Rule 23 order filed	NO. 5-02-0478

August 27, 2003;

Motion to publish granted	IN THE

October 21________, 2003.	

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

GARY FULLER and DOREE FULLER,		)  Appeal from the

							)  Circuit Court of

     Plaintiffs-Appellants,				)  St. Clair County. 

							)

v.							)  No.  98-MR-99

							)

AMERICAN STANDARD INSURANCE	)

COMPANY OF WISCONSIN,			)  Honorable

							)  Stephen R. Rice,

     Defendant-Appellee.				)  Judge, presiding.

________________________________________________________________________

	JUSTICE MAAG delivered the opinion of the court:

	The plaintiffs, Gary and Doree Fuller, were involved in an automobile accident with

an underinsured driver on September 18, 1997, wherein Gary sustained personal injuries.

The injuries were caused by the underinsured driver's negligence.  It is undisputed that the

insurer for the underinsured driver paid to the plaintiffs the limits of the bodily injury

liability coverage afforded under that policy.  The plaintiffs then made a claim against the

defendant, American Standard Insurance Company of Wisconsin, for underinsured-motorist

coverage.  The defendant denied the claim.  The plaintiffs filed a complaint for a declaratory

judgment and for a vexatious and unreasonable refusal to pay, pursuant to the Illinois

Insurance Code (Code) (215 ILCS 5/155 (West 1996)).  Each party filed a cross-motion for

a summary judgment on the issue of liability.  On June 21, 2002, the circuit court entered an

order granting the defendant's motion for a summary judgment and denying the plaintiffs'

motion for a summary judgment.  The plaintiffs appeal.

	The relevant facts are as follows.  When the plaintiffs initially purchased an 

automobile policy from the defendant, they opted for the defendant's monthly premium payment plan, which is known as the "Amplan".  The Amplan specifically states as follows: 

	"MONTHLY PREMIUM PAYMENTS FOR PERSONAL LINES ACCOUNT–Your account begins with an initial payment of two months [sic] premium for each policy plus an Amplan charge to cover costs related to your account

payments.  The third month's payment is due approximately 30 days from the day you

opened your account.  Thereafter, each monthly payment pays your insurance two

months in advance of your current due date."

Hence, pursuant to the Amplan, the plaintiffs were required to pay at least two months of

premiums to initiate the insurance policy.  Thereafter, the plaintiffs were billed on a monthly

basis.  According to the terms of the Amplan, the insurance was to be paid 60 days in

advance.

	The plaintiffs failed to pay the premium that was due on February 20, 1997.  On

February 28, 1997, the defendant mailed a notice of cancellation advising the plaintiffs that

the policy would be cancelled on March 20, 1997, for a lack of payment.  The plaintiffs paid

the premiums before March 20, 1997, which prevented the policy from being cancelled.  On

April 20, 1997, the next premium was due.  The plaintiffs failed to make this payment.  The

defendant sent another cancellation notice listing May 20, 1997, as the cancellation date for

the nonpayment of the premium.  The policy was not cancelled because the plaintiffs paid

the premium before the threatened cancellation date.  The plaintiffs then failed to make the

May 20, 1997, premium payment.  The plaintiffs were sent a notice of cancellation warning

of a June 20, 1997, cancellation date.  This time, the plaintiffs did not make the payment

before the cancellation date, and the policy was cancelled on June 20, 1997.  The policy was

reinstated on July 2, 1997, when the defendant received the plaintiffs' check dated June 28,

1997.  The amount that the plaintiffs paid covered their insurance from July 2, 1997, to

August 2, 1997.  On July 10, 1997, the defendant sent another notice of cancellation because the plaintiffs had failed to make the double premium payment that was required to initiate

the  policy.  This notice stated that the policy would be cancelled on August 2, 1997, if an

additional payment was not received.  Since the plaintiffs made no further payments before

the August 2, 1997, cancellation date, the policy was cancelled a second time.  On August

7, 1997, the defendant sent a notice of cancellation to the lienholder.

	On September 18, 1997, Gary was injured in an automobile accident that was caused

by an underinsured driver.  Gary sustained a broken right leg and incurred medical bills,

disability, and pain and suffering.  As a result of this accident, the plaintiffs sought

compensation under the underinsured-motorist coverage with the defendant.  The defendant

denied the claim, stating that the plaintiffs' coverage had been properly and lawfully

cancelled for the nonpayment of the premium prior to September 18, 1997.

	In her deposition, Doree testified that she did not recall receiving the cancellation

notice in the mail.  She noted in her deposition that if she had received it, she would have

disregarded the notice because she had previously made her payment in June 1997.  Doree

claimed that she contacted her insurance agency prior to September 18, 1997, because she

was concerned that she had not received a recent bill.  Doree stated that a secretary at the

office told her not to worry about the matter until she received a bill.

	The plaintiffs filed a complaint for a declaratory judgment on March 20, 1998. 

Thereafter, the plaintiffs filed an amended complaint adding a cause of action against the

defendant under the Code (215 ILCS 5/155 (West 1998)).  On March 1, 2000, the defendant

filed a motion for a summary judgment.  On October 31, 2000, the plaintiffs filed a motion

for a summary judgment on liability.  The circuit court entered its order on June 21, 2002,

granting the defendant's motion for a summary judgment and denying the plaintiffs' motion

for a summary judgment on liability.  The plaintiffs filed a timely notice of appeal.

	Appellate courts apply a de novo standard when reviewing summary judgment rulings. Where there are no genuine issues of material fact, a summary judgment is a proper method

of disposing of a cause.  A summary judgment is appropriate only when the pleadings,

depositions, admissions, and affidavits on file, if any, show that there is no genuine issue of

material fact and that the moving party is entitled to a judgment as a matter of law.  In

response to a motion for a summary judgment, a plaintiff is not required to establish his or

her case as he or she would at a trial, but he or she must present some factual basis that

would arguably entitle him or her to a judgment.  Roe v. Jewish Children's Bureau of Chicago, 339 Ill. App. 3d 119, 129, 790 N.E.2d 882, 891 (2003).

	The plaintiffs claim that the circuit court's June 21, 2002, order granting the

defendant's motion for a summary judgment and denying the plaintiffs' motion for a summary

judgment was erroneous because the cancellation notice was ambiguous and did not

reasonably inform the plaintiffs that the insurance policy was in danger of being cancelled. 

For these reasons, the plaintiffs claim that the policy was in effect on the date of the

collision.  We disagree.

	According to section 143.14 of the Code (215 ILCS 5/143.14 (West 1996)), "No

notice of cancellation of any policy of insurance *** shall be effective unless mailed by the

company to the named insured and the mortgage or lien holder, at the last mailing address

known by the company."  And section 143.15 of the Code provides, "[W]here cancellation

is for nonpayment of premium, the notice of cancellation must be mailed at least 10 days

before the effective date of the cancellation."  215 ILCS 5/143.15 (West 1996).

	In the instant case, there is no dispute that the defendant sent a notice to the plaintiffs

on July 10, 1997, that stated as follows:

	"0700-8176-01-60-SPPA-IL			90.27

	94 GEO GEM

	0700-8176-02-63-SPPA-IL			91.43

	93 FORD ARO

		AMPLAN MONTHLY CHARGE	 6.76

		AMOUNT DUE 07-02-97		        188.46

		AMOUNT DUE 08-02-97		        188.46

		TOTAL AMOUNT DUE	                   376.92

	OUR RECORDS SHOW WE HAVE NOT RECEIVED YOUR PREMIUM.  EACH POLICY DESCRIBED ABOVE WILL BE CANCELLED ON 08-02-97 AT THE HOUR SPECIFIED IN THE POLICY.  HOWEVER, RECEIPT OF $376.92 BY

AMERICAN FAMILY ON OR BEFORE 08-02-97 WILL RESTORE

CONTINUOUS PROTECTION.  TO REISSUE YOUR INSURANCE AFTER 08-

02-97, PLEASE CONTACT YOUR AGENT."  (Emphasis added.)

	The defendant sent the aforementioned notice of cancellation because the plaintiffs

had failed to make the double premium payment that was required to initiate the  policy that

had been cancelled.  This notice stated that the policy would be cancelled on August 2, 1997,

if an additional payment was not received.  Since the plaintiffs made no further payments

before the August 2, 1997, cancellation date, the policy was cancelled a second time.  On

August 7, 1997, the defendant sent a notice of cancellation to the lienholder.  On September

18, 1997, Gary was injured in an automobile accident.

	The plaintiffs claim that when dealing with the cancellation of a policy for the

nonpayment of a premium, Illinois courts hold insurance companies to a strict standard.  See Textile Maintenance v. Industrial Comm'n, 263 Ill. App. 3d 866, 871, 636 N.E.2d 748, 751 (1994).  The plaintiffs also state that the forfeiture of an insurance contract for the

nonpayment of a premium is not favored in the law, and courts are prompt to seize upon

circumstances that indicate a waiver of a forfeiture.  See Van Hulle v. State Farm Mutual Automobile Insurance Co., 44 Ill. 2d 227, 232, 254 N.E.2d 457, 461 (1969).  The plaintiffs also contend that the notice of cancellation was ambiguous and, therefore, ineffective to

cancel the plaintiffs' policy of insurance, because on the reverse side of the Amplan final

notice it stated as follows: "If you have already sent your payment, please disregard this

notice and accept our thanks."  The plaintiffs contend that since they had mailed their

payment on July 2, 1997, they thought that their insurance had been paid.  We disagree.

	This is a simple case of an insurance policy that was effectively cancelled for the

nonpayment of the premium.  Although the plaintiffs' attorney attempted to pose confusing

questions about the notice of cancellation in an effort to create an ambiguity where none

existed, the circuit court and this court have examined the deposition testimony and find that

although the questions were confusing, the documents themselves were not ambiguous. 

Despite being warned in the cancellation notice that their policy would end on August 2,

1997, the plaintiffs did not make another premium payment to the defendant until after

Gary's automobile accident on September 18, 1997, approximately 11⁄2 months after the

policy had been cancelled.  Even the plaintiffs' appellate counsel admits that the plaintiffs'

next payment was due on August 2, 1997.  Page 11 of the plaintiffs' brief states as follows: 

"Plaintiffs made a $188.76 payment that was received by [d]efendant on July 2, 1997.  By

looking at the cancellation notice, [p]laintiffs would reasonably have believed they had

already made the July 2, 1997[,] payment and that their next payment was to be due on

August 2, 1997."  If this is so, why do the plaintiffs argue that the notice did not reasonably

apprise the plaintiffs that their policy would be cancelled on August 2, 1997, due to the

nonpayment of the premium?  We have reviewed the cancellation notice and find that no

such ambiguity existed.  The requisite "ambiguity" is "whether the relevant portion is subject

to more than one reasonable interpretation, not whether creative possibilities can be

suggested."  Hall v. General Casualty Co. of Illinois, 328 Ill. App. 3d 655, 658, 766 N.E.2d 680, 683 (2002).  The July 10, 1997, cancellation notice clearly stated that the policy would terminate on August 2, 1997, if $376.92 was not received before that date.  The record shows

that the plaintiffs failed to pay the required amount.

	Finally, the plaintiffs claim that the circuit court's order of June 21, 2002, was

erroneous because the insurance policy and the Amplan notice were ambiguous as they

related to the payment of premiums.  More specifically, the plaintiffs claim that the insurance

policy was ambiguous because it was unclear about when the payments were due and how

the premiums were to be paid.  We disagree.

	The plaintiffs successfully paid their premiums from January 1997 through May 1997

even though they were sent several notices informing them that their policy would be

cancelled if they failed to pay before a specified date.  The final notice on July 10, 1997, 

informed the plaintiffs that their policy would be cancelled if they failed to make the required

payment before August 2, 1997.  The plaintiffs failed to do so.  We have reviewed the

notices that were sent.  The plaintiffs had no problem understanding the notices well enough

to keep their policy active.  The final notice was also very clear.  For the plaintiffs to suggest

otherwise is disingenuous.

	Finally, the plaintiffs suggest that the notice of cancellation was untimely because it

was sent July 2, 1997, prior to the cancellation date of August 2, 1997.

	The Hernandez v. State Farm Insurance Co., 170 Ill. App. 3d 1090, 524 N.E.2d 1027 (1988), decision negates this argument.  The Hernandez court stated, "Nothing in the language of section 143.15 requires an insurer to delay the mailing of a cancellation notice

until all premiums have been fully earned or that an insurer provide free coverage from the

date of mailing the notice to the effective date of the cancellation."  Hernandez, 170 Ill. App. 3d at 1094, 524 N.E.2d at 1030.  Hence, this argument is also without merit.

	In light of the foregoing considerations, we affirm the circuit court's determination

that there was no genuine issue of material fact and that the defendant was entitled to a judgment as a matter of law.

	Affirmed.

	GOLDENHERSH and KUEHN, JJ., concur.

                                     	NO. 5-02-0478

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

GARY FULLER and DOREE FULLER,		)  Appeal from the

							)  Circuit Court of

     Plaintiffs-Appellants,				)  St. Clair County. 

							)

v.							)  No.  98-MR-99

							)

AMERICAN STANDARD INSURANCE	)

COMPANY OF WISCONSIN,			)  Honorable

							)  Stephen R. Rice,

     Defendant-Appellee.				)  Judge, presiding.

___________________________________________________________________________________

Rule 23 Order Filed:		August 27, 2003

Motion to Publish Granted:	Octoeber 21 ________, 2003

Opinion Filed:			________October 21, 2003

___________________________________________________________________________________

Justices:	Honorable Gordon E. Maag, J.

	Honorable Richard P. Goldenhersh, J., and 

	Honorable Clyde L. Kuehn, J., 

	Concur

___________________________________________________________________________________

Attorneys	Mark C. Scoggins, Clay B. St. Clair, Crowder & Scoggins, Ltd., 121 West Legion

for	Avenue, P.O. Box 167, Columbia, IL 62236

Appellants	

___________________________________________________________________________________

Attorney	Beth C. Boggs, Boggs, Boggs & Bates, L.L.C., 7912 Bonhomme Ave., Suite 400,

for	St. Louis, MO 63105

Appellee	

___________________________________________________________________________________