dissenting:
I feel that I must dissent, because we are going too far in allowing an insured to breach his or her contractual duties.
Piro v. Pekin Insurance Co. (1987), 162 Ill. App. 3d 225, 514 N.E.2d 1231, can be distinguished on its facts. In Piro, the insured gave a statement to the investigator of the insurer that, when transcribed, spanned 85 pages. The insured also submitted a proof-of-loss form, signed a release-of-information form authorizing his bank to release copies of his banking records to the insurer, and permitted an accountant employed by the insurer to .inspect the financial records of the insured. It was only after all of this that the insured refused to answer some questions at an examination under oath about his rental property and other businesses that he owned, a sale and repurchase of the business from a former employee, and further failed to produce his personal income tax returns. Piro also submitted to polygraph examinations after filing his suit, and when the insurer filed a motion for a summary judgment, Piro filed the documents requested by the insurer.
In the case at bar, plaintiff still has not provided any of the information requested by defendant, he has lied under oath about the whereabouts of a member of his household, and he did not respond to a request to admit facts. Further, the defendant’s counsel during the oral examination of plaintiff offered to allow the plaintiff to consult with his attorney and, most importantly, sent plaintiff a letter after plaintiff walked out of the examination, offering to allow the plaintiff to complete his examination on a mutually convenient date, if plaintiff called him within the next 30 days. The plaintiff snubbed the defendant’s offer and ultimately filed suit. Clearly, plaintiff failed to cooperate and continued to not cooperate, until his counsel on the motion for summary judgment offered to comply. As I understand it, plaintiff to this day, contrary to Piro, has not filed the requested documents.
We should not interfere with the parties’ right to contract. While I agree that insurance policies can be confusing to almost everyone in the world, this was not a case of the plaintiff not understanding the terms of the policy. He simply refused to comply with his agreement. The majority has now written a new clause into the insurance policy that basically says that the insured can refuse to submit to an oral examination, refuse to produce members of his household, and refuse to submit requested documents until ordered by the court. This ruling abrogates the duties of the insured under policies for no discernible reason. There are not even public policy reasons suggested for doing so.
It does not take much imagination to see that the result of this ruling will be that, if there is questionable liability, the insured’s lawyer will send his client, if counsel sends him at all, to the oral examination with the instructions to answer nothing or as little as possible. All discovery will come to a halt until the insured files suit. Since there are no apparent public policy reasons for not allowing the insurance company to conduct an investigation of suspicious claims, I question the wisdom of encouraging insureds to hinder or block the insurance company’s investigation.
This court should not decide what provisions should or should not be contained in an insurance policy, unless there are clear public policy reasons for providing for or prohibiting such. The Department of Insurance is the agency responsible for determining if the provisions of insurance policies are improper, so we should wait until the Department rules and the matter is properly brought before this court before we relieve a party to the insurance contract of his or her responsibilities.
Accordingly, I would affirm the trial court.