American Family Mutual Insurance Company v. Krop
American Family Mutual Insurance Company v. Krop
Opinion
*917
¶ 1 When customers allege that their insurance company negligently sold them a deficient insurance policy, section 13-214.4 of the Code of Civil Procedure (Code) gives those customers a two-year deadline to file any lawsuits. 735 ILCS 5/13-214.4 (West 2014). In this case we are asked to determine when the cause of action accrues in such cases. American Family Mutual Insurance Company (American Family) filed a declaratory judgment action against Walter and Lisa Krop, contending their homeowner's insurance policy did not cover a tort action pending against their son. The Krops filed a counterclaim against American Family and a third-party claim against Andrew Varga, an insurance agent for American Family. Varga argued at the circuit court that the cause of action for negligently selling a deficient policy accrues as soon as customers purchase their policy. The Krops claimed that the cause of action does not accrue until the insurer refuses to provide coverage. Agreeing with Varga, the circuit court dismissed the Krops' claims against Varga and American Family as untimely. The appellate court reversed.
¶ 2 We hold that when customers have the opportunity to read their insurance policy and can reasonably be expected to understand its terms, the cause of action for negligent failure to procure insurance accrues as soon as the customers receive the policy. Here the Krops filed their complaint over two years after they received their American Family policy, and they did not plead facts that would support any recognized exception to the expectation that customers will read the policy and understand its terms, so their claim was untimely. We reverse the appellate court's decision.
¶ 3 BACKGROUND
¶ 4 In early 2012 Walter and Lisa Krop asked Andrew Varga to provide them with a new homeowner's insurance policy from *918 *985 American Family. Although the details of their interactions with Varga are contested, the Krops claim that they gave him a copy of their old policy with Travelers insurance company and requested a new policy that was "equal to the coverages provided by Travelers." They further allege that Varga promised to provide them with an American Family policy that was equal to or better than the Travelers policy for a similar price. American Family and the Krops agreed to a policy, which American Family issued on March 21, 2012. The Krops renewed this policy each of the next three years.
¶ 5 In mid-2014, Mary Andreolas sued the Krops, seeking damages for defamation, invasion of privacy, and intentional infliction of emotional distress. The specifics of the lawsuit are not relevant to this decision, except that on August 20, 2014, American Family denied the Krops coverage for Andreolas's suit.
¶ 6 Soon thereafter American Family filed a declaratory judgment action in the circuit court of Cook County to justify its denial of coverage. The complaint cited portions of the Krops' policy that American Family argued excluded the alleged torts from coverage. In a section of the policy titled "LIABILITY COVERAGES-SECTION II," American Family had promised:
"We will pay, up to our limit, compensatory damages for which any insured is legally liable because of bodily injury or property damage caused by an occurrence covered by this policy."
The policy's definition of "bodily injury" excluded "emotional or mental distress, mental anguish, mental injury, or any similar injury unless it arises out of actual bodily harm to the person." Finally, the policy defined "occurrence" as "an accident, including exposure to conditions, which results during the policy period in: a. bodily injury; or b. property damage."
¶ 7 American Family claimed that this policy did not cover liability for the alleged defamation, invasion of privacy, or intentional infliction of emotional distress because Andreolas did not seek damages for any bodily injury. Additionally, American Family argued that, because the policy only covered "damage caused by an occurrence" and an "occurrence" requires an "accident," the policy did not cover the Krops' liability for the intentional conduct that Andreolas alleged.
¶ 8 On September 3, 2015, the Krops responded with a counterclaim against American Family and a third-party complaint against Varga. They alleged that Varga negligently failed to provide them with an insurance policy equal to their Travelers policy, as they had requested, and that American Family was vicariously liable for its agent's negligence. The Travelers policy had covered liability for "personal injury" as well as bodily and property injuries. Although both policies extended coverage to injuries caused by "occurrences," the Travelers policy defined "occurrence" to include an "offense * * * that results in 'personal injury.' " The American Family policy did not include offenses causing personal injury in its definition of "occurrence." According to the Krops, Varga failed to exercise ordinary care, and this failure caused the Krops to lack coverage for personal liability in Andreolas's lawsuit.
¶ 9 Varga and American Family both moved to dismiss the Krops' claims under sections 2-615 and 2-619 of the Code. 735 ILCS 5/2-615, 2-619 (West 2014). Section 13-214.4 of the Code creates a two-year statute of limitations for claims against insurance producers.
¶ 10 The circuit court dismissed the Krops' counterclaims under section 2-619 of the Code. Relying on
Hoover v. Country Mutual Insurance Co.
,
¶ 11 The appellate court reversed the dismissal.
¶ 12 ANALYSIS
¶ 13 The circuit court granted Varga's section 2-619 motion, and we review a dismissal under section 2-619
de novo
.
Kean v. Wal-Mart Stores, Inc.
,
¶ 14 A. Earliest Accrual Date for Negligent Failure to Procure Insurance
¶ 15 The Krops' suit is premised on Varga's alleged failure to satisfy his statutory
*920
*987
obligation in procuring an American Family insurance contract for the Krops. Section 2-2201(a) of the Code states that "[a]n insurance producer, registered firm, and limited insurance representative shall exercise ordinary care and skill in renewing, procuring, binding, or placing the coverage requested by the insured or proposed insured." 735 ILCS 5/2-2201(a) (West 2014). The section does not define "insurance producer," but we have held that this term includes "captive agents" like Varga, who represent a particular insurance company and sell that company's policies to customers.
Skaperdas v. Country Casualty Insurance Co.
,
¶ 16 Section 13-214.4 of the Code is the statute of limitations for such claims. It provides that:
"All causes of action brought by any person or entity under any statute or any legal or equitable theory against an insurance producer, registered firm, or limited insurance representative concerning the sale, placement, procurement, renewal, cancellation of, or failure to procure any policy of insurance shall be brought within 2 years of the date the cause of action accrues." 735 ILCS 5/13-214.4 (West 2014).
¶ 17 Although this statute clearly bars a claim under section 2-2201(a) filed more than two years after the cause of action accrues, it does not define what constitutes accrual. To fill this gap, this court has explained that, for tort claims,
"the cause of action usually accrues when the plaintiff suffers injury. [Citations.] For contract actions and torts arising out of contractual relationships, though, the cause of action ordinarily accrues at the time of the breach of contract, not when a party sustains damages. [Citations.] The reason for this distinction is the concern that plaintiffs will delay bringing suit after a contract is breached in order to increase damages." Hermitage Corp. v. Contractors Adjustment Co. ,166 Ill.2d 72 , 77 [209 Ill.Dec. 684 ,651 N.E.2d 1132 ] (1995).
¶ 18 Illinois courts have typically treated allegations of negligence in relation to insurance policies, such as the negligent procurement claim here, as torts arising out of contractual relationships. See,
e.g.
,
Hoover
,
¶ 19 Here the date of the alleged breach was March 21, 2012. On this day Varga procured for the Krops an insurance policy that did not cover defamation, invasion of privacy, and intentional infliction of emotional distress, which the Krops alleged they had asked Varga to provide.
¶ 20 B. The Discovery Rule
¶ 21 The Krops urge the court to apply the "discovery rule." This rule delays
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*988
the start of the limitations period until the claimant knew or reasonably should have known of the injury and that the injury was wrongfully caused.
Hermitage Corp.
,
¶ 22 Many Illinois cases have found that insurance customers should know the specifics of their policy as soon as they purchase it. The appellate court has imposed on insurance customers an obligation to read their policies and understand the terms. See,
e.g.
,
RVP, LLC v. Advantage Insurance Services, Inc.
,
¶ 23 The Krops ask this court to disregard these precedents and follow the appellate court's reasoning. The appellate court here applied the discovery rule and delayed the start of the limitations period.
Krop
,
¶ 24 Following
Broadnax
and
Perelman
, the appellate court concluded that barring a negligence claim against any insurance producer regardless of when the customer discovered the injury would be inconsistent with the fiduciary duty.
¶ 25 In addition to
Broadnax
and
Perelman
, the Krops and the appellate court relied on
Scottsdale Insurance Co. v. Lakeside Community Committee
,
¶ 26 The Krops' reliance on
Broadnax
and
Perelman
is misplaced. See also
id.
¶¶ 29-31, 38 ;
State Farm Fire & Casualty Co.
,
¶ 27 In 1997, the General Assembly enacted the Insurance Placement Liability Act. Section 2-2201 provides:
"No cause of action brought by any person or entity against any insurance producer, registered firm, or limited insurance representative concerning the sale, placement, procurement, renewal, binding, cancellation of, or failure to procure any policy of insurance shall subject the insurance producer, registered firm, or limited insurance representative to civil liability under standards governing the conduct of a fiduciary or a fiduciary relationship except when the conduct upon which the cause of action is based involves the wrongful retention or misappropriation by the insurance producer, registered firm, or limited insurance representative of any money that was received as premiums, as a premium *923 *990 deposit, or as payment of a claim." Pub. Act 82-280 (eff. Jan. 1, 1997) (enacting 735 ILCS 5/2-2201(b) ).
¶ 28 This statute prevents any insurance producer from being held to the fiduciary standard, except in a narrow set of circumstances not relevant to this case. 735 ILCS 5/2-2201(b) (West 2014). Instead insurance producers have only a general duty to exercise ordinary care.
¶ 29 Because a claim for negligent failure to procure insurance does not involve a fiduciary duty, insurance customers' obligation to read their policies controls. See
RVP, LLC
,
¶ 30 Decisions of other state supreme courts support this conclusion. The Rhode Island, Indiana, Mississippi, Delaware, and Maine Supreme Courts have agreed that insurance customers can learn the extent of their coverage by reading their policies.
Faber v. McVay
,
¶ 31 Admittedly, the courts of other states are far from unanimous on when the cause of action accrues in such cases and when insurance customers should discover their potential claims. See
Stephens v. Worden Insurance Agency
,
LLC
,
¶ 32 A few courts have taken the Krops' position that the discovery rule delays the limitations period until after the insurance customers learn that they have incurred expenses from an uninsured liability.
Gudenau & Co. v. Sweeney Insurance, Inc.
,
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*991
International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc.
,
¶ 33 Some state courts also have found that the cause of action accrues when the insured incurs losses because of an uninsured liability, but they reached this conclusion without applying a discovery rule. See,
e.g.
,
Blumberg v. USAA Casualty Insurance Co.
,
¶ 34 These courts relied on two key premises: that the injury for which the plaintiffs sought a remedy was a liability that their policy did not cover and that the plaintiffs could not assert their claim until they encountered such a liability. See,
e.g.
,
Gudenau & Co.
,
¶ 35 We reject these premises and instead agree with the Indiana and Delaware courts.
Filip
,
¶ 36 Although customers should read their policy and discover any defects, we recognize that there will be a narrow set of cases in which the policyholder reasonably could not be expected to learn the extent of coverage simply by reading the policy. In some cases the insurance policies may contain contradictory provisions or fail to define key terms. In others the circumstances that give rise to the liability may be so unexpected that the typical customer should not be expected to anticipate how the policy applies. For example, the highly unusual circumstances of
Scottsdale
, involving the murder of a young child in the custody of the Department of Children and Family Services, were not likely imagined by Lakeside when it purchased the policy.
2
Scottsdale
,
¶ 37 The alleged facts of this case do not present such an exceptional circumstance where a customer reasonably should not be expected to understand the terms of the policy. The American Family policy covered legal liability only if it resulted from "bodily injury or property damage." The first page of the policy includes a "DEFINITIONS" section that explicitly states that "[b]odily [i]njury does not include * * * emotional or mental distress, mental anguish, mental injury, or any similar injury unless it arises out of actual bodily harm to the person." This clearly differs from the Travelers policy, which states that Travelers would provide coverage "for damages because of 'bodily injury,' 'personal injury,' or 'property damage.' " The Travelers policy defines "personal injury" to include "[l]ibel, slander or defamation of character" and "[i]nvasion of privacy." The difference between the two policies was apparent. These details closely resemble the facts of
Hoover
, where the 80% liability limit was clearly expressed on the face of the policy.
Hoover
,
¶ 38 The Krops have not pleaded facts showing that they could not have read their American Family policy and understood its terms, so the cause of action accrued when they first purchased their policy. The parties agree that American Family issued the policy on March 21, 2012. 3 The Krops do not claim that they *926 *993 never received the policy or had no copy available to them. Because they were obligated to read the policy and understand its terms, this is also the earliest date when they reasonably should have known that Varga had not provided them with an American Family policy that covered all the same liabilities as the Travelers policy. Their cause of action against Varga for negligent failure to procure insurance accrued on March 21, 2012, and the two-year limitations period ended on March 21, 2014. Because the Krops brought their claim on September 3, 2015, that claim was untimely.
¶ 39 CONCLUSION
¶ 40 The Krops' claim was barred by the limitations period for claims against insurance producers in section 13-214.4 of the Code. We reverse the appellate court's decision and affirm the circuit court's order granting Varga's and American Family's motions to dismiss under section 2-619 of the Code.
¶ 41 Appellate court judgment reversed.
¶ 42 Circuit court judgment affirmed.
Chief Justice Karmeier and Justices Thomas, Burke, and Neville concurred in the judgment and opinion.
Justice Theis dissented, with opinion, joined by Justice Kilbride.
¶ 43 JUSTICE THEIS, dissenting:
¶ 44 The threshold question in this case is the proper characterization of the third-party action filed by the Krops against Andrew Varga, an American Family agent, under section 2-2201 of the Code ( 735 ILCS 5/2-2201 (West 2014) ). When this action is properly characterized as a negligence action, it is evident that the cause of action accrued upon American Family's denial of the Krops' claim for coverage. Thus, when the Krops filed their third-party complaint for negligent procurement, the two-year limitations period had not run. Accordingly, I would affirm the appellate court's judgment that reversed the trial court's dismissal of the Krops' cause of action as untimely.
¶ 45 The two-year statute of limitations in section 13-214.4 of the Code encompasses claims by an insured against an insurance producer, including Varga. That section provides that "[a]ll causes of action brought by any person or entity under any statute or any legal or equitable theory against an insurance producer * * * concerning the * * * procurement * * * of, or failure to procure any policy of insurance shall be brought within 2 years of the date the cause of action accrues." 735 ILCS 5/13-214.4 (West 2014).
¶ 46 The accrual date depends upon how the cause of action is characterized. Historically, liability for the failure to procure insurance arose under various theories of tort and contract, and it often depended on the distinctions between insurance brokers and captive insurance agents. In these cases, depending upon the relationship, liability was said to be based on the agreement between the prospective insured and the insurance broker to procure a certain policy, based on a fiduciary relationship with its principal, or based on other negligence principles. See,
e.g.
,
Scarsdale Villas Associates, Ltd. v. Korman Associates Insurance Agency, Inc.
,
¶ 47 In 1996, the General Assembly enacted section 2-2201 of the Code, which addressed the liability of insurance producers in relation to the procurement of insurance. See Pub. Act 89-638, § 5 (eff. Jan. 1, 1997) (adding 735 ILCS 5/2-2201 ). Section 2-2201(a) imposes negligence liability on an insurance producer, including both brokers and captive agents, by imposing a duty to "exercise ordinary care and skill in renewing, procuring, binding, or placing the coverage requested by the insured or proposed insured." 735 ILCS 5/2-2201(a) (West 2014);
Skaperdas v. Country Casualty Insurance Co.
,
¶ 48 Here, the Krops alleged that Varga was negligent in failing to procure the insurance coverage that they requested pursuant to section 2-2201 of the Code. As we explained in
Skaperdas
, the statutory duty of ordinary care arising from subsection (a) arises once coverage is " 'requested by the insured or proposed insured.' "
Skaperdas
,
¶ 49 As a result, where the statute specifically provides for a negligence action, the duty as defined in section 2-2201(a) does not depend upon any contractual relationship, and the Krops do not seek recovery for mere negligent performance of a contractual duty, the proper characterization of their claim is an ordinary negligence action, which is a tort-based claim. See,
e.g.
,
Melrose Park Sundries, Inc. v. Carlini
,
¶ 50 Next, we must consider when a cause of action accrues for a negligence claim. Generally, we have recognized that
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*995
tort actions have been treated differently than contract actions.
Hermitage Corp. v. Contractors Adjustment Co.
,
¶ 51 Pursuant to our discovery rule, the limitations period is tolled and begins to commence when the plaintiff knew, or reasonably should have known, that the injury occurred and that it was wrongfully caused.
Knox College v. Celotex Corp.
,
¶ 52 Thus, as applied in this context, before the tort could become actionable and before the limitations period could begin to run, there must be an injury to the plaintiff as a consequence of the insurance producer's alleged negligence that could serve as a basis for the recovery of damages. The alleged injury arises when the plaintiff sustains a loss for which an insurance claim is not covered but would have been covered if the requested insurance had been properly procured or if the plaintiff had been timely notified of the rejection of the risk. Under the discovery rule, in this case, at the time the Krops received the denial of coverage letter from American Family in August 2014, they knew or should have known of their injury and that Varga might have been negligent.
¶ 53 Although the Krops were not required to know the "full extent" of the injury before the statute of limitations was triggered (
Golla v. General Motors Corp.
,
¶ 54 Accordingly, taking the allegations of the complaint in the light most favorable to the Krops, as required under section 2-619 of the Code (
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*996
Porter v. Decatur Memorial Hospital
,
¶ 55 Instead of applying these well-settled accrual principles in negligence actions, the majority applies accrual theories relating to contracts and "torts arising out of contractual relationships" to conclude that the Krops' cause of action accrued at the time of the breach.
Supra
¶¶17-18, 35. To support this theory, the majority relies primarily on a series of cases involving causes of action against insurance producers, including
Hoover v. Country Mutual Insurance Co.
,
¶ 56 Although those cases indeed use this hybrid term of a "tort arising out of a contractual relationship," like the majority, none of these cases explain the doctrinal underpinnings of such a cause of action or explain the contours of these types of hybrid claims in the context of section 2-2201. The
Hoover
and
State Farm
cases rely on the
Machon
case.
Machon
involved a contractual relationship between an insurer and its agent.
Machon
, in turn, relies primarily on
Lobianco
,
¶ 57 Significantly, the majority never identifies a contract from which this negligence action arises. The majority does not suggest that the contract at issue is the insurance policy itself. Nor has it identified any conduct that would constitute a contract.
¶ 58 Furthermore, neither the majority opinion nor the cases it relies upon explain how applying this hybrid cause of action and contract accrual principles would survive the economic loss doctrine in this context. In
Moorman Manufacturing Co. v. National Tank Co.
,
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*997
Congregation of the Passion, Holy Cross Province v. Touche Ross & Co.
,
¶ 59 With no attempt by the case law to explain why contract accrual principles apply to a negligent procurement claim under section 2-2201, it appears that prior cases chose this analytical framework on purely public policy grounds.
Hermitage
, for example, expressed the "concern that plaintiffs will delay bringing suit after a contract is breached in order to increase damages."
Hermitage
,
¶ 60 As a matter of statutory interpretation, we must construe the language as written without reading into it exceptions, limitations, or conditions the legislature did not express.
Moon v. Rhode
,
¶ 61 The suspect logic in the majority's opinion is laid bare by its reliance on Hermitage . Recognizing that the statute of limitations does not define what constitutes accrual, the majority relies on Hermitage as authority to "fill this gap" in the statute. Supra ¶ 17. The language quoted from Hermitage is accurate but ignores the context.
¶ 62 The
Hermitage
case involved a claim by a mechanic's lienholder who sued the preparer of the lien for negligence, negligent and unauthorized practice of law, consumer fraud, and breach of warranty.
Hermitage
,
¶ 63 Unlike Hermitage , in this case, there is no gap to be filled. Section 2-2201 simply articulates a cause of action for negligence. Under the statute, the Krops presented a cause of action for negligence, and the statute of limitations for that claim was triggered by normal negligence accrual principles.
¶ 64 Furthermore, the majority concludes that the discovery rule will typically not delay the accrual period because an insurance customer's duty to read the policy generally acts to put the customer on notice of the injury. This conclusion is premised on the erroneous notion that the injury accrues when the plaintiff is issued a policy that does not cover all of the possible contingent future liability that would have been covered under the requested policy. As explained, the breach itself is not actionable. No negligent procurement *931 *998 action could arise until there was a loss for which an insurance claim was made and denied because, until that moment, there could be no actual damages.
¶ 65 Although the accrual issue has received diverse treatment in other jurisdictions, to hold that the date the injury accrues is the date of the negligent act allows the cause of action to be barred before any actionable injury resulted. If plaintiffs had brought suit in 2012 when they received the allegedly defective policy, their complaint would not have survived a section 2-615 motion to dismiss because no actual damages had yet occurred. Under the majority's view, the cause of action for negligent procurement by an insurance producer under section 2-2201 is essentially a dead letter if the underlying liability claim is not brought within two years from the date the policy was issued.
¶ 66 Under these circumstances, the statute of limitations essentially becomes a statute of repose, contrary to the legislative intent of section 13-214.4. 735 ILCS 5/13-214.4 (West 2014). Had the legislature sought this outcome, it could have drafted the statute of limitations to expressly state that a cause of action concerning an insurance producer's procurement of insurance shall be brought within two years of the date the policy of insurance was issued. It did not do so.
¶ 67 Whether a corresponding duty to read the policy may be alleged as an affirmative defense to a claim for negligent procurement is a separate question, involving the merits of plaintiffs' cause of action. However, the majority's conclusion eviscerates the duty of the insurance producer to notify a prospective insured of the rejection of the risk.
Skaperdas
,
¶ 68 In sum, this is a tort action and should be analyzed under the proper tort framework. Interpreting the cause of action in this manner effectuates the statute's legislative intent to impose this legal duty as a matter of policy. To construe the cause of action as a tort arising out of a contractual relationship defeats the purpose of section 2-2201 by rendering negligence actions against insurance producers for failure to procure requested insurance an illusory form of recovery for resulting damage that ensues. Accordingly, I respectfully dissent.
¶ 69 JUSTICE KILBRIDE joins in this dissent.
American Family subsequently moved to join and adopt Varga's petition for leave to appeal, his appellate brief, and his reply brief before this court, all of which we allowed.
Although the
Scottsdale
court erred by relying on
Broadnax
, its reasoning based on
Indiana Insurance Co.
and for distinguishing
Hoover
remains persuasive.
Scottsdale
,
The exact date that the Krops received a copy of the American Family policy does not appear in the record. However, the Krops do not dispute March 21, 2012, as the date that American Family issued the policy, and they do not suggest that they received a copy much later. Even if March 21, 2012, is not the exact date that they had the opportunity to read the policy, they had the opportunity soon after. Whatever exact date the cause of action accrued in spring 2012, the suit in September 2015 was certainly more than two years after that date.
Reference
- Full Case Name
- AMERICAN FAMILY MUTUAL INSURANCE COMPANY v. Walter KROP Et Al., Appellees (Andy Varga, Appellant).
- Cited By
- 14 cases
- Status
- Unpublished