Find Legal Information

The first question we must answer is metaphysical in nature but of practical importance to theparties in this medical insurance coverage dispute: Can someone be held responsible for makinga misrepresentation if he does not know his words are untrue? We are required by priordecisions to say the answer is yes in this case.

BACKGROUND

Golden Rule Insurance Company (Golden Rule) filed this declaratory judgment action inLawrence County in July 1985, alleging it was entitled to rescind the health insurance policy itissued to Mark Schwartz (Mark). Mark filed a counterclaim.

The case was transferred to Cook County in 1997. The trial court granted summary judgmentin favor of Mark on the declaratory judgment action and on count one of his counterclaim, inwhich Mark alleged Golden Rule was not entitled to offset damages with medical paymentsmade by other insurance companies.

The trial court later found Mark was entitled to sanctions under section 155 of the IllinoisInsurance Code (Code) and granted his summary judgment motion on this issue. However, thetrial court ruled Shwartz was not entitled to pro se attorney fees under Section 155.

At the same time, the trial court found Mark was entitled to recover the premiums he paid forcomparable replacement coverage, but was not entitled to 9% prejudgment interest on hisdamages pursuant to section 357.9 of the Code. The trial court granted summary judgment infavor of Golden Rule on the section 357.9 prejudgment interest issue.

What is referred to by the parties as a "bench trial" was held to determine damages, though itdoes not appear from the record that any of the formalities generally associated with a trial werefollowed. Judgment was entered in favor of Mark in the amount of $447,074. The award wasbroken down as follows:

(a) Covered medical expenses incurred as of 10/1/99: $254,285.66

(b) Interest on said medical expenses: $90,801.32

(c) Section 155 penalty: $25,000.00

(d) Net premiums owed for replacement coverage: $65,994.00

(e) Interest on said premiums to November 3, 1999: $11,093.00.

Though the parties raised the issue of attorney's fees, the trial court reserved ruling pendingthis appeal. The trial court included Supreme Court Rule 304(a) language in the order, making itimmediately appealable.

Golden Rule appeals both the trial court's decision granting Mark summary judgment and itsaward of damages, contending: (1) Golden Rule was entitled to rescind the policy due to materialmisrepresentations made by Mark in his application for insurance; (2) Golden Rule was entitledto rescind the policy because Mark did not sign the application as required by the IllinoisInsurance Code; (3) section 155 sanctions should not have been awarded; (4) even if Mark wasentitled to section 155 sanctions, the trial court did not calculate the sanctions properly; (5) thetrial court incorrectly assessed the insurance premiums awarded as part of Mark's damages.

Mark filed a cross-appeal, contending the trial court erred in finding he was not entitled toprejudgment interest under section 357.9 of the Code. Mark also contends the trial court erred inrefusing to award him pro se attorney fees as sanctions under section 155 of the Code.

We reverse in Golden Rule's appeal and remand for further proceedings, and affirm in Mark'sappeal.

FACTS

In Spring of 1985, Mark was a 23-year-old full-time medical student. When his father,Spencer Schwartz (Spencer), realized his family's health insurance policy was going to lapse, heasked his insurance broker about new coverage. The broker, Myron Scharff (Scharff), sentSpencer separate Golden Rule applications for Mark and for the rest of Spencer's family. Scharfftold Spencer his son would have to be covered under a separate Golden Rule policy because hewas too old to be covered as a dependent under a family policy.

Spencer filled out the applications, and sent them back to Scharff signed. The insurancecompany returned the applications because they were mailed too long after they had beencompleted. Scharff contacted Spencer and told him new applications would have to besubmitted. Scharff filled out the new applications while Spencer answered the questions viatelephone. One of the questions asked, "Are any persons named *** covered by *** any type ofLife, Disability or Medical Insurance?" Spencer answered no on both his application and theapplication for Mark. The application explained the effect of other insurance plans on theGolden Rule policy:

"This policy will not be issued as a supplement to other health plans that you mayhave at the time of application. Medical payment provisions under liabilitypolicies and small cancer only policies do not affect our underwriting. Amisstatement in the application about other medical insurance may cause us tovoid the policy. If, after the policy is issued, you are covered by other plans, thebenefits paid under these other plans may be used to help satisfy the deductibleand 20% coinsurance *** Other plans are all policies and plans that providebenefits for hospital, surgical, or medical expenses, including individual andfamily policies, group programs, union programs, automobile medical paymentsinsurance, Medicare and others."

Spencer authorized Scharff to sign the applications. The application includes the followingstatement just above the signature line:

"I represent that the statements and answers in this application are true andcomplete to the best of my knowledge and belief. I agree that *** the statementsand answers given in this application and any amendments to it will form the basisof any insurance issued."

Scharff signed Spencer's name on the family application and signed Mark's name on hisapplication.

Golden Rule issued health insurance policies to Spencer and Mark in March 1985. A fewweeks later, Mark was on vacation in New York when he was in an auto accident. He wasseriously injured and was hospitalized for over a month.

When Spencer began to look at Mark's insurance policies, he realized Mark was covered notonly by the new Golden Rule policy, but also was an "eligible dependent" under a policy Spencerheld with Mutual of Omaha. The Mutual of Omaha policy was a group policy held through theAmerican Bar Endowment. The ABE policy was issued to Spencer in 1973. The policy was anexcess major medical insurance policy, with a deductible of $10,000. It covered eligibledependents up to age 19, unless they were full-time students. If dependents were full-timestudents, they were covered until they were 25 years old.

Spencer submitted claims on his son's behalf to both Mutual of Omaha and Golden Rule. Golden Rule denied coverage and rescinded the policy. Soon after, it filed this declaratoryjudgment suit, alleging Mark's failure to disclose the Mutual of Omaha policy was a materialmisrepresentation justifying rescission of the policy.

Mutual of Omaha paid Mark's medical expenses until his coverage under that policy lapsed. Under New York law, Mark was entitled to payment from Home Insurance, a no-fault carrier. Mark was also covered by an "Auto Med Pay" provision in Spencer's auto insurance policy,issued by Travelers Insurance. Mark is currently covered under a Blue Cross/Blue Shield policy. At the time of the bench trial, the insurance carriers had provided coverage as follows:

Mutual of Omaha:                  $118,592.73

Blue Cross/Blue Shield:          $105,898.76

Home Insurance:                    $ 50,000.00

Travelers Insurance:               $ 10,000.00

Total:                                    $284,491.49

Mark has several "back-up" health insurance policies which he will use if Blue Cross/Blue Shieldcancels his plan. Most of these "back-up" policies were paid by an employer.

Spencer's Golden Rule policy never was rescinded, though he did not disclose the Mutual ofOmaha policy in his application.

Mark continues to have medical problems caused by the injuries sustained in the autoaccident.

DECISION

Summary Judgment

Golden Rule contends the trial court erred in granting summary judgment in Mark's favor onthe substantive issues, as well as on the issues relating to sanctions and Golden Rule's ability tooff-set damages.

Review of the trial court's ruling on a motion for summary judgment is de novo. Lajato v.AT&T, Inc., 283 Ill. App. 3d 126, 135, 669 N.E.2d 645 (1996). Summary judgment is properwhen the pleadings, depositions, and affidavits on file, construed in the light most favorable tothe nonmoving party, establish there is no genuine issue of material fact and the moving party isentitled to judgment as a matter of law. Lajato, 283 Ill. App. 3d at 135. The purpose of thesummary judgment procedure is not to decide the facts but to ascertain whether a factual disputeexists. Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1070-71, 603N.E.2d 1215 (1992).

Material Misrepresentation

Golden Rule contends the trial court erred in finding Mark did not make a materialmisrepresentation when he failed to disclose the Mutual of Omaha policy on his application. Mark contends his answer does not constitute a "misrepresentation" because he and his father didnot realize he was covered by the Mutual of Omaha policy. According to Mark, a statementshould not be interpreted as a "misrepresentation" unless it was known to be untrue at the timethat it was made.

Section 154 of the Code says:

"No misrepresentations or false warranty made by the insured or in his behalfin the negotiation for a policy of insurance *** shall defeat or avoid the policy orprevent its attaching unless such misrepresentation, false warranty or conditionshall have been stated in the policy or endorsement or rider attached thereto, or inthe written application therefor. No such misrepresentation or false warranty shalldefeat or avoid the policy unless it shall have been made with actual intent todeceive or materially affects either the acceptance of the risk or the hazardassumed by the company." 215 ILCS 5/154 (West 1998).

"A 'misrepresentation' in an application for insurance is a statement of something as a factwhich is untrue and affects the risk undertaken by the insurer." Ratcliff v. International SurplusLines Insurance Company, 194 Ill. App. 3d 18, 25, 550 N.E.2d 1052 (1990). If amisrepresentation is material, it will avoid the contract even if it was made in good faith, withoutthe intent to deceive. Campbell v. Prudential Insurance Co., 15 Ill. 2d 308, 313, 155 N.E.2d 9(1958).

Here, it is undisputed that the Mutual of Omaha policy was in effect when Spencer filled outthe application for the Golden Rule policy on behalf of Mark. During their depositions, bothMark and Spencer testified they did not realize Mark would be covered under this policy. Spencer said:

"All I know is Mark didn't have any life insurance then, except dependentcoverage, perhaps. He didn't have any - I didn't even know he was covered withmajor medical. I thought that that had lapsed on him, too. It turned out he wascovered. I thought that lapsed when he was 23. I found out later he was covered. I was surprised at that."

And:

"At the time the application was completed by me, it was made out truthfully andaccurately to the best of my knowledge at that time.

I did not know he had major medical coverage at that time. He certainly didn'thave any life insurance coverage, that I was aware of, independently, perhaps as adependent, if he was, in fact, a dependent.

And I understand the cut off, in some policies, is 23, some 24, some 21, somedepending whether you are in school or out of school. Each policy, I know, isdifferent.

But it was my understanding that since he had to get his own individual policy,according to Mike, I assumed he had no other coverage at all. This was going tobe his only coverage."

Mark testified that he wasn't aware he was covered under his father's Mutual of Omaha policybecause he didn't usually handle applying for his health insurance policies. Mark said his fatherhad always obtained coverage for him, and that Spencer was "absolutely" authorized to act on hisbehalf.

The threshold question is whether there can be a material misrepresentation within themeaning of section 154 when the applicant believes his statement to the insurance company istrue. Our review of pertinent supreme court decisions leads us to conclude a misrepresentationmade in good faith or resulting from a mistake of the applicant is enough to avoid the contract ifit was material to the risk assumed by the insurance company. Campbell, 15 Ill. 2d at 313.

In Campbell, the Illinois Supreme Court interpreted the language of section 154 of the Code:

"Section 154 *** provides in part that 'No such misrepresentation or falsewarranty shall defeat or avoid the policy unless it shall have been made withactual intent to deceive or materially affects either the risk or the hazard assumedby the company ***' The plaintiff contends that the italicized word 'or' should beread 'and,' so that the defendant must show both the materiality of themisrepresentation and an actual intent to deceive if it is to avoid liability. Thedefendant contends that its burden is satisfied if it establishes either a materialmisrepresentation or an intent to deceive.

***

On occasion the disjunctive 'or' has been read as the conjunctive 'and.'[Citation.] Such a construction, however, is permissible only when a literalreading is inconsistent with an apparent legislative purpose.

***

We see no reason why section 154 should not be read as it is written, in thedisjunctive." Campbell, 15 Ill. 2d at 310-13.

The Campbell decision cites an earlier Illinois Supreme Court case, Weinstein v. MetropolitanLife Insurance Co., 389 Ill. 571, 60 N.E.2d 207 (1945). In Weinstein, a life insurance case, theSupreme Court interpreted a "misrepresentation" in an application for insurance:

"[A] statement of something as a fact which is untrue and material to the risk, andwhich the insured states, knowing it to be untrue, in an attempt to deceive, orwhich he states positively is true without knowing it to be true and which has atendency to mislead. [Citation.] Misrepresentations will avoid a policy of lifeinsurance if they are, in fact, false and material to the risk, even though theapplicant acted through mistake or good faith." Weinstein, 389 Ill. at 577.

The appellate court follows these early Supreme Court decisions. See Ractcliff, 194 Ill. App.3d at 25 ("[A] material misrepresentation will avoid the contract even though made throughmistake or good faith *** it is unnecessary for the insurer to prove that a misrepresentation wasmade with the intent to deceive if it was material to the risk assumed"); Cohen v. WashingtonNational Insurance Co., 175 Ill. App. 3d 517, 520, 529 N.E.2d 1065 (1988) ("A materialmisrepresentation will avoid the contract even though made through mistake or good faith"); Garde by Garde v. Country Life Insurance Co., 147 Ill. App. 3d 1023, 1031, 498 N.E.2d 94(1986) ("A good faith mistake does not change the nature of the misrepresentation").

Mark contends this result is too harsh, and claims several appellate court decisions find astatement does not constitute a misrepresentation unless it was made in bad faith. See Knysak v.Shelter Life Insurance Policy, 273 Ill. App. 3d 360, 652 N.E.2d 832 (1995); Kohlmeier v. ShelterInsurance Co., 170 Ill. App. 3d 643, 525 N.E.2d 94 (1988). These cases are factually differentfrom this one.

In Kohlmeier, the plaintiff applied for a health insurance policy for himself and his family. The application included the following question: "Does any person to be insured now have anyabnormality or deformity?" Though plaintiff was aware that his 10-year-old daughter was "slowin certain areas of learning," and had a high arched palate and eye problems, the plaintiffanswered "no" to the question. Approximately six months later, the plaintiff's 10-year-olddaughter was diagnosed with a congenital birth defect. When the plaintiff sought coverage forher medical bills under the Shelter Insurance policy, the insurer refused coverage and rescindedthe policy. Shelter Insurance claimed the plaintiff materially misrepresented his daughter'spreexisting condition when he said she did not suffer from an "abnormality" or "deformity."

The appellate court found the question on the application was ambiguous:

"The question on the application to which defendant contends plaintiff failed todisclose information uses the words 'abnormality' and 'deformity.' These terms, incontext with the other questions on the application form, implied a physicalabnormality or deformity and did not clearly state whether the abnormality ordeformity to be disclosed was to be a mental or physical condition or both. Wefind the question relied on by defendant an ambiguous one. As such, whenviewed in the light most favorable to plaintiff, the ambiguity of these terms mustbe resolved against defendant. Therefore, because the evidence indicated that [theplaintiff's daughter] did not have a readily apparent physical abnormality ordeformity at the time plaintiff completed the application form, plaintiff did not failto disclose material information on the application form. Further, no evidencepresented indicated that [the daughter's] medical condition would requireextensive medical treatment in the future such that defendant's risk was materiallyaffected." Kohlmeier, 170 Ill. App. 3d at 652-53.

In Knysak, the insurer claimed the plaintiff misrepresented his wife's health condition on theinsurance application. The plaintiff filled out the application on behalf of his wife because shedid not speak English. Defendant answered "no" to questions regarding whether she had beentreated for incidents of diabetes and high blood pressure. When the plaintiff's wife suffered astroke, he sought coverage under the insurance policy. Coverage was denied after the insurancecompany found out she had been diagnosed and treated for both high blood pressure and diabetesprior to the plaintiff's application for the policy in question.

The appellate court rejected Campbell's mandate that the statute be read so that a policy maybe avoided where the misrepresentation was either intentional or material:

"The insured's intent or knowledge, either objective or subjective, is really notrelevant, if you follow Campbell to its logical conclusion. The sole issue maysimply be as to whether there was a preexisting condition that would materiallyaffect the acceptance of the risk or hazard assumed by the insurer. If an insuredwarrants that he and his dependents are in good health, when unbeknownst to theinsured or anyone else in the world, they are not, the insured has made a falsewarranty or misrepresentation under section 154, according to the reasoning inCampbell." Knysak, 273 Ill. App. 3d at 365.

Both Knysak and Kohlmeier distinguished Campbell on the basis that the plaintiffs were notaware of the disqualifying health condition when they filled out the application, and thereforecould not be said to have "misrepresented" that information. Both cases cite Logan v. AllstateLife Insurance Co., 19 Ill. App. 3d 656, 312 N.E.2d 416 (1974), which said:

"[A]n insurance company would not expect an applicant to answer questionsconcerning his past and present condition of his health with the skill of a trainedphysician. Thus, an insurance company cannot expect or require an applicanthimself to disclose information concerning his health which is beyond the ken ofan ordinary layman when he has not been given such information by his doctor." Logan, 19 Ill. App. 3d at 659.

These cases reason that a "misrepresentation" cannot take place where the applicant could nothave been aware of the information until after the policy was issued. Knysak, 273 Ill. App. 3d at360.

In this case, Mark's father was aware of the Mutual of Omaha policy though he did not realizeMark would still be an "eligible dependent" under the terms of that policy. While we might notexpect an insurance applicant to disclose as yet undiagnosed medical problems even whensymptoms are present, we could expect an applicant to review any existing insurance policiesbefore applying for a new one. Mark's father should have reviewed the Mutual of Omaha policybefore he applied for a new one instead of assuming his son no longer was covered by it. Because Spencer was acting as Mark's agent in applying for the policy, Mark may be chargedwith his father's knowledge. See Ratliff v. Safeway Insurance Co., 257 Ill. App. 3d 281, 289,628 N.E.2d 937 (1993) (agent's knowledge may be imputed to principal).

Whether the appellate decisions really are distinguishable, we are bound by Campbell andWeinstein. In the wake of these Supreme Court decisions, the legislature has had 43 years toamend the language of section 154. It has chosen not to do so. Though we agree the result isharsh, we find the statement on the Golden Rule policy was a "misrepresentation" for purposes ofsection 154 of the Code.

Mark alternatively contends the misrepresentation was not material.

"Materiality is determined 'by the question whether reasonably careful and intelligent menwould have regarded the fact stated as substantially increasing the chances of the event insuredagainst, so as to cause a rejection of the application or different conditions.'" Hatch v. WoodmenAccident & Life Company, 88 Ill. App. 3d 36, 40, 409 N.E.2d 540 (1980), quoting Weinstein,389 Ill. at 577. The failure to disclose material information in response to a question in anapplication may constitute a material misrepresentation. Hatch, 88 Ill. App. 3d at 40. "Materiality may be established by the testimony of the insurer's underwriter." Ratcliff, 194 Ill.App. 3d at 28. However, materiality is generally a question of fact for a jury to decide. Kohlmeier, 170 Ill. App. 3d at 652.

In this case, Golden Rule attached an affidavit from J. Patrick Rooney, the company's CEO, toits response to Mark's summary judgment motion. In his affidavit, Rooney testified:

"6. I have always been emphatic that Golden Rule is not to issue coveragewhen the insured has other existing major medical insurance coverage. When aninsured has two (or more) such policies, the co-pay and deductible are gone and,as such, the insured is no longer under an economic discentive [sic] not to incurmedical expenses. This leads to a potential for overutilization and even fraud.

7. Golden Rule has never issued a policy where the insured has existing majormedical insurance of which Golden Rule is aware without the requirement that theother insurance be terminated within a specified period of time.

8. Golden Rule, in accordance with the above Policy Statement, properlyrescinded Mark Schwartz' coverage due to the failure to disclose the existence ofother major medical insurance through Mutual of Omaha." (Emphasis in original).

The record also includes a document prepared by Golden Rule's underwriting department afterSpencer submitted a claim on behalf of his son. That document states that a policy would nothave been issued if the Mutual of Omaha policy was disclosed on Mark's application. GoldenRule attached an affidavit from Robert Woodward, its Senior Adjuster, to its response to Mark'ssecond motion for summary judgment. In his affidavit, Woodward discusses the underwritingdocument. Woodward said:

"13. On July 2, 1985, I sent the existence of other insurance to theUnderwriting Department to determine whether the Underwriting Departmentwould have issued the policy had it known of the existence of the Mutual ofOmaha policy at the time Mark Schwartz applied for Golden Rule insurance. AControl Data sheet, dated June 14, 1985, along with the application, the Mutual ofOmaha letter and telephone call records, were sent to underwriting. ***

14. On July 2, 1985, Golden Rule's Underwriting Department issued theopinion that:

Our policy would not have been issued had we known of the existenceof other major medical insurance at the time of original underwriting.

***

24. Golden Rule's rescission was consistent with Golden Rule's brochure ***.

***

26. Golden Rule denied Mark Schwartz' claims and rescinded his policy basedon the nondisclosure of other major medial [sic] health insurance which theUnderwriting Department determined was material to the risk."

Another document, purportedly a part of Golden Rule's underwriting guidelines, advises, "It isthe intent of Golden Rule not to issue the Inflation Guard policy on people who are covered byother insurance." This document was also attached to Golden Rule's response to Mark's secondmotion for summary judgment.

These documents and affidavits are not contested by Mark. Instead, Mark claims GoldenRule's failure to rescind the insurance policy issued to Spencer at the same time his policy wasissued shows the misrepresentation is not material. Golden Rule contends its failure to rescindSpencer's policy was an oversight caused by a change in personnel in its legal department. Wesee this matter as an issue of fact. A trier of fact might find this was something other than an"oversight."

The only Illinois case that addresses the question of whether a misrepresentation concerningother insurance is "material" for purposes of section 154 is Garde by Garde v. Country LifeInsurance Company, 147 Ill. App. 3d 1023, 498 N.E.2d 302 (1986). While the appellate courtfound the insured's failure to disclose other insurance was a material misrepresentation, itsfinding was premised on the "egregious nature" of the misrepresentation. Garde, 147 Ill. App. 3dat 1033. In Garde, the insured failed to disclose over a million dollars of pending and issuedinsurance. The court found the existence of this insurance would have affected the terms andconditions under which the insurance company determined whether it would accept the riskinvolved. Garde, 147 Ill. App. 3d at 1034.

In his affidavit, Rooney testified Golden Rule refuses coverage if the insured has othercoverage because "[w]hen an insured has two (or more) such policies, the co-pay and deductibleare gone." Here, Mark did not have another policy. He was covered as an eligible dependentunder his father's Mutual of Omaha policy, which was an excess major medical policy with a$10,000 deductible. A trier of fact may consider whether the concerns expressed by Rooney inhis affidavit would have applied in this case.

We also see an inconsistency between Golden Rule's contention it never issued policies tothose who had other coverage and its inclusion of an "alternate benefits" section in its policylanguage. If a policy is never issued to someone who has other insurance, or if it is rescindedwhen Golden Rule finds an insured has misrepresented that fact, why include a set-off provisionthat applies to existing policies? Here again, a trier of fact would have something to considerwhen determining materiality.

We find a material issue of fact exists on the question of the materiality of Mark'smisrepresentation. Garde, 147 Ill. App. 3d at 1032 (materiality is a question of fact).

Mark also attempts to avoid section 154 by contending he was not "covered" by the Mutual ofOmaha policy but instead was merely "eligible" for coverage. He attempts to distinguishbetween the named insured, who he claims is "covered," and "eligible dependents." We do notfind any support for this theory in case law. It is a theory that was not raised until late in thislitigation. Before it was raised, both parties appeared to operate under the assumption that Markwas covered by the Mutual of Omaha policy. Throughout their depositions, both Spencer andMark acknowledge Mark was "covered" by the Mutual of Omaha policy.

We believe that, unless the language of an insurance policy states otherwise, it is anticipatedthat all those who are entitled to benefits under the policy are "covered" by it, regardless ofwhether they are a "named insured" or an "eligible dependent." See Laycock v. American FamilyMutual Insurance Co., 289 Ill. App. 3d 264, 267, 682 N.E.2d 382 (1997) (where language ofinsurance policy is clear and unambiguous, it must be given its plain and ordinary meaning).

Section 155 Sanctions

Golden Rule contends the trial court erred in granting summary judgment in favor of Mark onthe issue of section 155 sanctions.

Section 155 of the Code:

"(1) In any action by or against a company wherein there is in issue the liability ofa company on a policy or policies of insurance or the amount of the loss payablethereunder, or for an unreasonable delay in settling a claim, and it appears to thecourt that such action or delay is vexatious and unreasonable, the court may allowas part of the taxable costs in the action reasonable attorney fees, other costs, plusan amount not to exceed any one of the following amounts:

(a) 25% of the amount which the court or jury finds such party is entitled torecover against the company, exclusive of all costs;

(b) $25,000;

(c) the excess of the amount which the court or jury finds such party is entitled torecover, exclusive of costs, over the amount, if any, which the company offered topay in settlement of the claim prior to the action." 215 ILCS 5/155 (West 1998).

Section 155 acts as a remedy for an insured who encounters unnecessary difficulties inrecovering under a policy. Bedoya v. Illinois Founders Insurance Co., 293 Ill. App. 3d 668, 679,688 N.E.2d 757 (1997). Where there is a bona fide dispute over coverage, delay in settling aclaim may not violate the statute. Bedoya, 293 Ill. App. 3d at 679.

Our findings that Mark's statement on the application constitutes a misrepresentation and thata material issue of fact exists on the question of materiality mean a bona fide dispute does exist.We find the trial court erred in awarding section 155 sanctions. See Kohlmeier, 170 Ill. App. 3dat 657 (where determination regarding whether rescission of insurance policy is a close one,insurance company cannot be said to have acted in bad faith when it rescinded the contract).

In his cross-appeal, Mark contends the trial court erred in refusing to award pro se attorneyfees under section 155. There is no need to determine whether the trial court erred in refusing toaward pro se attorney fees to Mark under section 155.

Signature on Policy

Golden Rule contends the trial court erred in finding it was not entitled to rescind the policybecause it was not signed by Mark, as required by section 359a of the Code.

Section 359a says, in part:

"(1) No policy of insurance *** shall be issued, except upon the signedapplication of the person or persons sought to be insured." 215 ILCS 5/359a (West1998).

Golden Rule does not cite any Illinois case law to support this theory, and we do not find any. While Golden Rule contends an applicant is in the best position to answer questions on anapplication and should be required to personally sign it, in this case Mark would not have been inany better position than his father to know of the Mutual of Omaha policy.

During his deposition, Mark testified his father always obtained health insurance coverage forhim. He testified Spencer was "absolutely" authorized to act on his behalf in obtaining coverage. Spencer testified he, in turn, authorized Scharff to sign the applications on his behalf and on hisson's behalf.

We find Golden Rule was not entitled to rescind the policy on this basis. The statute merelyrequires the application to be signed. Mark's application was signed. We find Golden Rule'scontention has no merit.

Other Issues

Although we remand for trial, other issues raised in the briefs most likely will reappear. Wecomment on them briefly:

(1) The trial court erroneously dismissed Golden Rule's affirmative defense that the"alternative benefits" provision of the policy entitled it to offset payments made by otherinsurance companies. We conclude the language of the policy unambiguously provides for anoff-set where other insurance coverage exists and benefits were paid. Double recovery isimpermissible in this state. Pearson v. Stedge, 309 Ill. App. 3d 807, 813, 723 N.E.2d 773(1999)("In Illinois, a plaintiff is entitled to only one recovery for an injury and double recovery iscondemned"); see also Costello v. Illinois Farmers Insurance Co., 263 Ill. App. 3d 1052, 1057,636 N.E.2d 710 (1993) (double recovery under medical coverage not allowed where plaintiffalready had received payments under uninsured motorist coverage and damages did not exceedlimits of that coverage).

(2) If the trier of fact determines the Golden Rule policy should not have been rescinded,Schwartz is entitled to recover premiums for replacement coverage. The fact-finder also willhave to determine which of the "back-up" policies was reasonably required to provide coveragein place of the improperly rescinded Golden Rule policy. Whether Schwartz is entitled torecover any premiums paid by other entities that are not parties to this lawsuit becomes a factissue. We agree Golden Rule should be entitled to depose a Blue Cross representative todetermine whether the policy was subject to cancellation and whether multiple coverage wasnecessary.

(3) The trial judge correctly decided Schwartz was not entitled to 9% prejudgment interestpursuant to section 357.9 of the Insurance Code. 215 ILCS 5/357.9 (West 1998). The languagein section 357.9 relied on by Schwartz became effective September 13, 1985, after the GoldenRule policy was issued, and does not apply.

CONCLUSION

For the reasons set out above, we reverse and remand this cause for further proceedingsconsistent with this opinion.

Reversed and remanded.

HALL, P.J., and BURKE, J., concur.