Emerson v. American Bankers Insurance Co. of Florida

585 N.E.2d 1315, 223 Ill. App. 3d 929, 166 Ill. Dec. 293, 1992 Ill. App. LEXIS 126
CourtAppellate Court of Illinois
DecidedJanuary 29, 1992
Docket5-89-0787
StatusPublished
Cited by19 cases

This text of 585 N.E.2d 1315 (Emerson v. American Bankers Insurance Co. of Florida) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emerson v. American Bankers Insurance Co. of Florida, 585 N.E.2d 1315, 223 Ill. App. 3d 929, 166 Ill. Dec. 293, 1992 Ill. App. LEXIS 126 (Ill. Ct. App. 1992).

Opinion

JUSTICE RARICK

delivered the opinion of the court:

Plaintiffs, Harley Emerson and Rogelio Arcuino, brought an action in the circuit court of Pope County against American Bankers Insurance Company of Florida (American) for refusing to pay the full cash value of a $50,000 livestock insurance policy covering a standard-bred stallion named Tough Cookie. The initial complaint alleged breach of contract. Pursuant to policy provisions, the dispute was submitted to arbitration and plaintiffs were awarded $40,000. Plaintiffs thereupon added additional counts to their complaint, seeking damages under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767) and damages for breach of the duty of good faith and fair dealing. The trial court dismissed the breach of contract claim and entered judgment on the arbitration award. Plaintiffs subsequently added another count seeking damages for intentional infliction of emotional distress. Prior to trial, the trial court denied American’s motion in limine to exclude evidence that the horse had a value greater than that awarded by arbitration, and the court granted plaintiffs’ motion in limine to exclude evidence of the arbitration award.

Emerson and Arcuino were in the business of breeding horses. Plaintiffs testified that a premier stallion was vital to the operation’s success. According to the record, Tough Cookie was purchased in 1983 to fulfill this role. Plaintiffs obtained insurance from American through Classic Insurance Company, a Kentucky insurance agency. Livestock policies were rewritten each year, and in 1985 Classic sent Emerson an application requesting, inter alia, the number of mares serviced in 1985. According to the application, Tough Cookie serviced 27 mares in 1984 and was to service 30 in 1985. A $50,000 policy was issued in March of 1985 covering any claim made while the horse was in the United States or Canada. Tough Cookie died in January of 1986. Included with plaintiffs’ proof of loss were breeding reports for 1984 and 1985, which indicated that Tough Cookie had serviced 20 mares in 1984 and 19 in 1985, 12 of which were owned by plaintiffs. Because of the discrepancy between the application and the breeding reports, American had Tough Cookie appraised by two appraisers. They valued the horse at $10,000 and $15,000, respectively, but considered only the market in the United States and Canada. Emerson also obtained two appraisals of Tough Cookie, one for $50,000 and one for $55,000. These appraisers testified that their appraisals were based upon sale in the European market.

American rejected plaintiffs’ proof of loss. According to the rejection letter, the bases for American’s decision were:

“1. The insurance policy is based on actual cash value at the time of death. Although the two appraisals that you furnished the insurance company on your behalf reflected a value of $50,000 to $55,000, these appraisals were based on the animal being shipped overseas. Even if this transaction would have taken place during the policy period, there still would have been shipping costs, fees, commissions, import tax, etc. It is apparent that these costs would have made it uneconomical to the seller.
2. Misrepresentation regarding the application for insurance. The application that you prepared stated that the stallion services 27 mares during 1984 and had serviced 30 mares in 1985. However, our investigation revealed that 20 mares were bred to the stallion in 1984 and 19 mares were bred in 1985. The animal’s stud fee was listed at $1000[;] however, the majority of the mares were either owned by you or Dr. Arcuino. It is apparent that the revenue that was generated by the stallion in 1985 was very minimal.”

The letter made a settlement offer of $25,000. Plaintiffs refused and this suit followed.

At trial, Tom Keller, the adjuster, testified that Skip Whitlock, American’s director of casualty claims, made the decision not to consider the overseas market because Tough Cookie was never overseas and because plaintiffs’ appraisers did not take into account exportation costs in making their appraisals. Whitlock testified that in 1986 he had no knowledge of an overseas market for trotters, nor was he aware of any custom or practice regarding who paid export costs. Whitlock further testified that he did not feel that plaintiffs’ appraisals were relevant because the horse was in the United States at the time of death. Tony Sholes, American’s senior claims supervisor, and Keller also testified that they were not familiar with the overseas market.

After rejection of the claim, Emerson obtained a replacement stud named San Phillipe for $9,500. Emerson indicated that a stallion closer to Tough Cookie’s stature could have been obtained had American paid the full policy amount. San Phillipe had never raced, had no breeding performance record, and generated much lower revenues.

Emerson testified that Arcuino was very upset and angry when told that American would not pay full policy proceeds. Emerson also testified that he too was angry and upset and had argued with Keller numerous times. He stated that Keller told him that American would not go beyond $25,000 and that he might just as well hire an attorney because American “[had] lawyers just sitting around doing nothing.” Keller denied this. Janet Emerson testified that her husband has been short-tempered and irritable since this incident, but she admitted that he never sought any type of medical treatment.

The jury found in favor of plaintiffs and awarded them $45,000 on count III and a total of $55,000 on count IV. The trial court entered judgment thereon and awarded plaintiffs $33,072.23 on their section 155 claim. American appeals.

American first argues that plaintiff’s complaint failed to state a cause of action for breach of the duty of good faith and fair dealing. American maintains that compensatory damages for breach of the duty of good faith and fair dealing are preempted by section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767) unless the alleged breach involves conduct other than that prescribed by statute. Section 155 provides in pertinent part:

“(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) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
(b) $25,000;
(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.” Ill. Rev. Stat. 1987, ch. 73, par. 767.

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Cite This Page — Counsel Stack

Bluebook (online)
585 N.E.2d 1315, 223 Ill. App. 3d 929, 166 Ill. Dec. 293, 1992 Ill. App. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emerson-v-american-bankers-insurance-co-of-florida-illappct-1992.