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06/03/87 Grace S. Bailey, Indiv. v. State Farm Fire & Casualty

June 3, 1987

GRACE S. BAILEY, INDI

v.

AND AS EX'X OF THE ESTATE OF WELDON J. BAILEY, DECEASED, PLAINTIFF-APPELLANT,

v.

STATE FARM FIRE & CASUALTY COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

509 N.E.2d 1064, 156 Ill. App. 3d 979, 109 Ill. Dec. 225 1987.IL.746

Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. WOMBACHER and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Plaintiff appeals from judgment of the circuit court of Peoria County granting defendant insurer's motion for judgment on the pleadings. Defendant's motion was framed in the alternative, requesting that should its motion for judgment on the pleadings be denied, then plaintiff's complaint should be dismissed pursuant to either section 2-615 or section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619). The issues presented for our consideration are whether the trial court erred in denying plaintiff's motion to strike defendant's motion as a "hybrid" and whether the court erred in granting defendant's motion on the pleadings. We affirm.

Plaintiff and her husband, Weldon J. Bailey, deceased, were holders of an "underlying" State Farm Mutual automobile insurance policy and a State Farm Fire & Casualty Co. "success protector," or "excess," insurance policy. Both policies were in force prior to 1980. The underlying policy was renewable on a regular six-month basis, and the "excess" policy was renewable yearly. According to the pleadings, State Farm agent Tom Metzger represented both State Farm Mutual and State Farm Fire & Casualty Co.

On April 21, 1980, Weldon J. Bailey was fatally injured when the bicycle he was riding was struck by an uninsured motorist in a pickup truck. At that time, the uninsured motorist coverage limits of the underlying State Farm Mutual policy were $100,000/$300,000. These limits were equal to the bodily injury limits of the policy and were offered and accepted pursuant to section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a, as amended by Pub. Act 81-1202, sec. 1, eff. March 1, 1980). They became effective on March 21, 1980, when that policy was last renewed prior to the accident. A copy of the "excess" policy in effect at the time of the accident appears in the record before us. It provides for $1 million of personal liability insurance and $35,000 of uninsured motorist insurance. By its terms, uninsured motorist coverage would become payable under this latter policy only if coverage on the underlying policy were less than $35,000. The excess policy was issued on September 21, 1979. Plaintiff's claim for benefits on the State Farm Fire & Casualty policy following her husband's death was denied on the ground that the uninsured motorist coverage of the underlying policy exceeded the $35,000 limit of the excess policy.

Plaintiff initially filed a complaint for declaratory judgment in the circuit court of Madison County on December 5, 1980. Plaintiff charged that defendant had failed to offer uninsured motorist coverage in an amount equal to the personal liability coverage of the excess policy pursuant to section 143a of the Illinois Insurance Code, as amended, and sought a declaration that the uninsured motorist coverage in effect on April 21, 1980, was $1 million. That suit ultimately was voluntarily dismissed over defendant's objection, and the dismissal was affirmed on appeal. Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 484 N.E.2d 522.

Plaintiff's first amended complaint in this case was filed in the circuit court of Peoria County with leave of court on May 30, 1986. This complaint is predicated on an alleged duty owed by defendant on March 21, 1980, to offer $1 million worth of uninsured motorist coverage on the excess policy. It contains seven counts charging unjust enrichment, violation of section 143a of the Illinois Insurance Code, negligence, breach of insurer's duty of good faith and fair dealing, breach of fiduciary duty, common law fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.). In response to the complaint defendant filed its motion for judgment on the pleadings or to dismiss. Plaintiff resisted the motion both procedurally and on the merits. On August 4, 1986, the trial court heard the parties' motions and entered its order denying plaintiff's motion to strike, granting defendant's motion for judgment on the pleadings and denying as moot defendant's motion in the alternative to dismiss. This appeal followed.

In Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605, our supreme court expressly disapproved the use of "hybrid" motions combining requests for summary judgment and dismissal for failure to state a cause of action. The practice of combining these and similar requests for summary Disposition nonetheless persists. However, on appeal the practice generally is not held to be a basis for reversal in the absence of any showing of prejudice to the nonmovant. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605. See also Beauvoir v. Rush-Presbyterian-St. Luke's Medical Center (1985), 137 Ill. App. 3d 294, 484 N.E.2d 841; Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60.) Moreover, the trial court's ruling on a challenge to the form of motions before it will not be disturbed on appeal unless a manifest abuse of discretion is shown.

In this case, the only factual matters added as a result of defendant's motion in the alternative are contained in a certified copy of the "success protector" policy, an exhibit which was required to be filed as a basis for plaintiff's complaint pursuant to section 2-606 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-606). Plaintiff would be hard-pressed to argue that defendant's reliance on the renewal date of the excess policy in support of its motion in the alternative impaired her ability to defend against the motion, since plaintiff's complaint contains reference to the policy by number and extensively quotes certain relevant portions of it. Under the circumstances, and having reviewed plaintiff's several arguments directed to the form of defendant's motion in the alternative, we find that plaintiff has failed to demonstrate any actual prejudice. Accordingly, we find no abuse of the trial court's discretion in denying plaintiff's motion to strike.

We turn next to plaintiff's arguments on the merits. In the trial court, defendant presented two arguments in support of its motion in the alternative. Defendant contended that it owed no duty to offer increased uninsured motorist coverage because the excess policy was not a motor vehicle policy as contemplated by section 143a of the Illinois Insurance Code, and because the amendment requiring an offer of increased coverage did not apply to the excess policy until it became renewable on September 21, 1980. The trial court's order granting judgment for defendant did not specify the basis for its holding. However, it is well established that the trial court's judgment will be affirmed on appeal if the record provides any basis for it. Northern Trust Co. v. Winston (1975), 32 Ill. App. 3d 199, 336 N.E.2d 543.

We find that the trial court's Disposition here is supported on the ground that defendant owed no duty to offer increased uninsured motorist coverage pursuant to section 143a of the Illinois Insurance Code prior to the ...


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