dissenting:
Under the rule announced today an insurer can process a claim without ever requesting a proof of loss from the insured, but still complain about the failure to submit a proof of loss once suit is filed. The majority holds the one-year period of limitations is not tolled during time charged to the insurer, the time while the insurer investigates the claim and considers what course of action it should take. I respectfully dissent. I would reverse the decision of the trial court dismissing this complaint and remand for further proceedings.
This case involves a policy period of limitations, a limitation prepared by the insurer. Such policy provisions, which fix periods of limitation different from those prescribed in the general statutes of limitations, are controversial and have been regulated by statute in many states. 44 Am. Jur. 2d Insurance §§ 1879, 1881 (1982). Courts in other jurisdictions have held that a policy period of limitations does not begin to run until the loss is payable and an action might be brought against the insurer, that is, until the insurer has had a reasonable time to investigate the claim and make payment or deny the claim. 44 Am. Jur. 2d Insurance § 1884 (1982).
Section 143.1 is designed to protect insureds against unreasonable periods of limitation imposed by insurers. 215 ILCS 5/143.1 (West 1996). The policy limitation in this case is absolute in its. terms, requiring that suit be brought “within twelve months next after inception of the loss,” without any mention of tolling. Section 143.1 voids that absolute limitation and requires that the limitation be “tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.” (Emphasis added.) 215 ILCS 5/143.1 (West 1996). The policy’s requirement for proof of loss here is:
“[W]ithin sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following
Insurers often investigate and settle insurance claims without requiring a proof of loss. It is clear that an insurer can waive the requirement that a proof of loss be filed. Tarzian v. West Bend Mutual Fire Insurance Co., 74 Ill. App. 2d 314, 326-27, 221 N.E.2d 293, 299 (1966) (policy requirement that proof of loss be furnished within 60 days). The waiver need not be accomplished by the use of express words. It may be done by conduct inconsistent with an intention to enforce strict compliance with the conditions of the policy, which conduct leads the insured to believe that the company did not intend to require compliance. Tarzian, 74 Ill. App. 2d at 326-27, 221 N.E.2d at 299; 44 Am. Jur. 2d Insurance § 1379 (1982). If the policy requires proofs of loss to be made on blank forms to be furnished by the insurer, the failure or refusal to furnish such blank forms constitutes a waiver of the policy requirements. 44 Am. Jur. 2d Insurance § 1382 (1982). The common practice in the insurance industry is for the insurer to furnish a proof-of-loss form for the insured’s signature after the insurer has investigated the claim and is ready for settlement. See Koclanakis v. Merrimack Mutual Fire Insurance Co., 709 F. Supp. 801, 806 (N.D. Ill. 1988), affd, 899 F.2d 673 (7th Cir. 1990) (adjuster included a proof-of-loss form for insured to complete when he tendered the settlement offer). Many insureds do not know what a proof of loss is until their insurer hands it to them. To allow the insurer to escape the tolling provisions of section 143.1 by not requiring a proof of loss, or by delaying its request for one, would be intolerable.
Many policies explicitly state that no proof of loss need be filed until one is requested by the insurer. See, e.g., Harvey Fruit Market, Inc. v. Hartford Insurance Co., 294 Ill. App. 3d 668, 669, 691 N.E.2d 71, 72 (1998); Trinity Bible Baptist Church v. Federal Kemper Insurance Co., 219 Ill. App. 3d 156, 158, 578 N.E.2d 1375, 1376 (1991). Those policies do not set out some exceptional rule; they simply recite the common practice in the handling of insurance claims. There is no duty to file a proof of loss until the insurer requests it and provides a form if a particular form is required.
The underlying policy of section 143.1 is that time taken by the insurer to investigate and decide the claim should not be allowed to consume any part of the one-year period of limitations. If there is no tolling unless the insurer requests a proof of loss, the insurer could wait until after the year had expired before denying the claim. That approach was rejected in Trinity, 219 Ill. App. 3d at 160, 578 N.E.2d at 1377, where the court reversed a decision of the trial court that no proof of loss was requested, therefore no tolling occurred. Trinity quoted legislative debates indicating that the purpose of section 143.1 was to prevent insurance companies from sitting on the claim while the period of limitations expired. Trinity, 219 Ill. App. 3d at 160-61, 578 N.E.2d at 1377-78. The Trinity court remanded for the trial court to determine whether the information furnished by the insured was adequate to comply with the proof-of-loss provision. I agree with Trinity, but I would state the rule more positively: when an insurer does not require the filing of a proof of loss, after a claim has been made, it accepts the information it has been given by the insured as sufficient for it to decide the claim and to begin tolling under section 143.1.
No case before this one has squarely held that the time before a proof of loss is requested should be charged to the insured. See Davis v. Allstate Insurance Co., 147 Ill. App. 3d 581, 498 N.E.2d 246 (1986) (suit filed more than a year after proof of loss requested, even with credit for period between proof of loss and denial of claim); Koclanakis, 709 F. Supp. 801 (suit filed more than a year after request for proof of loss); Vole v. Atlanta International Insurance Co., 172 Ill. App. 3d 480, 526 N.E.2d 653 (1988) (unclear whether proof of loss requested).
It is clear that the insurer in this case waived the filing of proof of loss. The insurer denied the claim. An insurer’s denial of liability on grounds other than the insured’s failure to file proof of loss “ ‘waives or renders unnecessary compliance with the policy requirement respecting the filing of proof of loss.’ ” Tarzian, 1A Ill. App. 2d at 326-27, 221 N.E.2d at 299, quoting Stolz v. National Indemnity Co., 345 Ill. App. 495, 502, 104 N.E.2d 320, 323-24 (1952). If the insurer has enough information to knowledgeably deny a claim it does not need a proof of loss.
Under the policy’s clause requiring the filing of a proof of loss here within 60 days, the insured’s right to sue expired August 8, 1994, while the claim was still being considered by the insurer. Of course, that result cannot be tolerated. The insurer here did not require that a proof of loss be filed within 60 days, or within any time. Some cases apparently take the position that an insurer can waive the filing of a proof of loss for purposes of the 60-day clause, but not waive the proof of loss for purposes of the one-year limitations period. See Vole, 172 Ill. App. 3d at 483, 526 N.E.2d at 655; see also Koclanakis, 709 F. Supp. at 807-08. I disagree. A waiver is a waiver. It is impossible for an insurance company to fail to request a proof of loss and at the same time request a proof of loss. If the insurer has not requested a proof of loss, the insured has no duty to file one. If the insurer waives the filing of a proof of loss, then the insured must be considered to have filed a proof of loss “in whatever form is required by the policy.” 215 ILCS 5/143.1 (West 1996).
Sometimes insurers do require proofs of loss. For example, in cases where it appears that fraud may be involved, it is important to the insurer that the insured sign a sworn proof of loss under oath. The cases cited by the majority are all fraud cases, unlike this case. See, e.g., Harvey Fruit Market, Inc., 294 Ill. App. 3d 668, 691 N.E.2d 71 (arson, misrepresentation, and fraud); Vole, 172 Ill. App. 3d 480, 526 N.E.2d 653 (stolen horse case; insured did not cooperate in investigation); Koclanakis, 709 F. Supp. 801 (burglary loss; insured failed to appear for sworn examination). Another fraud case is Davis, 147 Ill. App. 3d at 582, 498 N.E.2d at 247 (arson, fraud, and false swearing), where the loss occurred March 26, 1983, and the insurer on April 11, 1983, requested a sworn proof of loss from the insured (“directed her to comply with the terms and conditions of the policy if she wished to proceed with her claim”).
The purpose of a proof of loss is to allow the insurer to form an intelligent estimate of its rights and liabilities, to afford it an opportunity for investigation and to prevent fraud and imposition upon it. 44 Am. Jur. 2d Insurance § 1323 (1982). The purpose of a proof of loss is not to give the insurer an additional technical argument to be used after suit is filed. “ ‘A breach which will defeat recovery cannot be based upon technical or unimportant omissions or defects in performance.’ ” Koclanakis, 709 F. Supp. at 806, quoting Piro v. Pekin Insurance Co., 162 Ill. App. 3d 225, 229, 514 N.E.2d 1231, 1234 (1987). Koclanakis did hold there was no tolling under section 143.1 in the case before it, but in that case the insured not only did not file a proof of loss after being requested to do so, he did not otherwise furnish important additional evidence regarding disputed items as requested by the insurer. Koclanakis, 709 F. Supp. at 807-08.
The insured here filed a sworn affidavit in the trial court setting out the information that he furnished the insurer. The majority concedes that information “appears to track what the insurance policy requires be included in an insured’s signed and sworn proof of loss.” 296 Ill. App. 3d at 971. However, the majority rejects that information because it was not contained in a signed and sworn statement. 296 Ill. App. 3d at 971. The legitimate purposes served by a proof of loss have been satisfied in this case. There is no question but that the insured furnished the insurer with all the information it wanted. The majority’s decision here serves only to relieve the insurer of an obligation for which it contracted to be responsible and for which it received a premium.
The majority cites no authority for its statement that the period during which the insurer reconsidered the claim should not count as a part of the tolling period, that “while defendant did agree to look into the claim again, the evidence indicates it did so as a courtesy to plaintiff and never withdrew its original denial.” 296 Ill. App. 3d at 972. The majority’s analysis is contrary to section 143.1, which provides that the period of time during which the insurer is investigating the claim should be charged to the insurer and deducted from the period of limitations. There is a waiver of the period of limitations where the insurer, after it has denied liability, does something to indicate that it would reconsider its decision. Florsheim v. Travelers Indemnity Co., 75 Ill. App. 3d 298, 304, 393 N.E.2d 1223, 1229 (1979); Hermanson v. Country Mutual Insurance Co., 267 Ill. App. 3d 1031, 1035, 642 N.E.2d 857, 860 (1994). As the majority concedes (296 Ill. App. 3d at 970), Purtell informed the agent that the insurer might reconsider the denial of plaintiffs claim, and the insurer in fact assigned a new adjuster who did conduct an investigation. I reject the majority’s suggestion (296 111. App. 3d at 972) that the solution to this problem is that an insured should never believe an insurer when the insurer says that it will reconsider a claim.
The insurer accordingly is responsible for the entire period of time from the date of loss until the claim was finally denied on November 14, 1994, except for (1) the two or three days between the date of loss and the date the claim was reported and information furnished the insurer, and (2) the two or three days after the claim was initially denied before the agent contacted Purtell. Because the claim was finally denied on November 14, 1994, and suit was filed November 6, 1995, the suit was timely filed unless the time charged to the insured totaled more than eight days. The burden of proof, with either a section 2 — 615 motion or a section 2 — 619 motion, is on the movant, the insurer, and the movant has not sustained that burden here.