Norris v. National Union Fire Insurance

Opinion

1-05-3132

SECOND DIVISION October 17, 2006

No. 1-05-3132

THADEUS NORRIS and NICOLETTE NORRIS, ) Appeal from the as special administrators of the ) Circuit Court of Estate of TOMMY J. NORRIS, Deceased, ) Cook County. ) Plaintiffs-Appellees, ) ) v. ) ) NATIONAL UNION FIRE INSURANCE ) COMPANY OF PITTSBURGH, PA., ) Honorable ) Mary Anne Mason, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

This is the second time this case has come before the appellate court. The

defendant National Union Fire Insurance Co. of Pittsburgh, PA. (National Union)

contends the uninsured motorist coverage limits rulings against it the first time were

wrong and asks us to change them. National Union also contends the statutorily

required arbitration based on the first decision is not binding on the parties and should

not have been confirmed by the trial court. We adhere to the rulings in the first Norris

decision and we affirm the trial court=s judgment on the arbitration award.

FACTS

A clear understanding of the issues before us requires us to recount the history

of this case. 1-05-3132

Plaintiffs Thadeus and Nicolette Norris are special administrators of the estate of

Tommy J. Norris, a truck driver employed by Jones Truck Lines, Inc. (Jones). Jones

was insured under a commercial fleet general liability policy issued by National Union.

On October 4, 1989, Tommy Norris was involved in a fatal accident with an uninsured

motorist while working for Jones. The National Union policy had personal injury limits of

$2 million per accident but did not include uninsured motorist coverage. Norris= estate

received $200,000 in workers= compensation benefits as a result of his death.

Plaintiffs filed suit seeking a declaration that National Union=s policy should be

reformed to include uninsured motorist coverage equal to the policy=s bodily injury

liability limits of $2 million. On cross-motions for summary judgment, the trial court

granted plaintiffs= motion to reform the policy, but ordered the policy reformed to the

minimum statutory limits of $20,000 per person and $40,000 per occurrence. Because

Norris= estate received $200,000 in workers= compensation benefits, the trial court held

the workers= compensation set-off provision in the policy barred recovery under any

possible uninsured motorist claim. Plaintiffs appealed.

In Norris v. National Union Fire Insurance Co. of Pittsburgh, PA., 326 Ill. App. 3d

314, 760 N.E.2d 141 (2001) (Norris I), this court considered: (1) whether the trial court

correctly reformed the commercial trucking policy to require the insured to provide

uninsured motorist benefits only in the amount of the statutory minimum requirements;

(2) whether plaintiffs= receipt of workers= compensation benefits in excess of the

statutory minimum for uninsured motorist coverage served as a set-off, barring plaintiffs=

uninsured motorist claim; (3) whether the exclusive remedy afforded by the Workers=

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Compensation Act barred plaintiffs= claim for uninsured motorist coverage against the

decedent=s employer or its insurer; and (4) whether plaintiffs= claim for uninsured

motorist coverage was barred because the National Union policy specifically excluded

employees who are injured during the course of employment and covered by workers=

compensation coverage.

The court reversed the trial court=s order and remanded the cause for further

proceedings, finding the National Union policy should have been reformed to include

uninsured motorist coverage up to the personal injury limits of the policy, $2 million.

Norris, 326 Ill. App. 3d at 322. Since the reformation should have included uninsured

motorist coverage up to $2 million, the court concluded consideration of whether

workers= compensation benefits in excess of the statutory minimum uninsured motorist

coverage act as a set-off against any recovery was Arendered unnecessary.@ Norris,

326 Ill. App. 3d at 322.

The court rejected National Union=s argument that the exclusive remedy

provision of the Workers= Compensation Act (820 ILCS 305/5(a) (West 2000)) barred

plaintiffs= claims, finding A[t]he category of third parties liable in tort to an injured

employee is conspicuously absent from the language of the Workers= Compensation

Act.@ Norris, 326 Ill. App. 3d at 323. The court also held the employee exclusion

contained in the National Union policy was Aunenforceable as a matter of public policy in

this situation.@ Norris, 326 Ill. App. 3d at 323. National Union filed a petition for leave to

appeal to the Illinois Supreme Court, which was denied. Norris v. National Union Fire

Insurance Co. of Pittsburgh, PA., 198 Ill. 2d 618, 770 N.E.2d 220 (2002).

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On remand, the trial court ordered the matter to arbitration pursuant to the 1989

version of section 143a-1 of the Insurance Code. Ill. Rev. Stat. 1989, ch. 73, par. 755a-

1 (Aany dispute with respect to uninsured motorist coverage shall be submitted for

arbitration to the American Arbitration Association.@) The defendant did not attempt to

appeal the trial court=s order. The arbitrator entered a $2 million award for plaintiffs,

which was reduced to $1,575,500 based on the decedent=s contributory negligence and

the workers= compensation benefits received by decedent=s estate. On June 3, 2005,

plaintiffs filed a motion to confirm the arbitration award. National Union filed a rejection

of the arbitration award and requested a trial, relying on Supreme Court Rule 95 (134 Ill.

2d R. 95). National Union did not file a motion to vacate the arbitration award. On

August 19, 2005, the trial court confirmed the award, noting:

AThe law in effect at the time the policy was issued provided

for mandatory and binding arbitration. If mandatory and

binding arbitration means anything, it means that the losing

party does not have a right to a trial de novo.@

DECISION

National Union contends this court=s decision in Norris I should be overturned

because it is palpably erroneous and works a manifest injustice against both insurers

and insureds. National Union contends the law of the case doctrine does not bar

reconsideration of the issues raised and decided in Norris I.

Plaintiffs contend National Union forfeited its right to challenge Norris I as

palpably erroneous because it failed to raise the issue on remand in the trial court. We

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fail to see how National Union could have raised such a challenge in the trial court. On

remand, the trial court was bound to follow this court=s directions. See Harris Trust &

Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d 383, 387, 696 N.E.2d 697 (1998)

(AWhen a judgment of the circuit court is reversed and the cause is remanded by this

court with specific directions as to the action to be taken, it is the duty of the trial court to

follow those directions.@) Any argument to the contrary would have been futile. We find

forfeiture does not apply here.

Under the law of the case doctrine, questions of law decided on a previous

appeal are binding on the trial court on remand as well as on the appellate court on a

subsequent appeal. Martin v. Federal Life Insurance Co., 268 Ill. App. 3d 698, 701, 644

N.E.2d 42 (1994). However, the doctrine Amerely expresses the practice of courts

generally to refuse to reopen what has been decided; it is not a limit on their power.@

People v. Patterson, 154 Ill. 2d 414, 468, 610 N.E.2d 16 (1992).

The law of the case doctrine=s purpose is Ato protect settled expectations of the

parties, ensure uniformity of decisions, maintain consistency during the course of a

single case, effectuate proper administration of justice, and bring litigation to an end.@

Petre v. Kucich, 356 Ill. App. 3d 57, 63, 824 N.E.2d 1117 (2005). The law of the case

doctrine is also intended to maintain the prestige of the courts. Emerson Electric Co. v.

Aetna Casualty and Surety Co., 352 Ill. App. 3d 399, 417, 815 N.E.2d 924 (2004). A[I]f

an appellate court issues contrary opinions on the same issue in the same case, its

prestige is undercut.@ Emerson Electric Co., 352 Ill. App. 3d at 417. AWhen an

appellate court reverses and remands the cause with a specific mandate, the only

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proper issue on a second appeal is whether the trial court=s order is in accord with the

mandate.@ Petre, 356 Ill. App. 3d at 63.

There are two recognized exceptions to the law of the case doctrine=s

application: (1) when a higher reviewing court, subsequent to the lower court=s decision,

makes a contrary ruling on the same issue; and (2) when a reviewing court finds its prior

decision was palpably erroneous. Martin, 268 Ill. App. 3d at 701; Stallman v.

Youngquist, 152 Ill. App. 3d 683, 504 N.E.2d 920 (1987).

I. Section 143a-2 of the Insurance Code

National Union contends the Norris I court erroneously held National Union=s

offer of uninsured motorist benefits to Jones was invalid under section 143a-2 of the

Insurance Code.

The 1989 version of section 143a-2(1) of the Insurance Code provides:

ANo policy insuring against loss resulting from liability

imposed by law for bodily injury or death suffered by any

person arising out of the ownership, maintenance or use of a

motor vehicle shall be renewed or delivered or issued for

delivery in this State *** unless uninsured motorist coverage

as required in Section 143a of this Code is offered in an

amount up to the insured=s bodily injury limits.@ Ill. Rev.

Stat., 1989, ch. 73, par 755a-2(1).

To satisfy the requirements of section 143a-2 of the Insurance Code, an offer

must: (1) notify the insured in a commercially reasonable manner if the offer is not made

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in face-to-face negotiations; (2) specify the limits of the optional coverage without using

general terms; (3) intelligibly advise the insured of the nature of the offer; and (4) advise

the insured that optional coverage is available for a relatively modest premium increase.

Cloninger v. National General Insurance Co., 109 Ill. 2d 419, 425-26, 465 N.E.2d 956

(1984). AThe remedy for an inadequate offer of uninsured motorist coverage is to

increase the existing coverage to limits equal to the bodily injury liability limits of the

insured person=s policy.@ Watson v. Hartford Casualty Insurance Co., 205 Ill. App. 3d

88, 95, 562 N.E.2d 1261 (1990).

In this case, the offer form instructed Jones to accept or reject uninsured

coverage and informed Jones of the basic limits required in several states, including

Illinois. As to Illinois, the form stated the basic limits required $30,000 in coverage.

That was incorrect. The Insurance Code required a minimum of $20,000 per person

and $40,000 per occurrence. The form also failed to identify how much additional

coverage would cost.

Larry E. May, Director of Risk Management for Jones, testified at his deposition

and by affidavit that it was Jones= corporate policy to reject uninsured motorist coverage

where possible or, alternatively, to carry only the statutorily mandated minimum

coverage. May testified at his deposition:

AQ. And I think you answered earlier, I just want to make

sure the record is clear. You understood at all times when

procuring insurance from National Union that you could

purchase uninsured coverage up to your liability limits of $2

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million?A. It was my understanding if I wanted it, they

probably would sell me anything I was willing to pay for it.

Q. Anything over-

A. Let me add one comment to that. They at all times

offered me uninsured and underinsured motorist, and I at all

times said no, as I=ve told you in my initial presentation, I

would reject--I do not want uninsured motorist or

underinsured motorist to be a part of my program. If it=s

mandated by law, I will have to have it and you will have to

cover it, but at whatever their absolute minimums are. And

at that point in time there is no need to talk about, well we

can give you $5 million. I am not interested because I don=t

want it coming out of my pocket.@

May did not directly answer the question asked: whether Jones knew National Union

could provide it with uninsured motorist coverage up to the $2 million bodily injury policy

limit. Nor did May explicitly say the $2 million limits were offered to Jones by National

Union. An Aoffer@ is required by section 143a-2(1) of the Insurance Code. Failure to

obtain from May a clear statement that the $2 million limit was offered to Jones

substantially weakens National Union=s case for a finding of palpable error.

In Norris I, the majority held that as a result of the errors on the offer form,

considering all presumptions in favor of the insured, it was as if no offer was made.

Norris, 326 Ill. App. 3d at 322. The majority held it was Aunreasonable to ask a

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company or individual to accept or reject coverage that is incorrectly listed on the forms

presented.@ Norris, 326 Ill. App. 3d at 321. While the majority recognized Jones had

clearly marked an X in the space for rejecting uninsured motorist coverage, it concluded

Jones could not make an informed choice to accept or reject since the offer was not

made in a proper manner. Norris, 326 Ill. App. 3d at 322. The dissent, however,

believed it was uncontested that National Union offered uninsured motorist coverage to

Jones in an amount up to the insured=s bodily injury limits. Norris, 326 Ill. App. 3d at

326.

If we are going to apply the palpably erroneous standard, we should endeavor to

define it. Few cases do. It comes up when courts are asked to deviate from the law of

the case doctrine. See Stallman, 152 Ill. App. 3d at 689. No decision we have found

explicitly defines the standard. But we are not without guidance. APalpable@ can be

defined.

The Abridged Sixth Edition of Black=s Law Dictionary defines palpable as Aeasily

perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.@ Black=s

Law Dictionary 767 (6th ed. 1991). In A Dictionary of Modern Legal Usage, Second

Edition, palpable is defined as Atangible, apparent.@ A Dictionary of Modern Legal

Usage 635 (2d ed. 1995).

Not many Illinois decisions have applied the palpably erroneous standard to

change the law of a specific case. It does happen. It happened in Stallman where the

court decided to reconsider the parent-child tort immunity rule. Stallman, 152 Ill. App.

3d at 689. But the decision made it clear the palpably erroneous standard is used only

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when the court, in the first instance, remands the case for a new trial on all issues. On

the second appeal, then, the court would actually reach a different decision based on a

new and different trial. Stallman, 152 Ill. App. 3d at 689. See also Martin, 268 Ill. App.

3d at 701. That is not what happened in the case before us. Here, the mandate in

Norris I foreclosed a trial on the issues. There are no new facts concerning coverage

limits. All that remained to be done was to obtain an arbitrator=s decision on the amount

of recovery. Norris I did not turn on findings of law. It analyzed the record to conclude

no contested factual issue existedB-reformation takes the policy to the $2 million limit.

The other recognized exception to the law of the case doctrineB-when a higher

reviewing court makes a contrary ruling on the same issueB-has not happened to Norris

I. In fact, this court has relied on Norris I to support the proposition that A >every liability

insurance policy issued for any motor vehicle registered or principally garaged in Illinois

must provide coverage for bodily injury or death caused by an uninsured or hit-and-run

vehicle.= @ Harrington v. American Family Mutual Insurance Co., 332 Ill. App. 3d 385,

392, 773 N.E.2d 98 (2002), quoting Norris, 326 Ill. App. 3d at 321.

We conclude the law of the case doctrine prevents us from revisiting the Norris I

reformation ruling. We reach this conclusion with some reluctance. Had the judges on

this panel decided the issue in the first instance, the result well might have been

different. But this is the second instance, and good legal policy reasons and the factual

record compel the result we reach.

The law of the case doctrine, as we read it, applies to all of the issues raised by

National Union. We could move directly to the arbitration issue raised by National

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Union, but for the sake of completeness we will address National Union=s other two

reasons for contending Norris I should not be followed.

II. Exclusive Remedy Provision

National Union contends the Norris I court=s decision that the Workers=

Compensation Act=s exclusivity bar did not prohibit employees and their families from

seeking and obtaining uninsured motorist benefits from the employer=s insurer was

palpably erroneous.

Section 5(a) of the Illinois Workers= Compensation Act (the Act) states, in

relevant part, that:

ANo common law or statutory right to recover damages from

the employer, his insurer, his broker, and service

organization retained by the employer, his insurer or his

broker to provide safety service, advice or recommendations

for the employer or the agents or employees of any of them

for injury or death sustained by any employee while engaged

in the line of his duty as such employee, other than the

compensation herein provided, is available to any employee

who is covered by the provisions of this Act, to any one

wholly or partially dependent upon him, the legal

representatives of his estate, or any one otherwise entitled to

recover damages for such injury.@ (Emphasis Added.) 820

ILCS 305/5(a) (West 2000).

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However, section 143a-1 of the Insurance Code, which was passed after the

adoption of the Workers= Compensation Act, provides that no policy shall be issued in

Illinois unless uninsured motorist coverage is provided up to the statutorily required

minimum set forth in section 7-203 of the Illinois Vehicle Code Afor the protection of

persons insured thereunder who are legally entitled to recover damages from owner or

operators of uninsured motor vehicles.@ Ill. Rev. Stat. 1989, ch. 73, par. 755a-1.

The intent of the legislature in enacting section 143a was to ensure persons

injured by an uninsured motorist are protected at least to the extent that compensation

is made available to persons injured by a motorist insured for the legal limits. Severs v.

County Mutual Insurance Co., 89 Ill. 2d 515, 519, 434 N.E.2d 290 (1982); American

Services Inc. v. Pasalka, 363 Ill. App. 3d 385, 390, 842 N.E.2d 1219 (2006). Nothing in

the language of the statute excludes its application to employees injured by uninsured

motorists during the course of their employment.

In this case, Jones was required to include uninsured motorist benefits up to the

statutorily mandated minimum when he purchased his commercial fleet general liability

policy from National Union. See Ill. Rev. Stat. 1989, ch. 73, par. 755a-1. Norris, a truck

driver employed by Jones, was an intended beneficiary of the statutorily required

protection. The injuries that ultimately led to Norris= death were caused by an uninsured

third party, not by his employer or a co-employee. As the majority in Norris I noted,

nothing in the Act explicitly precludes an employee=s recovery of uninsured motorist

benefits from the employer=s automobile insurer. AThe category of third parties liable in

tort to an injured employee is conspicuously absent from the language of the Workers=

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Compensation Act.@ Norris, 326 Ill. App. 3d at 323.

We recognize the language Ahis insurer or his broker to provide safety service,

advice or recommendations for the employer@ in section 5(a) of the Act has been

interpreted to extend immunity beyond workers= compensation carriers to general

liability insurers in one distinct area--liability for negligent safety inspections. See Mier

v. Staley, 28 Ill. App. 3d 373, 384, 329 N.E.2d 1 (1975) (AIn view of the language of the

statute, and its legislative history, we hold that the general liability insurer, is immune

from suit when the basis alleged is negligent safety inspections.@) The apparent

purpose of the amendment was to promote industrial safety inspections. Mier, 28 Ill.

App. 3d at 385. However, nothing in the legislative history, Illinois case law, or the Act

itself suggests the legislature intended to extend immunity to an employer=s automobile

insurer.

After reviewing the analysis and reasoning of the Norris I court=s decision, we

agree Athe bar contained in section 5(a) does not apply.@ Norris, 326 Ill. App. 3d at 323.

Although no other Illinois case has considered this precise question, a majority of

jurisdictions that have considered the question have reached a similar conclusion. See

Elam v. Hartford Insurance Co., 42 S.W.3d 443 (Ark. 2001) (Ait is clear that Hartford

[employer=s automobile insurer] was not the workers= compensation carrier, thus making

that extension of the exclusive-remedy statute inapplicable here@); Philadelphia

Indemnity Insurance Co. v. Morris, 990 S.W.2d 621, 625 (Ky. 1999) (exclusive remedy

provision did not preclude recovery of uninsured motorist benefits because it was

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intended only to protect the employer, not its underinsured motorist insurance carrier);

Muller v. Tri-State Insurance Co. of Minnesota, 560 N.W.2d 130, 133-34 (Neb. 1997)

(exclusive remedy provision protected the employer=s insurer in its role as the workers=

compensation carrier, not in its roles as employer=s underinsured motorist carrier). But

see Berger v. H.P. Hood, Inc., 416 Mass. 652, 624 N.E.2d 947 (Mass. 1993); National

Union Fire Insurance Co. of Pittsburgh, PA. v. Figaratto, 423 Mass. 346, 667 N.E.2d

877 (Mass. 1996)(AAn employee injured on the job by an underinsured third person is

not permitted to recover UM benefits provided under a standard policy by an employer=s

motor vehicle insurer.@)

National Union contends both Atlantic Mutual Insurance Co. v. Payton, 289 Ill.

App. 3d 866, 869, 682 N.E.2d 1144 (1997), and Robertson v. Travelers Insurance Co.,

95 Ill. 2d 441, 446-52, 682 N.E.2d 1144 (1983), make clear that the exclusive remedy

provision operates in favor of an employer=s insurer. National Union focuses on the

court=s statement in Payton that Athe legislature created this exclusive remedy not only

for employers and co-employees but also specifically and expressly for insurers.@

Payton, 289 Ill. App. 3d at 870.

Contrary to National Union=s contention, neither Payton nor Robertson applies in

this case. In Payton, the court held an employee was not entitled to uninsured motorist

benefits from his employer=s automobile insurance carrier because the co-employee

who caused the injuries was immune from suit under section 5(a) of the Workers=

Compensation Act. Payton, 289 Ill. App. 3d at 872-74. The court specifically noted,

however, that the case differed from third-party cases, which do not involve employee,

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co-employee, and employer relationships. Payton, 289 Ill. App. 3d at 869.

In Robertson, our supreme court held an employee could not file a common law

action for outrageous conduct against his employer=s workers= compensation insurer

because section 19(k) of the Act provided the exclusive remedy for the unreasonable or

vexatious delay in payment of benefits. Robertson, 95 Ill. 2d at 449-50. The supreme

court did not address whether section 5(a) of the Act granted immunity to an employer=s

general liability or uninsured motorist carrier.

We therefore find this court=s prior decision regarding the applicability of the

exclusive remedy provision was not palpably erroneous. In fact, it was correct.

III. Insurance Policy=s Employment Exclusion

National Union contends the Norris I majority erroneously held the insurance

policy=s employment exclusions violated Illinois public policy.

A[A]n insurance policy is a contract between the insurance company and the

policyholder, the benefits of which are determined by the terms of the contract unless

the terms are contrary to public policy.@ Sulser v. Country Mutual Insurance Co,, 147 Ill.

2d 548, 558, 591 N.E.2d 427 (1992). When the language of an insurance policy is clear

and unambiguous the court will give effect to its terms. Grevas v. United States Fidelity

& Guaranty Co., 152 Ill. 2d 407, 410, 604 N.E.2d 942 (1992). However, Athe purpose

underlying a statute cannot be circumvented by the insertion of a contrary or restricting

provision in an insurance policy.@ Severs, 89 Ill. 2d at 520.

In this case, the insurance policy issued to Jones specifically excludes from

coverage Abodily injury@ to A[a]n employee of the >insured= arising out of and in the

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course of employment by the >insured.= @ Exclusion three of the policy, entitled AWorkers

Compensation,@ also excludes A[a]ny obligation for which the >insured= or the >insured=s=

insurer may be held liable under any workers compensation, disability benefits or

unemployment compensation law or similar law.@

In Norris I, the court held the exceptions were unenforceable as a matter of

public policy. Norris, 326 Ill. App. 3d at 323. The court held:

ALogic dictates that a commercial trucking venture

necessitates the use of employees to drive the trucks. It is

highly likely that, like the decedent, some employees are

going to get into traffic accidents with persons other than

employers or co-employees. *** If the other driver had

insurance, the Norris plaintiffs would be suing him and his

insurer and would likely recover. As we have seen, the

requirement of uninsured motorist coverage is mandated by

the statute so as to facilitate an injured plaintiff or his or her

heirs being made whole. In this particular situation, it would

be both inequitable and against public policy to leave the

heirs of this dead driver with no remedy.@ Norris, 326 Ill.

App. 3d at 323-24.

Although no other Illinois court has considered whether employee or workers=

compensation exclusions preclude an employee from recovering uninsured motorist

benefits, other jurisdictions that have considered the issue have held the exclusions do

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not apply when a negligent third party is at fault.

In Mirales v. Snoderly, 602 S.E.2d 534 (W.Va. 2004), the West Virginia Supreme

Court considered whether a workers= compensation exclusion to uninsured motorist

coverage in a commercial business auto policy precluded an employee from recovering

uninsured motorist benefits for injuries he sustained during the course of his

employment as the result of an automobile accident with a negligent third-party. The

employee also received worker=s compensation benefits. The court concluded the

workers= compensation exclusion did not apply because the employee was injured by a

third-party tortfeasor, not his employer. Mirales, 602 S.E.2d at 540-41.

The court=s conclusion was based on the determination that while an employee

may recover workers= compensation benefits for injuries that occurred in the course and

scope of his employment, he Ais not statutorily barred from also pursuing [his] claims

against the third-party as this individual does not enjoy the immunity afforded by the

workers= compensation statutes.@ Mirales, 602 S.E.2d at 540. See also Aetna Casualty

& Surety Co. v. McMichael, 906 P.2d 92, 100 (Colo. 1995) (Because the injured

employee=s claim was based on liability incurred by the third-party driver who caused

the accident, the workers= compensation exclusion in the policy did not apply to the

employee=s uninsured benefits claim.) Neither court concluded the exclusion violated

public policy.

In this case, similar to Mirales, decedent was injured by a third-party tortfeasor,

not his employer or a co-employee. Since the exclusions in Jones= policy do not

specifically refer to uninsured motorist coverage or to injuries caused by a negligent

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third party, we might have found a different reason to conclude the exclusions did not

prevent plaintiffs= recovery of uninsured motorist benefits. In our opinion the employee

and workers= compensation exclusions in Jones= policy simply do not apply to the facts

of this case. See Mirales, 602 S.E.2d at 540. In light of the purpose of section 143a-1,

however, we cannot say this court=s conclusion in Norris I that the exclusions violated

public policy was palpably erroneous.

IV. Binding Arbitration

National Union contends the 1989 version of section 143a-1 of the Insurance

Code provides for mandatory but non-binding arbitration of uninsured motorist claims.

In support, National Union points out that mandatory arbitration and binding arbitration

are not always the same. Because the legislature did not use the word Abinding@ to

modify "arbitration," National Union contends the arbitration in this case cannot be read

as binding.

Questions of statutory interpretation are issues of law reviewed de novo. In re

County Collector, 356 Ill. App. 3d 668, 670, 826 N.E.2d 951 (2005). The primary rule in

statutory interpretation is to determine and effectuate the intent of the legislature. In re

County Collector, 356 Ill. App. 3d at 670. The best indication of legislative intent is the

language of the statute. U.S. Bank National Assoc. v. Clark, 216 Ill. 2d 334, 346, 837

N.E.2d 74 (2005). Words in the statute should be construed in context and given their

plain and ordinary meaning. In re County Collector, 356 Ill. App. 3d at 670; Clark, 216

Ill. 2d at 346. If the statute=s language is clear, extrinsic aids to interpretation are

unnecessary. Clark, 216 Ill. 2d at 346; In re County Treasurer and Ex-Officio Collector

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of Cook County, 323 Ill. App. 3d 1044, 1049, 753 N.E.2d 363 (2001). Where a term in a

statute is ambiguous, use of the term in other parts of the statute or similar statutes can

indicate the legislature=s intent. In re County Collector, 356 Ill. App. 3d at 670.

Pointing to Illinois Supreme Court Rules 86 through 95, which provide for

mandatory but non-binding arbitration, National Union contends arbitration cannot be

considered binding unless expressly indicated.

Contrary to National Union=s contention, Supreme Court Rules 86 through 95 do

not apply to this case. Uninsured motorist claims are arbitrated pursuant to section

143a-1 of the Insurance Code, not Supreme Court Rule 86. See Allstate Insurance Co.

v. Fisher, 212 Ill. App. 3d 712, 714-15, 571 N.E.2d 792 (1991) (AThe State=s insurance

code requires automobile policies containing uninsured motorist clauses to provide for

arbitration. Ill. Rev. Stat. 1989, ch. 73, par. 755a et seq.@)

As National Union points out, a mandatory arbitration process has been

established in several large urban counties in the State pursuant to Illinois Supreme

Court Rule 86. But Supreme Court Rules 86 through 95 apply only where money

damages do not exceed the maximum amount established by each judicial circuit. 155

Ill. 2d R. 86(b), (c). The maximum amount in Cook County is $30,000. See Cook Co.

Cir. Ct. R. 18.3(b). The arbitration rules do not apply in this case, where the claim made

by plaintiffs far exceeds the maximum limit anticipated by the supreme court rules. See

State Farm Insurance Co. v. Harmon, 335 Ill. App. 3d 687, 688, 781 N.E.2d 335 (2002).

Section 143a-1 of the Insurance Code provides:

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ANo policy shall be renewed, delivered, or issued for delivery

in this State unless it is provided therein that any dispute

with respect to the coverage shall be submitted for

arbitration to the American Arbitration Association or for

determination in the following manner: 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. If such arbitrators are not selected within 45

days from such request, either party may request that the

arbitration be submitted to the American Arbitration

Association.@ Ill. Rev. Stat. 1989, ch. 73, par. 755a-1. (now

codified, as amended, at 215 ILCS 5/143a-1 (West 2004)).

This court has previously concluded arbitration conducted pursuant to section

143a-1 of the Insurance Code is binding. American Family Mutual Insurance Co. v.

Baaske, 213 Ill. App. 3d 683, 572 N.E.2d 308 (1991). While we recognized in Baaske

that arbitration is not always binding, we said arbitration is Aordinarily and properly

understood to be binding and to be an alternative to or replacement for the judicial

resolution of a dispute.@ Baaske, 213 Ill. App. 3d at 687. For example, while Supreme

Court Rules 86 through 95 provide for mandatory arbitration, the rules explicitly state

the arbitration is not binding. Baaske, 213 Ill. App. 3d at 687. By contrast, neither the

1989 version of section 143a-1 nor the Insurance Code contains a similar provision.

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Baaske, 213 Ill. App. 3d at 687. See also State Farm Fire & Casualty Co. v. Yapejian,

152 Ill. 2d 533, 541, 605 N.E.2d 539 (1992) (purpose of section 143a-1 is to Aexpedite

the processing of uninsured motorist claims@); Brooks v. Cigna Property and Casualty

Co., 299 Ill. App. 3d 68, 73, 700 N.E.2d 1052 (1998) (AThe Code compels mandatory

arbitration of uninsured motorist claims as to liability and damages; these claims cannot

be resolved in the judicial forum.@)

We see no reason to depart from our prior decisions in Baaske and Brooks.

Accordingly, we find mandatory arbitration pursuant to the 1989 version of section 143a-

1 of the Insurance Code is binding. CONCLUSION

We find this court=s rulings in Norris I were not palpably erroneous. We further

find the arbitration conducted here was mandatory and binding pursuant to the 1989

version of section 143a-1 of the Insurance Code, as the trial court found.

Affirmed.

HOFFMAN, and SOUTH, JJ., concur.

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