Independent Trust Corporation v. Kansas Bankers Surety Company

2016 IL App (1st) 143161, 64 N.E.3d 1109

• Court: Appellate Court of Illinois
• Decided: September 30, 2016
• Docket: 1-14-3161
• Status: Unpublished

Opinion

2016 IL App (1st) 143161

No. 1-14-3161

FIFTH DIVISION September 30, 2016

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

INDEPENDENT TRUST CORPORATION, ) Appeal from the ) Circuit Court of Plaintiff-Appellant and Cross-Appellee, ) Cook County. ) v. ) No. 04 CH 4889 ) ) The Honorable KANSAS BANKERS SURETY COMPANY, ) Martin S. Agran, A Kansas Corporation, ) Lee Preston, and ) David B. Atkins, Defendant-Appellee and Cross-Appellant. ) Judges Presiding.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.

O P I N I ON

&1 Plaintiff, Independent Trust Corporation (Intrust), appeals the circuit court’s order

granting summary judgment in favor of defendant, Kansas Bankers Surety Company (Kansas

Bankers), finding that plaintiff’s underlying lawsuit seeking indemnification under a financial

institution crime bond was time-barred. Intrust contends the circuit court erred in granting

summary judgment where the filing requirements provided in the crime bond at issue were tolled

pursuant to section 143.1 of the Illinois Insurance Code (Insurance Code) (215 ILCS 5/143.1 1-14-3161

(West 2000)). Intrust additionally contends that the circuit court erred in finding it was not

entitled to indemnification coverage under the crime bond at issue. On cross-appeal, Kansas

Bankers contends the circuit court erred in finding the crime bond’s termination provision

conflicted with Illinois public policy and erred in finding Intrust properly provided notice of loss

and proof of loss. Based on the following, we affirm the circuit court’s finding that Intrust’s

lawsuit was untimely.

&2 FACTS

&3 This case has a long and complicated procedural history. This court has previously

considered matters related to the dissolution and liquidation of Intrust. See In re Possession &

Control of the Commissioner of Banks & Real Estate of Independent Trust Corp., 327 Ill. App.

3d 441 (2001); Independent Trust Corp. v. Hurwick, 351 Ill. App. 3d 941 (2004). Additionally,

in a prior opinion, this court reversed and remanded the underlying lawsuit for further

proceedings. Independent Trust Corp. v. Kansas Bankers Surety Co., 2011 IL App (1st) 093294.

We present only those facts necessary to understand the issues currently on appeal.

&4 Intrust’s primary business was as a trustee for individual retirement accounts, as well as

for other qualified plans, land trusts, 1031 trusts, personal trusts, and other arrangements. Intrust

requested, and was granted, a bond from Kansas Bankers effective from December 20, 1999, to

December 20, 2000, providing $10 million in insurance coverage. The bond was titled a

“financial institution crime bond” (crime bond) and it provided fidelity coverage, in addition to

coverage for numerous other types of losses, such as forgery or alteration, securities, counterfeit

currency, extortion, and others. More specifically, the crime bond, in relevant part, provided

fidelity indemnification for:

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“Loss resulting directly from dishonest or fraudulent acts committed by an

Employee acting alone or in collusion with others.

Such dishonest or fraudulent acts must be committed by the Employee with the

manifest intent:

(a) to cause the Insured to sustain such loss, and

(b) to obtain financial benefit for the Employee or another person or

entity.”

The crime bond covered losses discovered during the policy period, irrespective of whether the

losses occurred during that period. Section 5 of the crime bond provided:

“(a) At the earliest practicable moment, not to exceed 30 days, after discovery of

loss, the Insured shall give the Underwriter notice thereof.

(b) Within 6 months after such discovery, the Insured shall furnish to the

Underwriter proof of loss, duly sworn to, with full particulars.

***

(c) Legal proceedings for the recovery of any loss hereunder shall not be brought

prior to the expiration of the 60 days after the original proof of loss is filed with the

Underwriter or after the expiration of 24 months from the discovery of such loss.”

In addition, section 12 of the crime bond provided a termination provision that, in pertinent part,

stated the policy would be terminated immediately upon the appointment of a receiver.

&5 Our prior opinion in this case provided the following background facts:

“As of April 14, 2000, Intrust acted as custodian for approximately $1.84 billion

in cash and noncash assets. [Citation.] In the course of its business, Intrust held large

amounts of cash on a daily basis in a single, commingled account. [Citation.] From

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December 1990 through April 23, 1999, Intrust transferred substantial amounts of cash

from the commingled account to an escrow account at Intercounty Title Company

(Intercounty). [Citation.] Intercounty’s corporate officers were also, to varying degrees,

corporate officers of Intrust. [Citation.] Because a majority of the transferred funds was

never returned to Intrust, the CBRE [the Illinois Commissioner of Banks and Real Estate]

directed Intrust to reestablish control of the money. [Citation.]” Independent Trust Corp.,

2011 IL App (1st) 093294, ¶ 8.

&6 In a March 10, 2000, letter, James Ferguson, counsel for Intrust, notified Kansas Bankers

“that a loss of a type that may be covered by the Bond has been or will be incurred by [Intrust].

Although the exact amount of the loss is currently unknown, it may exceed $63 million.” On

March 13, 2000, Kansas Bankers acknowledged receipt of Intrust’s March 10, 2000, letter and

reminded Ferguson that the crime bond required proof of loss submitted within six months of the

date of the loss’s discovery.

&7 On April 14, 2000, because Intrust failed to regain control of the transferred money, the

CBRE took possession and control of Intrust. The CBRE appointed PricewaterhouseCoopers,

LLP (PWC), as receiver and commenced an action for dissolution and liquidation of Intrust. On

May 4, 2000, Lawrence Ward of PWC notified Kansas Bankers that a class action lawsuit had

been filed against Intrust and that Intrust was seeking defense and indemnity under any

applicable policies. In a letter dated May 8, 2000, Kansas Bankers notified Intrust that the crime

bond had automatically terminated, as provided in section 12 of the crime bond due to the

appointment of the receiver. Included with the letter was a refund check in the amount of $3495

for the prorated unearned premium.

4 1-14-3161

&8 Following an investigation, in June 2000, the receiver discovered a shortage of

approximately $68.1 million in Intrust’s cash assets resulting from misappropriation by

Intercounty and its corporate officers over a period of 10 years. Id. ¶ 10. Laurence W. Capriotti

and Alan L. Hurwick, corporate directors of Intrust, were convicted of mail fraud, wire fraud,

and tax evasion. Judgments also were entered in favor of Intrust against the various corporate

officers for fraud and breach of fiduciary duty. Additional actions were filed against Jack L.

Hargrove, Capriotti, Hurwick, and other defendants to recover compensatory and punitive

damages in excess of $68 million on behalf of the Intrust account holders because of the

defendants wrongful conduct.

&9 On October 25, 2000, Intrust’s attorney sent Kansas Bankers a letter indicating an

attached proof of loss under the crime bond. The attachment included a one page document

entitled “Proof of Loss.” The “Proof of Loss” provided that the “claim is made for the full limits

of the referenced policy ($3,000,000) and relates to the dishonest acts of Laurence Capriotti and

Jack Hargrove.” The “Proof of Loss” noted that “[r]eceiver has been unable to locate any

employment applications or personnel files for the related employee(s). Investigation continues.”

The “Proof of Loss” was unsworn and signed by the receiver, but included a copy of Intrust’s

complaint against the directors. In an October 30, 2000, response letter, Kansas Bankers

acknowledged receipt of the October 25, 2000, “Proof of Loss,” but stated that the document

failed to satisfy the requirements for asserting a proof of loss under the crime bond. In particular,

Kansas Bankers stated that the proof of loss was required to be duly sworn to, that copies of

complaints do not satisfy the requisite “full particulars,” that the purported proof of loss had not

been submitted within the time limits required by the crime bond, that acts of Hargrove and

Capriotti were not covered under the bond because they were directors and were excluded from

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coverage under exclusion 2(d), and that the crime bond had automatically terminated on April

14, 2000, when Intrust was placed into receivership.

& 10 On November 30, 2000, Intrust sent an amended proof of loss that was nearly identical to

the October 25, 2000, proof of loss; however, the amended proof of loss deleted all reference to

Hargrove. In addition, the amended proof of loss was signed by the receiver and notarized. On

December 12, 2000, Kansas Bankers requested proof from Intrust that Capriotti was an officer of

Intrust, requesting “corporate minutes or other records” as well as proof that Capriotti was

receiving a salary as an officer of Intrust and an explanation as to why Capriotti was not listed as

an officer on the crime bond application. On December 18, 2000, Intrust replied that it was

“unable to obtain copies of any paychecks, W-2 filings, or other payroll records” for Capriotti

and explained that Capriotti was not listed as an officer on the crime bond application because he

was not appointed to the officer position until after the crime bond went into effect. In response,

in a letter dated December 22, 2000, Kansas Bankers notified Intrust that “payment will occur

when and if we are provided with proof that a loss covered by the terms of the bond has been

sustained and payment is required by the terms of the bond.” Intrust did not respond. Then, on

September 16, 2003, Intrust sent a letter to Kansas Bankers stating that it wanted to “redeem” the

May 8, 2000, premium refund check but needed the check to be reissued since it was over two

years old. Kansas Bankers reissued the check, which Intrust cashed.

& 11 On March 19, 2004, Intrust filed the underlying lawsuit seeking indemnification under

the crime bond. In particular, Intrust sought indemnification under insuring agreement A

(fidelity) in the amount of $5 million for losses resulting from dishonest and fraudulent acts

committed by an employee, insuring agreement D (forgery and alteration), and insuring

agreement E (securities). On May 24, 2004, Kansas Bankers filed its answer and affirmative

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defenses. In its answer, Kansas Bankers stated that Intrust’s claim of loss was denied. Kansas

Bankers asserted the following affirmative defenses: (1) that Intrust’s claims were barred by

waiver and estoppel; (2) that the claims were barred by sections 5(a) (timely notice of loss), 5(b)

(timely proof of loss), and 5(c) (timely initiation of legal proceedings) and section 12

(termination upon appointment of receiver) of the crime bond; and (3) that it reserved the right to

assert additional defenses following discovery.

& 12 Intrust filed an amended motion for summary judgment 1 on Kansas Bankers’ affirmative

defenses and on coverage issues. With regard to Kansas Banker’s affirmative defenses, Intrust

argued, inter alia, that its claim was not barred by a termination provision within the crime bond

because section 6-7.1 of the Corporate Fiduciary Act (Fiduciary Act) (205 ILCS 620/6-7.1 (West

2000)) tolled the contractual termination provision when Intrust notified Kansas Bankers of a

claim or right of action before the receiver was appointed to liquidate the company. In response,

Kansas Bankers argued that Intrust’s claim was barred by the termination provision of the crime

bond where Intrust did not discover the loss before the receiver’s appointment on April 14, 2000,

which triggered automatic termination of the crime bond. Kansas Bankers additionally argued

that Intrust was not entitled to summary judgment because it failed to satisfy the timing

requirements of the crime bond with regard to notice, proof of loss, and the filing of the

underlying lawsuit. Kansas Bankers also filed a cross-motion for summary judgment on the

coverage matter.

& 13 The circuit court bifurcated the proceedings and first ruled on Intrust’s motion for

summary judgment of Kansas Bankers’ affirmative defenses. On July 11, 2008, in a written

order, the circuit court denied the majority of Intrust’s motion. In so doing, the circuit court

1 Intrust’s initial motion for summary judgment was filed on December 20, 2007, and its amended motion for summary judgment was filed on February 1, 2008. 7 1-14-3161

found Intrust did not discover the subject losses before the receiver was appointed, thus the crime

bond’s termination provision (section 12) operated so as to terminate the crime bond upon

appointment of the receiver. The court further found there were genuine issues of fact as to

whether Intrust satisfied the notice provisions of the crime bond (section 5(a)). The court,

however, granted summary judgment in favor of Intrust on the matter of proof of loss (section

5(b)). More specifically, the circuit court found Intrust submitted a proof of loss on October 25,

2000. The court then found that the October 25, 2000, proof of loss coupled with the results of

prior lawsuits finding liability on the part of Intercounty and its corporate officers provided

sufficient detail with respect to the purported cause of loss and allowed Kansas Bankers to

investigate the claim. The court noted that “the fact that [Kansas Bankers] requested more

information, specifically documentation establishing that Capriotti was a salaried employee does

not change the result.” The circuit court additionally denied summary judgment related to the

timeliness of the underlying lawsuit, finding a genuine issue of material fact existed as to when

Intrust’s claim was denied by Kansas Bankers thus preventing the court from determining the

effect of section 143.1 of the Insurance Code. The circuit court finally denied summary judgment

on Kansas Bankers’ affirmative defense of waiver and estoppel.

& 14 On November 9, 2009, the circuit court addressed the issue of indemnity coverage under

the crime bond. Intrust sought $10 million in coverage under the crime bond’s insuring

agreements A (fidelity), D (forgery and alteration), and E (securities). Kansas Bankers responded

by asserting the following defenses: (1) that the loss was not discovered while the crime bond

was in effect; (2) that Intrust failed to provide a proof of loss while the crime bond was in effect;

(3) that Intrust failed to provide a sufficient notice of loss; and (4) that Intrust failed to file the

declaratory judgment action in a timely fashion. The circuit court denied Intrust’s motion for

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summary judgment, finding, based upon its 2008 order in which it determined the crime bond

terminated upon the appointment of the receiver, that the loss had not been discovered while the

crime bond was in effect, which was on June 1, 2000.

& 15 On appeal, this court reversed the circuit court’s July 11, 2008, order related to summary

judgment of Kansas Bankers affirmative defenses. On June 30, 2011, this court held that the

crime bond’s termination provision conflicted with section 6-7.1 of the Fiduciary Act where,

under section 6-7.1, “a claim or right of action in existence on the date the receiver is appointed

tolls the operation of the Bond by six months.” Independent Trust Corp., 2011 IL App (1st)

093294, ¶ 26. This court further held that “[b]ecause the record shows Intrust notified KBS of a

claim or right of action on March 10, 2000, a month before the receiver was appointed, section 6-

7.1 tolled the termination provision on April 14, 2000, the date the receiver was appointed.” Id.

In addition, this court determined that the March 10, 2000, letter was sufficient to notify Kansas

Bankers of Intrust’s claim or right of action, which satisfied the requirement to trigger the tolling

under section 6-7.1 of the Fiduciary Act. Id. ¶ 27. Intrust was not required to comply with the

notice/proof of loss provision of the crime bond in providing notice that was “duly sworn to,

with full particulars” in order to satisfy section 6-7.1. This court concluded that “there exists a

question of fact as to whether Intrust complied with the notice/proof of loss provision of the

Bond within the extended six-month period [beginning on April 14, 2000] allowed by section 6-

7.1 of the [Fiduciary] Act.” Id. ¶ 28. This court, however, noted that Kansas Bankers advised

Intrust that it was required to provide proof of loss within six months of discovery of the loss, not

the appointment of the receiver—thus, modifying the start of the six-month date from April 14,

2000 (appointment of receiver), to June 2000 (the receiver’s discovery of the loss). Accordingly,

proof of loss was due by December 2000. The cause was remanded for further proceedings.

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& 16 On remand, the parties renewed their cross-motions for summary judgment. In a May 24,

2012, written order, the circuit court noted that the law-of-the-case doctrine applied to the

appellate court findings, such that section 6-7.1 of the Fiduciary Act tolled the termination

provision of the crime bond for six months, thus providing Intrust until December 1, 2000, to

tender proof of loss and that the March 10, 2000, notice of loss satisfied the terms of the crime

bond. The circuit court also relied on its July 11, 2008, order that Intrust’s proof of loss was

sufficient to satisfy the crime bond. As a result, the circuit court determined that the remaining

issue was whether the underlying lawsuit was timely filed in conjunction with section 5(d) of the

crime bond, namely, within 24 months of discovery of the loss. Because the loss was discovered

on June 1, 2000, and the lawsuit was filed on March 19, 2004, the circuit court held that Intrust

failed to comply with section 5(d) of the crime bond. The court, however, granted summary

judgment in Intrust’s favor, finding the 24-month period was tolled pursuant to section 143.1 of

the Insurance Code because Kansas Bankers never tendered a denial prior to the lawsuit being

filed. In so finding, the circuit court rejected Kansas Bankers’ argument that section 143.1 of the

Insurance Code did not apply based on the statute’s exception for insurance contracts regarding

fidelity and surety. The court found that the crime bond could not be considered a fidelity bond

because the fidelity insuring agreement was such a small fraction of the crime bond’s overall

coverage. The circuit court held that the limiting period of section 5(d) of the crime bond was

tolled and the underlying lawsuit was timely filed. 2

& 17 In a second June 25, 2012, written order, the circuit court denied Intrust’s motion for

summary judgment, finding it was not entitled to indemnification under the terms of the crime

bond. In terms of insuring agreement A for fidelity, the court stated that the issue was “whether

2 This order was amended and superseded on June 25, 2012, without modifying the substance thereof. 10 1-14-3161

the parties [responsible for the loss, i.e., Capriotti, Hargrove, Hurwick, Intercounty, and another

company] were employees of Intrust.” The circuit court determined that Intrust had not met its

burden of showing they were “employees.” Intrust filed a motion to reconsider the June 24,

2012, order, which the circuit court denied on April 25, 2014.

& 18 Kansas Bankers filed a motion to reconsider portions of the circuit court’s June 25, 2012,

order related to the affirmative defenses. In a April 25, 2014, written order, the circuit court

clarified the following issues: (1) whether the crime bond actually terminated pursuant to section

12 and whether section 12 was voided in its entirety as contrary to public policy; (2) whether

adequate notice of loss was provided, whether Kansas Bankers waived the notice requirement,

and whether prior orders decided the issue; (3) whether timely and adequate proof of loss was

ever filed and whether the issue was decided by prior orders; and (4) whether proof of loss was

filed such that section 143.1 would be triggered and whether the crime bond was exempted from

section 143.1 as a fidelity agreement.

& 19 With regard to the termination provision of the crime bond, the circuit court clarified,

based on this court’s earlier decision, that section 12 was void as contrary to public policy. As a

result, the crime bond could not have been terminated pursuant to appointment of the receiver.

The court, therefore, denied Kansas Bankers’ motion to reconsider based on the termination

provision.

& 20 With regard to whether Intrust sent timely and sufficient notice to Kansas Bankers, the

circuit court clarified that this court’s prior order combined the requirements for notice of loss

(section 5(a)) and proof of loss (section 5(b)). Relying on the language of section 5(a) related to

notice of loss, the circuit court noted that the March 10, 2000, letter did not satisfy the

requirements of section 5(a) because that provision required valid notice after discovery of the

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loss. Because June 1, 2000, was the undisputed date of discovery, the circuit court vacated that

part of its May 24, 2012, order indicating that the March 10, 2000, letter satisfied the notice

requirements of section 5(a). However, the circuit court pointed out that section 6-7.1 tolled all

deadlines imposed upon the receiver under the crime bond, including the 30-day limitations

period in section 5(a), thereby giving Intrust 6 months from June 1, 2000, to send Kansas

Bankers notice of loss. The circuit court found the October 25, 2000, letter satisfied the notice

requirements of section 5(a), thus denying the motion to reconsider.

& 21 With regard to whether Intrust submitted timely and sufficient proof of loss (section 5(b))

to Kansas Bankers, the circuit court reviewed this court’s June 30, 2011, order and held that an

issue of material fact remained. The circuit court, therefore, vacated any portion of its 2012

finding that proof of loss was either timely or sufficient. The court granted Kansas Bankers’

motion to reconsider the proof of loss provision.

& 22 Finally, with regard to whether the underlying lawsuit was timely filed by Intrust

pursuant to section 5(d) of the crime bond, the circuit court considered the language of the crime

bond in conjunction with section 143.1 of the Insurance Code. Section 5(d) provided that legal

proceedings must be filed within 24 months from discovery of such loss. The loss was

discovered on June 1, 2000, and the case was filed in 2004. However, in its June 25, 2012,

written order, the circuit court determined the 24-month filed period was tolled pursuant to

section 143.1 because (1) Kansas Bankers never filed a denial of Intrust’s claim under the crime

bond prior to the filing of the instant lawsuit and (2) the crime bond at issue did not qualify as a

fidelity policy. On reconsideration, the circuit court continued to find that Kansas Bankers never

denied Intrust’s claim but determined that Intrust failed to satisfy its burden of providing legal

authority to ascertain whether the crime bond was a fidelity. As a result, the court vacated its

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finding that the crime bond was not a fidelity policy under section 143.1 and granted Kansas

Bankers’ motion to reconsider that portion of the order. The court further found that equitable

tolling had never been considered in the court’s prior orders and, therefore, was not open to

reconsideration. Nevertheless, the circuit court determined that equitable tolling did not apply.

& 23 Kansas Bankers then filed a renewed motion for summary judgment. On September 11,

2014, the circuit court partially granted and partially denied the motion. With regard to the issue

of whether Intrust’s proof of loss was adequate, the circuit court found that Intrust’s October 25,

2000, and November 30, 2000, letters constituted timely proof of loss. The court, therefore,

denied Kansas Bankers’ motion for summary judgment on the proof of loss issue. With regard to

the issue of whether Intrust initiated legal proceedings within the time allowed by the crime

bond, the circuit court found that, based on the definition of fidelity in the Insurance Code and

First Hays Bankshares, Inc. v. Kansas Bankers Surety Co., 769 P.2d 1184, 1187 (Kan. 1989), a

foreign case holding that a crime bond was an insurance contract, the crime bond at issue in this

case was a type of fidelity insurance. As a result, the tolling provision of section 143.1 was

inapplicable and, therefore, the lawsuit was not timely filed. As a result, Kansas Bankers’ motion

for summary judgment was granted as to timeliness of the underlying lawsuit.

& 24 Intrust filed a timely notice of appeal, 3 appealing the circuit court’s June 25, 2012, order

related to coverage, both of the court’s April 25, 2014, orders, and the court’s September 11,

2014, order. Kansas Bankers filed a timely cross-appeal, appealing that part of the April 25,

2014, order denying, in part, its motion for reconsideration and that part of the September 11,

3 Intrust filed its initial notice of appeal on October 14, 2014, but then filed an amended notice of appeal on the same date to correct an error in the case number contained in the initial filing. 13 1-14-3161

2014, order denying, in part, its renewed motion for summary judgment. 4 On September 11,

2015, Kansas Bankers filed a motion to file an amicus curiae brief. The motion was granted and

an amicus curiae brief was filed by the Surety and Fidelity Association of America (SFAA).

& 25 ANALYSIS

& 26 Intrust first contends the circuit court erred in granting Kansas Bankers’ renewed motion

for summary judgment as to section 5(d) of the crime bond, thereby ruling that Intrust’s lawsuit

was untimely.

& 27 Summary judgment is appropriate if the pleadings, depositions, and admissions on file

show there exists no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. 735 ILCS 5/2-1005(c) (West 2006). We review a circuit court’s order

granting summary judgment de novo. Filliung v. Adams, 387 Ill. App. 3d 40, 53 (2008).

& 28 A bond that “contains no ambiguity is to be construed according to the plain and ordinary

meaning of its terms, just as would any other contract.” (Internal quotation marks omitted.)

Private Bank & Trust Co. v. Progressive Casualty Insurance Co., 409 F.3d 814, 816 (7th Cir.

2005) (applying Illinois law). This court reviews the interpretation of a bond de novo. See id.

& 29 Pursuant to section 5(d) of the crime bond, Intrust was prohibited from bringing any legal

proceedings for the recovery of any loss “prior to the expiration of 60 days after the original

proof of loss is filed with the Underwriter or after the expiration of 24 months from the discovery

of such loss.”

& 30 Intrust concedes that it did not file the underlying lawsuit within 24 months of

discovering the loss where the loss was discovered in 2000 and the lawsuit was not filed until

4 Intrust disputed whether Kansas Bankers timely filed a cross-appeal; the record, however, was supplemented to include a stipulation containing copies of Kansas Bankers’ notice of filing of cross-appeal and notice of cross-appeal, reflecting that Kansas Bankers did timely file its cross-appeal in compliance with Illinois Supreme Court Rule 303(a)(3) (eff. June 4, 2008). 14 1-14-3161

2004. Intrust, however, argues that the deadline for filing the suit should have been tolled

pursuant to section 143.1 of the Insurance Code because Kansas Bankers “unequivocally never

denied Intrust’s claims until after this suit was filed.”

& 31 Section 143.1 of the Insurance Code provides:

“Whenever any policy or contract for insurance, except life, accident and health, fidelity

and surety, and ocean marine policies, 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.” 215 ILCS 5/143.1 (West 2006).

& 32 Initially, we must address a motion this court took with the case. More specifically,

during the parties’ briefing period, Intrust filed a motion to strike portions of Kansas Bankers’

cross-appeal and brief and to strike the amicus curiae’s brief. In terms of the timeliness of the

lawsuit, Intrust argued that Kansas Bankers improperly raised additional arguments in this

second appeal that were not raised prior to the first appeal, thereby resulting in forfeiture. In

particular, Intrust acknowledged that Kansas Bankers raised the timeliness of the lawsuit prior to

the first appeal, but maintained that Kansas Bankers did not argue that the crime bond constituted

a fidelity bond. According to Intrust, Kansas Bankers sought appellate review of the limitations

issue on a “piecemeal basis, and to develop and raise arguments not previously and timely

presented to the trial court, which is entirely improper.” Intrust further argued that the amicus

curiae brief improperly presented arguments that were never before the circuit court.

& 33 “ ‘[T]he striking of an appellate brief, in whole or in part, is a harsh sanction and is

appropriate only when the alleged violations of procedural rules interfere with or preclude

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review.’ ” In re Detention of Powell, 217 Ill. 2d 123, 132 (2005) (quoting Moomaw v. Mentor

H/S, Inc., 313 Ill. App. 3d 1031, 1035 (2000)).

& 34 We find that Kansas Bankers’ brief does not interfere with or preclude our review. In

fact, review of Kansas Bankers’ brief in support of its motion for summary judgment filed in

June 2008 demonstrates that, at that time, Kansas Bankers argued section 143.1 of the Insurance

Code did not apply because it exempts fidelity and surety insurance. A transcript of the circuit

court proceedings held on May 13, 2008, confirms Kansas Bankers’ argument that the crime

bond was fidelity insurance and fell within the applicable definition of the Insurance Code.

Therefore, contrary to Intrust’s position that Kansas Bankers raised the argument for the first

time in conjunction with the second appeal, the record demonstrates the matter was raised before

the circuit court in 2008. As a result, we deny Intrust’s motion to strike Kansas Bankers’ brief

with regard to the timeliness arguments.

& 35 Moreover, the amicus curiae brief addressed the matter currently before this court,

namely, whether the crime bond constituted fidelity insurance—a matter that, while raised prior

to the first appeal, was not ruled on in the first appeal. See Independent Trust Corp., 2011 IL

App (1st) 093294. We find the amicus curiae brief properly advised this court as a “friend” of

the court. See In re J.W., 204 Ill. 2d 50, 73 (2003). Therefore, we will not strike the amicus

curiae brief where it does not interfere with or preclude our review.

& 36 We now turn to the substance of Intrust’s argument. Intrust argues that its claim was

never denied prior to the filing of this lawsuit; therefore, section 143.1 of the Insurance Code

operated to toll the crime bond’s 24-month filing period. Kansas Bankers responds that the crime

bond was classified as fidelity insurance, which was expressly exempted in section 143.1, thus

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rendering the tolling period of the statute inapplicable. Instrust, however, replies that the crime

bond does not qualify as fidelity insurance because the bond includes other insuring agreements.

& 37 In order to resolve the parties’ conflicting positions, this court must determine whether

the crime bond issued to Intrust by Kansas Bankers constituted fidelity insurance. To do so, we

first must gain an understanding of the crime bond itself.

“The standard financial-institution bond is a unique insurance instrument with a

long and detailed history” with “nearly every provision ha[ving] been developed in

response to and tested by case law. [Citation.] The Standard Form No. 24 Financial

Institution Bond is the latest incarnation of a series of bonds once known as ‘banker’s

blanket bonds.’ [Citations.] These bonds were first developed in response to the uniform

contract marketed by Lloyd’s of London, which was the only contract to provide fidelity,

theft, burglary, holdup, and other types of coverage in one contract. [Citation.] The

Surety Association of America and the American Bankers Association worked together

in 1916 to draft their first bond, the Standard Form No. 1 Banker’s Blanket Bond, to

compete with the uniform contract offered by Lloyd’s. [Citations.] Today, Standard Form

No. 24 is the descendant of that first bond, containing six Insuring Agreements

(Agreements A-F).” (Internal quotation marks omitted.) First State Bank of Monticello v.

Ohio Casualty Insurance Co., 555 F.3d 564, 568 (7th. Cir. 2009) (applying Illinois law).

Accordingly, financial institution bonds were originally known as bankers’ blanket bonds and

offered multiple lines of insurance, including fidelity, within one bond.

& 38 To address the matter before this court, we also need to understand the term of art

“fidelity.” See Paul R. Devin & Allen N. David, Discovery Under Fidelity Bonds: The Emerging

Concept of the Insured’s Duty of Inquiry, 21 Tort & Ins. L.J. 543 (1986) (“fidelity” is a term of

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art used to describe insurance against crime-related risks). The Insurance Code defines fidelity

and surety as:

“Become surety or guarantor for any person, copartnership or corporation in any position

or place of trust or as custodian of money or property, public or private; or, becoming a

surety or guarantor for the performance of any person, copartnership or corporation of

any lawful obligation, undertaking, agreement or contract of any kind, except contracts or

policies of insurance; and underwriting blanket bonds. Such obligations shall be known

and treated as suretyship obligations and such business shall be known as surety

business.” (Emphasis added.) 215 ILCS 5/4(g) (West 2000).

“Fidelity insurance is a form of insurance in which the insurer undertakes to guaranty the

fidelity of an officer, agent, or employee of the insured, or to indemnify the latter for losses

caused by dishonesty or a want of fidelity on the part of such a person.” RBC Mortgage Co. v.

National Union Fire Insurance Co. of Pittsburgh, 349 Ill. App. 3d 706, 712 (2004).

& 39 The crime bond in this case was entitled “Financial Institution Crime Bond.” Although,

based upon our research, the terms of art at issue here have not been litigated, case law and

supporting resources recognize that a banker’s blanket bond is synonymous with a financial

institution bond and that both are considered fidelity insurance. See Devin & David, supra

(fidelity bonds involve numerous types of bonds and encompasses financial institution bonds);

11 Steve Plitt et al., Couch on Insurance § 167:43 (3d ed. 2008) (“[a]s fidelity bonds, financial

institution bonds are in fact a form of insurance”). In fact, fidelity bonds have consistently been

recognized as multi-peril insurance.

“At the beginning of corporate suretyship, a ‘fidelity bond’ was more like a surety

bond, a three-party obligation executed by the principal and the surety to protect or

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indemnify the obligee against larceny or embezzlement committed by the principal,

typically the employee. However, fidelity coverage came to encompass not only

traditional employee dishonesty, but other related risks, and became more like a contract

of insurance, using the terms ‘underwriter’ and ‘insured’ instead of ‘surety’ and

‘obligee.’ ” James L. Knoll & Linda M. Bolduan, Financial Institution Bonds 5 (Duncan

L. Clore ed. 1995).

& 40 As stated, we were unable to uncover case law expressly analyzing whether a financial

institution crime bond is fidelity insurance; however, there are numerous examples of courts

recognizing as much. For example, in RBC Mortgage Co., this court recognized a “financial

institution bond” as synonymous with a “fidelity bond.” This court was asked to consider

whether a loss sustained by a third party was covered under a theory that the claimed loss arose

either from employee dishonesty or forgery. RBC Mortgage Co., 349 Ill. App. 3d at 708. Even

though this court was considering both employee dishonesty and forgery, we referred to the bond

as a fidelity bond. Id. at 709, 712, 715 (describing coverage as “fidelity insurance” and

discussing the “language in a fidelity bond”).

& 41 Additionally, in an Illinois federal case for the Northern District, the court stated that

“ ‘[a] bankers blanket bond, sometimes called a fidelity bond or financial institution bond, offers

bundled indemnification coverage for various specific risks, typically including financial loss

from forgeries, employee dishonesty, and theft.’ ” Federal Deposit Insurance Corp. v. RLI

Insurance Co., 49 F. Supp 3d 517, 523 (N.D. Ill. 2014) (quoting Universal Mortgage Corp. v.

Wurttembergische Versicherung AG, 651 F.3d 759, 761 (7th Cir.2011)). Similarly, in First State

Bank of Monticello, the Seventh Circuit considered a standard financial institution bond that

contained multiple insuring agreements. 555 F.3d at 568-69. The insured in that case sought to

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recover for a check kiting loss, not employee dishonesty. Id. at 569. Nevertheless, the Seventh

Circuit, applying Illinois law, referred to the financial institution bond as a “fidelity bond” and

declared that it reviewed the lower court’s “interpretation of a fidelity bond” de novo. Id. at 566,

568; see also State Street Bank & Trust Co. of Quincy v. United States Fidelity & Guaranty Co.,

181 Ill. App. 3d 1081, 1082 (1989) (banker’s blanket bond “commonly known as a fidelity

bond”); Albers v. Indemnity Insurance Co. of North America, 283 Ill. App. 260 (1935) (brokers’

blanket bond considered fidelity bonds).

& 42 Moreover, courts in foreign jurisdictions have recognized financial institution bonds as

fidelity bonds. In Lusitania Savings Bank, FSB v. Progressive Casualty Insurance Co., No. 04-

3503, 2005 WL 1586618, at *1 (3d Cir. July 5, 2005), the Third Circuit considered a claim for

embezzlement and forgery under an insurance agreement “known as a ‘financial institution

bond,’ ‘bankers’ blanket bond,’ or ‘fidelity bond.’ ” The Third Circuit reviewed the forgery

claim, but referred to the contract as a “fidelity bond agreement.” Id. at *1-2.

& 43 Where the insurance industry, in particular the fidelity insurance industry, and our courts

have considered financial institution bonds, such as the one here, to be fidelity insurance, we too

recognize Kansas Bankers’ financial institution crime bond to be fidelity insurance. As a result,

we find section 143.1 of the Insurance Code did not act to toll the 24-month filing period

required by section 5(c) of the crime bond. Intrust, therefore, failed to timely file the underlying

lawsuit and summary judgment was proper.

& 44 In the alternative, Intrust urges this court to apply the doctrine of equitable tolling to ease

the limitations period. We decline Intrust’s request.

& 45 Equitable tolling of a limitations period is appropriate if the defendant has actively misled

the plaintiff or the plaintiff has been prevented from asserting his or her rights in some

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extraordinary way. Clay v. Kuhl, 189 Ill. 2d 603, 614 (2000). “Extraordinary barriers include

legal disability, an irredeemable lack of information, or situations where the plaintiff could not

learn the identity of proper defendants through the exercise of due diligence.” Thede v. Kapsas,

386 Ill. App. 3d 396, 403 (2008). The doctrine of equitable tolling is rarely applied by Illinois

courts. American Family Mutual Insurance Co. v. Plunkett, 2014 IL App (1st) 131631, ¶ 33.

& 46 Intrust insists that it was prevented from asserting its rights because Kansas Bankers

advised Intrust that its claims remained open and never issued a denial of those claims. Even

assuming Kansas Bankers failed to notify Intrust that its claims were denied until after the filing

of the underlying lawsuit, the record does not support a finding for equitable tolling. On

December 12, 2000, in response to Intrust’s November 30, 2000, amended proof of loss, Kansas

Bankers requested additional proof to investigate whether the loss was covered by the terms of

the parties’ bond. Intrust, however, failed to provide the requested documentation. Then, on

December 22, 2000, Kansas Bankers notified Intrust that “payment will occur when and if we

are provided with proof that a loss covered by the terms of the bond has been sustained and

payment is required by the terms of the bond.” Intrust did not provide any response. In fact,

Intrust did not communicate again until September 16, 2003, when it requested that Kansas

Bankers reissue a premium refund check, which Kansas Bankers did and Intrust later cashed.

The record does not reveal any additional attempts by Intrust to ascertain the status of its claims

or to assist Kansas Bankers in the investigation of the claims. The record, therefore, does not

support a finding that Kansas Bankers actively misled Intrust or prevented Intrust from asserting

its rights in some extraordinary way. We find this is not one of those rare instances where the

doctrine of equitable tolling should be applied to ease the limitations period.

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& 47 Because we have concluded that Intrust’s lawsuit was untimely, we need not consider the

remaining contentions on appeal and cross-appeal. Accordingly, Intrust’s motion to further strike

Kansas Bankers’ cross-appeal and brief are moot.

& 48 CONCLUSION

& 49 We affirm the circuit court’s September 11, 2014, order finding Intrust’s lawsuit was

untimely and granting summary judgment in favor of Kansas Bankers.

& 50 Affirmed.