Reserve Ins. Co. v. General Ins. Co. of America

395 N.E.2d 933, 77 Ill. App. 3d 272
CourtAppellate Court of Illinois
DecidedNovember 6, 1979
Docket78-798
StatusPublished
Cited by25 cases

This text of 395 N.E.2d 933 (Reserve Ins. Co. v. General Ins. Co. of America) 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
Reserve Ins. Co. v. General Ins. Co. of America, 395 N.E.2d 933, 77 Ill. App. 3d 272 (Ill. Ct. App. 1979).

Opinion

Mr. JUSTICE DOWNING

delivered the opinion of the court:

This appeal arises out of plaintiff Reserve Insurance Company’s (Reserve) suit against defendants General Insurance Company of America (General) and Continental Casualty Company (Continental) to recover damages for losses sustained as a result of certain alleged dishonest acts of Harry O’Brien (O’Brien), the manager of Reserve’s bond department. General and Continental had issued successive Insurance Companies Blanket Bonds, Standard Form No. 25 (fidelity bonds), to Reserve which provided indemnity

““ 9 9 from and against any losses sustained by the Insured subsequent to noon of the date hereof and while this bond is in force, 9 9 9, and discovered by the Insured subsequent to noon of the date hereof and prior to the expiration of twelve months after the termination of this bond 9 9 9.
(A) Any loss through any dishonest or fraudulent act of any of the Employees, committed anywhere and whether committed alone or in collusion with others, 9 9 9.”

General’s bond terminated as of noon of April 23,1968, and Continental’s became effective soon thereafter.

The dishonest acts, alleged by Reserve, consisted of O’Brien’s execution of four construction bonds to Concrete Construction Services, Inc. (CCSI), contrary to specific instructions from Reserve’s officers. Three of these bonds were issued during the term of General’s fidelity bond: (1) the Cathedral bond on October 12,1967; (2) the Wierton bond on January 8, 1968, and (3) the Cascade bond on February 27,1968. The last bond issued by O’Brien, the Clarksburg bond, was issued on June 18, 1968, during the term of Continental’s fidelity bond. CCSI defaulted on these bonds sometime after April 23, 1968.

The first claims on the CCSI bonds reached Reserve’s management on December 5,1968. General was notified on December 10,1968, and on December 11, 1968, was requested to attend a meeting with Reserve to develop a plan whereby their respective exposures would be held to a minimum. General did not attend this meeting. From January 1969 through November 1970, Reserve paid out a total of *664,919.59 to settle the claims arising out of CCSI’s defaults on the projects bonded by Reserve’s employee. On May 20, 1969, General sent Reserve a letter denying coverage under its fidelity bond. On June 29,1970, Reserve filed its complaint in the circuit court of Cook County against General and Continental (70 L 9179). This suit was dismissed for want of prosecution on June 30,1975. On February 17,1976, the plaintiff’s motion to vacate the judgment of dismissal was granted and the case was restored to the trial calendar. In June 1977, Reserve refiled its complaint (77 L 4858).

Each of the defendants moved for summary judgment, Continental arguing that the loss was sustained when the bonds were issued by O’Brien, and General asserting that a loss was not sustained until CCSI’s default on the construction bonds. The trial court granted Continental’s motion, and denied General’s, finding that General was liable for the losses related to the first three bonds and Continental was hable on the fourth, assuming liability was in fact established. Reserve and Continental settled on the fourth bond and Continental 1 was dismissed from the suit. Reserve and General proceeded to trial. Following a jury verdict in favor of Reserve for *664,919.59, the trial judge awarded Reserve prejudgment interest from the date of each payment it had made on the bond claims in the amount of *245,806.94. General appeals contending (1) that its fidelity bond had terminated before Reserve suffered any losses; (2) that the trial court erred in awarding prejudgment interest; and (3) that the trial court erred in certain evidentiary rulings and in refusing one of the defendant’s instructions.

I.

Defendant General first contends that its fidelity bond is unambiguous and that there are four prerequisites to recovery under it: (1) actual loss within the bond term which (2) results from dishonest acts (3) committed within the term and (4) discovered within 12 months after the bond expired. Although General concedes that the dishonest acts were committed within the term of its bond, it claims that the commission of the dishonest act is a concept entirely dissimilar to a loss sustained; that the policy covers only losses sustained; and that Reserve did not suffer any losses when the acts were committed. The defendant advances three lines of cases to support its argument that the bond should be construed so that the time of Reserve’s losses falls beyond the term of its bond. The first line of cases holds, according to the defendant, that losses are not sustained until a claim or judgment is actually paid. (Cary v. National Surety Co. (1933), 190 Minn. 185, 251 N.W. 123; State Bank of New Prague v. American Surety Co. (1939), 206 Minn. 137, 288 N.W. 7; First State Bank v. Standard Acc. Ins. Co. (5th Cir. 1938), 94 F. 2d 726; Ronnau v. Caravan International Corp. (1970), 205 Kan. 154, 468 P. 2d 118; Foxley Cattle Co. v. Bank of Mead (1976), 196 Neb. 587, 244 N.W.2d 205.) The second line of cases assertedly holds that losses are not sustained until the claim or liability accrues. (Ocean Accident & Guarantee Corp. v. Old Nat. Bank (6th Cir. 1925), 4 F. 2d 753; National City Bank v. National Security Co. (6th Cir. 1932), 58 F. 2d 7; Hooker v. New Amsterdam Casualty Co. (W.D.Ky. 1940), 33 F. Supp. 672; Mount Vernon Bank & Trust Co. v. Aetna Casualty & Surety Co. (E.D. Va. 1963), 224 F. Supp. 666; Fidelity Savings & Loan Association v. Republic Insurance Co. (9th Cir. 1975), 513 F.2d 954; Jefferson Bank & Trust Co. v. Central Surety & Insurance Corp. (Mo. 1966), 408 S.W.2d 825.) The third, or the Illinois view, assertedly holds that a loss is sustained when the claim is reduced to judgment. People ex rel. Nelson v. Citizens Trust & Savings Bank (1933), 273 Ill. App. 128; National Slovak Society of the United States of America v. Matlocha (1940), 307 Ill. App. 41, 29 N.E.2d 946; Hinchcliff v. Insurance Co. of North America (1934), 277 Ill. App. 109; Otter Creek Lumber Co. v. McElwee (1890), 37 Ill. App. 285.

The cases relied on by the defendant (1) considered notice provisions when losses were discovered rather than when the losses were sustained (see National City Bank; Jefferson; Mount Vernon; Cary; State Bank of New Prague); (2) determined that the bonds in question were not third-party beneficiary contracts intended to cover the losses of the third-party plaintiffs (Ronnau; Foxley Cattle Co.); (3) considered the time when the insured could claim indemnity from its insurer for covered losses under a hold harmless clause (People ex rel.

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Bluebook (online)
395 N.E.2d 933, 77 Ill. App. 3d 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reserve-ins-co-v-general-ins-co-of-america-illappct-1979.