Allstate Fire and Casualty Insurance Company v. Bochenek
2017 IL App (1st) 170277
| Ill. App. Ct. | 2017Background
- On February 24, 2015, Barbara Bochenek was struck by a hit-and-run driver while crossing the street; she suffered serious injuries. Her husband, Wojciech, walking behind her, was not physically struck but later reported PTSD and related physical symptoms.
- Barbara submitted an uninsured motorist (UM) claim to Allstate and was paid the $100,000 per-person UM policy limit.
- Wojciech submitted claims for UM benefits and medical payments for his emotional/physical symptoms; Allstate denied coverage and filed a declaratory judgment action seeking rulings that Wojciech was not entitled to UM or medical payments benefits.
- The Allstate policy defined a hit-and-run uninsured auto as one that "causes bodily injury to an insured person by physical contact with the insured person or with the vehicle occupied by that person." Allstate conceded Wojciech was an insured under the policy.
- The trial court granted Allstate summary judgment, holding (a) the policy language was unambiguous and required physical contact for hit-and-run UM recovery, (b) Wojciech’s PTSD/physical symptoms did not qualify as "bodily injury" under the policy or Illinois law, and (c) the $100,000 payment to Barbara exhausted the per-person UM limit. Wojciech appealed.
Issues
| Issue | Wojciech's Argument | Allstate's Argument | Held |
|---|---|---|---|
| Does UM recovery for a hit-and-run require physical contact between the uninsured vehicle and the insured (or the insured's vehicle)? | Illinois law does not require physical contact; policy should be read to allow recovery for noncontact injuries (citing cases like Groshans). | The policy explicitly requires physical contact; Ferega and its reasoning support enforcing a contact requirement to limit fraud and define scope of coverage. | The Allstate policy unambiguously required physical contact; Wojciech was not contacted and cannot recover under the UM provision. |
| Are Wojciech’s PTSD and related physical symptoms a compensable "bodily injury" under the policy? | His emotional and physical symptoms constitute "bodily injury" caused by the hit-and-run. | Even if emotional/physical symptoms exist, recovery is barred by the policy’s physical-contact requirement; trial court also found they did not qualify as "bodily injury." | The court declined to decide this question on the merits because Wojciech’s claim fails due to lack of physical contact; trial-court finding that symptoms were not "bodily injury" was noted but unnecessary to the appellate decision. |
| Can indirect/chain-of-events contact satisfy the physical-contact requirement? | Indirect contact or chain-of-events causation ("zone of danger" theories) can satisfy UM coverage without direct contact. | Policy requires physical contact; prior cases allow indirect contact only when there is some physical transfer from the unidentified vehicle to the insured or insured's vehicle. | No indirect or transferred contact occurred here; the cited precedents (Hartford, Palmer) require some physical transfer—absent here—so Wojciech cannot recover. |
| Was the policy’s per-person UM limit exhausted by payment to Barbara, precluding further UM payment to Wojciech? | Wojciech contended he was a separate injured insured entitled to benefits. | Allstate maintained Barbara’s $100,000 payment met the per-person limit for the occurrence. | The court concluded the UM coverage was exhausted by the payment to Barbara; Wojciech’s claim was barred in any event by the contact requirement. |
Key Cases Cited
- Ferega v. State Farm Mut. Auto. Ins. Co., 58 Ill. 2d 109 (1974) (supreme court upheld requirement of physical contact for hit-and-run UM recovery under statute/policy)
- Lemke v. Kenilworth Ins. Co., 109 Ill. 2d 350 (1985) (supreme court reaffirmation of Ferega; legislative inaction treated as approval)
- Groshans v. Dairyland Ins. Co., 311 Ill. App. 3d 876 (2000) (Third District held Illinois law does not itself require physical contact, but policies may permissibly impose it)
- Hartford Accident & Indem. Co. v. LeJeune, 114 Ill. 2d 54 (1986) (supreme court allowed recovery where hit-and-run struck a third vehicle which then struck the insured—permitting indirect physical contact)
- Palmer v. Illinois Nat'l Ins. Co., 116 Ill. App. 3d 1067 (1983) (indirect physical contact satisfied contact requirement where a lug nut from the unidentified vehicle struck the insured's car)
- Prosk v. Allstate Ins. Co., 82 Ill. App. 2d 457 (1967) (early appellate decision noting statute not intended to cover unidentified cars present without physical contact)