Kannel v. State Farm Mutual Automobile Insurance

584 N.E.2d 540, 222 Ill. App. 3d 1013, 165 Ill. Dec. 361, 1991 Ill. App. LEXIS 2148
CourtAppellate Court of Illinois
DecidedDecember 27, 1991
Docket2-91-0415
StatusPublished
Cited by11 cases

This text of 584 N.E.2d 540 (Kannel v. State Farm Mutual Automobile Insurance) 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
Kannel v. State Farm Mutual Automobile Insurance, 584 N.E.2d 540, 222 Ill. App. 3d 1013, 165 Ill. Dec. 361, 1991 Ill. App. LEXIS 2148 (Ill. Ct. App. 1991).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Donna Kannel, plaintiff, appeals from an order of the circuit .court of Lake county granting summary judgment in favor of defendant and denying plaintiff’s cross-motion for summary judgment. We affirm. The sole issue on appeal is whether Kannel is entitled to coverage for bodily injury under the uninsured motorist provisions of her insurance policy with State Farm Mutual Automobile Insurance Company (State Farm), defendant, when there was no physical contact with the “uninsured” vehicle.

It is undisputed that on June 2, 1987, Kannel was driving in the left lane in a westerly direction on Warrenville Road, Lisle, Illinois. As she approached the intersection with Corporate Drive West, an unidentified vehicle made a sudden left turn in front of her, forcing Kannel to apply her brakes and swerve across the center line into oncoming traffic, resulting in a collision with a vehicle operated by Lisa A. Clisar and personal injuries to Kannel. There was no contact between the unidentified vehicle and Kannel. The hit-and-run driver left the scene of the accident and has not been apprehended.

Thereafter, Kannel filed a claim with State Farm under the uninsured motorist provisions of her policy, which provided in pertinent portion as follows:

“UNINSURED MOTOR VEHICLE-COVERAGE U
We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
Uninsured Motor Vehicle — means:
* * *
2. a ‘hit-and-run’ land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured', or
b. the vehicle the insured is occupying[\] and causes bodily injury to the insured.” (Emphasis in original.)

When State Farm denied coverage, Kannel filed a declaratory judgment action seeking a determination of the rights and liabilities of the parties under the uninsured motorist provisions of her policy. State Farm responded by filing an answer and subsequent motion for summary judgment asserting that Kannel is not entitled to uninsured motorist coverage because the terms and conditions of the policy require physical contact between Kannel’s vehicle and the unknown vehicle. Following the submission of written memoranda by the parties, the circuit court granted summary judgment in favor of State Farm, and Kannel appealed.

At the time the contract for insurance between Kannel and State Farm was executed, section 143a of the Illinois Insurance Code required that all automobile insurance policies providing coverage for bodily injury and/or property damage include coverage in specified minimum amounts “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles.” (Ill. Rev. Stat. 1987, ch. 73, pars. 755a(1), (2).) The statute further provided that “no liability [shall be] imposed under the uninsured motorist property damage coverage required by this subsection if the owner or operator of the at-fault uninsured motor vehicle or hit-and-run motor vehicle cannot be identified.” (Ill. Rev. Stat. 1987, ch. 73, par. 755a(2).) Section 143(a) also allowed insurance carriers to limit uninsured motorist coverage for property damage to situations when there is physical contact between the insured and the uninsured motorist. (Ill. Rev. Stat. 1987, ch. 73, par. 755a(2Xi).) The statute, however, did not specifically provide that insurance carriers may choose to limit claims for personal injuries.

Nevertheless, our supreme court has upheld the validity of insurance policies affording coverage for personal injuries in accidents caused by hit-and-run drivers only where the unknown vehicle makes physical contact with the insured or his vehicle. (Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109.) In Ferega, the court denied recovery under the uninsured motorist provision of plaintiff’s policy which included hit-and-run drivers as uninsured motorists and defined a hit-and-run vehicle as one “ ‘which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident.’ ” (Ferega, 58 Ill. 2d at 110; see also Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123 (where Ferega controlled dismissal of a complaint for failing to allege physical contact with an unidentified vehicle in an action seeking uninsured motorist coverage).) The Ferega court construed the terms of the insurance contract in accordance with the requirements of section 143a of the Illinois Insurance Code, finding the policy’s terms to be “entirely consistent” with the statute’s policy of avoiding fraudulent claims. Ferega, 58 Ill. 2d at 111.

Similarly, in Lemke v. Kenilworth Insurance Co. (1985), 109 Ill. 2d 350, our supreme court was faced with an opportunity to overrule Ferega and again upheld the validity of a provision in plaintiff’s policy which required physical contact between the uninsured vehicle and the insured or her vehicle. (Lemke, 109 Ill. 2d at 354.) Although the plaintiff urged that the absence of a definition of a hit-and-run vehicle in the Illinois Insurance Code manifests the legislature’s intent to avoid conditions which limit recovery, the court stated that it believes “the legislature has been and continues to be conversant with Ferega. Absent evidence to the contrary, *** we presume that legislative inaction subsequent to Ferega indicates approval of the reasoning and holding in that case.” Lemke, 109 Ill. 2d at 354.

This court recently rejected a similar argument in Scanlan v. Maryland Casualty Insurance Co. (1990), 203 Ill. App. 3d 340, appeal denied (1990), 135 Ill. 2d 566. In that case, the plaintiff urged that the legislature impliedly disallowed the physical contact rule of Ferega and Lemke by amending the uninsured motorist statute in 1984 to require physical contact for property damage claims in section 143a(2), while omitting a physical contact requirement for bodily injury claims in section 143a(l). (See Pub. Act 83 — 1465, eff. Sept. 19, 1984 (amending Ill. Rev. Stat. 1983, ch. 73, par. 755a).) Following Lemke, the Scanlan court stated that “the absence in section 143a(l) of ‘physical contact’ language as that in section 143a(2)(i) does not indicate a legislative intention to alter the physical-contact rule set forth in the supreme court decisions.” (Scanlan, 203 Ill. App. 3d at 344.) We went on to reason “that if the legislature wished to express its disapproval of the physical-contact requirement in hit-and-run occurrences in bodily injury cases expressed in the supreme court decisions, it could have done so within section 143a(l), the provision which mandates uninsured motorist policies covering damages from bodily injury.” Scanlan, 203 Ill. App. 3d at 345.

Plaintiff does not dispute that the physical contact rule remains in full force in Illinois.

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Bluebook (online)
584 N.E.2d 540, 222 Ill. App. 3d 1013, 165 Ill. Dec. 361, 1991 Ill. App. LEXIS 2148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kannel-v-state-farm-mutual-automobile-insurance-illappct-1991.