{ "id": 256302, "name": "INDIANA INSURANCE COMPANY, Plaintiff-Appellant, v. MACHON AND MACHON, INC., Defendant-Appellee", "name_abbreviation": "Indiana Insurance v. Machon & Machon, Inc.", "decision_date": "2001-06-29", "docket_number": "No. 1 \u2014 99\u20141034", "first_page": "300", "last_page": "305", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 300" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "166 Ill. 2d 72", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198910 ], "year": 1995, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0072-01" ] }, { "cite": "73 Ill. App. 3d 743", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3263894 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "748" }, { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0743-01" ] }, { "cite": "69 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5454839 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "129-30" }, { "page": "132" }, { "page": "132" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0126-01" ] }, { "cite": "318 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279477 ], "year": 2000, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0293-01" ] }, { "cite": "318 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279677 ], "year": 2000, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0032-01" ] }, { "cite": "192 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453249 ], "year": 2000, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0036-01" ] } ], "analysis": { "cardinality": 606, "char_count": 11195, "ocr_confidence": 0.777, "pagerank": { "raw": 1.140471969125548e-07, "percentile": 0.5783341036485139 }, "sha256": "34ba07b722c58a118abfd6744c96a45ab635ef1c20b07046e45e324501faca61", "simhash": "1:1c76fe73cf04341e", "word_count": 1822 }, "last_updated": "2023-07-14T20:56:29.143572+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INDIANA INSURANCE COMPANY, Plaintiff-Appellant, v. MACHON AND MACHON, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nPlaintiff, Indiana Insurance Company (Indiana), appeals from the trial court\u2019s grant of defendant Mach\u00f3n & Mach\u00f3n, Inc.\u2019s (Machon) motion to dismiss plaintiffs complaint pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619 (West 1996)), as well as the trial court\u2019s denial of plaintiffs motion to vacate the order of dismissal and for rehearing. A timely notice of appeal was filed vesting this court with proper jurisdiction under Supreme Court Rule 301. 155 Ill. 2d R. 301. The issue presented for our consideration is whether section 13 \u2014 214.4 of the Code (735 ILCS 5/13 \u2014 214.4 (West 1996)), which sets forth a two-year statute of limitations for claims against insurance producers, encompasses claims by an insurer against its agent. For the reasons that follow, we respond in the affirmative.\nIn April 1998, Indiana filed suit against its agent, Mach\u00f3n, seeking reimbursement for a claim paid to an insured, Kishor Bhatt (Bhatt), as a result of a fire loss at his building. In its complaint, Indiana alleged it had issued a policy of insurance to Bhatt that provided for \u201cactual cash value\u201d coverage in the instance of a fire loss and specifically excluded \u201creplacement cost\u201d benefits. The complaint further alleged that at some point after Indiana issued that policy and without authority to so act, Mach\u00f3n transmitted a document to Bhatt that indicated his building was covered at \u201creplacement cost.\u201d As a direct result of Mach\u00f3n\u2019s conduct, Indiana asserted it became liable to Bhatt for the payment of the replacement cost of the building in spite of the provisions in the policy of insurance to the contrary. Indiana finally alleged it suffered damages in the amount of $31,281.18, the difference between the \u201creplacement cost\u201d and the \u201cactual cash value\u201d it would have been obligated to pay under the policy alone.\nThe corrected second amended complaint, the subject of the trial court\u2019s final orders, contained three separate counts alleging three theories of recovery: negligence, breach of implied warranty and breach of contract. As to count I, Indiana alleged Mach\u00f3n was negligent in transmitting the subject document to Bhatt and that as a direct and proximate result of that act, Indiana was obliged to pay \u201creplacement cost\u201d benefits. In count II, Indiana alleged that, \u201cAt the time of delivering the aforementioned evidence of property coverage, MACHON & MACHON, INC. was cloaked with the indicia of authority and impliedly warranted it had authority to deliver such evidence of property coverage, when, in fact, it did not.\u201d Further, \u201cMACHON & MACHON, INC., had a duty to the Plaintiff to exercise ordinary care not to warrant by implication that which it was without authority to do on behalf of the principal.\u201d Finally, count III alleged that Machon\u2019s conduct in delivering said document to Bhatt was a breach of the agent-company agreement.\nDefendant moved to dismiss the complaint pursuant to section 2 \u2014 619 of the Code, arguing the entire action was barred by the two-year statute of limitations set forth in section 13 \u2014 214.4 and, further, count II should be dismissed pursuant to section 2 \u2014 615 of the Code as plaintiff lacked standing to sue for breach of warranty.\nThe trial court agreed with defendant and entered an order, stating: \u201cFor the reasons stated in defendant\u2019s motion and brief, this matter is dismissed pursuant to the statute of limitations and section 2 \u2014 619 of the Code of Civil procedure, with prejudice.\u201d\nWe review this entire matter de nova.\n\u20221 We first consider the applicability of section 13 \u2014 214.4 to the case at bar. Section 13 \u2014 214.4, in pertinent part, provides:\n\u201cActions against insurance producers, limited insurance representatives, and registered firms. All causes of action brought by any person or entity under any statute or any legal or equitable theory against an insurance producer, registered firm, or limited insurance representative concerning the sale, placement, procurement, renewal, cancellation of, or failure to procure any policy of insurance shall be brought within 2 years of the date the cause of action accrues.\u201d 735 ILCS 5/13 \u2014 214.4 (West 1996).\n\u20222 In the exercise of statutory construction, our primary task is to ascertain and effectuate the intent of the legislature. People v. Pullen, 192 Ill. 2d 36, 42 (2000). The language of the statute itself is the best indication of the intent of the drafters and the words contained therein should be given their ordinary and popularly understood meaning. Waliczek v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund, 318 Ill. App. 3d 32, 35 (2000). Where the legislature\u2019s intent can be ascertained from the plain language of the statute, that intent must prevail and will be given effect without resort to other aids for construction. Chicago School Reform Board of Trustees v. Illinois Educational Labor Relations Board, 318 Ill. App. 3d 293, 300 (2000).\n\u20223 Defendant contends that section 13 \u2014 214.4, by its own language, applies without limitation to \u201call causes of action brought by any person or entity against an insurance producer\u201d and concludes the broad mandate of the statute clearly encompasses the controversy sub judice. Conversely, plaintiff-contends the two-year statute of limitations is limited to causes of action brought by insureds against their insurance brokers or agents, as the acts of \u201csale, placement, procurement, renewal, cancellation of, or failure to procure any policy of insurance\u201d listed in the statute are duties performed by an agent on behalf of an insured. Moreover, plaintiff suggests that defendant\u2019s interpretation of the statute would yield illogical and unfair results in that an insurance company would be limited to a two-year statute in any claim against its agent and that same agent, in an action against the insurance company, would be governed by the 5- or 10-year statute of limitations as provided in sections 13 \u2014 205 and 13 \u2014 206 of the Code. 735 ILCS 5/13 \u2014 205 (West 1996) (provides generally for a five-year statute of limitations for actions on unwritten contracts and civil actions not otherwise expressly provided for by statute); 735 ILCS 5/13 \u2014 206 (West 1996) (actions filed pursuant to written contracts are governed by a 10-year statute of limitations).\nWe agree with defendant. The statute as written is unequivocal and subject to only one reasonable interpretation: that all causes of action brought by any person or entity under any theory against an insurance producer shall be brought within two years of the date the cause of action accrues. Therefore, we find the two-year statute of limitations under section 13 \u2014 214.4 of the Code to be applicable to plaintiffs claim in this case.\n\u20224 We next consider when that statute of limitations accrued. Limitations periods for tort and contract actions traditionally have been treated differently. For most torts, the cause of action usually accrues when the plaintiff suffers injury. West American Insurance Co. v. Sal E. Lobianco & Son Co., 69 Ill. 2d 126, 129-30 (1977). For contract actions and torts arising out of contractual relationships, the cause of action ordinarily accrues at the time of the breach of contract, not when a party sustains damages. West American Insurance Co., 69 Ill. 2d at 132. The reason for this distinction is the concern that plaintiff will delay bringing suit after a contract is breached in order to increase damages. West American Insurance Co., 69 Ill. 2d at 132.\n\u20225 Plaintiff, however, asserts this general rule is not applicable to the instant case because it does not involve an action for traditional breach of contract damages and is more accurately defined as a breach of a fiduciary duty implied by the contract. Therefore, plaintiff concludes the statute of limitations did not accrue until it actually paid Bhatt\u2019s claim; only then did it suffer damages. We disagree with plaintiff.\nThat damages are not immediately ascertainable does not postpone the accrual of a claim. Del Bianco v. American Motorists Insurance Co., 73 Ill. App. 3d 743, 748 (1979). Further, in cases of torts arising out of a contractual relationship, the statute of limitations runs when the duty is breached, not when the damages are sustained. Del Bianco, 73 Ill. App. 3d at 748; West American Insurance Co., 69 Ill. 2d at 132.\nClearly, the breach in this case occurred at the time Mach\u00f3n issued the supplemental letter to the insured obligating plaintiff to pay an amount in excess of that included in the policy in the event of a loss. However, plaintiff argues it could not have known of the breach until after the insured\u2019s loss occurred and its damages were specifically calculable. While we agree that plaintiff may not have known of the breach on the date of its occurrence, we also believe it knew of the loss long before it actually paid the claim in June of 1996, at the least on the date the insured filed a claim. Moreover, a plaintiff seeking to utilize the \u201cdiscovery rule\u201d to delay the commencement of the statute of limitations has the burden of proving the date of the discovery of its loss. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995). Plaintiff failed to meet that burden here as it\u2019s complaint does not specify the date of Machon\u2019s correspondence to Bhatt, when it first discovered the breach or when Bhatt\u2019s insurance claim was filed. However, we know the policy was issued on February 15, 1995, and effective for one year. Defendant issued the letter to Bhatt within the policy period, prior to the fire loss which occurred on July 13, 1995. Thus, plaintiffs claim accrued sometime between February and July of 1995, rendering the limitations period, at the latest, July of 1997; almost one year prior to the filing here. Consequently, we hold that plaintiffs claim is barred by the statute of limitations and affirm the lower court.\nFinally, plaintiff maintains its complaint was timely filed under the statute of limitations applicable to indemnity actions. 735 ILCS 5/13 \u2014 204 (West 1996). We disagree.\nPlaintiff did not plead a cause of action for indemnity. A review of plaintiffs own labels of the counts in its complaint is revealing in this regard: negligence, breach of warranty and breach of contract. Conspicuously absent is indemnity. That plaintiff, in its ad damnum clause in each count of its complaint, sought \u201cindemnification\u201d from Mach\u00f3n does not change the basic nature of the causes of action pleaded. This court will not employ such a tortured interpretation of that word to now breathe life into an otherwise stale claim.\nIn light of the foregoing, the judgment of the circuit court of Cook County is hereby affirmed.\nAffirmed.\nMcNULTY, EJ., and COHEN, J., concur.", "type": "majority", "author": "JUSTICE TULLY" } ], "attorneys": [ "James & Dutton, Ltd., of Park Ridge (Jay S. Judge, Edward E Dutton, and Thomas J. Keevers, of counsel), for appellant.", "Tribler Orpett & Crone, PC., of Chicago (Douglas C. Crone and Kevin A. Titus, of counsel), for appellee." ], "corrections": "", "head_matter": "INDIANA INSURANCE COMPANY, Plaintiff-Appellant, v. MACHON AND MACHON, INC., Defendant-Appellee.\nFirst District (1st Division)\nNo. 1 \u2014 99\u20141034\nOpinion filed June 29, 2001.\nJames & Dutton, Ltd., of Park Ridge (Jay S. Judge, Edward E Dutton, and Thomas J. Keevers, of counsel), for appellant.\nTribler Orpett & Crone, PC., of Chicago (Douglas C. Crone and Kevin A. Titus, of counsel), for appellee." }, "file_name": "0300-01", "first_page_order": 318, "last_page_order": 323 }