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06/26/87 Marcello Aguilar Et Al., v. Safeway Insurance Company

June 26, 1987

MARCELLO AGUILAR ET AL., INDI

v.

AND IN A REPRESENTATIVE CAPACITY ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,

v.

SAFEWAY INSURANCE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

510 N.E.2d 1135, 157 Ill. App. 3d 877, 110 Ill. Dec. 104 1987.IL.887

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, J., concurs. PRESIDING JUSTICE SULLIVAN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

This appeal arises from an order entered by the circuit court of Cook County on November 25, 1985, which dismissed plaintiffs' complaint with prejudice. No motion for class determination has been presented pending the Disposition of this appeal.

Plaintiffs contend that defendant's insurance policy required plaintiffs to file suit against uninsured motorists, thereby entitling plaintiffs to reimbursement of their court costs, jury fees and sheriff's costs pursuant to section 143a(6) of the Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a(6)).

Plaintiffs further contend that defendant's insurance policy created an ambiguity in the wording of its policy concerning the filing of civil suits by its insureds against uninsured motorists.

We find the trial court erred in dismissing plaintiffs' complaint and therefore reinstate the complaint and remand for further proceedings.

Pertinent to our Disposition are the following facts. Plaintiffs, Marcello Aguilar, Maher Nubani and Maria Lourdes Guzman, brought suit individually and in a representative capacity against defendant, Safeway Insurance Company, alleging that the defendant (an insurance company operating in Illinois under the provisions of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 1 et seq.)) had issued policies of automobile liability insurance coverage to plaintiffs, that under the Insurance Code, insurers were required to provide uninsured motorist coverage and that the coverage was required to meet specific minimum statutory coverage amounts. Plaintiffs further alleged that the insureds were required to comply with all terms and conditions of the insurance policies, including written notice of a claim under the uninsured motorists provisions of the policy, and that they were specifically required to file suit against the uninsured motorist within two years of the date of the accident.

Plaintiffs also alleged that they each presented written claims to the defendant pursuant to the uninsured motorists provisions of their policies, but the defendant failed to advance the court costs, jury fees and sheriff's fees to them, which plaintiffs claimed they were entitled to receive pursuant to section 143a(6) of the Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a(6)).

As a consequence, plaintiffs paid the court costs, jury fees (in some instances) and sheriff's fees, without receiving reimbursement from the defendant. The costs and expenses which plaintiffs paid for the filing of the civil suits against the respective uninsured motorists were the basis for plaintiffs' claims for damages.

Initially it should be noted that plaintiffs have mistakenly referred to defendant's motion to dismiss as being made pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Defendant filed a motion to dismiss plaintiffs' complaint on the basis that the complaint failed to state a cause of action. Clearly, such a motion is made pursuant to section 2-615.

It is undisputed that, in Illinois, the interpretation of insurance contracts is a question of law. (Kusiciel v. La Salle National Bank (1982), 106 Ill. App. 3d 333, 435 N.E.2d 1217.) An insurance policy in which no ambiguity appears is to be read as any other contract, that is, according to the plain and ordinary meaning of its terms. (Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165, 317 N.E.2d 491.) In order to ascertain the intent of the parties the court should not examine the policy in a vacuum but should look to the circumstances surrounding the issuance of the policy, such as the situation of the parties and the purpose for which the policy was obtained. (Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247.) Contrary to defendant's contentions, the policy is to be construed as a whole and the court's inquiry is not confined to the conditions specified in plaintiff's complaint. (Sawyer Fruit & Vegetable Co-Operative Corp. v. Lumbermens ...


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