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Urfer v. Country Mutual Insurance

OPINION FILED JUNE 2, 1978.

DELMAR URFER, PLAINTIFF-APPELLANT,

v.

COUNTRY MUTUAL INSURANCE CO., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Coles County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding.

MR JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 29, 1978.

Plaintiff appeals from the order of the circuit court entered April 29, 1977, which dismissed his second amended complaint, denied an oral motion for leave to file an amended complaint, and entered judgment in bar.

Plaintiff was insured by a policy issued upon his motor vehicle. The complaint alleged a breach of the insurance contract arising from defendant's failure to pay hospital and medical bills up to $2000 incurred within one year of the date of injury and income continuation payments up to $150 per week for 52 weeks.

The insuring agreement recites that coverage was provided "In accordance with Article XXXV of the Illinois Insurance Code ("no fault insurance")," effective January 1, 1972. That article (Ill. Rev. Stat. 1971, ch. 73, par. 1065.150 et seq.), was declared unconstitutional on April 17, 1972. Grace v. Howlett (1972), 51 Ill.2d 478, 283 N.E.2d 474.

Plaintiff suffered injuries on September 19, 1972, as a result of a collision with a school bus. His answer to interrogatories discloses that he sued the school district on August 13, 1974, that he received $50,000 in settlement and that that action was dismissed on February 17, 1976. This action was filed on January 5, 1976. Plaintiff's answers to interrogatories states that he first tendered a medical report to defendant on December 19, 1975.

An amended complaint filed March 23, 1976, sought damages under the provisions of section 603 of the Illinois Insurance Code (Ill. Rev. Stat. 1971, ch. 73, par. 1065.153), which provided for payments under "no fault" coverage within 30 days after "reasonable proof of the fact and amount of expenses incurred * * *." That statute further provided that:

"In the event the company fails to pay such benefits when due, the person entitled to such benefits may bring an action in contract to recover them. In the event the company is required by such action to pay any overdue benefits, the company must, in addition to the benefits received, be required to pay the reasonable attorney's fees incurred by the other party. In the event of a wilful refusal of the company to pay such benefits, the company must pay to the other party, in addition to other amounts due the other party, an amount which is three times the amount of unpaid benefits in controversy in the action."

That complaint sought recovery upon the quoted provision of the statute but was dismissed upon motion of defendant suggesting the decision in Grace v. Howlett.

The amended complaint at issue on appeal described in the court's order as "the Second Amended Complaint" did not seek recovery upon a theory of breach of contract, but sounded only in tort for compensatory and punitive damages alleging a wilful refusal to pay.

The order of the trial court provided that "said Amended Complaint is stricken on the grounds that said complaint is substantially insufficient in law, and the action is hereby dismissed." The order denied "the oral motion of Plaintiff for leave to file a Third Amended Complaint," and entered a judgment in bar of action.

Plaintiff argues that the amended complaint states a cause of action within the principles stated in Ledingham v. Blue Cross Plan for Hospital Care (1975), 29 Ill. App.3d 339, 330 N.E.2d 540. The supreme court (64 Ill.2d 338, 356 N.E.2d 75) had occasion to review only an issue of the taxing of costs.

In Ledingham, the insured sued to recover payments for medical and hospital expenses alleged to be payable under a policy of health insurance. In separate counts, the complaint claimed actual and punitive damages for "wilful and wanton conduct" in refusing to pay and compensatory damages for breach of contract. The jury verdict was in an amount indicating an award on each count. The opinion stated:

"The issue to be decided in this case is whether punitive damages may properly be awarded in an action brought by a policyholder of a health insurance plan where the insurance company allegedly wrongfully denied benefits to the ...


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