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American Family Mut. Ins. Co. v. Plunkett

2014 IL App (1st) 131631 (Ill. App., 2014)

Words & Phrases

Subrogation: Timing

Trial Judge

Hon. Moira S. Johnson

Appellate Judge

Presiding Justice Gordon


Equitable tolling could not be used to avoid statute of limitations on insurer’s subrogation claim where the terms of the insurance contract required assignment of the insured’s rights, which insurer failed to obtain in a timely fashion.

Fact Summary

Certified question answered on interlocutory appeal under Rule 308.

Where plaintiff insurer paid the judgment its insured obtained in federal court in his action arising from his claim for water damage to his residence caused by the negligence of the architects and builders and then plaintiff filed a subrogation action against the architects and builders naming itself as the equitable subrogee in the absence of an assignment from its insured, but that case was dismissed with prejudice based on the trial court’s finding that plaintiff needed a written assignment to seek subrogation, and then, after plaintiff received a written assignment from its insured after the statute of limitations had expired, plaintiff filed another suit against defendants, and defendants sought the dismissal of that suit on the ground that it was untimely, the trial court certified pursuant to Supreme Court Rule 308 the question of whether “equitable tolling” was a proper basis to deny defendants’ motion to dismiss, and the appellate court responded in the negative, stating that plaintiff insurer’s difficulties started when it did not obtain an assignment when it paid the settlement of its insured’s claim after the insured’s federal suit, the terms of the insurance contract with respect to subrogation controlled in the instant case, and in the absence of any extraordinary circumstances preventing plaintiff from obtaining the required assignment and filing suit, there was no basis for the application of equitable tolling of the statute of limitations.