West American Insurance v. Yorkville National Bank

939 N.E.2d 288, 238 Ill. 2d 177, 345 Ill. Dec. 445, 2010 Ill. LEXIS 1069

• Court: Illinois Supreme Court
• Decided: September 23, 2010
• Docket: 108285
• Status: Published

Opinions

JUSTICE BURKE

delivered the judgment of the court, with opinion.

Chief Justice Fitzgerald and Justices Thomas, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.

Justice Freeman dissented, with opinion.

OPINION

The issue in this case is whether the insured violated its liability insurance policy by failing to give timely written notice to the insurer as specified in the policy, thereby relieving the insurer of its duties to defend and indemnify. The appellate court held that the insured breached the policy’s notice provision and was therefore not entitled to coverage. 388 Ill. App. 3d 769. For the following reasons, we reverse the appellate court.

BACKGROUND

On September 24, 2001, Sheryl Kuzma filed a defamation lawsuit in the circuit court of Will County against Yorkville National Bank (Yorkville) and its vice president, Bernard Wiegmann. Kuzma alleged that Wiegmann uttered certain false statements in his official capacity which damaged her professional reputation. At the time of the alleged defamation in November 2000, Yorkville was covered by a commercial general liability policy and commercial umbrella policy (collectively, the Policy) issued by West American Insurance Company (West American) for the period of September 17, 2000, to September 17, 2001. West American is owned by the Ohio Casualty Insurance Company (Ohio Casualty). The Policy lists the Zeiter-Dickson Insurance Agency (ZeiterDickson) as the agent. Zeiter-Dickson, at all relevant times, was an approved insurance agent of Ohio Casualty and West American.

On March 9, 2004, West American filed a declaratory judgment action denying coverage under the Policy based on late notice. Yorkville did not submit written notice of a claim for coverage until January 19, 2004, approximately 27 months after the defamation lawsuit was filed. The Policy’s notice provision states:

“SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS

$¡C * $¡5

2. Duties in the Event of Occurrence, Offense, Claim or Suit.

* * *

b. If a claim is made or ‘suit’ is brought against any insured, you must:

(1) Immediately record the specifics of the claim or ‘suit’ and the date received; and

(2) Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or ‘suit’ as soon as practicable.

c. You and any other involved insured must

(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or ‘suit’

*** a

In its answer, Yorkville alleged that West American received oral notice of the Kuzma suit on several occasions prior to receiving written notice on January 19, 2004. Yorkville contended that the oral notices to West American constituted “actual notice” triggering West American’s duty to provide coverage.

At a bench trial, James Liggett, Yorkville’s president, testified that in late 2001 or early 2002, he met with Richard Dickson, the Zeiter-Dickson insurance agent who had placed the Policy with Yorkville. Dickson was an agent for Zeiter-Dickson until 2003. Liggett told Dickson that Yorkville was “involved in a defamation lawsuit in Ottawa,” that it was a “he said/she said sort of thing,” and that it was not covered by the bank’s director and officer insurance policy. According to Liggett, he asked Dickson if the Zeiter-Dickson Policy would cover the suit. Dickson replied, “Probably not. Most all of those policies are written the same anyway.” Dickson did not testify at trial.

Liggett testified that he met with Joel Ottosen, another West American agent, sometime during the same time period. Liggett stated he told Ottosen that Yorkville was involved in a defamation liability case and asked if the Policy would cover it. According to Liggett, Ottosen gave “basically the same response” as Dickson, stating that the Policy probably would not cover the lawsuit. In his testimony, Ottosen denied having any conversation with Liggett about the defamation lawsuit before January 16, 2004. Ottosen testified that he first learned of the lawsuit on January 15, 2004, when Wiegmann contacted him to find out whether his homeowner’s policy covered the suit.

The defamation lawsuit was discussed at three meetings of the Yorkville board of directors in 2002. Dickson was in attendance at the meetings because he was a member of the board. According to the minutes, at the September meeting, Liggett reported to the board that “Attorney Cheryl Kuzman” was suing Yorkville and Wiegmann for allegedly derogatory comments made by Wiegmann. At the November meeting, Liggett reported that expenses were high at the Ottawa bank branch as a result of legal fees related to the Kuzma litigation. Finally, at the December meeting, the board reviewed and approved the minutes from the November meeting.

In January 2004, Yorkville was advised by an unrelated insurance company that the Policy “should cover” the defamation lawsuit. Liggett informed Ottosen of the lawsuit, who submitted the requisite claim forms and copy of the complaint to West American on January 19, 2004. The parties stipulated that on January 22, 2004, Carolyn Maher, a litigation specialist for West American, informed counsel for Yorkville that “there was insurance coverage for most of the allegations in the Kuzma complaint.”

The trial on the Kuzma suit was set for March 15, 2004. On March 5, 2004, West American decided to deny coverage under the Policy based on late notice. Yorkville later settled the case with Kuzma on July 28, 2004, for $1.75 million. West American did not participate in any trial proceedings or settlement negotiations.

The circuit court found for Yorkville and against West American in the declaratory judgment action and awarded stipulated damages in the amount of $1,982,778.78. The court found that the conversation between Liggett and Dickson took place as described by Liggett and was “unrefuted.” The court found that Liggett and Ottosen had a “passing conversation” in the bank, but the court made no finding as to the content of that conversation. Based on the conversation between Liggett and Dickson and the reports of the board meetings, the trial court found that West American received actual notice of the lawsuit in 2001 or 2002. The court further found that the written notice in 2004 was given within a reasonable time because Yorkville was told in 2001 or 2002 that the lawsuit was not covered.

The appellate court affirmed in part, reversed in part, and remanded.¹ 388 Ill. App. 3d 769. Citing to Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303 (2006), the appellate court held that Yorkville breached the Policy’s notice clause as a matter of law by waiting until 27 months after the lawsuit was filed to submit a written claim for coverage and a copy of the complaint. The court found the late notice was unreasonable in light of the fact that discovery had closed and the case was scheduled to proceed to trial in eight weeks. The court held that actual notice had “no bearing” on the issue of whether Yorkville breached the written-notice provision. To hold that actual notice “trumps” the plain language of the policy, the court found, would “render the policy’s written notice provision meaningless.” 388 Ill. App. 3d at 777. Justice Schmidt specially concurred, noting that there was no reason not to enforce the contract language, which had been approved by the Department of Insurance. Justice Lytton concurred in part and dissented in part, contending that West American had a duty to defend and indemnify Yorkville pursuant to Cincinnati Cos. v. West American Insurance Co., 183 Ill. 2d 317 (1998), since it had received actual notice of the suit. 388 Ill. App. 3d at 783-84 (Lytton, J., concurring in part and dissenting in part). We granted Yorkville’s petition for leave to appeal to this court. 210 Ill. 2d R. 315. We granted leave to the Complex Insurance Claims Litigation Association to file a brief on behalf of West American as amicus curiae.

ANALYSIS

In construing an insurance policy, we must ascertain and give effect to the intentions of the parties, as expressed in the policy language. Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311 (2006). The policy must be construed as a whole, giving effect to every provision. Country Mutual, 222 Ill. 2d at 311. Unambiguous words in the policy are to be given their plain, ordinary, and popular meaning. Country Mutual, 222 Ill. 2d at 311. Where the policy language is ambiguous, courts are to construe the policy liberally in favor of coverage. Country Mutual, 222 Ill. 2d at 311.

Insurance policy notice provisions impose valid prerequisites to insurance coverage. Country Mutual, 222 Ill. 2d at 311. The policy language in the notice provision at issue states that an insured must “see to it that we receive written notice of the claim or ‘suit’ as soon as practicable.” A policy provision requiring notice “as soon as practicable” means notice must be given “within a reasonable time.” Country Mutual, 222 Ill. 2d at 311, quoting Barrington Consolidated High School v. American Insurance Co., 58 Ill. 2d 278, 281 (1974). Whether notice has been given within a reasonable time depends on the facts and circumstances of each case. Country Mutual, 222 Ill. 2d at 311-12. An insured’s breach of a notice clause in an insurance policy by failing to give reasonable notice will defeat the right of the insured to recover under the policy. Country Mutual, 222 Ill. 2d at 312, citing Simmon v. Iowa Mutual Casualty Co., 3 Ill. 2d 318, 322-23 (1954).

The timeliness of an insured’s notice to its insurer generally is a question of fact for the trier of fact. Northbrook Property & Casualty Insurance Co. v. Applied Systems, Inc., 313 Ill. App. 3d 457, 465 (2000); University of Illinois v. Continental Casualty Co., 234 Ill. App. 3d 340, 363 (1992). A reviewing court should overturn a trial court’s factual findings only if they are against the manifest weight of the evidence. Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 452 (2009). The following factors may be considered in determining whether notice to an insurer has been given within a reasonable time: (1) the specific language of the policy’s notice provision; (2) the insured’s sophistication in commerce and insurance matters; (3) the insured’s awareness of an event that may trigger insurance coverage; (4) the insured’s diligence in ascertaining whether policy coverage is available; and (5) prejudice to the insurer. Country Mutual, 222 Ill. 2d at 313.

The parties agree that Yorkville sent written notice of the defamation lawsuit and a copy of the complaint on January 19, 2004, approximately 27 months after the underlying lawsuit was filed. The circuit court held that the 27-month delay was reasonable under the facts and circumstances in this case. The appellate court concluded that Yorkville breached the notice clause “as a matter of law.” 388 Ill. App. 3d at 777. We hold that the trial court’s finding was not against the manifest weight of the evidence.

Under the first Country Mutual factor, the specific language in the Policy’s notice provision does not aid in our reasonableness analysis because it does not identify a specific time frame for giving notice. Instead, it requires Yorkville to “see to it that [West American] receive written notice of the claim or ‘suit’ as soon as practicable” and to “[i]mmediately send us copies of any demands, notices, summonses, or legal papers received in connection with the claim or ‘suit.’ ” The term “immediate,” in the context of insurance policy notice provisions, has been interpreted in a similar manner to the phrase “as soon as practicable.” See Zurich Insurance Co. v. Walsh Construction Co. of Illinois, Inc., 352 Ill. App. 3d 504, 512 (2004) (“ ‘Immediate’ in this context ‘has been uniformly interpreted to mean within a reasonable time, taking into consideration all the facts and circumstances’ ”), quoting Kenworthy v. Bituminous Casualty Corp., 28 Ill. App. 3d 546, 548 (1975).

The second factor mentioned by Country Mutual is the insured’s sophistication. Yorkville is a bank presumed to be sophisticated in the areas of commerce and insurance. Accordingly, this factor weighs in favor of finding that Yorkville’s delay in sending written notice was unreasonable.

Next, we consider the insured’s awareness of an event which may trigger insurance coverage. Liggett testified that he learned about the Kuzma matter in November 2000, when Wiegmann informed him that Kuzma complained about defamatory remarks made by Wiegmann. Liggett advised the bank’s attorney that he would investigate the matter because Kuzma was “threatening a suit with the bank.” Two weeks later, Liggett telephoned Kuzma to inform her that he had checked with the parties involved and that none of the people at the meeting felt that Wiegmann had behaved inappropriately. Liggett then heard nothing from Kuzma for 10 months until Kuzma filed her lawsuit in September 2001. Thus, Yorkville was aware in November 2000 of the potential for a lawsuit and aware in September 2001 that a lawsuit had been filed. This factor also weighs on the side of unreasonableness.

With regard to the insured’s diligence in ascertaining whether coverage is available, a lengthy delay in providing notice is not an absolute bar to coverage provided the insured’s reason for the delay is justifiable under the circumstances. See Northbrook Property & Casualty Insurance Co. v. Applied Systems, Inc., 313 Ill. App. 3d 457, 465 (2000); McFarlane v. Merit Insurance Co., 58 Ill. App. 3d 616, 619 (1978). Courts have recognized that an insured’s reasonable belief of noncoverage under a policy may be an acceptable excuse for the failure to give timely notice, even where the delay is lengthy. See, e.g., Allstate Insurance Co. v. Carioto, 194 Ill. App. 3d 767, 780 (1990) (2V2-year delay excused because 19-year-old insured could not have reasonably known that the occurrence would have been covered by his mother’s homeowner’s policy); Grasso v. Mid-Century Insurance Co., 181 Ill. App. 3d 286, 290 (1989) (two-year delay excused because insured did not reasonably believe that an accident in her boyfriend’s Jeep was covered by her father’s excess coverage insurance policy); Brotherhood Mutual Insurance Co. v. Roseth, 177 Ill. App. 3d 443, 449 (1988) (two-year delay excused because insureds did not reasonably believe that an accidental shooting which occurred outside their home would be covered by their homeowner’s policy). Whether the insured, acting as a reasonably prudent person, believed the occurrence or lawsuit was not covered by the policy is a question of fact, which we review under the manifest weight standard. Farmers Automobile Insurance Ass’n v. Hamilton, 64 Ill. 2d 138, 142-43 (1976).

Liggett testified that in “late 2001 or early 2002,” he spoke with Dickson, the West American insurance agent who had placed the Policy with Yorkville. During an informal meeting at the bank, Liggett told Dickson “that we were involved in this defamation lawsuit in Ottawa. That it was kind of a he said/she said sort of thing and the D&O insurance didn’t cover that type of suit.” When Liggett asked Dickson whether the West American Policy covered the suit, Dickson replied, “Probably not. Most all of those policies are written the same anyway.” Dickson did not ask Liggett for a copy of the complaint, nor did he offer to verify whether a complaint for defamation was covered under the Policy. The trial court found that it was “undisputed” that the conversation between Liggett and Dickson took place as described by Liggett because Dickson did not testify at trial.

The trial court found that Liggett’s conversation with Dickson, coupled with the mention of the lawsuit at board meetings, “tips in favor of the insured as to diligence” and thus the delayed written notice was reasonable. That finding was not against the manifest weight of the evidence. After being informed by its agent that the Policy probably did not cover the lawsuit, Yorkville reasonably believed that sending written notice to its insurer would be futile. It was not until January 2004 that Yorkville discovered the lawsuit was covered by the Policy. At that time, Yorkville promptly sent written notice to West American. A reasonably prudent party in the position of the insured would not have continued to pursue coverage under the policy having been informed by its agent that the policy afforded no coverage.

Finally, we consider whether West American suffered prejudice as a result of Yorkville’s written notice in January 2004. See Country Mutual, 222 Ill. 2d at 317 (“the presence or absence of prejudice to the insurer is one factor to consider when determining whether a policyholder has fulfilled any policy condition requiring reasonable notice”). No testimony was presented at trial as to whether West American was prejudiced by the delay in receiving written notice. The trial court further found that there was no evidence that West American investigated the defamation complaint or made any efforts to delay trial during the two months between receiving written notice and the scheduled trial date.

Moreover, the trial court held that West American received actual notice of the lawsuit in late 2001 or early 2002, within a few months of the lawsuit being filed and approximately two years before the case was scheduled for trial. Contrary to the appellate court’s statement that actual notice has “no bearing” on whether notice was given within a reasonable time, actual notice to an insurer is relevant to whether the insurer has been prejudiced by a delay in receiving written notice as specified by the policy. “[Wjhere the insurance company has actual notice of the loss or receives the necessary information from some other source, there is no prejudice to the insurer from the failure of the insured to give notice of the claim.” McLaughlin v. Attorneys’ Title Guaranty Fund, Inc., 61 Ill. App. 3d 911, 917 (1978) (citing Wehner v. Foster, 331 Mich. 113, 117, 49 N.W.2d 87, 89 (1951), and United States Fidelity & Guaranty Co. v. Church, 107 F. Supp. 683, 689 (N.D. Cal. 1952)).

An insurance company is deemed to have “actual notice” of a lawsuit where it has sufficient information to locate and defend the suit. Cincinnati Cos. v. West American Insurance Co., 183 Ill. 2d 317, 329 (1998); Progressive Insurance Co. v. Universal Casualty Co., 347 Ill. App. 3d 10, 22 (2004); Federated Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 282 Ill. App. 3d 716, 726 (1996). “[I]n order to have actual notice sufficient to locate and defend a suit, the insurer must know both that a cause of action has been filed and that the complaint falls within or potentially within the scope of the coverage of one of its policies.” Cincinnati Cos., 183 Ill. 2d at 329-30; Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 143 (1999).

The trial court held that Liggett’s “in passing” conversation with Dickson as well as the reports at the board meetings provided West American with sufficient information to “locate and defend” the defamation lawsuit. We agree. Through its authorized agent, the insurer knew both: (1) that a lawsuit had been filed against its insured; and (2) that the defamation suit potentially fell within the scope of coverage of the Policy. Although no details were given as to when the alleged defamation took place or where the lawsuit was filed, Liggett conveyed that the bank had been sued for defamation and that the alleged events took place in Ottawa, Illinois. Dickson was the authorized agent who had placed the West American Policy for Yorkville and thus should have been aware that the Policy provided coverage for defamation. West American was put on notice at an early stage in the litigation that Yorkville was a defendant in a lawsuit that was potentially covered under the policy. At the very least, the agent could have followed up with Yorkville by requesting to see a copy of the complaint before advising it that the lawsuit probably was not covered.

After considering all relevant factors, we find that, under the circumstances in the present case, Yorkville’s written notice of the lawsuit to West American was given within a reasonable time and did not violate the notice provision in the Policy. Therefore, we reverse the appellate court’s judgment that Yorkville is not entitled to coverage and affirm the circuit court’s finding that West American had a duty to provide coverage under the Policy.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court judgment reversed; circuit court judgment affirmed.

1 On cross-appeal to the appellate court, Yorkville argued that the circuit court erred in determining that Yorkville was not entitled to sanctions under section 155 of the Insurance Code (215 ILCS 5/155 (West 2004)). The appellate court affirmed. 388 Ill. App. 3d at 781. Yorkville has not appealed that part of the appellate court’s judgment.