Illinois Insurance Guaranty Fund v. Evanston Paper and Paper Shredding Co.

649 N.E.2d 568, 208 Ill. Dec. 512, 272 Ill. App. 3d 405
CourtAppellate Court of Illinois
DecidedApril 21, 1995
Docket1 — 93—4121
StatusPublished
Cited by6 cases

This text of 649 N.E.2d 568 (Illinois Insurance Guaranty Fund v. Evanston Paper and Paper Shredding Co.) 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
Illinois Insurance Guaranty Fund v. Evanston Paper and Paper Shredding Co., 649 N.E.2d 568, 208 Ill. Dec. 512, 272 Ill. App. 3d 405 (Ill. Ct. App. 1995).

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

This case concerns the consequences of a premium finance company’s cancellation of insurance allegedly in violation of the finance company’s statutory duties. We hold that if the insured grants the finance company the power to cancel the insurance contract, the insurer may cancel the contract at the finance company’s behest. If the finance company has violated its statutory duties by requesting cancellation of the insurance, the insured must seek reparation from the finance company and not the insurer, who has no continuing duty to insure under the cancelled contract.

On December 15, 1983, Mission National Insurance Company (Mission) issued a policy insuring Evanston Paper & Paper Shredding Company (Evanston) for three years against many risks, including the risk of loss of a building Evanston owned. Evanston obtained a loan from Afeo Credit Corporation (Afeo), a premium finance company, to pay the premium for the period from December 15, 1984, until December 15, 1985. The loan agreement states that Evanston "irrevocably appoints Afeo its Attorney-In-Fact with full authority to cancel the insurance policies.”

On September 19, 1985, Afeo mailed to Evanston a "Notice of Cancellation” which said that because the bank did not honor Evanston’s last loan repayment check, Evanston had defaulted on the loan and, therefore, Afeo would cancel the insurance on September 24, 1985. When he received the notice of cancellation, the president of Evanston immediately called Afeo, and Afeo told him it would not cancel the policy for another 10 days. Within that time Evanston mailed payment to Afeo; however, on September 30, 1985, Mission received a notice of cancellation from Afeo.

When Afeo received Evanston’s check, it sent Mission a request for reinstatement of Evanston’s insurance, and it sent a copy to Evanston. The request states:

"TO THE INSURED:
The policies listed above are cancelled and are not in force until the insurance company advises you to the contrary. If you are not advised promptly, contact your insurance agent. If your insurance coverage is not reinstated, all payments made following cancellation will be credited to your account. The fact that you continue to make payments to Afeo does not mean your insurance is in force. Only the insurance companies or your agent can advise you as to the status of your insurance coverage.” (Emphasis omitted.)

Mission did not respond to the request for reinstatement.

On October 16, 1985, a fire destroyed Evanston’s building. Evans-ton filed a proof of loss with Mission, and Mission sued for a judgment declaring that it had no liability because it cancelled the policy before the fire. While the suit was pending, California courts ordered Mission liquidated, and the trial court here permitted the Illinois Insurance Guaranty Fund (the Fund) to substitute for the defunct Mission as plaintiff in this suit. The trial court granted the Fund’s motion for summary judgment and Evanston appeals.

Evanston contends that Mission could not effectively cancel the policy because Afeo failed to give Evanston the notice required by the statutes then in effect. Section 521 of the Illinois Insurance Code provided:

"When a premium finance agreement contains a power of attorney enabling the premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be cancelled by the premium finance company unless such cancellation is effectuated in accordance with this Section.
(1) Not less than 10 days written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract unless the default is cured within such 10 day period.” (Ill. Rev. Stat. 1985, ch. 73, par. 1065.68 (now 215 ILCS 5/513all (West 1992)).)

The notice of cancellation mailed on September 19, 1985, cannot qualify as the notice of intent to cancel required by statute, in part because Afeo sent the notice of cancellation only five days before the stated cancellation date. Evanston contends that under the statute the insurance must remain in effect because in the absence of required notice the policy "shall not be cancelled.” Ill. Rev. Stat. 1985, ch. 73, par. 1065.68.

In Haft v. Charter Oak Fire Insurance Co. (1994), 262 Ill. App. 3d 933, 635 N.E.2d 843, the appellate court rejected the statutory interpretation Evanston proposes here. Unigard, a premium finance company, failed to send the required notice of intent to cancel before sending a notice of cancellation to the insurance company. Haft, the insured, sued Unigard and the trial court entered judgment against Unigard for the coverage stated in the insurance policy less the amount Haft received in settlement with other defendants. In affirming the judgment, the appellate court said:

"Unigard reasons that if section 521 was violated then the policy was never cancelled and Haft must seek recovery from the insurer.
With this interpretation Unigard attempts to impose a duty on the insurer the legislature did not intend. The statute states that the insurance policy 'shall not be cancelled’ by the premium finance company unless it follows certain requirements. (Ill. Rev. Stat. 1983, ch. 73, par. 1065.68.) Had the legislature intended a violation of section 521 to block cancellation of the policy, then it could have so stated. It could have used the same language of section 143.14, which requires the insurer to send notice of cancellation to the named insured. If an insurer violates this section the result is that '[n]o notice of cancellation of any policy of insurance *** shall be effective.’ (Emphasis added.) Ill. Rev. Stat. 1983, ch. 73, par. 755.14.

Unigard caused the policy to be cancelled when it sent the request to cancel to the insurer. The insurer cancelled the policy, according to statutory provisions. Section 521 imposes duties on premium finance companies.” (Haft, 262 Ill. App. 3d at 937-38.) Because Unigard violated those duties, the court held that it was liable for the loss of insurance.

A Federal court interpreting section 521 of the Insurance Code reached the same conclusion. In Universal Fire & Casualty Insurance Co. v. Jabin (7th Cir. 1994), 16 F.3d 1465, the court concluded that section 521 "confers upon the insured a cause of action against the premium finance company for any cancellation it effectuates in breach of the Act’s notice requirements.” (Jabin, 16 F.3d at 1468.) Section 521 cannot help an insured state a cause of action against an insurer, since the section addresses the duties of only premium finance companies. The court reasoned:

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Bluebook (online)
649 N.E.2d 568, 208 Ill. Dec. 512, 272 Ill. App. 3d 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-insurance-guaranty-fund-v-evanston-paper-and-paper-shredding-co-illappct-1995.