Pajic v. Old Republic Insurance

917 N.E.2d 564, 334 Ill. Dec. 738, 394 Ill. App. 3d 1040, 2009 Ill. App. LEXIS 951
CourtAppellate Court of Illinois
DecidedSeptember 30, 2009
Docket1-08-2782
StatusPublished
Cited by11 cases

This text of 917 N.E.2d 564 (Pajic v. Old Republic 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
Pajic v. Old Republic Insurance, 917 N.E.2d 564, 334 Ill. Dec. 738, 394 Ill. App. 3d 1040, 2009 Ill. App. LEXIS 951 (Ill. Ct. App. 2009).

Opinion

JUSTICE McBRIDE

delivered the opinion of the court:

This declaratory judgment action was brought by Alex M. Pajic against his employer’s insurer, Old Republic Insurance Company (Old Republic), alleging that it failed to comply with section 143a — 2 of the Illinois Insurance Code (Insurance Code) (215 ILCS 5/143a — 2 (West 2002)), which requires that an insurer provide a brief description of uninsured and underinsured motorist coverage before issuing an applicant a policy of insurance. The judicial remedy for noncompliance is to reform the policy. The circuit court resolved cross-motions for summary judgment in favor of Old Republic. Pajic appeals.

The factual basis for Pajic’s claim is unclear. In his complaint, Pajic alleged he was entitled to the limits of his employer’s uninsured motorist coverage because he was injured when the semitruck he was driving for his employer on September 30, 2003, was struck by a driver who fled the scene and remains unidentified. This allegation, however, conflicts with an Illinois State Police report which the insurance company attached to its motion for summary judgment. The police report indicates Pajic’s truck was the only vehicle involved in the incident that occurred on the Illinois Tollway/I-294 near Northbrook, Illinois, and that Pajic swerved and skidded for 150 feet across two lanes, crossed an embankment and a ditch, struck a guardrail, and was cited for excessive speed (625 ILCS 5/11 — 601(a) (West 2002)) and not wearing a seatbelt (625 ILCS 5/12 — 603.1 (West 2002)). On the report form, the officer wrote the names of two eyewitnesses and checked “no” in the section used for recording a “HIT & RUN” incident. In any event, the issue framed in the parties’ cross-motions for summary judgment concerned the insurer’s conduct in processing the employer’s application for motor vehicle coverage effective July 1, 2003, to July 1, 2004. The policy was a yearly renewal of coverage originally issued on July 1, 1996. Pajic was employed by Roadway Corporation. Roadway Corporation merged with Yellow Corporation before Pajic filed suit in 2007 and became known as Yellow Roadway Corporation (YRC).

Pajic alleged in his complaint and argued in his motion for summary judgment that reformation of the policy was warranted because Old Republic failed to “offer” uninsured (UM) and underinsured motorist (UIM) coverage to his employer “in a commercially reasonable manner,” which was the first of the four-part test for a proper “offer” adopted by the supreme court in Cloninger, with respect to the 1981 version of section 143a — 2 of the Insurance Code. Cloninger v. National General Insurance Co., 109 Ill. 2d 419, 426, 488 N.E.2d 548, 551 (1985); Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3). Pajic also contended in his motion for summary judgment (but not his complaint) that Old Republic’s “offer” was deficient because it did not advise YRC that the optional coverage “was available for a relatively modest premium increase,” which was Cloninger’s fourth prong. Cloninger, 109 Ill. 2d at 426, 488 N.E.2d at 551. The supreme court held in Cloninger that in the absence of a proper “offer,” an applicant for insurance was incapable of making an “intelligent decision” to elect or reject more than the minimum amount of UM or UIM coverage required by law. Cloninger, 109 Ill. 2d at 425, 488 N.E.2d at 550. In its response brief and cross-motion for summary judgment, Old Republic countered that the 1990 version of section 143a — 2 was in effect when the subject policy was written and that in DeGrand the supreme court analyzed the evolution of the statute between 1981 and 1990 and concluded the General Assembly had intentionally removed the “meaningful offer” requirement from section 143a — -2 after 1981. DeGrand v. Motors Insurance Corp., 146 Ill. 2d 521, 532, 588 N.E.2d 1074, 1080 (1992); Ill. Rev. Stat., 1990 Supp., ch. 73, par. 755a — 2(3); 215 ILCS 5/143a — 2 (West 2002). According to the supreme court, under the 1990 law, which is still in effect, UM and UIM limits are automatically set at the same amount as the insured’s general bodily injury liability limits, the insurer need only explain the nature of UM and UIM insurance and that the insured has the right to reduce those coverages to as little as $20,000 per person/$40,000 per occurrence, and once the explanation is provided, an insured preferring less UM and UIM coverage has the duty to reject and reduce the limits of those coverages. DeGrand, 146 Ill. 2d at 533-34, 588 N.E.2d at 1080. Thus, instead of starting with minimal amounts of UM and UIM coverage which the insurer must “offer” to increase, motorist coverage written after the 1990 legislation took effect initiates with full UM and UIM coverage which the insured may choose to reduce. Therefore, the supreme court concluded, “The 1990 statute eliminated the need for the [Cloninger] four-point test [the supreme court previously adopted with respect to the 1981 statutory scheme].” DeGrand, 146 Ill. 2d at 534, 588 N.E.2d at 1080; Cloninger, 109 Ill. 2d 419, 488 N.E.2d 548. In addition to arguing that Cloninger’s “offer” criteria were superceded by subsequent legislation, Old Republic also argued it complied with its statutory duty under the 1990 Insurance Code to provide YRC with “a brief description of the coverage and *** [the corporation’s] right to reject the coverage in excess of the [minimal] limits set forth in Section 7 — 203 of the Illinois Vehicle Code.” 215 ILCS 5/143a — 2 (West 1992); Cloninger, 109 Ill. 2d 419, 488 N.E.2d 548. Pajic and Old Republic provided the trial judge with copies of correspondence and deposition transcripts, as well as oral arguments, regarding the inception of YRC’s motorist coverage effective July 1, 2003, to July 1, 2004. The trial court found that the plain language of the 1990 statute and the factual evidence supported Old Republic’s request for summary judgment and the denial of Pajic’s motion for summary judgment.

On appeal from that ruling, Pajic contends DeGrand is distinguishable and that Cloninger’s continued viability is demonstrated by the fact that intermediate appellate courts have continued to cite and follow it. DeGrand, 146 Ill. 2d 521, 588 N.E.2d 1074; Cloninger, 109 Ill. 2d 419, 488 N.E.2d 548.

Summary judgment is proper where the pleadings, depositions, affidavits and admissions on file show 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 (West 2006); Schultz v. Illinois Farmers Insurance Co., 387 Ill. App. 3d 622, 625, 901 N.E.2d 957, 960 (2009).

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Bluebook (online)
917 N.E.2d 564, 334 Ill. Dec. 738, 394 Ill. App. 3d 1040, 2009 Ill. App. LEXIS 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pajic-v-old-republic-insurance-illappct-2009.