dissenting:
The majority finds that defendant is estopped from denying coverage under the insurance policy. I disagree. Defendant kept plaintiffs informed of the policy provisions and the time limitations as to filing suit.
On November 23, 1999, defendant, by letter, detailed the various steps the insurance policy required, the documentation to be provided within 60 days after the loss. More than 60 days later, sometime shortly after May 8, 2000, plaintiff sent some documents to defendant,
Defendant’s May 8, 2000, certified-mail, return-receipt-requested letter, made it clear “[ajlthough the investigation is incomplete, we deem it appropriate to make a decision without further delay. A decision has now been made to deny payment of your claim.” Defendant had requested various documents from plaintiffs, which defendant stated had not been provided. The letter also informed plaintiffs as follows:
“If you intend to proceed with litigation, strict compliance with policy provisions will be required. The policy requires that suit be commenced within one year after the loss. However, by statute in Illinois the period of limitations is tolled from the date on which the 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. We have never received a proof of loss, and therefore, we believe there is no tolling of the period of limitations. If correct, that means you must file suit on or before November 11, 2000 if you are so inclined. We recommend that you consult with your own legal advisor well in advance of that time. He may wish to independently compute the tolling period and the expiration of the limitation period. The statute is found at 215 ILCS 5/143.1.
Rule 9.19 of the Rules and Regulations of the Illinois Department of Insurance requires that we advise you that if you wish to take this matter up with the Illinois Department of Insurance, it maintains a Consumer Division in Chicago at 100 West Randolph Street, Suite 15-100, Chicago, Illinois 60601; and in Springfield at 320 West Washington Street, Springfield, Illinois 62767.”
On May 13, 2000, defendant received a letter from plaintiffs. In response thereto, defendant sent a letter dated May 16, 2000, to plaintiffs acknowledging receipt of plaintiffs’ letter and telling plaintiffs they had not complied with the policy condition to provide a personal property inventory and proof of loss within 30 days, as required by the policy. The May 16 letter made it clear to plaintiffs that the claim remained in a state of denial as indicated in the May 8 letter, and again telling plaintiffs they could take the matter up with the Illinois Department of Insurance.
The record shows defendant, on November 16, 2000, again wrote a letter to plaintiffs. The first sentence of the letter again told plaintiffs the claim had been denied and that the “denial letter of May 8, 2000 quoted certain policy conditions and duties.” The November 16 letter made it clear plaintiffs had not complied with the policy provisions and spelled out what plaintiffs had failed to do.
The majority refers to plaintiffs’ argument that “the one-year limitations period has been tolled” and “that the one-year period has been extended by the number of days between the date that proof of loss was filed and the date the claim was denied in whole or in part.” 343 Ill. App. 3d at 284, 285. This argument does not excuse the failure to file suit until October 24, 2001, almost two years after the fire of November 11, 1999, and almost one year after the one-year period to file suit. Defendant’s actions during negotiations did not lull the insured into a false sense of security. Defendant made it clear to plaintiffs that the claim was denied on several occasions and stressed to plaintiffs the need to file suit as required by the policy. Plaintiffs point to nothing that occurred to excuse the late filing.
A review of the documents attached to plaintiffs’ brief makes it clear defendant was even-handed and clearly informed plaintiffs of the limitations period and what plaintiffs needed to do. Plaintiffs refused to cooperate. Hermanson and Foamcraft support the trial court’s decision.
In Foamcraft, the court stated:
“There are no facts in the record to support an assertion that defendant represented that it would settle the claim, that defendant offered advance payment, or encouraged plaintiff not to sue. In fact, after the second denial of the claim, plaintiff had eveiy reason to believe that defendant would not settle. At that time, plaintiff had four months remaining within which it could have filed a timely suit, but did not do so.” Foamcraft, 238 Ill. App. 3d at 795, 606 N.E.2d at 540.
In Hermanson, the court found:
“[Pjlaintiff was in no way lulled into a false sense of security which caused him to delay filing suit. Country Mutual at no time wavered from its position denying plaintiffs claim.” Hermanson, 267 Ill. App. 3d at 1035, 642 N.E.2d at 860.
I agree with defendant’s argument in its petition for rehearing that the decision of the majority is inconsistent with prior decisions, specifically Vala v. Pacific Insurance Co., 296 Ill. App. 3d 968, 695 N.E.2d 581 (1998), wherein this court found the insured’s complaint was time-barred and the motion to dismiss was properly granted.
By its decision, the majority has effectively eliminated the provisions of the policy as to proof of loss, the one-year limitation period of filing suit, and the purpose and meaning of section 143.1 of the Code. The majority cites no authority for its statement “Plaintiffs acted reasonably in filing suit within two years of the fire” (343 Ill. App. 3d at 285), and has effectively overruled Valas, wherein we affirmed the trial court’s dismissal based upon a factual background not nearly as persuasive as in this case.
The trial court should be affirmed.