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Country Cos. v. Bourbon





Appeal from the Circuit Court of St. Clair County; the Hon. Thomas P. O'Donnell, Judge, presiding.


Plaintiff insurance company appeals from an order entered in two cases that were consolidated for hearing and disposition. The order directed plaintiff to enter into arbitration of a claim made by defendant under the provisions of an uninsured motorist clause of a vehicle insurance policy issued to Robert Theis. The two cases consolidated were an action to compel arbitration commenced by Jordan Scott Bourbon, the injured claimant, herein to be referred to as defendant, and a suit by plaintiff insurance company seeking a declaratory judgment that no coverage was afforded by their policy for the incident and injury in question.

Plaintiff filed a motion for summary judgment in its declaratory judgment action, and it was denied. Plaintiff has evidenced some concern regarding the reviewability of an order denying a motion for summary judgment. However, since the evidence adduced in support of the summary judgment was also submitted in the declaratory judgment and petition to compel arbitration actions, we see no problem of reviewability in this case, especially in view of the fact that we affirm the order of the trial court. See Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App.3d 1031, 402 N.E.2d 352.

The facts are brief and undisputed. Defendant was a member of a group celebrating a birthday with a picnic at a public park. An unassociated group was also present in the park. This latter group provoked trouble and, in the end, threatened, and even attacked, members of the "picnic" group. Because of the threats and attacks, the "picnic" group left the park in haste in a pickup truck belonging to plaintiff's insured, Robert Theis. There were 11 persons in the truck. As they left the park they were cursed, threatened and then pursued by the troublemakers. Pursuit was by a car and a motorcycle. The group in the truck was terrorized by this time, and a coherent relation of events was difficult. Nevertheless, the parties agree that the pickup truck was traveling at high speed, at times up to 80 miles per hour, in an attempt to evade the pursuers. There was some bumping between the pursing car and the truck before the car broke off pursuit. However, the motorcyclist did not abandon pursuit. Armed with a baseball bat, he pulled alongside the truck and attempted to hit the driver of the truck. In one such attempt he missed the driver and hit and smashed the outside rearview mirror. All this occurred likewise at a high rate of speed. Immediately after the mirror-smashing incident, the motorcyclist pulled a distance ahead of the truck, turned around and drove directly at the truck in the truck's lane of travel. Mr. Theis stated that the headlight of the motorcycle completely blinded his vision. In making an attempt to evade the motorcycle, the pickup truck left the highway and turned over three times. Injured bodies were "scattered everywhere," and the motorcyclist rode away. Defendant was in the back of the truck and was thrown out when the truck overturned, receiving the injuries that are the concern of these lawsuits.

Two issues are presented for review: (1) was the accident in which defendant was injured proximately caused by physical contact between the pickup truck and an uninsured vehicle, and (2) did the obviously intentional and criminal acts of the motorcyclist and the driver of the automobile constitute an "accident" within the meaning of the applicable provisions of the insurance policy?

It is plaintiff's contention that because of statements contained in the deposition of defendant, the trial court should have rendered summary judgment for plaintiff. That contention is pursued before this court. Defendant stated that the truck in which he was a passenger had skidded off the road because it was traveling at too great a speed and that there had been no physical contact between the truck and any other vehicle prior to the accident. Plaintiff also points to the statement of Robert Theis on deposition that he lost control of his truck.

Provision is made for protection for injuries caused by uninsured and unknown motorists by section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a). The insurance policy issued by the plaintiff to Robert Theis contains an uninsured motorist section which is responsive to the requirements of the statute. Relevant portions of the policy are as follows:

"Section II — protection against bodily injury by uninsured vehicles.

To 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 Vehicle because of bodily injury, including death resulting therefrom, hereinafter called "bodily injury", sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such Uninsured Vehicle * * *.

`Uninsured Vehicle' means:

(1) a vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or bodily injury liability insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or,

(2) a vehicle where on, prior to or after the accident date the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified in the policy because of the entry by a court of competent jurisdiction of an order of rehabilitation or liquidation by reason of insolvency on or after the accident date, or.

(3) a hit-and-run vehicle as hereinafter ...

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