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Severs v. Country Mutual Insurance Co.

OPINION FILED NOVEMBER 26, 1980.

MARY HEIDI SEVERS, BY GERI S. SEVERS, HER MOTHER AND NEXT FRIEND, ET AL., PLAINTIFFS-APPELLANTS,

v.

COUNTRY MUTUAL INSURANCE COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM B. STARNES and the Hon. THOMAS P. O'DONNELL, Judges, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

This declaratory judgment action was brought to construe an automobile insurance policy issued to plaintiff Perry A. Severs, Jr., by defendant Country Mutual Insurance Company. Severs' one-year-old daughter, Mary Heidi Severs, was injured on August 1, 1974, in a one-vehicle accident while the insured automobile was being operated by defendant Dixie L. Rodgers.

The company denied liability coverage on the basis of a policy provision excluding coverage as to bodily injury sustained by the insured or his relatives. The company further denied coverage under the uninsured motorist portion of the policy on the basis that the plaintiffs' action, filed December 4, 1978, was not timely commenced. The trial court ultimately agreed with the insurer and dismissed the complaint with prejudice. This appeal followed.

We see no point in discussing the family-member exclusion to the liability coverage, which was unambiguous and clearly applicable. Because it was applicable, the uninsured motorist provisions of the policy then came into play. That portion of the policy obligated the company to pay "all sums which the insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an uninsured vehicle because of bodily injury * * * caused by accident and arising out of the ownership, maintenance or use of such uninsured vehicle * * *." It is undisputed that Mary Heidi Severs is an insured under the policy. However, the company relies on the following provision contained in the uninsured motorist section of the policy:

"No suit, action or arbitration proceedings for the recovery of any claim under this section shall be sustainable in any court of law or equity * * * unless commenced within two (2) years after occurrence of the loss."

Although the precise issue presented for our determination — whether a minor insured may be deprived of uninsured motorist protection for personal injuries by a policy provision requiring her representative to file suit within two years of the accident — appears to be one of first impression, we think that it is easily answered in the negative, in light of analogous decisions of our courts>.

In Burgo v. Illinois Farmers Insurance Co. (1972), 8 Ill. App.3d 259, 290 N.E.2d 371, the court invalidated a policy provision requiring the insured to demand arbitration or file suit against the uninsured motorist within one year, declaring that a contractual limitation may not place an insured in a substantially different position than he would have been in had the tortfeasor carried the insurance coverage required by statute. (See also Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 269 N.E.2d 295.) The court in Burgo stated:

"The one-year limitation in the policy is a dilution or diminution of the uninsured motorist statute and is an attempt to defeat the intent and the purpose of the statute; therefore it is against public policy and the statute must prevail. The statute requiring the policy to have an uninsured motorist clause does not mention a time limit in which the insured may exercise his rights * * *.

We hold that the contract provision limiting the arbitration demand to one year after the accident violates the statute of limitations to bring the injury suit and violates the statute on uninsured motorists and is arbitrary, unreasonable and capricious and against the public policy of this state, and is therefore void." 8 Ill. App.3d 259, 264, 290 N.E.2d 371, 374.

In a later case, Coyne v. Country Mutual Insurance Co. (1976), 39 Ill. App.3d 279, 349 N.E.2d 485, the court upheld a two-year policy limitation which placed the insured in the same position he would have been in had the offending motorist been insured. The instant case, however, unlike Coyne, involves a minor plaintiff. A minor has by statute two years after attaining age 18 in which to file suit. (Ill. Rev. Stat. 1973, ch. 83, par. 22.) We think it clear that the contractual provision under examination here, by placing the minor plaintiff in a substantially different position than she would have been in had the tortfeasor carried the required insurance coverage, would violate both the statute of limitations and the uninsured motorist statute; it is therefore against public policy and void.

The insurer's argument based on contract principles is unpersuasive in light of the special consideration traditionally given to the claims of minors by the courts>. To paraphrase the supreme court in Wilbon v. D.F. Bast Co. (1978), 73 Ill.2d 58, 382 N.E.2d 784, logic, justice, and precedent all require that a child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement not be left to the whim or mercy of her next friend, nor be precluded from enforcing her rights unless clearly barred from doing so by some statute or constitutional provision. No such bar exists here.

For the foregoing reasons, we reverse the judgment of the Circuit Court of St. Clair County and remand this cause for further proceedings consistent with this opinion.

Reversed and ...


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