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Mcdonald v. Country Mut. Ins. Co.

OPINION FILED MAY 7, 1985.

RICHARD A. MCDONALD, PLAINTIFF-APPELLANT,

v.

COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.

JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

Richard McDonald, the plaintiff, appeals from the order which declared his medical payments claim untimely and limited his recovery for bodily injury from the defendant, Country Mutual Insurance Company.

The facts are not in dispute. On September 9, 1978, the minor plaintiff was severely injured while riding as a passenger in a vehicle driven by Kevin Gray, an uninsured motorist. The accident occurred when the automobile left the roadway and struck a tree.

On the date of the occurrence, the plaintiff resided with his father, William McDonald (hereafter McDonald), to whom the defendant had issued four personal vehicle policies, each with $10,000 limits for uninsured-motorist coverage and $5,000 limits for medical payment coverage. The fifth policy issued to McDonald provided $50,000 uninsured-motorist coverage and $5,000 medical payment coverage. McDonald's employer, Caterpillar Tractor Company, paid $35,452.75 for the plaintiff's medical treatment.

On January 24, 1979, the plaintiff, by his mother and next friend, Mary McDonald, filed a complaint for damages against Gray. The plaintiff attained the age of majority on December 3, 1979. On April 9, 1981, after the tortfeasor's uninsured status was determined, that suit was dismissed. Two months later, the plaintiff demanded the defendant pay his claim pursuant to McDonald's uninsured-motorist coverage. On December 2, 1981, the plaintiff filed an action for declaratory judgment which was later amended to a negligence action. The plaintiff subsequently demanded $25,000, the amount of the stacked medical payment limits, and an additional $50,000, the uninsured-motorist limits provided in policy No. A12A1245401.

The court declared the plaintiff's claim for medical payments untimely and awarded him $10,000, the statutory limits for bodily injury caused by an uninsured motorist.

The plaintiff initially argues on appeal that his claims for uninsured-motorist coverage and medical payment coverage were both timely; that coverage relates back to the timely date of originally filing suit; and instead of depriving him of his right to file this suit, the non-suit extended the limitations period. The defendant argues in response that both aspects of the plaintiff's claim are barred by his failure to notify the defendant within the policy time limit; that the plaintiff waived consideration of the effect of the voluntary dismissal; and that this suit against a new party was not affected by originally dismissing the tortfeasor.

The mandatory uninsured-motorist coverage assures an insured recovery of at least the amount required by the Financial Responsibility Law, whether or not the tortfeasor is insured. (Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill.2d 71, 269 N.E.2d 97.) Thus, this coverage protects the insured against injuries caused by uninsured motorists and complements the liability coverage. Kerouac v. Kerouac (1981), 99 Ill. App.3d 254, 425 N.E.2d 543.

Undisputably, the plaintiff, as a resident of McDonald's household, was insured against bodily injury by uninsured vehicles and afforded medical payments. Therefore, the question we must resolve is whether the policy provision requiring commencement of both aspects of plaintiff's claim within two years after the occurrence can be validly applied to a minor.

The supreme court's resolution of the issue in Severs v. Country Mutual Insurance Co. (1982), 89 Ill.2d 515, 434 N.E.2d 290, controls the uninsured-motorist coverage aspects of the plaintiff's claim. Therein, the court concluded that the rights of a child with a meritorious cause of action are entitled to special protection and are not to be precluded from enforcement unless clearly barred by statute or constitution. The policy's time limitation, which is against public policy when applied to a minor, may not be applied so as to deprive an insured minor of statutorily mandated uninsured-motorist coverage.

• 1 We previously considered the priority of those public policy considerations over the contractual provisions unique to uninsured-motorist coverage. (Kerouac v. Kerouac (1981), 99 Ill. App.3d 254, 425 N.E.2d 543.) However, additional premiums were paid for the contractually defined medical payment coverage in the instant case. Therefore, the insurer cannot raise the tortfeasor's personal statute of limitations defense on its own behalf. (Murphy v. United States Fidelity & Guaranty Co. (1983), 120 Ill. App.3d 282, 458 N.E.2d 54.) Further, the Code of Civil Procedure provides that a plaintiff who is a minor when his cause of action for personal injury accrues may bring the action within two years of attaining the age of majority. Ill. Rev. Stat. 1983, ch. 110, par. 13-211.

• 2 We view the application of the two-year limitation within the medical-payment provision to a minor's cause of action as an attempt to whittle away and unlawfully limit a minor's rights as an insured. The plaintiff was injured by an uninsured motorist when he was 16 years of age. He was covered by the policies' uninsured-motorist and medical-payment provisions. Neither aspect of his claim was time barred, as his suit was filed within two years of attaining the age of majority. Having reached that conclusion, we need not consider the effect of the non-suit.

• 3 The plaintiff next argues the ambiguity of the policy as applied to an uninsured versus an underinsured motorist. The defendant contends that the plaintiff waived consideration of the policy's ambiguity; that both the uninsured and the underinsured provisions are unambiguous; and that McDonald had no underinsured coverage.

We note that the policy declarations failed to allocate premiums for the underinsured coverage which was subsumed within the uninsured vehicles provision. Clearly, the plaintiff was injured by an uninsured motorist, as defined in the policy. Therefore, we need ...


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