as follows :\n\u201cSection 3. Conversion Privilege. In case of the termination of any life insurance under this policy contract at the expiration of the period specified in Article X above for any reason other than discontinuance or amendment of this policy contract, the Employee shall be entitled to have issued to him by the Insurer without evidence of insurability, and upon application made to the Insurer within Thirty-one days after such termination and upon the payment of the premium applicable to the class of risks to which he belongs and to the form and amount of the policy at his then attained age, an individual policy of life insurance without disability or other supplementary benefits, in any One of the forms then customarily issued by the Insurer, except term insurance, in an amount not in excess of the amount of such terminated insurance, less, in the case of an Employee who continues in employment with an Employer included under this policy contract, any amount of life insurance for which such Employee may be or may become eligible under any other group policy within Thirty-one days after the date of such termination and less any amount of life insurance in force under any individual policy previously issued to the Employee in accordance with the conversion privilege of this policy contract.\u201d\nThe active employment of Jessie Florence by the B. & 0. ended on May 12, 1960, when he was disabled, and this was the final date upon which he \u201crendered compensated services\u201d for his employer. He retired on April 11, 1961, and he died on May 11, 1962. Upon the refusal of Travelers to pay the amount allegedly due to plaintiff as beneficiary under the policy, plaintiff filed her statement of claim on January 11, 1963.\nCount I of the amended statement of claim alleged the existence of a cause of action for $4,000 against Travelers for death benefits under the life insurance provisions of Group Policy GA 23000. It alleged that Travelers, without reasonable cause, had refused to pay the amount due under the policy, although the cause of the insured\u2019s death was one insured against in the policy, the plaintiff was the sole beneficiary of the policy, plaintiff and the insured had performed all the conditions prescribed by the policy, and the policy was in full force and effect at the time of the death of the insured.\nCount II alleged the existence of a cause of action against both defendants. It alleged that on or about the time of insured\u2019s retirement, April 11, 1961, insured was disabled and entitled to disability premium waiver pursuant to the contract of insurance. At that time, it is alleged, the defendants, by their agents and servants, \u201ccarelessly, negligently and without regard to the consequences to said Jessie Florence and his beneficiary, advised, informed and represented to said Jessie Florence that pursuant to the terms of said disability premium waiver provision he was fully insured under said contract of insurance without further payment of premiums until the expiration of the calendar year 1962.\u201d It is further alleged that \u201cby reason of said advice . . . and relying thereon . . . Jessie Florence paid no premiums in consideration of said insurance from the time of his said retirement until the time of his death .... Had said Jessie Florence been correctly advised he would have paid any premiums which might have fallen due upon said contract of insurance so as to remain insured until his death.\u201d Count II contained a prayer for judgment of $4,000, and costs, as the damage suffered by plaintiff by reason of defendants\u2019 negligence.\nAs to Count I, alleging a cause of action against defendant Travelers for recovery of death benefits on the group insurance policy, we believe that the provisos of both Article X and Article VIII, paragraph 1, are determinative. Both provisos limit the length of time which insurance benefits continue in force. Article X states:\n\u201c[Pjrovided, however, . . . that such life insurance shall in no event continue in force after the date the Employee has failed to render compensated service for a period of one calendar year.\u201d\nIn similar terms, Article VIII, paragraph 1, states:\n\u201c[Pjrovided, however, that ... no Employee shall be insured after the date on which his employment relationship is terminated other than for retirement, or after the date the Employee has failed to render compensated service for a period of One calendar year . . . .\u201d\nThe date on which Jessie Florence, the alleged insured, last rendered compensated service to the B. & 0. was May 12, 1960. Assuming that he was a \u201cqualified employee,\u201d his life insurance benefits continued in force for one calendar year after this date, that is, until December 31, 1961. As Jessie Florence died on May 11, 1962, more than one calendar year after the last date he rendered compensated service, under the unambiguous limitations of the group policy quoted above, he was not eligible to receive life insurance benefits at the time of his death. Therefore, under facts which are not controverted, the summary judgment entered by the trial court in favor of Travelers and against Jessie Florence\u2019s \u201cbeneficiary\u201d on Count I was proper.\nAs to Count II, as finally amended, plaintiff contends that summary judgment should not have been granted against her because the pleadings and affidavits raised a factual issue as to whether defendants advised Jessie Florence with respect to the disability waiver provision. Cannon v. Thompson, 33 Ill App2d 233, 237, 179 NE2d 37 (1961).\nIn plaintiff\u2019s affidavit in opposition to Travelers\u2019 motion for summary judgment, plaintiff states that \u201c[w]ithin one or two days after the retirement of my deceased husband, Jessie Florence, on April 11, 1961, he was advised by an employee of defendants that pursuant to the terms of certain disability premium waiver provisions in the policy of group life insurance . . . Jessie Florence was fully insured under said contract of insurance without further payment of premiums until the expiration of the calendar year 1962. ... As evidence of said advice said employee wrote upon a certain notice to furloughed or retired employees, a true copy of which is attached hereto and made a part hereof as Exhibit \u2018A,\u2019 the legend: \u2018Pre waiver until Dec. 1961 for wife and Dec. 1962 for both.\u2019 \u201d In response to Travelers\u2019 interrogatories concerning the advice defendants allegedly gave to Jessie Florence, the plaintiff replied: \u201cI do not know the names or addresses of anyone who was present at the insurance offices of defendants where the occurrence took place.\u201d\nPlaintiff sent amended written interrogatories to both defendants, which included the following:\n\u201c3. State whether the legend \u2018Pre waiver until Dec. 1961 for wife and Dec. 1962 for both\u2019 appearing on the attached \u2018Notice to Furloughed or Retired Employees\u2019 is in the handwriting of any of the persons . . . [employed in offices of defendants involved in servicing group insurance coverage of employees of the B. & 0.] or of any other employee or agent of defendants, or either of them, and if so, identify this employee or agent and state his or her address.\n\u201c4. If lack of knowledge is claimed in the answer to the preceding interrogatory, state what efforts have been made by defendants, or either of them, to ascertain the answer to said interrogatory.\u201d\nDefendant Travelers answered \u201cNo\u201d to the third interrogatory, and to the fourth interrogatory answered \u201cWe showed the piece of paper to the above employees and none of them said that it was in their handwriting.\u201d Defendant B. & 0. answered interrogatory 3, as slightly modified by the court, by stating, \u201cIt is not in the handwriting of any of the persons [employed in the accounting department] previously named .... This entire answer is based upon my familiarity with the handwriting of our office staff or of my inquiring of all the above-named . . . .\u201d The B. & 0. answered interrogatory 4 by stating, \u201cNot applicable.\u201d\nIn an affidavit attached to Travelers\u2019 motion for summary judgment, Raymond P. Georgen, the \u201cduly authorized agent of The Travelers Insurance Company,\u201d deposed that \u201cThe Travelers Insurance Company has at no time advised Jessie Florence as to any rights he may or may not have had with respect to the life benefits under Group Policy GA-23000.\u201d In an affidavit attached to defendant B. & O.\u2019s motion for summary judgment, filed March 25, 1964, G. E. Swart, \u201cduly authorized agent\u201d and \u201cChief Clerk\u201d of the B. & 0., deposed, with personal knowledge, that \u201c[t]he Baltimore and Ohio Chicago Terminal Railroad Company has at no time advised Jessie Florence as to any rights he may or may not have had with respect to the life benefits under Group Policy GA 23000.\u201d\nAlthough it may be argued from the above that a factual issue, whether advice was given by defendants to Jessie Florence, was presented to the trial court, this, by itself, does not preclude the entry of a summary judgment. In order to preclude the entry of a summary judgment, the factual issue must be \u201cmaterial.\u201d Section 57(3) of the Illinois Civil Practice Act (Ill Rev Stats 1963, c 110) provides:\n\u201cThe judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any 'material fact and that the moving party is entitled to a judgment or decree as a matter of law . . . .\u201d (Emphasis supplied.)\nAs is stated in ILP, Judgments, c 5, \u00a7 73, p 186:\n\u201cWhere the only disputed issues of fact are such as do not relate to a relevant matter, the presence of such issues will not preclude the entry of summary judgment.\u201d\nSummary judgments in favor of both defendants were properly entered on Count II. The time limitation in Article X of the policy rendered Jessie Florence ineligible for life insurance benefits under the policy one calendar year after the last date he rendered compensated service. At the expiration of that one year, absent the exercise of the \u201cconversion privilege,\u201d the life insurance benefits ended. Therefore, even if the defendants negligently advised Jessie Florence as to disability premium provisions, the negligent advice and his reliance thereon had no causal connection with the fact that the life insurance benefits were not in force at the time of his death. Since the negligence alleged did not cause the harm which plaintiff alleged, the lapse of coverage, the question of fact here, as to the existence of the negligently performed act, was not material to the disposition of this ease and, therefore, could not have precluded the entry of summary judgment. Menge v. Liberty Nat. Bank, 36 Ill App2d 61, 183 NE2d 567 (1962); Metropolitan Life Ins. Co. v. Quilty, 92 F2d 829, 832 (7th Cir, 1937).\nCount II as finally amended does not allege that the negligent advice given by defendants caused the failure of Jessie Florence, or the plaintiff, to take advantage of any life insurance conversion privilege the insured might have had under Article XI, section 3, of the policy. As the trial court was not presented with the question of negligent advice as to the life insurance \u201cconversion privilege,\u201d this point cannot he assigned as error on appeal.\nFinally, the plaintiff contends that the trial court should have allowed plaintiff to file her second amendment to the amended statement of claim, citing section 46(1) and (3) of the Illinois Civil Practice Act (Ill Rev Stats 1963, c 110); Snively v. Crownover, 321 Ill App 292, 296, 53 NE2d 7 (1944); and Williams v. Fredenhagen, 350 Ill App 26, 36, 111 NE2d 578 (1953). This proposed second amendment to Count I read as follows:\n\u201c7(a) From and after May 12, 1960, Jessie Florence suffered a disability which prevented him from performing work in his regular occupation which continued until his death.\u201d\nIn our view of Count I, whether Jessie Florence was disabled from the last day he rendered compensated service is not material. It cannot affect the limitation which made Jessie Florence uninsured \u201cafter the date the Employee has failed to render compensated service for a period of one calendar year.\u201d We find that the trial court did not manifestly abuse its broad discretion in denying plaintiff\u2019s motion to amend her statement of claim for the third time. Deasey v. City of Chicago, 412 Ill 151, 156, 105 NE2d 727 (1952).\nFor the reasons given above, the orders of the trial court granting defendants summary judgments against plaintiff and denying leave to amend are affirmed.\nAffirmed.\nBURMAN, P. J. and KLTJCZYNSKI, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Henry W. Kenoe and Raphael Fine, of Chicago, for appellant.", "Kirkland, Ellis, Hodson, Chaffetz and Masters, of Chicago (David Jacker and John W. Kearns, of counsel), for the Travelers Insurance Co., appellee; John H. Gabel and Nicholas E. Liontakis, of Chicago, for the Baltimore and Ohio Chicago Terminal Railroad Co., appellee." ], "corrections": "", "head_matter": "Ellen Florence, Plaintiff-Appellant, v. The Travelers Insurance Co. and the Baltimore and Ohio Chicago Terminal Railroad Co., Defendants-Appellees.\nGen. No. 49,978.\nFirst District, First Division.\nMay 24, 1965.\nHenry W. Kenoe and Raphael Fine, of Chicago, for appellant.\nKirkland, Ellis, Hodson, Chaffetz and Masters, of Chicago (David Jacker and John W. Kearns, of counsel), for the Travelers Insurance Co., appellee; John H. Gabel and Nicholas E. Liontakis, of Chicago, for the Baltimore and Ohio Chicago Terminal Railroad Co., appellee." }, "file_name": "0470-01", "first_page_order": 480, "last_page_order": 491 }