Safeco/American States Insurance Co. v. Hagler

773 N.E.2d 1255, 332 Ill. App. 3d 912, 266 Ill. Dec. 185, 2002 Ill. App. LEXIS 967
CourtAppellate Court of Illinois
DecidedJuly 24, 2002
Docket5-01-0383 Rel
StatusPublished

This text of 773 N.E.2d 1255 (Safeco/American States Insurance Co. v. Hagler) 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
Safeco/American States Insurance Co. v. Hagler, 773 N.E.2d 1255, 332 Ill. App. 3d 912, 266 Ill. Dec. 185, 2002 Ill. App. LEXIS 967 (Ill. Ct. App. 2002).

Opinion

JUSTICE KUEHN

delivered the opinion of the court:

Safeco/American States Insurance Company (Safeco) appeals from the trial court’s May 4, 2001, and May 30, 2001, orders, by which the court dismissed Safeco’s complaint and certified the question at issue for immediate appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). We reverse and remand.

This case was filed following an arbitration award in favor of Lucille Fay Hagler in an uninsured-motorist-insurance situation. Specifics about her accident, injuries, and damages are not known, because those facts were not included in the record. Following a November 19, 2000, arbitration, in a two-to-one vote, the arbitrators awarded Hagler $70,000. The dissenting arbitrator did not sign the award until January 15, 2001. By cover letter dated January 16, 2001, notice of the award was sent to the attorneys representing Safeco and Hagler.

On January 31, 2001, Safeco filed its complaint seeking a jury trial on the issue of Hagler’s damages, as was allowed by its policy language. Safeco’s policy allowed for the rejection of an arbitration award when the award exceeded the minimum limit for bodily injury specified by the Illinois Safety and Family Financial Responsibility Law (625 ILCS 5/7 — 601(a) (West 1998)) — $20,000.

Counsel for the parties discussed the impending service of Safeco’s complaint. Safeco asked Hagler’s attorney if he would be willing to accept service of the complaint on his client’s behalf. Hagler’s attorney recalled that he advised Safeco’s attorney that he would check on whether or not he could accept service for his client. Safeco was under the impression that he would accept service, and it forwarded the complaint and summons to Hagler’s attorney on February 5, 2001. By letter dated February 23, 2001, Hagler’s attorney wrote back to Safeco. Hagler’s attorney apologized for any confusion but indicated that he was unable to accept service on behalf of his client.

On February 27, 2001, Safeco’s attorney sent the original summons back to the Madison County circuit clerk’s office and requested that an alias summons be issued. That summons, as well as the original summons, was addressed to Hagler at 2301 Missouri in Granite City, Illinois. The alias summons was prepared and file-stamped on February 28, 2001. Service was attempted within the next week, but the alias summons was returned unserved because the process server learned that Hagler had moved and left no forwarding address.

On March 15, 2001, Safeco’s attorney again asked the Madison County circuit clerk’s office to issue an alias summons with the identical erroneous address. A second alias summons was prepared and dated March 16, 2001. The process server again unsuccessfully attempted to serve Hagler at the listed address. The United States Post Office provided the process server with Hagler’s new address, and the process server served her on April 4, 2001, with a copy of the complaint and the summons.

Instead of answering the complaint, Hagler filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619 (West 1998)). Hagler argued that the complaint had not been filed within 60 days of the arbitrators’ decision, as contemplated by Safeco’s insurance policy, since service upon Hagler had not been achieved during that time frame. Hagler also argued that Safeco had not exercised due diligence in obtaining service upon her, in contravention of Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)). In support of her argument that Safeco had not exercised due diligence in obtaining service, Hagler pointed out that Safeco had to have known of her correct address, because her Safeco insurance agent was sending her premium statements to the new address — the address at which service was ultimately achieved.

Without any reason indicated, the trial court granted Hagler’s motion on May 4, 2001, and dismissed Safeco’s complaint. Safeco’s motion to reconsider was heard and denied on May 30, 2001, but pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), the trial court certified its previous order for appeal.

On appeal from a trial court’s involuntary dismissal of a complaint pursuant to section 2 — 619 of the Code of Civil Procedure we must determine “ ‘whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.’ [Citation.]” Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 109-10, 708 N.E.2d 1140, 1144 (1999). In other words, our review is de novo. In re Estate of Mayfield, 288 Ill. App. 3d 534, 542, 680 N.E.2d 784, 789 (1997).

The only case cited by Hagler in support of her motion to dismiss was Curtis v. Pekin Insurance Co., 105 Ill. App. 3d 561, 434 N.E.2d 555 (1982). In that case, the appellate court affirmed the trial court’s dismissal of the insured’s complaint for lack of diligence in serving the complaint upon the defendant insurer. Curtis, 105 Ill. App. 3d at 565-66, 434 N.E.2d at 558. The foundation for the dismissal could be located in an insurance policy provision included at the Illinois Department of Insurance’s mandate. Curtis, 105 Ill. App. 3d at 562, 434 N.E.2d at 556. That clause stated that claims against the insurance company following a fire loss had to be made within 12 months. Curtis, 105 Ill. App. 3d at 562, 434 N.E.2d at 556. Flora May Curtis sued Pekin Insurance Company within the 12-month period dating from her loss, but she failed to obtain service upon the insurance company within that same time frame. Curtis, 105 Ill. App. 3d at 562-63, 434 N.E.2d at 556. In fact, she did not achieve service until 20 months had passed since the date of loss. Curtis, 105 Ill. App. 3d at 563, 434 N.E.2d at 556. Citing the main purpose of Supreme Court Rule 103(b), which is keeping applicable statutes of limitation from being undermined, the trial court stated that if service did not have to occur within that 12-month period of time, the provision would be rendered a virtual nullity. Curtis, 105 Ill. App. 3d at 565, 434 N.E.2d at 558.

The difference between that case and this one is that there was an administrative regulation mandating a 12-month statute of limitations. In this case, there is no such administrative or statutory mandate of which we are aware. Hagler has cited no other authority for her contention that the 60-day period contemplated in the policy required that the complaint be filed and service achieved during that time frame.

Sixty days is such an incredibly short period of time for a limitations period. There is nothing comparable in our state. Safeco filed suit 16 days after the arbitration award was entered. Service was achieved 79 days after the award was made, or 63 days after suit was filed. It is true that Safeco’s insurance sales agent was aware of Hagler’s change of address, and had a more thorough research job been conducted by Safeco’s counsel, that change might have been discovered sooner.

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Related

Curtis v. Pekin Insurance Co.
434 N.E.2d 555 (Appellate Court of Illinois, 1982)
Segal v. Sacco
555 N.E.2d 719 (Illinois Supreme Court, 1990)
Doyle v. Holy Cross Hospital
708 N.E.2d 1140 (Illinois Supreme Court, 1999)
Mayfield v. Estate of Mayfield
680 N.E.2d 784 (Appellate Court of Illinois, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
773 N.E.2d 1255, 332 Ill. App. 3d 912, 266 Ill. Dec. 185, 2002 Ill. App. LEXIS 967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safecoamerican-states-insurance-co-v-hagler-illappct-2002.