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Witkowski v. Covenant Security Ins. Co.

OCTOBER 1, 1971.

WILLIAM WITKOWSKI, PLAINTIFF-APPELLEE,

v.

COVENANT SECURITY INSURANCE COMPANY, NOW KNOWN AS TWENTIETH CENTURY INSURANCE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Defendant appeals an order of the Circuit Court compelling arbitration of plaintiff's claim under the uninsured motorist clause in an automobile public liability insurance policy. On appeal defendant contends that the order should not have been granted because the plaintiff was not "legally entitled" to recover against the uninsured motorist due to the running of the statute of limitations on plaintiff's cause of action.

• 1 Although plaintiff has filed no brief, we shall consider the appeal on its merits. Daley v. Jack's Tivoli Lounge, Inc., 118 Ill. App.2d 264.

On April 22, 1967, William Witkowski, plaintiff, was injured in an automobile accident with an uninsured motorist. On May 17, 1967, Covenant Security Insurance Co., now known as Twentieth Century Insurance Company, (hereafter "Covenant"), defendant, received a lien filed on behalf of Witkowski by his attorney, Hyman Schechet. This was forwarded to Covenant by the Joseph J. Johnson Insurance Co., the agency which sold Witkowski's insurance policy. Johnson was not an agent of Covenant.

On June 1, 1967, Covenant sent two letters and a form to Witkowski. One letter reserved Covenant's rights under its policy with Witkowski. The other letter was a request to fill out and return an enclosed form in order to complete the investigation of plaintiff's claim. Covenant claims it had no further communication with Witkowski until Covenant was served with the motion to compel arbitration on July 21, 1969.

Witkowski's attorney, Hyman Schechet, testified that he sent four letters demanding arbitration. Covenant admitted receiving the first letter (sent by Schechet on May 16, 1967), on May 17, 1967. On page five of its brief Covenant states the following: "The accident in question occurred on April 22, 1967; plaintiff did not attempt to compel or seek arbitration under the terms and conditions of his insurance policy until July 24, 1969." This statement is not consistent with page eight of the report of proceedings wherein Mr. Schechet reads from his letter of May 16, 1967, as follows:

"THE WITNESS: Gentlemen: Enclosed here please find original demand for arbitration, together with photostatic copies of that portion of the above designated policy under which relief is sought for this uninsured motorist's claim. Same is being sent to you in accordance with the regulations of the American Arbitration Association."

The next three letters demanding arbitration were sent on February 23, 1968, October 14, 1968, and March 21, 1969, respectively. These letters were sent to Covenant at 4849 North Western Avenue. Covenant moved from that address to 2550 West Peterson Avenue in April 1967. Schechet testified that he used the address listed under Covenant in the 1967 telephone directory.

Although the demand for arbitration in the letter of May 16th was for an American Arbitration Association arbitration, which was incorrect, the letter at least put Covenant on notice that Witkowski was making a claim and was demanding arbitration.

The relevant policy provisions read:

"(C) Such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights.

Coverage D-Uninsured Motorists Coverage:

The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative, is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company, or if they fail to agree and the insured so demands, by arbitration." Emphasis supplied.

According to defendant, no suit was ever filed by plaintiff against the uninsured motorist, and the instant suit was filed more ...


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