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Pillott v. Allstate Insurance Co.

OPINION FILED MAY 25, 1977.

CARNITA PILLOTT, INDIV. AND AS ADM'R OF THE ESTATE OF KAREN HINKLER, DECEASED, PLAINTIFF-APPELLANT,

v.

ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Will County; the Hon. THOMAS W. VINSON, Judge, presiding.

MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Will County dismissing the two-count complaint of plaintiff Carnita Pillott for failure to state a cause of action against defendant Allstate Insurance Company. The sole issue is whether the order dismissing the complaint was correct.

On May 9, 1973, at approximately 9 p.m. the plaintiff's 15-year-old daughter was killed by an uninsured hit-and-run motorist. Plaintiff was insured by Allstate under a policy providing indemnification up to $10,000 for injuries or death to members of plaintiff's family caused by uninsured motorists. The policy also contained the following arbitration clause in connection with the uninsured motorist provision:

"Arbitration

If any person making claim hereunder and Allstate do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this coverage, then, upon written demand of either, the matter or matters upon which such person and Allstate do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award by the arbitrators may be entered in any court having jurisdiction thereof. Such person and Allstate each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this coverage."

Plaintiff's attempts to negotiate a settlement of her claim proved fruitless, and she eventually demanded that the issues of legal liability and amount due under the policy be submitted to arbitration. At the arbitration hearing the parties stipulated that the decedent's death resulted from a collision between her person and a car operated by an uninsured motorist and that the policy provided indemnification up to $10,000. Both plaintiff and defendant agreed that the central issue for the arbitrator to decide was the deceased's contributory negligence. Plaintiff's witnesses testified that the girl was struck twice while walking along a road without sidewalks; that the uninsured motorist was exceeding the posted speed limit of 55 m.p.h.; that skid marks and blood were visible for about two feet onto the shoulder of the road; that there was damage to the left front fender and windshield of the uninsured motorist's car; that the uninsured motorist stated to a police officer that he did not see the victim before he hit her; that the uninsured motorist had traces of alcohol in his blood; and that the deceased was a person of careful habits. Defendant presented no evidence at the hearing.

The written arbitration award simply stated that "[t]he claim of Carnita Pillott * * * is hereby denied." Thereafter plaintiff filed an application to correct the award with the American Arbitration Association which was denied because defendant refused to consent thereto.

Plaintiff filed her amended two-count complaint on July 22, 1975. Count I sought to vacate the arbitrator's award because "said so-called award is grossly contrary to the evidence * * *." Count II alleged that defendant "has maliciously, wilfully, wantonly and oppressively acted * * * to deny the Plaintiff indemnity * * * to which she was entitled."

• 1 Plaintiff attached certain interoffice memoranda obtained through discovery as exhibits in support of count II. These exhibits indicate a conflict over the merits of plaintiff's claim among the adjustors assigned to her case. While plaintiff's contention that defendant delayed settlement of her claim in order to force the matter into arbitration receives some support from these documents, other, more innocent, interpretations are also possible. The uninsured motorist coverage came into existence to furnish a means of compensating an innocent victim who suffers injury at the hands of a financially irresponsible motorist. We fail to see how count II states a cause of action against Allstate since its sole duty under the policy was to arbitrate disputed uninsured motorist claims. Allstate fulfilled this singular duty. Accordingly, the trial court's order dismissing the complaint was correct with respect to count II.

• 2 With respect to count I, plaintiff first contends that the trial court's order dismissing her complaint to vacate the arbitrator's award violated her constitutional right to a legal remedy. (See Ill. Const. 1970, art. I, § 12.) However, no constitutional question was raised by plaintiff in the trial court, and she cannot raise one for the first time on appeal. Chicago-Sandoval Coal Co. v. Industrial Com. (1922), 301 Ill. 389, 134 N.E. 158.

Plaintiff next contends that the arbitrator's award should have been vacated under section 12 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1975, ch. 10, par. 112(a)(1)-(3)). Section 12 provides in pertinent part that:

"(a) Upon application of a party, the court shall vacate an award where:

(1) The award was procured by corruption, fraud or other undue means;

(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct ...


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