Property Insurance By: Michael S. Sherman Chuhak & Tecson P.C. Chicago Extra-Contractual Damages Against Insurers: What is the Statute of Limitations? Background The Illinois Legislature has provided a means by which an insured may recover bad faith or extracontractual damages if their insurer has been vexatious and unreasonable in refusing to settle the insureds claim. This remedy is set forth in Section 155 of the Illinois Insurance Code, 215 ILCS 5/155 and is applicable to both first and third party claims. Section 155 of the Insurance Code provides as follows: Section 155. Attorney fees. (1) In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the Court that such action or delay is vexatious and unreasonable, the Court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts: (a) 25% of the amount which the Court or jury finds such party is entitled to recover against the company, exclusive of all costs; (b) $25,000; (c) the excess of the amount which the Court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action. Since the enactment of this statute, there has been a substantial amount of litigation surrounding Section 155. In 1996 the Illinois Supreme Court attempted to resolve some of the interpretive issues raised by the statute, including the issue of preemption and the insured s ability to pursue claims outside the scope of Section 155. See Cramer v. Insurance Exchange Agency, 174 Ill. 2d. 513, 675 N.E.2d. 897 (1996). Cramer v. Insurance Exchange Agency The facts in Cramer were straightforward. The insured purchased a homeowner s insurance policy from the insurer covering his personal property. The policy was to run for one year. Shortly after the policy s inception, the insured s residence was burglarized. The underlying dispute arose from the insurer s attempted cancellation of the policy: the insurer argued that it canceled the policy before the burglary occurred, whereas the insured contended that he never received a notice of cancellation and that any purported cancellation contributed common law fraud. Cramer, 174 Ill. 2d. at 513. Two questions were raised on appeal: (1) whether Section 155 of the Illinois Insurance Code insulates an insurer from a cause of action for common law fraud; and (2) whether the policy provision which states that no action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss is applicable to a cause of action for common law fraud against an insurer. Id. (Emphasis added).
The Supreme Court held that Section 155 does not preempt a claim of insurer misconduct based upon a separate independent tort. Id. In other words, an insured may pursue an action under their policy based upon Section 155, while also attempting to maintain a separate independent tort action such as common law fraud or malicious prosecution. However, the Court made it clear that mere allegations of bad faith or unreasonable and vexatious conduct are not sufficient to constitute a separate and independent tort. Id. Throughout its analysis, the Cramer Court clearly indicated that a suit limitation provision contained within an insurance policy applies to claims based upon that policy. However, the Court s majority did not address whether suit limitation provisions would be applicable to claims under Section 155 or to claims which are potentially outside the scope of the policy, i.e., extra-contractual. Id. One of the most significant issues remaining after Cramer was the applicable statute of limitations for suits which only alleged violations of Section 155. Based upon recent appellate decisions, this article seeks to predict a court s likely analysis of the Section 155 statute of limitations issue in a first party matter. Statute of Limitations for Section 155 claims In a recent case of first impression, an Illinois court construed the statute of limitations for claims under Section 155. See Marcheschi v. Illinois Farmers Ins. Co., 298 Ill. App. 3d. 306, 698 N.E.2d. 683 (1st Dist. 1998.) Although Marcheschi primarily addressed the application of the statute of limitation for claims of insurer bad faith in a third party case, it provides some insight into how the courts may analyze this issue in first party litigation. In either first or third party litigation, the issue of whether the limitations period has expired will arise most often when an insurer has actually resolved the underlying claim and the insured subsequently alleges vexatious and unreasonable delay. In Marcheschi, the First District Appellate Court discussed statute of limitations issues relating to a Section 155 claim in the context of an uninsured motorist case. Marcheschi v. Illinois Farmers Ins. Co., 298 Ill. App. 3d. 306, 698 N.E.2d. 683 (1st Dist. 1998.) Facts in Marcheschi On December 22, 1992, plaintiff filed a complaint seeking recovery under Section 155 of the Insurance Code based on defendant s refusal to settle his claim for uninsured motorist benefits within the applicable policy limits. Following the accident, which occurred on December 9, 1983, defendant promptly paid plaintiff $25,000, which was the limit of his uninsured motorist coverage. However, plaintiff was a member of a class action lawsuit in which his insurance policy was reformed and the uninsured motorist coverage limit was increased from $25,000 to $100,000. Id. at 685. Following the class action, plaintiff demanded $75,000 from defendant, or the remainder of the policy limit. In August 1988, defendant offered $40,000 in settlement, and in December of 1988, plaintiff made a counteroffer of $40,000 plus prejudgment interest. When defendant failed to accept this counteroffer, it expired. Plaintiff then made a demand for $75,000 plus prejudgment interest. After plaintiff underwent a physical examination, defendant made an offer of $50,000 on June 21, 1989, which plaintiff declined. Testimony at trial indicated that, shortly thereafter, defendant was given settlement authority in the amount of $75,000, which was not extended to plaintiff prior to arbitration. Id. An arbitration hearing took place on January 3, 1990. The panel assessed plaintiff s damages in the amount of $215,000 and found defendant liable for the $75,000 policy limit. Id. Thereafter, in his complaint, plaintiff sought to recover attorney fees for the arbitration, arbitrator s fees and other litigation expenses, prejudgment interest, and 25% of the difference between the amount defendant offered in settlement and the amount plaintiff recovered via arbitration pursuant to Section 155. The Court ultimately awarded the plaintiff $18,750 pursuant to Section 155, with $8,075 in attorney fees related to the arbitration and prejudgment interest. Id. The issues on appeal in Marcheschi were as follows: (1) whether the trial court properly determined that Section 155 of the Insurance Code is not a statutory penalty to which a two-year statute of limitations must apply; (2) whether the trial court correctly determined that defendant unreasonably and vexatiously delayed the settlement of plaintiff s uninsured motorist claim under Section 155; and (3) whether the trial court properly awarded prejudgment interest to plaintiff. Id. at 685. The Court answered each of these questions in the affirmative and affirmed the trial court s decision.
Is Section 155 a Statutory Penalty The Defendant in Marcheschi filed a motion to dismiss pursuant to 735 ILCS 5/2-619, alleging that the plaintiff s claim under Section 155 was a statutory penalty and, therefore, subject to a two year statute of limitations. See 735 ILCS 5/13-202. However, plaintiff argued that his Section 155 claim was subject to the five year catch-all limitations period. See 735 ILCS 5/13-205. In resolving this issue of first impression, the Court relied on McDonalds Corp v. Levine 108 Ill. App. 3d 732, 439 N.E.2d 475 which set forth the following distinction between statutory penalties and remedial statutes: A statute is a statutory penalty if it imposes automatic liability for a violation of its terms and the amount of liability is predetermined by the act and imposed without actual damages suffered by the plaintiff. A statute is remedial when it gives rise to a cause of action to recover compensation suffered by the injured person. [O]ur Supreme Court held that a statute is remedial and not penal where it imposes liability only when actual damage results from a violation. In such a case, liability is contingent upon damage being proven by the plaintiff. Under a penal statute, liability is not contingent but imposed automatically when a violation of the statute is established. McDonalds Corp v. Levine 108 Ill. App. 3d. 732,738, 439 N.E.2d 475,480 (2d Dist 1982). In addition, the Marcheschi Court reviewed the background of Section 155 and noted that the statute provides an extra contractual remedy to policyholders whose insurer s refusal to recognize liability and pay a claim under a policy is vexatious and unreasonable. Cramer 675 N.E.2d at 687. Further, despite the fact that Section 155 allows for various elements of recovery, including a limited penalty, it does not appear that the use of the word penalty will bring the entire statute under the realm of a statutory penalty for purposes of the statute of limitations. Marcheschi 698 N.E.2d at 688. The Marcheschi Court ultimately held that Section 155 does not constitute a statutory penalty for purposes of the two year statute of limitations in Section 13-202 of the Code of Civil Procedure. Id. However, the Court did not specifically hold that Section 155 was subject to the five year catch all statute of limitations. Therefore, the question remains as to what the statute of limitations is for alleged vexatious and unreasonable conduct of an insurer, especially as it relates to first party claims. First Party Cases In most first party litigation, plaintiffs allege vexatious and unreasonable conduct by the insurer, as well as breach of contract. However, in some cases the insured alleges a violation of Section 155 after the underlying claim has been resolved. Unlike the uninsured motorist policy discussed in Marcheschi, most property policies have a contractual limitations provision contained within the policy. That contractual limitations language is generally set forth as follows: Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss or damage. This one year period is extended by the number of days between the date that proof of loss was filed and the date the claim is denied in whole or in part. There appears to be a question whether a first party claim alleging vexatious and unreasonable delay on the part of an insurer will be subject to the contractual limitations period, or some other limitations period (such as the five year catch all limitation (735 ILCS 5/13-205) or the ten year statute of limitations for breach of a written contract (735 ILCS 5/13-206)).
It is clear that compliance with the suit limitation provision of the policy is a condition precedent to recovery under a policy. Cramer 675 N.E.2d at 905. Moreover, it would seem axiomatic that a claim under Section 155 would also be considered an attempt to recover under a policy and that the limitations period set forth in the policy should therefore govern. The Court in Cramer did not find it necessary to address whether the contractual limitation provision would apply to a separate and independent tort claim, e.g., common law fraud. But Justice Freeman, in a specially concurring opinion, stated as follows: As a final matter, I would hold, contrary to the majority s reasoning, that the suit limitation clause here applies to bar plaintiff s attempted fraud action. The clause refers to actions against the insurer and is not limited only to actions upon the policy. As a result, this alleged action, whether sounding in fraud, contract, or bad faith, does not survive the bar. Cramer 675 N.E.2d at 908. Therefore, it would certainly be reasonable to interpret the Illinois courts various holdings as indicating that the suit limitation provision contained in a property insurance policy would dictate the limitations period for a Section 155 claim. Out of State Jurisdictions There are several out of state courts that have addressed whether a claim for bad faith as defined in their jurisdiction should be handled within the confines of the policy. Although a few of these courts have held that the contractual limitations provision does not apply, See, e.g., Christiansen v. First Insurance Company of Hawaii, 963 P.2d 345 (1998), many courts have firmly ruled that the limitations provision set forth in the policy governs. The Iowa Supreme Court reviewed this issue in a case of first impression in Stahl v. Preston Mutual Insurance, 517 N.W.2d 201 (1994). Stahl held that a cause of action in bad faith should be considered an action on the policy and, therefore, subject to the one year limitation period contained in the policy. In Stahl, the insured brought suit against their homeowners insurer for breach of contract and bad faith in denying a fire claim. Id. at 202. The Defendant filed a Motion for Summary Judgment based upon the contractual limitations period in the policy. Id. The Iowa Supreme Court ultimately held that although there are certain instances when conduct on the part of the insurer may give rise to a collateral or independent cause of action, most actions must be brought within the time allowed by the policy. Id. at 203. I n California, the courts have consistently held that bad faith and related causes of action are to be considered actions on the policy and subject to the suit limitation provision contained within the policy. The Court in Prieto v. State Farm Fire and Casualty Co., 225 Cal.App.3d. 1188 (1991) ruled that the plaintiffs claims for bad faith failure to pay benefits and for intentional infliction of emotional distress were merely a theoretical restatement of the same claim and were governed by the one year statute of limitations for actions on a policy. Prieto v. State Farm Fire and Casualty Co., 225 Cal.App.3d. 1188,1196 (1991). Interestingly, the Court in Prieto looked to the fact that in California, there is an effort to be more flexible and to apply an equitable tolling period from the time an insured gives notice of the damage to his insurer, pursuant to applicable policy notice provisions, until coverage is denied. Id. at 1195. As noted above, this language is very similar to the tolling provision contained within most Illinois policies pursuant to statute. The court of appeals in Arizona has also specifically held that an action for bad faith must be filed within the contractual limitations period. In Home Federal Savings and Loan Assoc. v. Dooley s of Tucson, the dismissed the Defendants (insured) cross-claim for bad faith related to the insurer s failure to pay proceeds on a fire claim. Home Federal Savings and Loan Assoc. v. Dooley s of Tucson, 716 P.2d 1042,1046 (1985). The
Court stated that a claim for bad faith can only be based upon the policy and thus is barred by the one year statute of limitations. Id. Conclusion There can be no question that the statute of limitations issue relating to Section 155 will continue to arise. Just as the courts have been asked to address this issue in the third party situation, they will soon be asked to address the issue in a first party case. Based upon the Illinois courts interpretation of Section 155 and many other jurisdictions holding related to bad faith, it appears likely that these claims will be governed by the contractual limitation provision contained within the policy of insurance. However, it is less clear whether the courts will apply the same reasoning for those claims (e.g., common law fraud) which are viewed as separate and independent causes of action. About the Author Michael S. Sherman is with the Chicago firm of Chuhak & Tecson, P.C. He concentrates his practice on property insurance coverage and on first and third-party insurance defense litigation matters. Mr. Sherman specializes in the investigation and litigation of property and casualty insurance fraud cases, including first-party and third-party losses, fraudulent bodily injury claims, auto theft, arson and theft losses.