Lihosit v. STATE FARM MUT. AUTO. INS.

636 N.E.2d 625, 264 Ill. App. 3d 576, 201 Ill. Dec. 193
CourtAppellate Court of Illinois
DecidedMarch 2, 1993
Docket1-91-3285
StatusPublished
Cited by9 cases

This text of 636 N.E.2d 625 (Lihosit v. STATE FARM MUT. AUTO. INS.) 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
Lihosit v. STATE FARM MUT. AUTO. INS., 636 N.E.2d 625, 264 Ill. App. 3d 576, 201 Ill. Dec. 193 (Ill. Ct. App. 1993).

Opinion

636 N.E.2d 625 (1993)
264 Ill. App.3d 576
201 Ill.Dec. 193

Michael P. LIHOSIT, Individually and on behalf of all other persons similarly situated, Plaintiff-Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 1-91-3285.

Appellate Court of Illinois, First District, Second Division.

March 2, 1993.

*626 Raymond P. Concannon, Ltd., Chicago (Raymond P. Concannon, Michael P. Concannon, of counsel), for plaintiff-appellant.

Taylor, Miller, Sprowl, Hoffnagle & Merletti, Chicago (Frank C. Stevens, James J. Hoffnagle, of counsel), for defendant-appellee.

Justice SCARIANO delivered the opinion of the court:

On December 22, 1989, plaintiff Michael P. Lihosit was involved in an automobile accident with an uninsured motorist. At the time, plaintiff was insured by defendant State Farm Mutual Automobile Insurance Company under a policy which provided uninsured motorist coverage of $20,000 per person for death or bodily injury, and $40,000 per accident, exclusive of interest and costs. Because the parties could not settle their differences regarding plaintiff's uninsured motorist claim, the cause proceeded to arbitration, which the policy provides as the means of resolving such disputes. Plaintiff's policy contained the following clause with respect to the selection of arbitrators:

"Upon the insured requesting arbitration, each party to the dispute shall select an arbitrator and the two arbitrators so named shall select a third arbitrator. If such arbitrators are not selected within 45 days from such request, either party may request that such arbitration be submitted to the American Arbitration Association. The written decision of any two arbitrators shall be binding on each party. The cost of the arbitrator, attorney and any expert witness shall be paid by the party who hired them. However, in no event shall the expense to the insured, exclusive of fees for attorneys and expert witnesses, reduce recovery below the Illinois Safety Responsibility Law Minimum limit." (Emphasis added.)

Pursuant to this clause of the policy, an arbitration panel was chosen, and thereafter an attorney for defendant, James Rados, sent a letter to plaintiff which indicated that he would be responsible for half of the cost for the third arbitrator. In response, plaintiff filed a class action against defendant in his own behalf and that of all others similarly situated, claiming that the above-quoted arbitration provision found in all of defendant's policies violates section 143a of the Illinois Insurance Code (Ill.Rev.Stat.1991, ch. 73, par. 755a), and the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act). (Ill.Rev.Stat.1991, ch. 121½, par. 261 et seq.) Although section 143a is silent with respect to the question of who is responsible for arbitrators' fees,[1] plaintiff asserted *627 that the purpose of the statute prohibits an insurer from ever requiring an insured to pay for any portion of arbitrators' fees in an uninsured motorist claim.

In its answer to plaintiff's complaint, defendant admitted that the letter sent by its attorney was in error and that, consistent with plaintiff's policy and applicable Illinois law as expressed in Nickla v. Industrial Fire & Casualty (1976), 38 Ill.App.3d 927, 349 N.E.2d 644, plaintiff would not have to bear any part of the cost of any of the arbitrators' fees since his $20,000/$40,000 uninsured motorist coverage is the statutory minimum.[2] Defendant thereafter moved for summary judgment, reiterating that:

"It is the intent and the purport of the [last sentence of the above quoted portion of plaintiff's policy] that in those cases where the uninsured motorist limits are the statutory minimum ($20,000/$40,000), or in those cases where the award were to be reduced to or below the statutory minimum by the payment of arbitrators' fees by the insured, the cost of the arbitrator hired by the insured and one-half of the cost of the third arbitrator are not to be borne by the insured making claim [sic] for arbitration. * * * In those cases all of the three arbitrators' fees are to be paid by State Farm.
* * * * * *
In the instant case, because the uninsured motorist limits of [plaintiff's] policy were in the amount of the minimum required by law ($20,000/$40,000), the plaintiff does not bear the cost of his arbitrator or one-half of the cost of the third arbitrator, said costs being borne by State Farm." (Emphasis in original.)

At the hearing on defendant's summary judgment motion, the trial court, sua sponte, dismissed plaintiff's action, stating that it was premature; thus no case or controversy existed. It reasoned that since plaintiff had not been charged with any arbitrators' fees and that defendant stated that he would not, and could not under Nickla, be charged with such expenses, the case was not ripe for adjudication. Plaintiff appeals from that dismissal.

I.

Plaintiff asserts, with respect to his individual claim, that the trial court erred in dismissing his action for declaratory relief because he has a vital and present interest in having the court determine before the arbitration hearing whether he will be charged with arbitrators' fees. The Declaratory Judgment Act (Act) provides in pertinent part that:

"Declaratory judgments. (a) No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. The court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would *628 not terminate the controversy, or some part thereof, giving rise to the proceeding." (Ill.Rev.Stat.1991, ch. 110, par. 2-701(a).)

Although we are required to apply the Act liberally (Illinois Gamefowl Breeders' Association v. Block (1979), 75 Ill.2d 443, 452, 27 Ill.Dec. 465, 468, 389 N.E.2d 529, 532), its provisions are to be strictly complied with and its prescribed rules of procedure are to be closely followed. (Saline Branch Drainage District. v. Urbana-Champaign Sanitary District (1948), 399 Ill. 189, 192, 77 N.E.2d 158, 160; Gagne v. Village of LaGrange (1976), 36 Ill.App.3d 864, 867, 345 N.E.2d 108

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Cite This Page — Counsel Stack

Bluebook (online)
636 N.E.2d 625, 264 Ill. App. 3d 576, 201 Ill. Dec. 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lihosit-v-state-farm-mut-auto-ins-illappct-1993.