*1 Pеople Plaintiff-Appellee, Illinois, State James Noblin, Defendant-Appellant. 56649;
(No. 30, 1972. First District —October Opinion by Mr. LYONS. JUSTICE Cowen, Defender, Doherty, Chicago, Public A. (Harold James J. Defender,
Assistant Public of counsel), appellant. Hanrahan, Edward Chicago, V. State’s Attorney, People. Burgo al., et v. Farmers Insur- Plaintiffs-Appеllants, Joseph Company, Defendant-Appellee.
ance (No.
First District —October 22, 1972. denied Rehearing November BURMAN, J., dissenting. *2 Dombrowski, for
Joseph appellants. L. of Chicago, Hinshaw, Fuller, Chicago, (D. of Culbertson, Moelmann, Hoban for Crisham, Kendall and counsel,) appellee. Griffith Thomas M. of the opinion PRESIDING delivered Mr. DIERINGER JUSTICE the court: Cook This is an Court of from Circuit appeal judgment motorist County, wherein the denied an uninsured court arbitration on clause in an plaintiffs- insurance The action was brought policy. insureds, com insurance Burgo, Louis defendant against Joseph to Illinois Farmers to defendant pany, compel Insurance Company, submit Rеv. to arbitration to Arbitration Act. Ill. pursuant the Uniform 10. Ch. Stat. insurance issues on are: appeal (1) provision whether limitations,
policy shortens which allows applicable two a cause another motorist years against file of action to one injury year, whether against void as public policy; (2) is void as against because statute, upon pro- of the uninsured vides for protection against uninsured motorists. under were insured the defendant plaintiffs company says In its answer to the defendant policy. automobile complaint point title Farmers but no further legal Exchange,
its correct Insurance name, is made of the and the went to proceedings judgment title of Illinois Farmers Insurance Company. February litigation occurred on which precipitated
The accident amount could to the agree and the defendant 1, 1969. plaintiffs made and a demand for arbitration was for injuries, as compensation due filed was letter on A complaint July the defendant refused when the defendant July defendant on against 7, 1970, filed December suit an arbitrator. On plaintiffs appoint 1, 1969. The involved in the accident of February the uninsured pro- defendant issued by uninsured motorist provision vides: or operator the owner
“To all sums which pаy damages legally responsible pay motor would be vehicle insured, sustained injury of bodily the insured because maintenance accident, ownership, out of arising caused by * * *.” motor vehicle use of such uninsured on the grounds defends The Illinois Farmers Insurance Company in the in- as set forth failure to the conditiоn precedent comply demand arbi- surance and for the failure of agreement plaintiffs the insurance forth in tration one of the accident as set year within agreement. provides: The relevant part within accrue to the insured unless “(3) no cause of action shall has one suit for bodily from thе date of accident (a) in a court been filed the uninsured motorist competent as to the amount due under this jurisdiction, (b) concluded, Part II has been insured has insti- (c) formally tuted arbitration proceedings.” none of these conditions Each filed a was met.
The record shows party and after a the court entered summary judgment, hearing motion in favor of defendant insurance and dismissed plain- *3 tiff’ complaint. s limitation of the insurance allege
The plaintiffs unenforceable and to Section 755a of contrary is invalid Statutes, 1969, which for 73, provides mandatory Revised Chapter contend the uninsured Plaintiffs coverage. uninsured motorist in the same position though offending the insurеd provision places the Financial Responsibility with Act of Illinois. party complied Illinois, of limitation in personal injury plain- Under the statute suit and in which to file seek a determination years tiffs would have two 73, are entitled to recover. Section 755a of Chapter of the amount they motorist coverаge, provides: to uninsured relating 1963, date of this after effective Act of On or amendatory “(1) loss from resulting liability insuring against imposed no policy death by any or suffered out person arising for bodily law or use of a maintenance motor vehicle shall be ownership, delivery or issued for in this state re- or deliverеd with renewed registered motor vehicle in this principally garaged to any spect thereto, therein or coverage unless provided supplemental state or death set forth in bodily injury limits for Section 7—203 of Law,’ 11, 1957, Motor Vehicle approved the Illinois July amended, heretofore and hereaftеr for the persons protection damages insured thereunder to recover who are entitled legally and hit-and- motor vehicles from owners operators disease, sickness or run motor vehicles because of bodily injury, therefrom, in- death, that the named including resulting except only sured shall such on сoverage policies have the right reject delivered, 1967.” or issued for delivery prior July renewed previous of Section 755a have been set forth several purposes cases. In Putnam v. New Amsterdam 48 Ill.2d Casualty (1970), Co. Court of Supreme Illinois said: statutory the reasonable purpose believe “[W]e be available will compensation assure provisions motorist, holders, an uninsured in the of injury event for injury by at the same extent available compensation least Re- the Financial is insured in motorist who compliance Law.” sponsibility
Also, Ill.App. v. Farmers Auto. Management Corp. (1967), see Tindall 2d Insurance Co. (1969), Ullmаn Wolverine contract, such contractual restrictions this is a but contends Defendant the plain such restriction are no effect where for uninsured motorist providing 125Ill.App.2d Mutual Insurance Assn. (1970), Millers' case of Morelock v. the “other insur validity considered question the court aUeged which the insurance company of the policy ance” provision clause was that the argued them from liability. plaintiff relieved and the of Section 755a court stated: violative cov- shaU be issued unless no policy 755a commands “Section for the protec- thereto supplemental therein erage providеd entitled thereunder who legaUy tion of persons or death from for personal injury damages recover qualification. without limitation or language This is motorist. not to Nevertheless, issued defendant undertakes the policy of the named therein coverage protection effective provide from an uninsured motorist damages to recover insured entitled Emit of its an amount which the' coverage only but liability limit of exceeds applicable for this *4 beneficiary.’ a which is plaintiff ‘paper policy of another meaning a this limitation Clearly, effect, therefore, no because a is, void statute a require- diminish statutory to dilute or attempts provision and is statute.” superseded is contrary ment
263 deprive If the contract practical provision effect statute, insured of uninsured then required limitation may and of no void The contractual effect. place insured in a different than he would substantiаlly position been had the tort-feasor required carried the Prosk v. Allstate the court stated: Insurance Co. (1967), Ill.App.2d
“We statute, further a agree that in the construction of proper for the court to look at the be remedied and the objects evils to obtained, purposes be and a enаcted a need to meet shaU people be construed in order that the true liberaUy intent and the General Assembly may be carried out.” An insured is of which paying premium, portion buys the motorist coverage. It is not fair that the insurance company accept and then money limit attempt its the use оf such devices as the provision. admittedly negotiated as to compensation for injuries within but could one-year period, not agree. The defendant Insurance therefore had full and Company notice and complete knowledge of the accident. Courts have held that settlement negоtiations toU limitations, of time running even statutes limitation, because the cannot plaintiff be lulled into a sense of security and then be barred from with a proceeding lawsuit when the negotiations fail. Dickirson v. Mutual 311; Insurance Co. (1925), Ill. Pacific Life Suing Catton (1970), 468; 118 Ill.App.2d Devlin v. Wantroba (1966), 72 Kinsey v. Thompson Ill.App.2d 304. The insurance сompany wrote the with full of its knowledge intent to shorten the period to less than the time the statute gives insured to file a The insurance lawsuit. is well versed and has much in the field experience of uninsured motorists, whereas the policy- holder has little noor experience and cannot be expected to understand impact Furthermore, provision. there ais possibility the uninsured status of a tort-feasor not be determined may until several years after the accident. In this situation the insured would be defeated by the one-year provision without having to invoke the opportunity coverage he had been for, paying because the insured plaintiff no way knowing tort-feasor defendant would become motorist.
This acute in problem particularly Cook County because of the of cases thousands pending against defendants whose insurance com- became insolvent years after the panies cases were filed in court. On oral the court argument inquired of the defendant insurance company’s met, counsel how this would problem be and he frankly admitted he had Obviously plaintiff answer. would be barred from as- *5 264 if the his uninsured claim
serting motorist the provision, provision was valid.
The or one-year limitation in the is a dilution diminution intent and uninsured statute and is an to defeat the motorist аttempt statute; and the the purpose therefore is against public policy statute must an unin to have prevail. requiring statute sured motorist clause does mention time limit which the insured exercise his file suits may rights; therefore the statute of limitations to on contracts must Accident Co. Holada govern. Indemnity v. Hartford 127 Ill.App.2d 472. demand limiting
We hold that the contact the arbitration year bring one after the accident the statute of limitations violates and on and is suit violates the statute motorists arbi unreasonable and of this trary, capricious public policy state, and is therefore void. reasons,
For above of the Circuit Court of Cook is County reversed. reversed.
Judgment
ADESKO, concurs. J., dissenting: BURMAN
Mr. JUSTICE is the condition precedent issue whether would affirm. sole I majority is enforced. As set forth in the in the to be contained the insurer under uninsured motorist provisions opinion, the un- insured filing is suit (a) the policy dependent as to the motorist, insurer (b) reaching coveragе) due Part II amount (the arbitration within one from the instituting policy, (c) formally none of three agree date that these steps of the accident. parties taken within the one year period. was court has the to enforce con- rule duty a well established
It is unambiguous thereto not to rewrite the pаrties as made tracts agree- for the parties The cotut cannot make better agreed upon. terms have been satisfied to (Green themselves conclude. they than ments 211 In the there is no 596.) present U.S. case v. County Quinlan, is the condition doubt- language precedent ambiguous, claim no contеntion that the also insurer waived There ful unclear. that the insured the terms misapprehended time agreement. held that conditions in long insurance policy courts
265 than that of time within a shorter period that suits be filed require and binding are valid limitations the appropriate provided by Whitehall, Co. & Fire Insurance v. Peoria Marine on In parties. do not violate limitations held that such Court Supreme Ill. fresh while facts resort to courts speedy and that public policy including strong is a reason witnesses the minds of the still followed. holding This condition an insurance contract. Co., 131 Ill.App.2d McMahon National Insurance Millers v. Cо., v. N.E.2d 385.
Rethy Mutual Insurance Country to this rule. Uninsured exception Hartford 472, cited & Indemnity Holada, Accident Co. that, as uninsured motorist cov majority holding requiring his erage rights, is silent to the time in which the insured exercise may limitations There the statute of suits must filing govern. on contracts *6 the insurer was not that the insured’s for arbitration argued demаnd timely statutory because it was filed after the limitation for period of contention, filing personal the injury actions run. In rejecting court said:
“Despite numerous time limits set forth in parts various there no limit policy, time stated a demand for filing arbitration either It is party. if com- only claimant arbitration, do not that resort pany agree, be had to and we will conclude from this that the policy language itself did company not wish to be bound any of limitation than (other ten year limitation in for contract out a actions) settle- working ment before with proceeding arbitration.” at 480 Ill.App.2d (Emphasis Thus the to an added.) insur- pаrties ance contract free are such impose conditions as see fit they regarding time within winch claims be must submitted to litigation or arbitration. case, In present chose impose condition that claims under the uninsured motorist coverage should be submitted litigation or arbitration within one year. The terms of the clear, condition are I fail to see how majority can decline to give them effect. that to
The concludes enforce the majority condition would result in a dilution or diminution of the protection afforded by the Uninsured Motorist This conclusion rests on Act. the belief that the effect of a оne condition precedent impose limitations of an tortfeasor, uninsured action an against while normal period limita- years. However, for such an action is two tions the present case is not It is an an action tortfeasor. action against on the insurance contract if Even such insurer. suit is brоught within the period of limitation, precedent if all the conditions cannot be maintained the plain- that is undisputed not been In the case it performed. present the policy. tiffs failed to the conditions precedent imposed perform Co., the Appel Dreher v. Ill.App.2d In Aetna Casualty Surety the Unin late Court embodied considered whether the policy public caused to injuries sured Motorist Act be extended required accident, but whose by motorist who was insured at the time of The defined policy insolvent. subsequently carrier became insur which automobile as one with respect court concludеd: ance was in The effect the time of the at accident. tire to sustain the case law either in the statute or nothing find “[W]e * * * [requires] state that the of this contention of the con the terms coverage beyond an insurance extend ** case, the at (83 143.) present tract with comply insured should terms that the unаmbiguous specified on the be liable insurer would certain conditions before the precedent these The insured did comply be to extend of this could conditions and to allow it recovery spite of the policy. the uninsured motorist the terms coverage beyond to conditions Motorist is silent with respеct Uninsured Act Stat. coverage. (Ill. uninsured motorist Rev. bemay imposed case are conditions such as the ones in 755a.) present If sec. ch. State, a determina of this public policy be thought terms of and not this court. legislature should be made tion clear, should enforced as written. be they the contract should be affirmed. of the trial court