Yunker v. Farmers Automobile Management Corp.

935 N.E.2d 630, 404 Ill. App. 3d 816
CourtAppellate Court of Illinois
DecidedSeptember 9, 2010
Docket3—09—0417, 3—09—0521 cons.
StatusPublished
Cited by20 cases

This text of 935 N.E.2d 630 (Yunker v. Farmers Automobile Management Corp.) 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
Yunker v. Farmers Automobile Management Corp., 935 N.E.2d 630, 404 Ill. App. 3d 816 (Ill. Ct. App. 2010).

Opinion

JUSTICE O’BRIEN

delivered the opinion of the court:

Plaintiffs and cross-appellees Maggie Yunker and Keith Yunker filed this action against defendant and cross-appellant Farmers Automobile Management Corp., d/b/a Pekin Insurance Co., seeking a declaration of coverage for injuries Maggie sustained in an August 2006 automobile accident. The trial court granted Pekin’s motion for summary judgment, finding that the policy at issue had expired at the time of Maggie’s accident due to nonpayment of the renewal premium. The Yunkers appealed the grant of summary judgment. Pekin thereafter filed a motion for sanctions, which the trial court denied. Pekin followed with a cross-appeal regarding the denial of its motion for sanctions. We affirm both the grant of summary judgment and the denial of sanctions.

FACTS

Plaintiffs and cross-appellees Maggie Yunker and Keith Yunker sought a declaration from the trial court that defendant and cross-appellant Pekin Insurance Co. was required to cover expenses relating to injuries Maggie received in an August 2006 automobile accident. Pekin had issued a business automobile policy to Keith, d/b/a Gallagher & Yunker Construction. The policy at issue had a policy period that expired on July 20, 2006.

The policy included the following terms. Condition N, entitled “Extended Renewal Premium Payment Period,” stated:

“If we elect to continue this insurance, we will renew this policy if you pay the required renewal premium for each successive policy period, subject to our premiums, rules and forms then in effect. All renewal premiums are due and payable on or before 12:01 A.M. (Standard Time) on the first day of each policy period. If the premium is received at the Home Office in Pekin, Illinois, or by an authorized representative of the Company on or before the 20th day following the first day of each policy period, the policy shall remain in full force. If the premium is not paid when due or within the 20 day extended period, then coverage under the policy shall cease at 12:01 A.M. (Standard Time) on the 1st day of each policy period.”

An endorsement, “ILLINOIS CHANGES — CANCELLATION AND NONRENEWAL” provided:

“A. The CANCELLING THIS POLICY DURING THE POLICY PERIOD COMMON POLICY CONDITION is replaced by the following:
CANCELLATION
b. When this policy is in effect 61 days or more or is a renewal or continuation policy, we may cancel only for one or more of the following reasons by mailing you written notice of cancellation stating the reasons for cancellation.
(1) Nonpayment of premium
* * *
c. If we cancel for nonpayment of premium, we will mail you at least 10 days written notice.
* * *
The following is added and supersedes any provision to the contrary:
NONRENEWAL
If we decide not to renew or continue this policy, we will mail you, your agent or broker and the loss payee written notice, stating the reason for nonrenewal, at least 60 days before the end of the policy period. If we offer to renew or continue and you do not accept, this policy will terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer.”

On June 14, 2006, Pekin sent a notice of premium due to Keith. The notice included, set out in a box of text:

“THIS IS THE ONLY NOTICE YOU WILL RECEIVE PRIOR TO THE DATE PREMIUM IS DUE[.] YOUR POLICY WILL EXPIRE IF PREMIUM IS NOT RECEIVED BY THE DUE DATE.” Keith failed to pay the premium on or before July 20, 2006. On August 7, Maggie was involved in an accident while a passenger in a car driven by Andre Loring. Maggie and the other passengers reached a settlement with Loring’s insurance company; however, their medical expenses exhausted the limits of his policy. On August 11, 2006, Pekin sent a notice of policy termination to Keith, confirming that the last day of the policy was July 20, 2006, and explaining that the policy was terminated for “EXPIRATION.” The notice set forth:
“THIS POLICY HAS BEEN TERMINATED SINCE FULL PAYMENT WAS NOT RECEIVED. ALTHOUGH YOU WILL EXPERIENCE A LAPSE IN COVERAGE, REINSTATEMENT IS POSSIBLE. TO REINSTATE THIS POLICY, WE MUST RECEIVE $489.00 WHICH INCLUDES A $10.00 REINSTATEMENT FEE, ON OR BEFORE 09/03/06. THIS POLICY WILL BE REINSTATED EFFECTIVE THE DATE PAYMENT IS RECEIVED BY US.”

Keith submitted payment to Pekin on August 18, 2006. The receipt stated, “This policy is currently cancelled.” The Yunkers submitted a claim for Maggie’s injuries and Pekin thereafter denied coverage. The Yunkers brought the instant declaratory judgment action on May 20, 2008.

On June 25, 2008, counsel for Pekin wrote to the Yunkers’ attorney warning that the theory of recovery the Yunkers were pursuing was legally unsound. The letter further informed that if the Yunkers persisted in pursuing the action, Pekin would seek sanctions pursuant to Illinois Supreme Court Rule 137. 155 Ill. 2d. R. 137. The letter cited as controlling precedent the decisions in Shiaras v. Chupp, 61 Ill. 2d 164, 334 N.E.2d 129 (1975), and Librizzi v. State Farm Fire & Casualty Co., 236 Ill. App. 3d 582, 603 N.E.2d 821 (1992). Pekin’s counsel sent a similar letter on July 7, 2008, informing the Yunkers of its intent to seek attorney fees and costs at the conclusion of the proceedings. Counsel for the Yunkers did not respond to either letter. On July 8, 2008, Pekin filed a notice of intent to seek to recover attorney fees. The notice stated that Pekin would seek to recover attorney fees and costs pursuant to Rule 137 based on the Yunkers’ filing of a pleading “which has no meritorious basis in either law or in fact.”

The Yunkers filed an amended complaint for declaratory judgment on November 10, 2008, in which they abandoned their argument that Pekin failed to comply with the notice of cancellation requirements of the Illinois Insurance Code (215 ILCS 5/1 et seq. (West 2006)), arguing instead that the termination violated the policy language. Pekin filed a motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure. 735 ILCS 5/2 — 615 (West 2006). At a hearing on Pekin’s motion, the trial court noted that the motion to dismiss more closely resembled a motion for summary judgment. Pursuant to the court’s directives, Pekin agreed that it would file an answer to the Yunkers’ complaint and a motion to convert its section 2 — 615 motion to dismiss to a summary judgment motion.

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Cite This Page — Counsel Stack

Bluebook (online)
935 N.E.2d 630, 404 Ill. App. 3d 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yunker-v-farmers-automobile-management-corp-illappct-2010.