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Country Mutual Insurance Co. v. Livorsi Marine11/30/2004
to the insurer as a factor to be considered when assessing the reasonableness of the notice. These cases reject the notion that an insurer must prove unreasonably late notice of a lawsuit caused it prejudice before it can deny coverage. These include: Northbrook, 313 Ill. App. 3d at 469 (Unjustified excuse for 17-month delay, coupled with prejudice to insurer, is unreasonably late notice); Continental Casualty Co. v. Cuda, 306 Ill. App. 3d 340, 350, 715 N.E.2d 663 (1999) (Prejudice to insurer is irrelevant where insured failed to give notice of claim during the policy period); Kerr, 283 Ill. App. 3d at 585 (Where insured failed to comply with notice provision the insurer will not be liable, even if there is no showing of prejudice); Twin City Fire Insurance Co. v. Old World Trading Co., 266 Ill. App. 3d 1, 8-9, 639 N.E.2d 584 (1993) (Insurer does not have to prove unreasonably late notice caused it prejudice to be relieved of its duty to pay, but prejudice is a factor to consider where the insured did not present a good excuse for the late notice); Illinois Insurance Guaranty Fund v. Lockhart, 152 Ill. App. 3d 603, 608-09, 504 N.E.2d 857 (1987) (Two year delay in giving notice was unreasonable; insurer did not have to prove it was prejudiced by the delay); Sisters of Divine Providence v. Interstate Fire & Casualty Co., 117 Ill. App. 3d 158, 161-62, 453 N.E.2d 36 (1983) (Notice given three years after suit filed and one month before trial was unreasonable; insurer does not have to establish prejudice in order to be relieved of liability under the policy).
We reach these conclusions derived from the melange of Illinois decisions:
(1) An insurer's failure to prove prejudice is a factor to consider when determining whether the insured's notice was unreasonably and inexcusably late, whether the notice has to do with an occurrence or a lawsuit;
(2) Once it is determined the insured's notice was unreasonably and inexcusably late, the failure of the insurer to prove it suffered prejudice is irrelevant, whether the notice has to do with an occurrence or a lawsuit.
In this case, we are presented with unusual circumstances where the insureds do not dispute their notices were unreasonably late and the insurer does not claim it has proved prejudice. The insureds have not pointed to any authoritative public policy statement that would justify judicial addition to the terms of the contract.
We find the insurer did not have to prove prejudice in order to deny coverage. By so finding, we enforce the contract freely entered into by the parties. The notice provision is clear and unambiguous and should be applied as written, United States Fire Insurance Co. v. Schnackenberg, 88 Ill. 2d 1, 4, 429 N.E.2d 1203 (1981), without distorting the meaning of words or searching for ambiguities where none exists. Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 495, 475 N.E.2d 872 (1985).
We affirm the trial court.
CONCLUSION
For the reasons stated, we affirm the trial court's finding that Country Mutual is entitled to a declaratory judgment that it is not required to extend coverage to Livorsi and Gaffrig.
Affirmed.
BURKE, P.J., and HALL, concur.
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