{ "id": 3217153, "name": "SANDRA S. MATHIS, Plaintiff-Appellee, v. LUMBERMEN'S MUTUAL CASUALTY INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "Mathis v. Lumbermen's Mutual Casualty Insurance", "decision_date": "2004-12-30", "docket_number": "No. 5-03-0487", "first_page": "854", "last_page": "861", "citations": [ { "type": "official", "cite": "354 Ill. App. 3d 854" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "84 Cal. Rptr. 2d 552", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "weight": 6, "year": 1999, "pin_cites": [ { "page": "553-54" }, { "page": "554-56" }, { "page": "558" }, { "page": "558" }, { "page": "558" } ], "opinion_index": 0 }, { "cite": "71 Cal. App. 4th 1260", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 585000 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "1263-64" }, { "page": "1265-67" }, { "page": "1270" }, { "page": "1271" }, { "page": "1271" } ], "opinion_index": 0, "case_paths": [ "/cal-app-4th/71/1260-01" ] }, { "cite": "104 N.E.2d 320", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "345 Ill. App. 495", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2432155 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-app/345/0495-01" ] }, { "cite": "153 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3607416 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "817" }, { "page": "817" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0815-01" ] }, { "cite": "57 Ill. App. 3d 866", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3419999 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "869" }, { "page": "868" }, { "page": "868" }, { "page": "868" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0866-01" ] }, { "cite": "211 Ill. App. 3d 617", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2529350 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "621" }, { "page": "621" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0617-01" ] }, { "cite": "74 Ill. App. 2d 314", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2580435 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "326" }, { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0314-01" ] }, { "cite": "296 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222631 ], "year": 1998, "pin_cites": [ { "page": "971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0968-01" ] }, { "cite": "219 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797290 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "160-61" }, { "page": "160-61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0156-01" ] }, { "cite": "298 Ill. App. 3d 585", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073671 ], "year": 1998, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0585-01" ] }, { "cite": "323 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171602 ], "year": 2001, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0376-01" ] }, { "cite": "338 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25400 ], "year": 2003, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0631-01" ] }, { "cite": "172 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55983 ], "year": 1996, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0523-01" ] } ], "analysis": { "cardinality": 715, "char_count": 17605, "ocr_confidence": 0.732, "pagerank": { "raw": 5.2782963970617405e-08, "percentile": 0.33097084038490276 }, "sha256": "77946da5278cceb923f2df508411d10e5259ce1fe9aad5f7c59afebd17067f41", "simhash": "1:bb386c5c491d266f", "word_count": 2876 }, "last_updated": "2023-07-14T16:31:29.254043+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SANDRA S. MATHIS, Plaintiff-Appellee, v. LUMBERMEN\u2019S MUTUAL CASUALTY INSURANCE COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOPKINS\ndelivered the opinion of the court:\nThis cause comes before this court on a permissive appeal, pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)), of the following question certified by the trial court:\n\u201cWhere a homeowner\u2019s insurance policy contains a one[-]year suit[-]filing limitation, can a Department of Insurance administrative regulation, that requires an insurer to advise [the insured] of the number of days the limitations period was tolled under 50 [Ill. Adm. Code] Section 919.80([d])(8)([C]), form the basis of an insurer\u2019s alleged waiver of the extended contractual limitation suit[-]filing time period?\u201d\nFACTS\nThe defendant, Lumbermen\u2019s Mutual Casualty Insurance Company (Lumbermen\u2019s), issued a homeowner\u2019s insurance policy to the plaintiff, Sandra Mathis. The policy was effective from June 6, 2000, to June 6, 2001. On July 16, 2000, Mathis\u2019s home at 1417 Third Street, Madison, Illinois, was destroyed by fire. Mathis reported her loss to Lumbermen\u2019s. By letter dated December 7, 2000, Lumbermen\u2019s denied her claim, finding misrepresentation and arson.\nOn January 31, 2002, Mathis filed a two-count complaint against Lumbermen\u2019s, alleging a breach of contract and defamation. On April 1, 2002, Lumbermen\u2019s filed a motion to dismiss Mathis\u2019s complaint under section 2\u2014619(5) of the Code of Civil Procedure (735 ILCS 5/2\u2014619(5) (West 2002)). Lumbermen\u2019s claimed that Mathis\u2019s breach-of-contract claim was time-barred because her policy contained a one-year contractual time limitation for filing suit and her complaint was filed beyond the one-year time limitation. The time limitation provision in the policy stated as follows:\n\u201cSuit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year of the date of loss.\nHowever, this one[-]year period is extended by the number of days between the date proof of loss is submitted and the date the claim is denied in whole or in part.\u201d\nThe last sentence of the time limitation provision is based upon section 143.1 of the Illinois Insurance Code (215 ILCS 5/143.1 (West 2002)), which provides, in pertinent part:\n\u201cWhenever any policy or contract for insurance *** contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.\u201d 215 ILCS 5/143.1 (West 2002).\nThe record on appeal does not include a record of the hearing on the motion to dismiss. However, Lumbermen\u2019s claims, and Mathis does not dispute, that at the hearing on the motion to dismiss Mathis argued that Lumbermen\u2019s waived or was estopped from asserting the contractual one-year time limitation because Lumbermen\u2019s failed to comply with the Department of Insurance\u2019s rules and regulations, specifically, section 919.80(d)(8)(C) of Title 50 of the Illinois Administrative Code, which provides:\n\u201cWhen the period within which the insured may bring suit under a residential fire and extended coverage policy is tolled in accordance with Section 143.1 of the Illinois Insurance Code [(215 ILCS 5/143.1 (West 2002))], the company, at the time it denies the claim, in whole or in part, shall advise the insured in writing of the number of days the period was tolled[ ] and how many days are left before the expiration of the time to bring suit.\u201d 50 Ill. Adm. Code \u00a7 919.80(d)(8)(C) (2002).\nIn its December 7, 2000, letter, Lumbermen\u2019s did not advise Mathis of the number of days the limitation period was tolled or how many days remained before her time to file suit expired.\nIn the trial court\u2019s August 29, 2002, order, the court held that Lumbermen\u2019s waived the time limitation provision contained in the insurance policy. Lumbermen\u2019s filed a motion to reconsider, which the court denied. Subsequently, on Lumbermen\u2019s motion, the court certified the previously stated question, finding that the issue is a matter of law upon which reasonable persons could differ and that the resolution of the issue would materially advance the ultimate termination of the litigation of this case. This court granted Lumbermen\u2019s petition for leave to appeal.\nANALYSIS\nWhere the issue presented in an interlocutory appeal is a question of law, the scope of review is de novo. In re Lawrence M., 172 Ill. 2d 523, 526 (1996); Terrill v. Oakbrook Hilton Suites & Garden Inn, L.L.C., 338 Ill. App. 3d 631, 634 (2003). Although an appeal under Rule 308 is generally limited to the question certified by the trial court, a reviewing court can, where necessary, go beyond the certified question to consider the appropriateness of the order giving rise to the appeal. Johnson v. State Farm Mutual Automobile Insurance Co., 323 Ill. App. 3d 376, 379 (2001).\nLumbermen\u2019s argues that section 919.80(d)(8)(C) does not apply because the limitation period was not tolled under section 143.1 of the Illinois Insurance Code because Mathis did not file a proof of loss in any form.\nSection 143.1 is an important statutory restriction on contractual time limitation provisions (Hines v. Allstate Insurance Co., 298 Ill. App. 3d 585, 588 (1998)) and is designed to provide consumer protection to an insured when an insurance policy contains a time limitation clause. Trinity Bible Baptist Church v. Federal Kemper Insurance Co., 219 Ill. App. 3d 156, 160-61 (1991). The intent of section 143.1 is to prevent an insurance company from sitting on a claim, allowing the limitation period to run, thereby depriving an insured of the opportunity to litigate his claim in court. Trinity Bible Baptist Church, 219 Ill. App. 3d at 160-61. Section 143.1 requires that a proof of loss be filed, in the form required by the policy, before the limitation period in the policy is tolled. Vola v. Pacific Insurance Co., 296 Ill. App. 3d 968, 971 (1998). However, an insurer can waive compliance with proof-of-loss requirements. Tarzian v. West Bend Mutual Fire Insurance Co., 74 Ill. App. 2d 314, 326 (1966). \u201cStrong proof is not required to establish a waiver of a policy defense, but only such facts as would make it unjust, inequitable[,] or unconscionable to allow the defense to be asserted. [Citations.]\u201d State Farm Mutual Automobile Insurance Co. v. Gray, 211 Ill. App. 3d 617, 621 (1991). When an insurer denies liability for a loss claimed to be covered under the policy on grounds other than the insured\u2019s failure to file a proof of loss, the insurer waives compliance with the proof-of-loss requirement. State Farm Mutual Automobile Insurance Co., 211 Ill. App. 3d at 621; Tarzian, 74 Ill. App. 2d at 327. \u201cMoreover, the denial itself implies the insurer\u2019s knowledge of the loss and intention to waive any proof thereof.\u201d Tibbs v. Great Central Insurance Co., 57 Ill. App. 3d 866, 869 (1978).\nAt the hearing on Lumbermen\u2019s motion to reconsider, Lumbermen\u2019s argued that Mathis did not file a proof of loss, but Lumbermen\u2019s acknowledged that it did not request a proof of loss from Mathis. Neither at the trial nor on review did Lumbermen\u2019s explain how Mathis failed to comply with the policy\u2019s proof-of-loss requirement. The policy\u2019s proof-of-loss requirement states, in pertinent part, as follows:\n\u201c2. Your Duties After Loss. In case of a loss to covered property, you must see that the following are done:\na. Give prompt notice to us or our agent;\n^ ^ ^\ng. Send to us, within 60 days after our request, your signed, sworn proof of loss ***.\u201d\nThe proof-of-loss provision required Mathis to give prompt notice, but the provision does not describe a form for the notice or give a definitive time frame for notification. The record demonstrates that Mathis gave Lumbermen\u2019s notice of her loss; otherwise, Lumbermen\u2019s would not have investigated the loss, as indicated in its denial letter, and would not have known to deny her claim. In addition, Lumbermen\u2019s acknowledged that it had made no request for a signed, sworn proof of loss. Under the facts of this case, we find that when Lumbermen\u2019s denied liability for Mathis\u2019s loss on grounds other than Mathis\u2019s failure to file a proof of loss, Lumbermen\u2019s waived compliance with the proof-of-loss requirement specified in the policy. See State Farm Mutual Automobile Insurance Co., 211 Ill. App. 3d at 621.\nHaving determined that Lumbermen\u2019s waived compliance with the proof-of-loss requirement, we consider whether Lumbermen\u2019s waived the policy\u2019s time limitation provision altogether. A lawsuit filed after a contractual time limitation has expired is barred unless an insurer has waived the requirement. Village of Lake in the Hills v. Illinois Emcasco Insurance Co., 153 Ill. App. 3d 815, 817 (1987). Waiver is the voluntary, intentional relinquishment of a known right. Tibbs, 57 Ill. App. 3d at 868. Estoppel is based upon an insurer\u2019s conduct that misleads the insured to his detriment. Tibbs, 57 Ill. App. 3d at 868. Because an implied waiver arises from the insurer\u2019s conduct, an implied waiver can be based on either waiver or estoppel, \u201c \u2018for it exists when there is an intention to waive unexpressed, but clearly to be inferred from circumstances, or when there is no such intention in fact, but the conduct of the insurer has misled the insured into acting on a reasonable belief that the insurer has waived some provision of the policy.\u2019 43 Am. Jur. 2d Insurance \u00a7 1054, at 978 (1969); see generally Stoltz v. National Indemnity Co., 345 Ill. App. 495, 104 N.E.2d 320 [(1952)].\u201d Tibbs, 57 Ill. App. 3d at 868. Waiver also may be shown by facts from which it would appear that the enforcement of the provision would be unjust or unconscionable. Village of Lake in the Hills, 153 Ill. App. 3d at 817.\nLumbermen\u2019s argues that there is no evidence that it waived the contractual time limitation provision because it has done nothing inconsistent with its intent to rely on all the provisions of the insurance contract. However, we have already determined that Lumbermen\u2019s waived compliance with the policy\u2019s proof-of-loss requirement. Lumbermen\u2019s also argues that a failure to follow the Department of Insurance regulation cannot form a basis for a waiver of the time limitation provision because a regulation cannot be the source for a private cause of action and because only the Director of Insurance can enforce the regulation.\nWe turn then to the certified question concerning whether an insurer\u2019s failure to comply with section 919.80(d)(8)(C), which requires an insurer to advise the insured regarding the number of days the limitation period was tolled and how many days are left before the expiration of the time to bring suit, can form the basis for the insurer\u2019s waiver of the time limitation provision in the policy. Lumbermen\u2019s does not claim that it complied with section 919.80(d)(8)(C) or that it was not required to comply with the regulation.\nAs both parties note, there does not appear to be any Illinois case law concerning the issue. However, Spray, Gould & Bowers v. Associated International Insurance Co., 71 Cal. App. 4th 1260, 84 Cal. Rptr. 2d 552 (1999), is instructive. In Spray, Gould & Bowers, the plaintiffs were insured under a policy issued by the defendant, when the plaintiffs incurred a loss covered under the policy. The policy contained a time limitation clause requiring that any lawsuit against the insurer be brought within 12 months after the discovery by the insured of the occurrence which gave rise to the claim. The plaintiffs\u2019 loss occurred on January 17, 1994, and the plaintiffs filed their claim on November 21, 1994. The insurer denied the claim on April 18, 1995, and the plaintiffs filed their complaint against the defendant on September 16, 1996. The defendant moved for a summary judgment because the plaintiffs had filed their cause of action more than 12 months after the defendant denied their claim. The plaintiffs opposed the defendant\u2019s motion and submitted evidence that the defendant had violated an insurance regulation that required the defendant to notify them of the time limits pertaining to the claim. Spray, Gould & Bowers, 71 Cal. App. 4th at 1263-64, 84 Cal. Rptr. 2d at 553-54. The court in Spray, Gould & Bowers, noting that the limitation period was tolled while the defendant considered the plaintiffs\u2019 claim, reversed the summary judgment in favor of the defendant and determined that the violation of the administrative regulation might provide the basis for an estoppel against the defendant\u2019s assertion of a contractual time limitation defense. Spray, Gould & Bowers, 71 Cal. App. 4th at 1265-67, 84 Cal. Rptr. 2d at 554-56. The court in Spray, Gould & Bowers held that while the insurance commissioner\u2019s regulatory power is punitive, it is not remedial and that estoppel is a remedial judicial doctrine, so the court could address the violation. Spray, Gould & Bowers, 71 Cal. App. 4th at 1270, 84 Cal. Rptr. 2d at 558. The court in Spray, Gould & Bowers also determined that the commissioner\u2019s authority to impose monetary penalties and adverse licensure action is sufficient to coerce future compliance but that such authority does nothing to rectify a current wrong that the regulation is designed to prevent. Spray, Gould & Bowers, 71 Cal. App. 4th at 1271, 84 Cal. Rptr. 2d at 558. As the court stated:\n\u201cIf we allow an insurer to rely upon a preclusive policy provision as to which it was required, but did not, give the insured special notice, then we effectively place a premium upon insurer disregard of the regulation which imposed the requirement.\u201d Spray, Gould & Bowers, 71 Cal. App. 4th at 1271, 84 Cal. Rptr. 2d at 558.\nThe same reasoning is applicable in the instant case. Section 919.80, entitled \u201cRequired Claim Practices \u2014 Private Passenger Automobile \u2014 Property and Casualty Companies\u201d (50 Ill. Adm. Code \u00a7 919.80 (2002)), is an extension of the tolling provision of the statute and is implemented to protect the insured (215 ILCS 5/401(a) (West 2002)). When Lumbermen\u2019s denied Mathis\u2019s claim, it was required under the insurance regulation to advise Mathis of how long the limitation period had been tolled and how many days remained until the time to file suit expired. Section 919.80(d)(8)(C) of the insurance regulations implies that the mere existence of the policy time limitation provision is not enough notice to an insured of the running of a limitation period and that, in fairness to the insured, actual notice, rather than constructive notice, to an insured of the time remaining to file suit is necessary.\nAs Lumbermen\u2019s notes, the insurance regulations are enforceable by the Director of Insurance (215 ILCS 5/401 et seq. (West 2002)), and as in California, the enforcement of the insurance regulations is punitive and not remedial (215 ILCS 5/403A (West 2002)). While the violation of section 919.80(d)(8)(C) does not provide the basis for a private cause of action, the violation of the regulation is a fact that a court can consider in determining whether an insurer waived a time limitation provision when enforcement of the provision would be unjust, inequitable, and unconscionable.\nLumbermen\u2019s argues that an insured is responsible for reading her policy and knowing its contents. This argument is inapplicable here because the requirement of compliance with the insurance regulation is not contained in the policy but is to be in a communication outside of the policy.\nFinally, it is interesting to note that in its denial letter to Mathis, Lumbermen\u2019s complied with another insurance regulation. Section 919.40 of the insurance regulations, entitled \u201cDefinitions/ Explanations,\u201d states in pertinent part as follows:\n\u201c \u2018Notice of Availability of the Department of Insurance\u2019 as required by this Rule shall be no less informative than the following:\nPart 919 of the Rules of the Illinois Department of Insurance requires that our company advise you that if you wish to take this matter up with the Illinois Department of Insurance, it maintains a Consumer Division in Chicago at 100 W Randolph Street, Suite 15-100, Chicago, Illinois 60601 and in Springfield at 320 West Washington Street, Springfield, Illinois 62767.\u201d 50 Ill. Adm. Code \u00a7 919.40 (2001).\nLumbermen\u2019s complied with section 919.40 by including this language in its denial letter to Mathis but failed to comply with section 919.80(d)(8)(C) by not advising Mathis of the number of days the limitation period was tolled or how much time remained for her to file suit.\nCONCLUSION\nFor the foregoing reasons, we answer the certified question in the affirmative and find that an insurer\u2019s violation of section 919.80(d)(8)(C) can provide a basis for the insurer\u2019s waiver of a time limitation provision contained in the policy and that, under the facts of this case, Lumbermen\u2019s waived the contractual time limitation provision. Accordingly, the trial court\u2019s order finding that Lumbermen\u2019s waived the time limitation provision contained in the policy issued to Mathis is affirmed.\nCertified question answered; order affirmed.\nWELCH and GOLDENHERSH, JJ., concur.\nJustice Maag participated in oral argument. Justice Goldenhersh was later substituted on the panel and has read the briefs and listened to the audiotape of oral argument.", "type": "majority", "author": "JUSTICE HOPKINS" } ], "attorneys": [ "H. Evan Williams, Ellen L. Green, and Michael Resis, all of O\u2019Hagan, Smith & Amundsen, L.L.C., of Wheaton, for appellant.", "Thomas Ducey, of Ducey & Associates, EC., of Belleville, for appellee." ], "corrections": "", "head_matter": "SANDRA S. MATHIS, Plaintiff-Appellee, v. LUMBERMEN\u2019S MUTUAL CASUALTY INSURANCE COMPANY, Defendant-Appellant.\nFifth District\nNo. 5\u201403\u20140487\nOpinion filed December 30, 2004.\nH. Evan Williams, Ellen L. Green, and Michael Resis, all of O\u2019Hagan, Smith & Amundsen, L.L.C., of Wheaton, for appellant.\nThomas Ducey, of Ducey & Associates, EC., of Belleville, for appellee." }, "file_name": "0854-01", "first_page_order": 872, "last_page_order": 879 }