Neiman v. Economy Preferred Insurance

829 N.E.2d 907, 357 Ill. App. 3d 786, 293 Ill. Dec. 982
CourtAppellate Court of Illinois
DecidedMay 20, 2005
Docket1-04-0774
StatusPublished
Cited by33 cases

This text of 829 N.E.2d 907 (Neiman v. Economy Preferred Insurance) 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
Neiman v. Economy Preferred Insurance, 829 N.E.2d 907, 357 Ill. App. 3d 786, 293 Ill. Dec. 982 (Ill. Ct. App. 2005).

Opinion

JUSTICE FITZGERALD SMITH

delivered the opinion of the court:

Plaintiffs Kenneth M. Neiman, individually and as assignee of Erwin B. Neiman, and Janice K. Neiman (plaintiffs or as named) originally filed suit against defendant Economy Preferred Insurance Company (defendant) for breach of contract and bad faith in failing to pay a claim. Arbitration resulted in plaintiffs’ favor and defendant paid the award in full some months later. Plaintiffs again sued defendant, alleging bad faith for failing to pay a claim. They amended their complaint to include defendant’s affiliates: Economy Premiere Assurance Company, St. Paul Fire & Marine Insurance Company of Illinois, Economy Fire & Casualty Company, and Metropolitan Property and Casualty Insurance Company, individually and d/b/a The St. Paul and The Economy Companies (affiliates). Defendant and its affiliates filed a joint motion to dismiss; the trial court granted this motion in part, dismissing the affiliates but retaining the suit against defendant. Defendant then filed a motion for summary judgment, and plaintiffs filed a cross-motion for the same. The court granted defendant’s motion and denied plaintiffs’ motion. Plaintiffs appeal, asserting several contentions for review. Plaintiffs ask that we reverse the entry of summary judgment in defendant’s favor, vacate the order dismissing the affiliates, disqualify a certain law firm and remand this cause for trial before trial court Judge Susan Zwick. For the following reasons, we affirm.

BACKGROUND

Plaintiffs obtained an insurance policy from defendant to insure a dwelling and its contents located in Deerfield, Illinois. On July 23, 1999, rain water caused damage on the insured property, leading plaintiffs to make a claim under the policy. Over the next months, defendant made partial payments of the insured amount. Plaintiffs, with Kenneth Neiman proceeding pro se and Erwin Neiman representing himself as well as Janice Neiman, filed suit against defendant asserting breach of contract and damages in the amount of $8,740, the remaining balance under the policy; plaintiffs also sought damages under section 155 of the Illinois Insurance Code (Code) (215 ILCS 5/155 (West 2000)) for delayed payment. The cause was set for mandatory arbitration. On June 12, 2001, arbitrators unanimously held for plaintiffs on the breach of contract count, awarding them $8,740 plus costs, and for defendant with respect to the section 155 damages count. Neither party rejected the award.

Judgment on this award was entered on August 3, 2001. Defendant’s counsel was to appear on this date with a check for plaintiffs in the amount of the judgment, but did not. Plaintiffs filed a citation to discover assets against defendant. On September 6, 2001, defendant received a copy of plaintiffs demand for payment. On September 11, 2001, plaintiffs filed another suit against defendant, asserting violations of section 155 of the Code due to its “bad faith and vexatious delay” in payment on the August 3, 2001, judgment, with each plaintiff seeking $25,000 in damages.

In a letter dated September 17, 2001, defendant asked plaintiffs for Erwin Neiman’s tax identification number or a waiver of attorney lien; defendant stated that it needed this number or a waiver pursuant to federal tax laws before it could issue a check for the August 3, 2001, judgment to plaintiffs, since Erwin Neiman had acted as counsel for Janice Neiman in the underlying insurance suit. A letter dated October 29, 2001, from defendant to plaintiffs referred to an October 23, 2001, telephone conversation between the parties wherein plaintiffs refused to provide defendant with Erwin Neiman’s tax identification number or a waiver of lien. Defendant informed plaintiffs that it would use Erwin Neiman’s social security number instead, as obtained from a prior deposition taken during the underlying suit, and was preparing a draft to pay the August 3, 2001, judgment, including costs incurred by plaintiffs and interest. On October 20, 2001, defendant paid plaintiffs $8,938.72, leaving a balance of $288, which defendant paid on November 13, 2001, thereby satisfying the August 3, 2001, judgment in full. The next day, plaintiffs signed a full satisfaction of payment and release.

In May 2002, plaintiffs filed an amended complaint against defendant, adding defendant’s affiliates and reasserting violations of section 155 of the Code. Defendant and its affiliates filed a joint motion to dismiss, and a hearing on this motion was commenced before trial court Judge Susan Zwick. During the hearing, it was discovered that defendant had failed to properly file and serve plaintiffs, and the hearing was adjourned. When the hearing was reconvened, defendant filed a motion to substitute judge as of right, and Judge Zwick granted this motion. The case was reassigned to trial Judge Michael Hogan, who then granted the joint motion in part (dismissing the cause with prejudice as to the affiliates because they were not parties to the underlying August 3, 2001, judgment) and denied it in part (retaining defendant as part of the cause).

Later, defendant filed an emergency motion for summary judgment, and plaintiffs filed a cross-motion for summary judgment. Following a hearing on these motions, trial Judge Donald Devlin granted defendant’s motion and denied plaintiffs cross-motion. In so holding, Judge Devlin reviewed section 155 of the Code and stated that its plain language applied to a delay in the settlement of a claim where the issue of liability has yet to be resolved, not to a delay in the payment of a judgment where liability has already been determined — the latter of which was the situation in the instant cause. Thus, Judge Devlin concluded that section 155 was not operational here and, since this Code violation was the only basis of plaintiffs’ complaint, summary judgment in favor of defendant was warranted.

ANALYSIS

Plaintiffs propound several contentions for review on appeal. Their primary arguments cite error on the part of Judge Hogan’s order dismissing the affiliates from this suit and Judge Devlin’s order granting defendant’s motion for summary judgment. Plaintiffs make further allegations of error regarding Judge Zwick’s order permitting defendant to substitute judges after hearing on its motion to dismiss had begun, and an order by trial Judge Claudia Conlon denying plaintiffs motion to disqualify the law firm of Condon & Cook. Plaintiffs seek appellate relief on all these allegations of error.

For its part, defendant at the outset makes two procedural threshold arguments. First, defendant urges us to disregard plaintiffs’ appellate brief in its entirety and affirm the judgment below due to plaintiffs’ “flagrant disregard” for Illinois Supreme Court Rule 341(e) (188 Ill. 2d R. 341(e)). Specifically, defendant notes that plaintiffs did not include a summary statement of their points and authority (Rule 341(e)(1)), an introductory paragraph stating the nature of the action and judgment appealed from .(Rule 341(e)(2)), a statement of the issues for review (Rule 341(e)(3)), the provision verbatim of section 155 involved herein (Rule 341(e)(5)), or an appendix as required by Rule 342 (Rule 341(e)(9)).

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Cite This Page — Counsel Stack

Bluebook (online)
829 N.E.2d 907, 357 Ill. App. 3d 786, 293 Ill. Dec. 982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neiman-v-economy-preferred-insurance-illappct-2005.