Marketview Motors, Inc. v. Colonial Insurance Co.

NOTICE: Under Supreme Court Rule 367 a party has 21 days after

the filing of the opinion to request a rehearing. Also, opinions

are subject to modification, correction or withdrawal at anytime

prior to issuance of the mandate by the Clerk of the Court.

Therefore, because the following slip opinion is being made

available prior to the Court's final action in this matter, it

cannot be considered the final decision of the Court. The

official copy of the following opinion will be published by the

Supreme Court's Reporter of Decisions in the Official Reports

advance sheets following final action by the Court.

             Docket No. 80665--Agenda 29--September 1996.

   MARKETVIEW MOTORS, INC., Appellee, v. COLONIAL INSURANCE COMPANY

                       OF CALIFORNIA, Appellant.

                    Opinion filed February 6, 1997.

    JUSTICE MILLER delivered the opinion of the court:

    Plaintiff, Marketview Motors, Inc., filed a declaratory

judgment action in the circuit court of Champaign County against

defendant, Colonial Insurance Company of California. Marketview

alleged Colonial failed to provide proper notice of cancellation of

an automobile insurance policy for nonpayment of a premium as

required by section 143.15 of the Illinois Insurance Code (215 ILCS

5/143.15 (West 1994)). The trial judge found that proper notice of

cancellation had been given and granted summary judgment in favor

of Colonial Insurance.

    The appellate court reversed. 277 Ill. App. 3d 627. The

appellate court held that section 143.15 of the Insurance Code

requires an insurance company to provide at least 10 days' actual

notice before a cancellation for nonpayment of a premium becomes

effective.

    Colonial Insurance filed a petition for leave to appeal to

this court. 155 Ill. 2d R. 315(a). We allowed Colonial's petition.

For the reasons that follow, we reverse the appellate court and

affirm the circuit court.

                               BACKGROUND

    In February 1994, Lawrence Miller purchased a 1987 Chevrolet

Monte Carlo from Marketview Motors. Marketview retained a lien on

the vehicle. Miller purchased an automobile insurance policy from

Colonial Insurance to cover the vehicle. Miller later failed to pay

his insurance premium.

    On March 17, 1994, Colonial mailed a notice of cancellation of

Miller's insurance coverage to Miller and Marketview. As a lien

holder, Marketview was entitled by statute to notice of this

cancellation. 215 ILCS 5/143.14(a) (West 1994). In addition,

section 143.15 of the Insurance Code provides:

              "All notices of cancellation of insurance as defined

         in subsections (a), (b) and (c) of Section 143.13 must be

         mailed at least 30 days prior to the effective date of

         cancellation to the named insured and mortgagee or lien

         holder, if known, at the last mailing address known to

         the company. All notices of cancellation shall include a

         specific explanation of the reason or reasons for

         cancellation. However, where cancellation is for

         nonpayment of premium, at least 10 days notice of

         cancellation shall be given." 215 ILCS 5/143.15 (West

         1994).

    Miller's Monte Carlo was involved in an accident. The accident

occurred at approximately 5:15 a.m. on either March 28, 1994, as

claimed by Marketview, or March 29, 1994, as claimed by Colonial.

As a loss payee under the insurance policy, Marketview demanded

payment from Colonial. Colonial denied coverage claiming that the

insurance policy was canceled at 12:01 a.m. on March 28, 1994, the

11th day after Colonial had mailed notice of cancellation to Miller

and Marketview.

    Marketview filed a declaratory judgment action against

Colonial. In its complaint, Marketview alleged in the alternative

that: (1) it did not receive notice of the cancellation; or (2) it

"did not receive ten (10) days actual notice prior to cancellation

since letters from California to Illinois take several days to

deliver." Under either allegation, Marketview claimed Colonial

failed to satisfy the requirements of section 143.15. Therefore,

Marketview claimed the Monte Carlo was still insured when the

accident occurred.

    Colonial filed a motion for summary judgment. Colonial stated

it mailed notice of cancellation to Miller and Marketview 11 days

prior to canceling Miller's policy for nonpayment of the premium.

Colonial stated it was immaterial whether the accident occurred on

March 28 or 29, 1994, because either date was subsequent to the

cancellation of the policy. Colonial argued that mailing is the

operative act under section 143.15 and that neither actual notice

nor additional time for mail delivery is required under the

language of the statute.

    The trial judge agreed with Colonial and granted Colonial's

motion for summary judgment. The appellate court reversed the

judgment of the circuit court and remanded for factual findings as

to when the accident occurred and when notice was received by

Marketview. 277 Ill. App. 3d at 632.

    The appellate court held that section 143.15 of the Insurance

Code requires an insurer to provide at least 10 days' actual notice

to an insured and any mortgagee or lien holder of the insured

property before a cancellation for nonpayment of a premium becomes

effective. In support of its holding, the appellate court found

that section 143.15 contains in one section two distinct provisions

relating to notice and that each provision has its own

requirements. 277 Ill. App. 3d at 629-30.

    The appellate court believed that cancellations for reasons

other than nonpayment of premiums are accomplished by mailing

notice. These cancellations will be effective if mailed to the

proper parties "at least 30 days prior to the effective date of

cancellation." 215 ILCS 5/143.15 (West 1994).

    The appellate court distinguished the provision regarding

cancellation for nonpayment of a premium by focusing on the word

"however" and on the phrase "shall be given" in the third sentence

of section 143.15. See 215 ILCS 5/143.15 (West 1994). By focusing

on this language and contrasting it with the phrase "must be

mailed" in the same section, the appellate court concluded that the

legislature intended to treat cancellations for the nonpayment of

a premium differently than other types of cancellations. The

appellate court stated the legislature "intended to shift from a

mailing requirement to a requirement of actual notice with respect

to cancellations for nonpayment of premiums." 277 Ill. App. 3d at

630.

    Colonial Insurance filed a petition for leave to appeal to

this court (155 Ill. 2d R. 315(a)) and we allowed Colonial's

petition for leave to appeal.

                               DISCUSSION

    Since the language used by the legislature is the best

indication of legislative intent, courts look first to the words of

the statute. Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). Section

143.15 in its first sentence provides that "[a]ll notices of

cancellation *** must be mailed at least 30 days prior to the

effective date of cancellation to the named insured and mortgagee

or lien holder." 215 ILCS 5/143.15 (West 1994). Additionally, all

notices of cancellation must include a specific reason or reasons

for cancellation. Section 143.15 in its third sentence provides

that, "[h]owever, where cancellation is for nonpayment of premium,

at least 10 days notice of cancellation shall be given." 215 ILCS

5/143.15 (West 1994).

    We believe that the third sentence of section 143.15 reduces

from 30 to 10 the minimum number of days prior to the effective

date of cancellation a notice of cancellation must be mailed when

cancellation is for nonpayment of a premium and does not change the

method by which that notice is provided. An examination of the

statutory history of section 143.15 indicates that in amending the

statute the legislature has focused on expanding the number of

parties to whom a notice of cancellation must be given in order for

an insurance company to cancel a policy. The statutory history does

not indicate a legislative intent to shift the notice requirement

from mailing to actual notice.

    A predecessor section to section 143.15 required an insurance

company to mail a notice of cancellation only to the named insured

and provided that proof of this mailing satisfied both the 30-day

general and the 10-day nonpayment of premium notice requirements.

See Ill. Rev. Stat. 1973, ch. 73, par. 755.1b. Later, on January 1,

1976, section 755.1b was repealed and replaced by section 755.14.

See Pub. Act 79--686, eff. January 1, 1976 (repealing Ill. Rev.

Stat. 1973, ch. 73, pars. 755.1 through 755.10, and adding Ill.

Rev. Stat. 1975, ch. 73, pars. 755.11 through 755.24). Section

755.14 increased the number of parties who were to receive notice

of cancellation of a policy. The amendment provided that in

addition to the named insured, the insured's "agent of record

and/or the insured's broker" were also to receive notice of

cancellation. Ill. Rev. Stat. 1975, ch. 73, par. 755.14.

    Subsequently, the legislature separated the provision

describing the parties to whom notice was to be given from the

provision governing the method by which that notice was to be

accomplished by placing each provision in a separate statutory

section. See Pub. Act 80--1136, §1, eff. July 1, 1978 (amending

Ill. Rev. Stat. 1977, ch. 73, par. 755.14); Pub. Act 80--1128, §1,

eff. July 1, 1978 (amending Ill. Rev. Stat. 1977, ch. 73, par.

755.15). Thus, after the amendment effective July 1, 1978, section

755.14 outlined the parties to whom notice must be given and

section 755.15 provided the times and the method by which the

notice was to be given. See Ill. Rev. Stat. 1979, ch. 73, pars.

755.14, 755.15. Finally, the legislature added mortgagees or lien

holders to the list of those entitled to notice of cancellation.

See Ill. Rev. Stat. 1989, ch. 73, par. 755.14.

    Although the specific reference to giving notice of

cancellation for nonpayment of premiums by mail contained in the

earlier version of the statute was omitted from the amended 1975

and 1979 statutes and the version of the statute in question here,

we believe that the legislature still intended that notice of

cancellation was to be made by mail. We believe that in each of the

amendments referred to, the focus of the legislature was on the

parties to whom notice was to be given and not on the method by

which the parties were to receive the notice.

    As noted by the appellate court, in the course of these

amendments, the reference to mailing notice of cancellation for

nonpayment of a premium was omitted. However, we do not believe

that by omitting the reference to mailing, the legislature intended

to shift to an actual notice requirement. We believe that had the

legislature intended such a change it would have explicitly set

forth the change in the statute and not left it to be read into the

statute by omission.

    Our conclusion regarding the legislature's intent is supported

by a recent amendment to section 143.15. Subsequent to the filing

of the appellate court's opinion on January 31, 1996, the

legislature amended section 143.15 of the Insurance Code. See Pub.

Act 89--669, §5, eff. January 1, 1997 (amending 215 ILCS 5/143.15).

The amended section provides:

              "Mailing of cancellation notice. All notices of

         cancellation of insurance *** must be mailed at least 30

         days prior to the effective date of cancellation ***. All

         notices of cancellation shall include a specific

         explanation of the reason or reasons for cancellation.

         However, where cancellation is for nonpayment of premium,

         the notice of cancellation must be mailed at least 10

         days before the effective date of the cancellation." Pub.

         Act 89--669, §5, eff. January 1, 1997 (amending 215 ILCS

         5/143.15).

    On April 23, 1996, the amendment was a topic of oral testimony

in the House Insurance Committee. The sponsor of the amendment,

Representative Brady, introduced William Shepherd, who offered the

following testimony as a proponent of the amendment:

              "What we're trying to do here is restore the law to

         what we thought it was, what the Department of Insurance

         thought it was, and I would suggest what the legislature

         thought it was prior to the time that the Third [sic]

         Appellate Court District interpreted one of the

         provisions of the Insurance Code in the case of

         Marketview Motors, Inc. v. Colonial Insurance. ***

         Essentially what it did was construe the statute to

         require an actual notice requirement rather than a

         constructive or mailbox notice requirement. *** What this

         amendment would do would be to restore to the nonpayment

         of premium sections the mailbox rule. *** So what this

         amendment does is take us back to where we thought we

         were just a few months ago rather than change the notice

         requirements."

    On the floor of the House, Representative Brady summarized the

amendment by stating the amendment "clarifies that notices shall be

given by mail in the case of cancellation of insurance for non-

payment reasons." 89th Ill. Gen. Assem., House Proceedings, April

25, 1996, at 1 (first draft) (statement of Representative Brady).

We believe these comments indicate the amendment to section 143.15

was made in response to the appellate court's holding and was

intended to clarify the law regarding cancellations for nonpayment

of premiums. We view the legislature's amendment of section 143.15

as a clarification of the original language of the statute and not

a change in the substantive law. See Varelis v. Northwestern

Memorial Hospital, 167 Ill. 2d 449, 462-63 (1995). Accordingly, the

amendment to section 143.15 supports our conclusion that the

legislature never intended to require proof of actual notice for

the cancellation of a policy due to nonpayment of a premium.

    The authorities relied upon by the appellate court do not

compel a different result. See 277 Ill. App. 3d at 630-31. Unless

the language of a statute or insurance policy provides otherwise,

the timing provision of a notice requirement begins to run upon

actual receipt of the notice. See, e.g., Scanlon v. Empire Fire &

Marine Insurance Co., 117 Idaho 691, 692-93, 791 P.2d 737, 738-39

(App. 1990) (discussing statutory language); Rocque v. Co-Operative

Fire Insurance Ass'n, 140 Vt. 321, 325, 438 A.2d 383, 385-86 (1981)

(discussing insurance policy language). However, for the reasons

discussed above, we believe section 143.15 does provide otherwise.

The language of section 143.15, the statutory history of section

143.15, and the legislature's response to the appellate court's

opinion indicate the legislature did not intend to impose an actual

notice requirement on an insurance company when canceling a policy

for nonpayment of  premium.

                               CONCLUSION

    For the foregoing reasons, we believe the legislature intended

for proof of mailing to satisfy the notice requirement of section

143.15 (215 ILCS 143.15 (West 1994)) when an insurance company

seeks to cancel a policy for nonpayment of a premium. Accordingly,

the judgment of the appellate court is reversed and the judgment of

the circuit court is affirmed.

Appellate court judgment reversed;

                                        circuit court judgment affirmed.

    JUSTICE HARRISON, dissenting:

    I would affirm the appellate court's judgment. For the reasons

stated by the appellate court, I agree that section 143.15 of the

Insurance Code (215 ILCS 5/143.15 (West 1994)) requires an

insurance company to provide at least 10 days' actual notice before

cancelling a policy for nonpayment of the premium. I also agree

that there is a genuine issue of material fact, precluding summary

judgment, with respect to when the 10-day notice period expired

here and when the accident actually took place.

    I will not repeat the appellate court's well-reasoned

construction of the Insurance Code's precancellation notice

requirements. The court's opinion has been published (277 Ill. App.

3d 627) and is available for review by anyone interested in

learning more about it. What does warrant additional comment,

however, is my colleagues' reliance on recent changes in the

Insurance Code to support their conclusion that the appellate

court's interpretation of the law is incorrect.

    There is no question that subsequent amendments to a statute

may be an appropriate source for discerning legislative intent.

People v. Bratcher, 63 Ill. 2d 534, 543 (1976). Where a statute is

ambiguous and the legislature amends it soon after a controversy

has arisen as to its meaning, the amendment may be regarded as a

legislative interpretation of the original law rather than as an

attempt to change the law. Church v. State of Illinois, 164 Ill. 2d

153, 163 (1995); see Hyatt Corp. v. Sweet, 230 Ill. App. 3d 423,

433 (1992).

    The problem with applying these principles here is that the

amendments were made in response to the very case which is now

before us for review years after the original legislation was

enacted. Rather than reflect the legislature's intent with respect

to the original law, the quoted statements from the house floor

show nothing more than that certain current members of the General

Assembly are unhappy with the appellate court's disposition of this

litigation and want it changed. By giving weight to the remarks of

these legislators, the majority has helped them achieve that

objective. In effect, the court has facilitated a legislative

override of the appellate court's judgment.  

    While not suggesting that anything untoward took place in this

particular case, I note that the potential for abuse is

substantial. The majority's approach creates a significant danger

that litigants with substantial resources or the support of

lobbying groups may be able to prevail on the legislature to alter

the law while a case is pending on review in order to help them

escape the consequences of adverse judgments. Not only is this a

subversion of the judicial process, it also raises grave separation

of powers concerns under article II, section 1, of this state's

constitution (Ill. Const. 1970, art. II, §1).

    The separation of powers principles contained in article II,

section 1, of the constitution (Ill. Const. 1970, art. II, §1)

prohibit the legislative branch of government from exercising

powers belonging to the judiciary. The General Assembly has the

right to draft legislation and to amend statutes if it believes

that a judicial interpretation of a law is at odds with its intent.

Our court has expressly held, however, that the legislature may

not, by amendment, attempt to attribute to the original statute, at

the time of a reviewing court's opinion, a meaning different from

that declared in the opinion. This court has regarded such efforts

as an attempt by the legislature to specify how we should apply the

law to the particular case that is before us on review, and we have

condemned the attempts as unconstitutional. In re Marriage of Cohn,

93 Ill. 2d 190, 203-05 (1982).

    In re Marriage of Cohn, 93 Ill. 2d 190 (1982), remains the law

in this state (see In re Petition of Kirchner, 164 Ill. 2d 468, 497

(1995)) and should be followed here. The intervening amendment, and

the floor debates on that amendment, should not be taken into

account in reviewing the appellate court's construction of section

143.15 of the Insurance Code (215 ILCS 5/143.15 (West 1994)). For

this reason, and the reasons given by the appellate court in its

opinion, I respectfully dissent.