concurring in part, dissenting in part:
I dissent from the majority’s conclusion that plaintiff did not have a duty to defend and indemnify Yorkville National Bank. Thus, I also disagree with the majority’s holding that defendant’s request for sanctions is moot. Nevertheless, I concur with the majority’s finding that the trial court did not abuse its discretion by denying defendant sanctions.
I. DUTY TO DEFEND AND INDEMNIFY
I would affirm the trial court’s ruling that plaintiff had actual notice of the Kuzma lawsuit and, thus, had a duty to defend and indemnify Yorkville National Bank. In reaching the opposite conclusion, the majority has (a) disregarded the arguments of the parties and the applicable rule of law, (b) misapplied the law that it claims to rely upon, and (c) ignored Illinois precedent. Applying the appropriate law to the facts of this case, I find that plaintiff breached its duty to defend and indemnify Yorkville National Bank.
A. Actual Notice Under Cincinnati
The majority points out that plaintiff never disputed the application of actual notice to this case. Nevertheless, the majority, on its own, decided that actual notice was irrelevant. Such a ruling is contrary to Illinois law. See Cincinnati Cos. v. West American Insurance Co., 183 Ill. 2d 317, 328, 701 N.E.2d 499, 504 (1998). In Cincinnati, the supreme court clearly stated that actual notice of a claim triggers an insured’s duty to defend. Cincinnati, 183 Ill. 2d at 328, 701 N.E.2d at 504. The court adopted this rule for a number of reasons: (1) the insurer is in a better position than the insured to know the scope of the insurance contract and insurance law; (2) the insurer, having received consideration for including the insured on its policy, should not be allowed to avoid its responsibilities as a result of the insured’s ignorance; and (3) the state has an interest in having insured persons adequately represented in litigation. Cincinnati, 183 Ill. 2d at 328-29, 701 N.E.2d at 504-05.
The majority attempts to limit application of the supreme court’s rule in Cincinnati only to cases involving written tender requirements contained in the policy. However, the court’s decision in Cincinnati does not support such a limitation. The reasons set forth by the supreme court for adopting the actual notice rule apply not only to cases where a written tender requirement is at issue, but also to cases in which a policy has a written notice requirement. In both situations, the insurer “requires an insured to jump through meaningless hoops towards an absurd end: telling the insurer something it already knows.” Federated Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 282 Ill. App. 3d 716, 725, 668 N.E.2d at 627, 632-33 (1996).
No other Illinois court has ruled, as the majority does here, that the Cincinnati court’s decision should be limited to cases involving a written tender requirement, rather than a written notice requirement. In fact, courts have applied the actual notice rule to cases involving written notice requirements. See Illinois Founders Insurance Co. v. Barnett, 304 Ill. App. 3d 602, 609, 710 N.E.2d 28, 33 (1999); Employers Reinsurance Corp. v. E. Miller Insurance Agency, Inc., 332 Ill. App. 3d 326, 339, 773 N.E.2d 707, 717 (2002). Thus, the majority has carved out an exception to the actual notice rule that is not recognized or supported by Illinois law.
B. Majority’s Reliance on Country Mutual
1. Inapplicability of Country Mutual
Despite the clear application of the actual notice rule to this case, the majority contends that we should ignore Cincinnati and instead rely on Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 856 N.E.2d 338 (2006). According to the majority, this case “stands in posture with Country Mutual.” 388 Ill. App. 3d at 778. I disagree.
In Country Mutual, the parties stipulated that the insurer did not receive actual notice of the lawsuit until the insureds provided written notice more than 20 months after the suit was filed. Country Mutual, 222 Ill. 2d at 307, 856 N.E.2d at 340. Because there was no contention that the insurer received actual notice of the lawsuit before the insureds provided their written notice, Country Mutual has no relevance here.
The court in Country Mutual did not discuss actual notice because it was not an issue in that case. On the other hand, Illinois cases have held that an insured may rely on actual notice in determining the reasonableness of the notice given. See University of Illinois v. Continental Casualty Co., 234 Ill. App. 3d 340, 365, 599 N.E.2d 1338, 1355 (1992); Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co., 70 Ill. App. 3d 296, 301, 388 N.E.2d 253, 257 (1979). Thus, by ignoring the actual notice plaintiff received, and focusing exclusively on the written notice that defendant provided, the majority has come to a conclusion unsupported by Illinois law. See University of Illinois, 234 Ill. App. 3d at 365, 599 N.E.2d at 1355; Illinois Valley Minerals Corp., 70 Ill. App. 3d at 301, 388 N.E.2d at 257.
2. Majority’s Misapplication of Country Mutual
Even if Country Mutual somehow applied to this case, the majority has misapplied it. In Country Mutual, the court held that a policy condition, like the one in this case, requiring notice “ ‘[a]s soon as practicable’ ” means “ ‘within a reasonable time.’ ” Country Mutual, 222 Ill. 2d at 311, 856 N.E.2d at 343, quoting Barrington Consolidated High School v. American Insurance Co., 58 Ill. 2d 278 (1974). Whether notice has been given within a reasonable time depends on the facts and circumstances of each case. Country Mutual, 222 Ill. 2d at 311-12, 856 N.E.2d at 343. To determine whether notice is reasonable, courts must analyze several factors, including (1) the specific language of the policy’s notice provision, (2) the insured’s sophistication in commerce and insurance matters, (3) the insured’s awareness of an event which may trigger insurance coverage, (4) the insured’s diligence in ascertaining whether policy coverage is available, and (5) the presence or absence of prejudice to the insured. Country Mutual, 222 Ill. 2d at 312-13, 856 N.E.2d at 343-44.
The majority concludes that since plaintiff did not receive written notice of the lawsuit until 27 months after suit was filed, such notice was per se unreasonable. Such a conclusion is not supported by Country Mutual, where the supreme court specifically refused to express an opinion regarding whether a 20-month delay was unreasonable. See Country Mutual, 222 Ill. 2d at 321, 856 N.E.2d at 348. The length of time in giving notice is just one factor to consider in determining whether notice is reasonable. See American Home Assurance Co. v. City of Granite City, 59 Ill. App. 3d 656, 659, 375 N.E.2d 969, 972 (1978). There is no rule that a lengthy delay in providing notice absolutely bars recovery under a policy requiring notice. See American Country Insurance Co. v. Bruhn, 289 Ill. App. 3d 241, 247-48, 682 N.E.2d 366, 371 (1997). In fact, courts have found that delays of two years and longer are not per se unreasonable. See, e.g., Allstate Insurance Co. v. Carioto, 194 Ill. App. 3d 767, 551 N.E.2d 382 (1990) (2½-year delay); Grasso v. Mid-Century Insurance Co., 181 Ill. App. 3d 286, 536 N.E.2d 977 (1989) (two-year delay); Brotherhood Mutual Insurance Co. v. Roseth, 177 Ill. App. 3d 443, 532 N.E.2d 354 (1988) (two-year delay).
The majority fails to analyze the numerous factors outlined in Country Mutual to determine the reasonableness of the notice in this case. Instead, it considers only the length of time it took defendant to provide written notice. Again, the majority’s decision is not supported by Illinois law, including the case it relies upon to reach its conclusion.
C. Illinois Precedent
Finally, I disagree with the majority’s suggestion that applying the actual notice rule to this case would be a departure from well-established law. For decades, Illinois courts have held that notice that does not strictly comply with an insurance policy’s notice provision may still constitute notice adequate to trigger an insurer’s duties. See Simmon v. Iowa Mutual Casualty Co., 3 Ill. 2d 318, 121 N.E.2d 509 (1954) (notice given by someone other than insured was effective even though policy required notice to be given by insured); Barnett, 304 Ill. App. 3d at 612, 710 N.E.2d at 35 (insured’s failure to forward a copy of suit and summons to insurer as required by insured’s policy did not absolve insurer of duties to defend and indemnify insured).
In Simmon, the insurance policy at issue required the insured to give written notice of an accident to the insurer or any of its authorized agents as soon as practicable. Simmon, 3 Ill. 2d at 320-21, 121 N.E.2d at 511. The policy also provided that no action would lie against the insurer unless the insured complied with all of the policy’s terms. Simmon, 3 Ill. 2d at 321, 121 N.E.2d at 511. The insured was involved in an automobile accident. Simmon, 3 Ill. 2d at 319, 121 N.E.2d at 510. The insured never gave notice to his insurance company of the accident, but the insurance company received a letter from the injured party’s attorney three months after the accident. Simmon, 3 Ill. 2d at 319-20, 121 N.E.2d at 510. The appellate court held that the insurer had no duty to defend the insured because he failed to give reasonable notice to the insurer. Simmon, 3 Ill. 2d at 321, 121 N.E.2d at 321. The supreme court reversed, holding that as long as reasonable notice is given to the insurer, it does not matter who gives the notice. Simmon, 3 Ill. 2d at 323, 121 N.E.2d at 512.
Since the supreme court’s ruling in Simmon, courts have held that notice is effective even if it is not provided by the insured. See Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co., 70 Ill. App. 3d 296, 388 N.E.2d 253 (1979); McLaughlin v. Attorneys’ Title Guaranty Fund, Inc., 61 Ill. App. 3d 911, 378 N.E.2d 355 (1978); Rivota v. Kaplan, 49 Ill. App. 3d 910, 364 N.E.2d 337 (1977). Simmon and its progeny demonstrate that an insured’s failure to strictly comply with a notice provision will not defeat coverage when the insurance company receives actual notice of a claim.
D. Trial Court Ruling Should Be Affirmed
Here, the trial court found that plaintiff received actual notice of the Kuzma suit, thereby triggering plaintiff’s duty to defend and indemnify. I agree.
“Actual notice” is “ ‘ “notice sufficient to permit the insurer to locate and defend the lawsuit.” ’ [Citation.]” Cincinnati, 183 Ill. 2d at 329, 701 N.E.2d at 505. In order to have actual notice to locate and defend, the insurer must know both that a cause of action has been filed and that the complaint falls within or potentially within the scope of coverage of one of its policies. Cincinnati, 183 Ill. 2d at 329-30, 701 N.E.2d at 505.
In this case, the trial court made fact findings that Dickson, an agent of plaintiff, received oral notice of the Kuzma lawsuit from Liggett in late 2001 or early 2002, when he told Dickson about Kuzma’s defamation lawsuit and asked Dickson if its insurance policy would provide coverage for the suit. This notice was sufficient to permit plaintiff to locate and defend the Kuzma lawsuit. Because plaintiff failed to do so, it breached its duties under its policy and should be liable to Yorkville National Bank. Thus, I would affirm the trial court’s decision on this issue.
II. SANCTIONS
The majority held that the issue of sanctions was moot because plaintiff owed no benefits under the policy. Because I would find that plaintiff owed Yorkville National Bank a duty to defend and indemnify, I disagree that the issue of sanctions is moot. Nevertheless, I concur with the majority’s decision to affirm the trial court’s denial of sanctions because I believe that there was a bona fide dispute over coverage in this case.