Memberselect Insurance Company v. Luz

2016 IL App (1st) 141947, 51 N.E.3d 953

• Court: Appellate Court of Illinois
• Decided: March 17, 2016
• Docket: 1-14-1947
• Status: Unpublished

Opinion

2016 IL App (1st) 141947

FOURTH DIVISION March 17, 2016

No. 1-14-1947

MEMBERSELECT INSURANCE COMPANY, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CH 28339 ) FERDINAND LUZ, ) Honorable ) Kathleen M. Pantle, Defendant-Appellant. ) Judge Presiding.

JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Cobbs concurred in the judgment.

OPINION

¶1 This appeal addresses whether a letter sent by an insured, defendant Ferdinand Luz, to

plaintiff MemberSelect Insurance Company (MemberSelect) was a sufficient demand for

arbitration under the underinsured motorist provision of defendant's car insurance policy with

MemberSelect. The policy contained a limitations provision that barred any arbitration of an

underinsured motorist claim unless it was "commenced within three years after the date of the

accident." Less than two months after the accident, defendant's attorney sent MemberSelect a

letter requesting arbitration of the underinsured motorist claim. There was no subsequent

correspondence between the parties in the more than three years that passed while the underlying

personal-injury suit progressed and ultimately settled. Defendant then sought arbitration of his

underinsured motorist claim, and MemberSelect filed this declaratory-judgment action seeking a

declaration that it did not have to cover defendant's claim because the limitations period had run.

On cross-motions for summary judgment, the trial court found that defendant's letter had not No. 1-14-1947

sufficiently demanded arbitration because it was not unequivocal and because defendant failed to

select an arbitrator.

¶2 We disagree. Defendant's request for arbitration was unequivocal. And under the terms of

the policy, defendant could have reasonably concluded that, in order to commence arbitration—

and thus avoid the limitations period—all he had to do was demand arbitration. The policy did

not require defendant to select an arbitrator in order to commence arbitration. Accordingly, we

vacate the trial court's award of summary judgment for MemberSelect and remand with

directions that the trial court enter summary judgment in favor of defendant.

¶3 I. BACKGROUND

¶4 On July 18, 2007, defendant was in a car accident with another vehicle in Skokie, Illinois.

The driver of the other vehicle had an insurance policy with a limit of $20,000 per person.

¶5 At the time of the accident, defendant's policy with MemberSelect had a provision

providing him coverage in case of an accident with an underinsured driver (i.e., a driver whose

policy limits would be insufficient to cover defendant's damages, up to the limits of defendant's

own policy). The underinsured motorist coverage contained a provision governing the conduct of

arbitration between defendant and MemberSelect, providing that, if defendant or MemberSelect

had a dispute regarding defendant's ability to recover damages from the underinsured driver, or

the amount of damages:

"Either party may demand, in writing, that the issues, excluding matters of coverage [sic].

In this event, each party will select an arbitrator. The two arbitrators will select a third. If

such arbitrators are not selected within 45 days, either party may request that the

arbitration be submitted to the American Arbitration Association."

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The underinsured motorist coverage also contained a limitations provision, which read, "Under

Underinsured Motorists Coverage, any suit, action or arbitration against [MemberSelect] will be

barred unless commenced within three years after the date of the accident."

¶6 On September 4, 2007—less than two months after the accident—defendant's attorney

sent MemberSelect a letter entitled, "NOTICE OF ATTORNEY'S LIEN for UNDERINSURED

MOTORIST and MEDICAL PAYMENTS CLAIM." It stated defendant's name, the policy

number, and the date and location of the accident. It also notified MemberSelect of the attorney

fee agreement with defendant and claimed a lien on any recovery defendant would receive. The

letter concluded with the following two paragraphs:

"Plaintiff [(i.e., defendant in this case)] Requests Arbitration of the

Underinsured Motorist Claim

Please acknowledge receipt of this lien so that we may discuss this matter."

(Emphasis in original.)

MemberSelect received the letter on September 10, 2007.

¶7 On June 22, 2009, defendant's counsel sent MemberSelect a list of "partial items of

medical special damages totaling $15,196.40." Defendant's counsel requested that MemberSelect

pay the amount of damages, or its policy limits, whichever was smaller. MemberSelect paid

defendant $1,000, the limits of the medical payment coverage under the policy.

¶8 On July 10, 2009, defendant filed his lawsuit against the other driver involved in the car

accident. His complaint sought damages "in excess of $30,000."

¶9 On March 8, 2011, defendant settled his underlying personal-injury suit with the other

driver in the accident. Defendant received $20,000, the limits of the other driver's policy.

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¶ 10 On March 11, 2011, defendant's counsel sent MemberSelect a letter which listed "special

damages incurred by [defendant] as a result of the negligence of an underinsured motorist."

Counsel added that she would contact MemberSelect "within the next two weeks to determine if

[they could] arrive at an amicable disposition of this matter."

¶ 11 On May 3, 2012, defendant filed a demand for arbitration of the underinsured motorist

claim with the American Arbitration Association.

¶ 12 MemberSelect sent defendant a letter on May 14, 2012, denying defendant's underinsured

motorist claim because the limitations period in the policy had run. Defendant's counsel

responded to MemberSelect's denial by saying that she had sent MemberSelect "notice

demanding arbitration" on September 4, 2007. She also said, "[I]n as much as the underlying tort

claim was not settled until November 2011, *** there was no underinsured motorist claim to be

commenced until the underlying tort claim was concluded."

¶ 13 MemberSelect filed a complaint for declaratory judgment, alleging that it did not have to

cover defendant's underinsured motorist claim because the limitations provision of the policy

barred coverage. The complaint also included other counts not at issue in this appeal.

¶ 14 Both parties moved for summary judgment. Defendant argued that his attorney's

September 4, 2007 letter to MemberSelect was sufficient to demand arbitration under the policy's

arbitration clause. According to defendant, because he had commenced arbitration, the

limitations period had not run. Defendant also argued that MemberSelect was estopped from

raising the limitations period, that the limitations period was tolled pursuant to section 143.1 of

the Illinois Insurance Code (215 ILCS 5/143.1 (West 2006)), and that the limitations provision

violated public policy.

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¶ 15 MemberSelect argued that the September 2007 letter was insufficient to serve as a

demand for arbitration under the policy because "[i]t did not 'demand' arbitration or name,

identify, or select an arbitrator." Thus, according to MemberSelect, arbitration never

commenced, and the limitations period ran in 2010. MemberSelect also argued that it was not

estopped from raising the limitations period as a defense, that section 143.1 did not toll the

limitations period, and that the limitations period did not violate public policy.

¶ 16 The trial court granted MemberSelect's motion for summary judgment and denied

defendant's. With regard to defendant's request for arbitration, the court found that "the policy

requires an unequivocal demand for arbitration" and that "[r]equesting arbitration is insufficient."

The court also found that, in order to commence arbitration and thus stop the running of the

limitations provision, defendant was required to name an arbitrator, which he did not do. The

court also rejected defendant's claims regarding estoppel, section 143.1, and public policy.

¶ 17 After the trial court made the necessary findings to make its order appealable pursuant to

Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), defendant filed this appeal.

¶ 18 II. ANALYSIS

¶ 19 Defendant raises three reasons why the trial court erred in granting summary judgment

for MemberSelect: (1) that his attorney's September 2007 letter was sufficient to demand

arbitration under the policy and was therefore within under the limitations period on his

underinsured motorist claim; (2) MemberSelect was estopped from asserting the limitations

period as a defense; and (3) section 143.1 tolled the limitations period when defendant filed his

proof of loss with MemberSelect in 2009. We need only address the first of these arguments

because, for the reasons stated below, defendant commenced arbitration under the terms of the

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policy when he requested arbitration in September 2007. Thus, the limitations period did not run,

and defendant is entitled to arbitrate his underinsured motorist claim.

¶ 20 Summary judgment is proper where the pleadings, depositions, admissions, and affidavits

on file reveal that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012); Hall v. Henn, 208

Ill. 2d 325, 328 (2003). Where, as here, the parties filed cross-motions for summary judgment,

they concede the absence of a genuine issue of material fact and invite the court to decide the

questions presented as a matter of law. Bank of America, N.A. v. Carpenter, 401 Ill. App. 3d 788,

795 (2010). We apply de novo review. Hall, 208 Ill. 2d at 328.

¶ 21 When construing the language of an insurance policy, we apply the same principles as

when we construe the language of a contract. Hobbs v. Hartford Insurance Co. of the Midwest,

214 Ill. 2d 11, 17 (2005). Our primary goals are to determine the parties' intent in agreeing to the

terms of the policy and to give effect to that intent, as expressed through the language of the

policy. Id. In determining the parties' intent, we construe the policy as a whole and take into

account the type of insurance provided and the purposes of the entire contract. Crum & Forster

Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993).

¶ 22 If the language of the policy is unambiguous, the policy is applied as written unless it

contravenes public policy. Hobbs, 214 Ill. 2d at 17. Where a policy is ambiguous, an insurer's

liability will be liberally construed in favor of coverage. Id. A policy is ambiguous where it is

susceptible to more than one reasonable interpretation; we will not strain to find ambiguity where

the policy contains none. Id.

¶ 23 This case involves the interplay of two provisions of the policy's underinsured motorist

coverage: the limitations provision and the arbitration provision. Under the limitations provision,

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"any suit, action or arbitration" against MemberSelect regarding an underinsured motorist claim

would be barred "unless commenced within three years after the date of the accident."

¶ 24 The question is, what did the insured have to do in this case to "COMMENCE"

arbitration? The policy does not define "commence[ ]." Typically, “commence” means to “

‘BEGIN, START, ORIGINATE.’ ” Brown v. Jaimovich, 365 Ill. App. 3d 329, 339 (2006)

(quoting Webster's Third New International Dictionary 456 (1993)). In the context of a “suit” or

“action” referenced in the policy language quoted in the preceding paragraph, it would obviously

mean the filing of a complaint in court; in Illinois, “[e]very action *** shall be commenced by

the filing of a complaint.” (Emphasis added.) 735 ILCS 5/2-201 (West 2006).

¶ 25 But how is an arbitration “commenced?” Both parties agree that a review of the

arbitration provision in the policy is necessary to answer that question. Again, the arbitration

provision reads as follows:

" ARBITRATION

If we and an insured person do not agree:

1. whether that person is legally entitled to recover damages from the owner or operator

of an uninsured motor vehicle or an underinsured motor vehicle; or

2. as to the amount of damages;

Either party may demand, in writing, that the issues, excluding matters of coverage [sic].

In this event, each party will select an arbitrator. The two arbitrators will select a third. If

such arbitrators are not selected within 45 days, either party may request that the

arbitration be submitted to the American Arbitration Association."

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¶ 26 MemberSelect says that to “commence” an arbitration, defendant was required to both

“demand” arbitration and select an arbitrator, because both a demand and the selection of an

arbitrator are mentioned in the arbitration provision.

¶ 27 The "demand" language in that first sentence is obviously truncated into a sentence

fragment, so that sentence literally does not explain what, exactly, either may "demand." But we

agree with MemberSelect and the trial court that, in context, it can only refer to a demand "that

the issues, excluding matters of coverage," be determined by arbitration. As the trial court noted,

the language preceding this sentence is the title "ARBITRATION" and the scenario where the

parties dispute either liability or damages, and the following sentences explain what transpires

after the party has chosen arbitration. As the trial court correctly put it, "[t]he incomplete demand

provision, therefore is, sandwiched between the leadup to arbitration and what happens once

arbitration has been commenced." We agree that, for all its faults, the first sentence requires a

demand that these disputed issues be arbitrated.

¶ 28 And we also agree with MemberSelect and the trial court that, at a minimum, a "demand"

for arbitration is required to "commence" the arbitration under the limitations provision. The

formal demand is the mechanism by which the insured formally informs the insurance company

of his or her desire to exercise the contractual right to arbitration. The demand is the functional

equivalent of the complaint in a civil action.

¶ 29 So we will start there and determine whether a formal "demand" was made in this case. If

it was not, it will not be necessary to reach the next question, whether the selection of an

arbitrator was also necessary to "commence" the arbitration.

¶ 30 A. Whether Defendant Sufficiently "Demanded" Arbitration

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¶ 31 Less than two months after the accident, defendant's attorney sent MemberSelect a letter

stating that defendant "Requests Arbitration of the Underinsured Motorist Claim."

(Emphasis in original.) This sentence was set apart from the rest of the letter in a separate

paragraph. MemberSelect argues that this language was too equivocal because it used the word

"request" instead of the word "demand," as the policy requires. Thus, according to

MemberSelect, defendant's letter "merely notified [MemberSelect] of a potential [underinsured

motorist] claim." For two reasons, we reject this argument and hold that defendant made a proper

"demand" for arbitration here.

¶ 32 First, we decline to adopt MemberSelect's excessively strict reading of the word

"demand." Nowhere in the policy did it require that defendant use the specific word "demand." It

simply said that he must demand arbitration. When construing insurance policies, we give the

words of a policy "their plain, ordinary, and popular meanings." Valley Forge Insurance Co. v.

Swiderski Electronics, Inc., 223 Ill. 2d 352, 366 (2006). "To do so, we look to their dictionary

definitions." Id.

¶ 33 Dictionaries use words synonymous with the word "request" to define the word

"demand." See, e.g., Random House Webster's Unabridged Dictionary 528 (2d ed. 1998)

(defining “demand” as "to ask for with proper authority," to "claim as a right," "to call for or

require as just, proper, or necessary," or "to make a demand; inquire; ask" (emphases added));

Black's Law Dictionary 441 (7th ed. 1999) ("[t]he assertion of a legal right" or "[a] request for

payment of a debt or an amount due" (emphasis added)); Webster's Third New International

Dictionary 598 (1993) ("to make a demand : ASK, INQUIRE," "to ask or call for legally," or "to

ask or call for with force or authority and with expectation of compliance" (emphases added)).

As these definitions demonstrate, when a request is made for something that is one's contractual

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right, the difference between a "request" and a "demand" is semantic. The ordinary meaning of

the word "demand" encompasses a letter requesting defendant's contractual right to arbitration. If

MemberSelect wanted to require precise wording in a demand for arbitration, it could have done

so when it drafted the policy.

¶ 34 Second, the interpretation offered by MemberSelect would require us to read the

arbitration provision here in a manner inconsistent with a state statute, which we may not do. See

Cummins v. Country Mutual Insurance Co., 178 Ill. 2d 474, 483 (1997) ("Any conflict between

statutory and insurance policy provisions will be resolved in favor of the statutory provisions.");

State Farm Mutual Automobile Insurance Co. v. Smith, 197 Ill. 2d 369, 372 (2001) ("[I]nsurance

policy provisions that conflict with a statute are void."). The arbitration provision here governs

not only underinsured-motorist claims but also uninsured-motorist claims. And an Illinois statute

governs arbitration demands for uninsured-motorist claims. Section 143a(1) of the Illinois

Insurance Code (215 ILCS 5/143a(1) (West 2006)) provides for an arbitration procedure that

mirrors the procedure in the arbitration provision at issue in this case, but it only requires that the

insured request arbitration: "Upon the insured requesting arbitration, each party to the dispute

shall select an arbitrator and the 2 arbitrators so named shall select a third arbitrator." (Emphasis

added.) Id. The statute envisions that a "request" for arbitration will be sufficient to trigger the

right to arbitration for uninsured-motorist claims.

¶ 35 As we have noted, this case involves an underinsured-motorist claim, but we find it

impossible to believe that the policy provision under review requires, at the same time, a

“request” for uninsured-motorist claims but a more specifically-worded “demand” for an

underinsured-motorist claim. There is no hint in the arbitration provision that one kind of claim

should receive different treatment than the other, and we can think of no valid reason why it

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would. After all, our supreme court has noted that "[u]ninsured and underinsured motorist

policies provide virtually the same coverage to the insured." Sulser v. Country Mutual Insurance

Co., 147 Ill. 2d 548, 556 (1992). "[U]ninsured-motorist[ ] and underinsured-motorist coverage

provisions are 'inextricably linked' " and "serve the same underlying public policy: ensuring

adequate compensation for damages and injuries sustained in motor vehicle accidents." Phoenix

Insurance Co. v. Rosen, 242 Ill. 2d 48, 57-58 (2011) (quoting Schultz v. Illinois Farmers

Insurance Co., 237 Ill. 2d 391, 404 (2010)). It would be nonsensical and unreasonable to read the

arbitration provision before us as requiring a mere request for arbitration for uninsured-motorist

claims while requiring a more forcefully-worded "demand" for arbitration for underinsured-

motorist claims.

¶ 36 In support of its claim that defendant's request for arbitration did not constitute a

“demand” for arbitration, MemberSelect cites Buchalo v. Country Mutual Insurance Co., 83 Ill.

App. 3d 1040 (1980), and Rein v. State Farm Mutual Automobile Insurance Co., 407 Ill. App. 3d

969 (2011). We find those cases distinguishable from the present action. In Buchalo, the

insured's attorney sent the insurance company a letter saying, " 'I believe the best thing to do with

respect to this case is to arbitrate. I will, in the future, forward you the name of our arbitrator.' "

Buchalo, 83 Ill. App. 3d at 1043. This court held that the letter was "at best a statement of

opinion by plaintiff's former counsel" and did "not constitute an unequivocal demand for

arbitration." Id. at 1045.

¶ 37 In Rein, the letter sent to the insurance company, which the insured claimed to be a

demand for arbitration, did not mention the word "arbitration" at all. Rein, 407 Ill. App. 3d at

971. Instead, it merely "notified" the insurance company of the insured's " 'intention to pursue an

Uninsured/Underinsured Motorist Claim,' " requested the company to " 'open a claim file on

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[the] matter,' " and asked the company to " 'contact the [insured's attorney] so [they could]

discuss the matter in greater detail.' " Id.

¶ 38 In this case, defendant did not merely state his opinion about the desirability of

arbitration, nor did he fail to mention the word "arbitration" altogether. Defendant, in bold letters

set apart from the remainder of his letter, stated that he "Requests Arbitration of the

Underinsured Motorist Claim." (Emphasis in original.) We hold that this request for a

contractual right available to him under the insurance policy was an unequivocal demand for

arbitration.

¶ 39 B. Whether the Selection of an Arbitrator Was Necessary to "Commence" Arbitration

¶ 40 As we have found that the request for arbitration sufficiently constituted a demand for

arbitration under the policy, we must next consider whether MemberSelect is correct that

defendant was also required to select an arbitrator in order to "commence" the arbitration. If

selecting an arbitrator was necessary to "commence" the arbitration, then MemberSelect prevails

on its limitations argument, because it is undisputed that defendant did not select an arbitrator

within the three-year limitations period.

¶ 41 Again, the arbitration language provided that:

"Either party may demand, in writing, that the issues, excluding matters of coverage [sic].

In this event, each party will select an arbitrator. The two arbitrators will select a third. If

such arbitrators are not selected within 45 days, either party may request that the

arbitration be submitted to the American Arbitration Association."

¶ 42 In interpreting this policy provision, "we must be guided not by what the insurer intended

but by what a reasonable person in the shoes of the insured would understand the policy to

mean." Indiana Insurance Co. v. Royce Realty & Management, Inc., 2013 IL App (2d) 121184, ¶

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28. We will view the language through the eyes of an "average, ordinary, normal, reasonable

person." Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393 (2005).

And where, as here, insurance provisions are claimed to exclude or deny coverage, the supreme

court has cautioned that we must review them "narrowly" and apply them "only where [their]

terms are clear, definite, and specific." Id.

¶ 43 We do not believe that a reasonable person, reading this insurance policy provision,

would understand that the selection of an arbitrator is part of the “commencement” of the

arbitration. We reach this conclusion for two reasons.

¶ 44 First and foremost, a careful review of this language shows that the selection of an

arbitrator is not a requirement at all. The provision states that “[i]n this event”—the formal

demand for arbitration—“each party will select an arbitrator.” But it goes on to contemplate that

the insured (or insurer, or both parties) may not select an arbitrator within 45 days, and in that

event, either party may request that the arbitration be submitted to the American Arbitration

Association. The insured could choose to select an arbitrator immediately upon the demand for

arbitration, wait an undefined amount of time before doing so—or never do it.

¶ 45 We fail to see how a reasonable person, reading this language, would consider the

“commencement” of an arbitration to include the selection of an arbitrator, when the plain

language of that provision contemplates that the selection of an arbitrator might never occur. It

would come as a great surprise to any ordinary, reasonable person that an act that is not even

required under the arbitration provision could be interpreted as so critical to the process that the

failure to perform that act is fatal to one’s contractual right to seek arbitration in the first place. It

would be absurd to hold that an act that is not mandatory could somehow be read as a condition

precedent to prosecuting an arbitration, and we will not adopt an absurd interpretation. See, e.g.,

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Bohner v. Ace American Insurance Co., 359 Ill. App. 3d 621, 623 (2005) ("[A] court will not

adopt an interpretation [of an insurance policy] that *** leads to an absurd result."). That is

doubly true given that the effect of that interpretation would be to cut off an insured’s contractual

right to arbitration, a construction we may adopt only when the language is “clear, definite, and

specific." Gillen, 215 Ill. 2d at 393.

¶ 46 At a minimum, at least one reasonable interpretation of the arbitrator-selection language

is that it informs the insured of his or her right or option to pick an arbitrator, an explanation of

how the process works that otherwise would not be obvious to an insured. We cannot say that the

only reasonable interpretation of the arbitrator-selection language is that it imposes a mandatory

duty on the insured for which the consequences of noncompliance are fatal. If there is more than

one reasonable interpretation of an insurance provision, we will choose the one that favors the

insured over one that denies the insured a bargained-for contractual right. See Hobbs, 214 Ill. 2d

at 17; Gillen, 215 Ill. 2d at 393.

¶ 47 We understand that an arbitration cannot go forward without an arbitrator. The arbitrator

is an indispensable part of any arbitration, just as a judge is an indispensable part of a lawsuit.

But many things are indispensable to a lawsuit or arbitration, and they are not all part of the

“commencement” of that action. Service of process on the defendant, to name one, is

indispensable to a lawsuit, but the lawsuit does not “commence[ ]” upon service on the

defendant; it commences upon the filing of the complaint. 735 ILCS 5/2-201 (West 2006).

¶ 48 MemberSelect and the trial court viewed defendant's inaction on this arbitration claim as

slumbering on his rights. Maybe so. But that does not mean that he did not "commence" the

arbitration; it just means he did not prosecute it aggressively once commenced. In a civil case, if

a plaintiff filed a lawsuit to commence the action but did not make diligent attempts to serve the

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defendant, that action could be dismissed on that basis. Ill. S. Ct. R. 103(b) (eff. July 1, 2007). If

a plaintiff served the defendant but then failed to do anything at all on the case, the matter could

be dismissed for want of prosecution. See, e.g., Epley v. Epley, 328 Ill. 582, 585 (1928). But in

neither of those instances would we deny that the plaintiff properly "commenced" the lawsuit.

Likewise, an insurance company frustrated with an insured who failed to move swiftly on an

arbitration has weapons at its disposal. The insurance company here was not helpless.

MemberSelect could have selected its arbitrator. It could have jump-started the arbitration

process itself by filing with the American Arbitration Association, as the plain language of the

policy provision permits. Or it could have drafted the policy language in such a way to make it

clear that if the insured failed to select an arbitrator before the three-year limitations period, its

arbitration right would be forfeited. What MemberSelect cannot do is deny that the insured

timely "commenced" the arbitration under the policy language at issue.

¶ 49 In support of its contention that "under Illinois law, in order to commence arbitration an

insured must make an unequivocal demand for arbitration *** as well as name an arbitrator

within the requisite time period," MemberSelect again cites Buchalo, 83 Ill. App. 3d 1040, and

Rein, 407 Ill. App. 3d 969.

¶ 50 We again find those cases distinguishable, because in both Buchalo and Rein, the

arbitration provision contained language that was materially different than the language in this

case. In Buchalo, the uninsured-motorist provision of the policy said that, if the parties had a

dispute regarding damages, " 'each party shall, upon written demand of the Insured or upon

written demand of the [insurance] Company, select a competent and disinterested arbitrator.' "

Buchalo, 83 Ill. App. 3d at 1042. Nothing in that policy allowed the insured up to 45 days or

more to select that arbitrator, nor did it contemplate that the insured might never select an

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arbitrator. Rather, it stated that each party " 'shall' " select an arbitrator " 'upon written demand

of' " one of the parties. Id. The use of the word " 'shall' " suggested it was a mandatory

obligation, and the phrase " 'upon written demand' " (id.), without any suggestion that the insured

could wait 45 days or any other period of time, suggested that this mandatory duty was to be

made contemporaneously with the demand itself.

¶ 51 In Rein, the arbitration language stated that, " 'If the insured requests arbitration, each

party to the dispute shall select an arbitrator.' " Rein, 407 Ill. App. 3d at 974. Again, the language

was stated in mandatory form and did not permit or even contemplate the insured's failure to

¶ 52 Here, in contrast, the language makes it clear that the selection of an arbitrator was not

mandatory. The provision contemplates a scenario where the insured never selects an arbitrator

and does not remotely hint at any fatal consequences for that failure. Thus, while both Buchalo

and Rein found that the selection of an arbitrator was a condition precedent to "commencing" the

arbitration, it did so based on different language in different arbitration provisions.

¶ 53 Because of the meaningful difference in the policy language here compared to Buchalo

and Rein, we find those cases distinguishable. We hold that the selection of the arbitrator was not

necessary to “commence” the arbitration under the limitations provision in the insurance policy.

¶ 54 Because we hold that defendant here properly demanded arbitration, and because we find

that nothing else was required of him to “commence” the arbitration, we hold that defendant’s

right to seek arbitration was not barred by the three-year limitations provision in the policy.

Defendant should be allowed to arbitrate his dispute. The trial court erred in awarding summary

judgment to MemberSelect and in denying defendant’s motion for summary judgment.

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¶ 55 In light of our holding, it is unnecessary to consider defendant’s other arguments

regarding estoppel or the tolling of the limitations period.

¶ 56 III. CONCLUSION

¶ 57 For the reasons stated, we vacate the trial court's judgment in this case and remand this

matter with directions to deny MemberSelect’s motion for summary judgment and to grant

defendant’s motion for summary judgment.

¶ 58 Vacated and remanded with directions.

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