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Coronet Insurance Co. v. Saez

OPINION FILED DECEMBER 31, 1986.

CORONET INSURANCE COMPANY, PLAINTIFF-APPELLANT,

v.

ANGEL SAEZ, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 4, 1987.

Plaintiff, the Coronet Insurance Company, issued to defendant, Angel Saez, a policy of uninsured-motorist insurance. After a collision with an uninsured motorist, defendant made a demand for arbitration with plaintiff, pursuant to the policy. Plaintiff then brought a declaratory judgment action against defendant in the circuit court of Cook County. Plaintiff sought a declaration that it was not obligated to arbitrate defendant's uninsured-motorist claim and to provide defendant with further uninsured-motorist coverage. The trial court granted defendant's motion for judgment on the pleadings, ordering plaintiff to arbitrate with defendant and to continue providing defendant with uninsured-motorist coverage.

Plaintiff now appeals, contending that (1) defendant waived the statutory requirement of establishing "good cause" when he brought an action against the uninsured motorist at its request; (2) section 143a(7) of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755a(7)) and its insurance policy required defendant to bring an action against the uninsured motorist to protect its right of subrogation; (3) it was not obligated to pay for prosecution of defendant's action against the uninsured motorist; and (4) defendant is barred from bringing an action against it for uninsured-motorist coverage, because he breached various provisions in the policy.

We affirm.

The pleadings alleged that plaintiff issued an automobile liability policy to Felipe Saez. This policy included coverage for an insured's injuries sustained as a result of the negligence of an uninsured motorist. On or about February 24, 1984, defendant, an insured under the policy, had an accident with an uninsured motorist. Defendant then filed an uninsured-motorist claim against plaintiff with a demand for arbitration and brought an action in the trial court against the uninsured motorist, at plaintiff's request.

Defendant's attorney, however, would continue prosecuting defendant's action against the uninsured motorist only if plaintiff would pay his fee. Defendant's attorney, alternately, offered to allow plaintiff to hire its own attorney to represent defendant. Plaintiff refused to either pay defendant's attorney or hire its own attorney to represent defendant. Defendant then abandoned his action against the uninsured motorist, which the trial court dismissed for want of prosecution.

Plaintiff then filed the present action under section 2-701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-701). Plaintiff sought a declaration that it was not obligated to arbitrate defendant's uninsured-motorist claim and to provide further uninsured-motorist coverage to defendant, alleging that defendant breached various provisions of the policy. Defendant's answer and counterclaim admitted plaintiff's factual allegations, but maintained and sought a declaration that plaintiff was obligated to arbitrate his uninsured-motorist claim and to continue to provide him with uninsured-motorist coverage.

Both parties moved for judgment on the pleadings, which the trial court granted for defendant on January 1, 1986. The trial court ruled that defendant's duties under the insurance policy did not begin until plaintiff made a payment to defendant. The court noted that plaintiff had not given defendant any money. The court concluded, therefore, that defendant owed no duties to plaintiff. The court ordered plaintiff to arbitrate with defendant and to continue to provide him with uninsured-motorist coverage. The court then dismissed plaintiff's counterclaim as moot. Plaintiff appeals.

• 1 A motion for judgment on the pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by his complaint or, alternately, whether defendant by his answer has set up a defense which would entitle him to a hearing on the merits. The motion must be denied if there is any material issue of fact; furthermore, the motion admits the truth of the facts well pleaded by the opposite party. In addition, the moving party admits the untruth of his own controverted allegations. (Hartlett v. Dahm (1981), 94 Ill. App.3d 1, 3, 418 N.E.2d 44, 45-46.) In the instant case, both parties agreed on the material facts before the trial court and continue to do so. The only issue before the trial court was whether plaintiff or defendant was entitled by the pleadings to the relief that each sought. Judgment on the pleadings was, therefore, proper.

Plaintiff contends that it is not obligated to arbitrate defendant's claim and to continue to provide uninsured-motorist coverage to defendant because defendant did not comply with various provisions of the insurance policy. The section of the policy that provides for uninsured-motorist coverage states in pertinent part:

"PART IV — FAMILY PROTECTION

Trust Agreement. In the event of payment to any person under this Part:

(a) The company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible ...


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