American Service Insurance v. Pasalka

842 N.E.2d 1219, 363 Ill. App. 3d 385, 299 Ill. Dec. 867
CourtAppellate Court of Illinois
DecidedJanuary 26, 2006
Docket1-04-3571
StatusPublished
Cited by29 cases

This text of 842 N.E.2d 1219 (American Service Insurance v. Pasalka) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Service Insurance v. Pasalka, 842 N.E.2d 1219, 363 Ill. App. 3d 385, 299 Ill. Dec. 867 (Ill. Ct. App. 2006).

Opinion

JUSTICE WOLFSON

delivered the opinion of the court:

The public policy of this state requires that an uninsured motorist provision be written into every auto insurance policy. In this case, the policies provided that no demand for arbitration of an uninsured motorist claim could be made more than two years after the accident. What happens, then, when the tortfeasor’s insurance company does not go into liquidation until more than two years after the accident?

The plaintiff, American Service Insurance Company (ASI), denied uninsured motorist coverage to its insureds because they failed to file their claims for arbitration within two years of the accidents, pursuant to a limitation in their policies. In each case, the insureds were involved in accidents with other drivers who were insured at the time of the accidents. However, the insurance companies covering the other drivers became insolvent more than two years after the accidents.

ASI contends the trial court erred in entering summary judgment for its insureds where they violated their policies by filing claims more than two years after the accidents. The insureds contend there was no reason to file claims for uninsured motorist coverage before the insurers became insolvent. They say the policies’ two-year limitation was either ambiguous or unenforceable as a violation of public policy. We affirm the grant of summary judgment, with a slight modification.

FACTS

ASI brought the underlying declaratory judgment action against 22 of its policyholders and their passengers. Each of the policies provided coverage for “all sums which the insured or his/her legal representative shall be legally entitled to recover as compensatory damages *** from the owner or operator of an uninsured motor vehicle.”

Under the policies, an uninsured motor vehicle includes:

“a motor vehicle with respect to which there is a bodily injury liability insurance policy applicable at the time of the accident but the Company writing such policy is and is declared insolvent subsequent to the date of the accident.”

The time limitation provision in the uninsured motorist coverage portion of the policy states, in part:

“No suit, action or arbitration proceedings for recovery of any claim may be brought against this Company until the insured has fully complied with all the terms of this policy. Further, any suit, action or arbitration will be barred unless commenced within two (2) years after the date of the accident.”

The insolvent insurers at issue are the Gallant Insurance Company (Gallant), Valor Insurance Company (Valor), Reliance Insurance Company (Reliance), and the Legion Indemnity Insurance Company (Legion). An order of liquidation was entered for Gallant/Valor on August 9, 2002, for Legion on April 9, 2003, and for Reliance on October 3, 2001. Each of the defendants was involved in an accident with a driver insured by Gallant, Valor, Reliance, or Legion. Each defendant filed a personal injury complaint within two years of the accident date. Following the liquidation of the insurers, the defendants sent correspondence to ASI demanding uninsured motorist arbitration. All of the defendants sent their demands for arbitration within two years of the date of insolvency; most were sent within one year of the insolvency. Demands were sent anywhere from two years to nearly seven years after the accident date.

In its complaint for declaratory judgment, ASI contended the claimants were not entitled to benefits under their policies, based on their failure to demand arbitration within two years of the accident date. ASI also asserted the equitable doctrine of laches and contended certain defendants failed to provide timely notice of the occurrence to ASI. The policies’ notice provision provides:

“In the event of an accident or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and address of the injured and of available witnesses, shall be given by or on behalf of the insured directly to the Company as soon as practicable.”

The trial court granted the defendants’ motion for summary judgment. The court found the time limitation provision in the insurance policies was ambiguous. The court construed the provision in favor of the insureds, finding they “could not possibly have anticipated an uninsured motorist coverage claim that did not exist at the time of the accident.” The court held the defendants were entitled to coverage and directed ASI to appoint an arbitrator and proceed to arbitration according to the policy provisions.

ASI filed a motion to clarify and reconsider the court’s order, based on the court’s failure to address the issues of laches and notice of occurrence, and the application of the court’s order to those defendants who had not been served and had not filed an appearance in the case. The court denied the motion and entered an order finding that the summary judgment order “applie[d] to all party defendants.”

On appeal, ASI contends: (1) the trial court erred in entering summary judgment in favor of the defendants on the issue of the time limitation provision; (2) the order granting summary judgment was not a final order; (3) summary judgment was not properly entered in favor of parties not yet served; (4) summary judgment was not properly entered in favor of parties who had not moved for it, including parties who had not answered or appeared in the action; and (5) the trial court failed to address the issues of laches and the failure of certain defendants to provide notice of occurrence.

DECISION

I. Two-Year Time Limitation

“Summary judgment is appropriate when there is no genuine issue of material fact and the moving party’s right to judgment is clear and free from doubt.” Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Our review of the trial court’s grant of partial summary judgment is de novo. Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374, 695 N.E.2d 853 (1998). The construction of the provisions of an insurance policy is subject to de novo review. Krusinski Construction Co. v. Northbrook Property & Casualty Insurance Co., 326 Ill. App. 3d 210, 218, 760 N.E.2d 530 (2001).

The defendants contend, and the trial court held, that the time limitation provision in the policies is ambiguous. Our primary objective in construing the language of an insurance policy is to ascertain and give effect to the intent of the parties to the contract. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073 (1993).

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Cite This Page — Counsel Stack

Bluebook (online)
842 N.E.2d 1219, 363 Ill. App. 3d 385, 299 Ill. Dec. 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-service-insurance-v-pasalka-illappct-2006.