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06/14/88 George Petersen Et Al., On v. Allstate Insurance Company

June 14, 1988

OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS

v.

ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

GEORGE PETERSEN et al., on behalf of themselves and all

525 N.E.2d 1094, 171 Ill. App. 3d 909, 121 Ill. Dec. 787 1988.IL.928

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. HARTMAN, P.J., and STAMOS,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

This is a class action seeking a declaration that Allstate Insurance Company (hereinafter Allstate) had violated the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 613 et seq.) by failing to offer plaintiffs a proper opportunity to purchase uninsured and underinsured motorists coverage in an amount up to the bodily injury liability limits of their Allstate insurance policy. Plaintiffs ask that their policy be reformed to include such additional coverage.

Plaintiffs appeal from the order granting defendant's motion for summary judgment and denying plaintiffs' cross-motion for summary judgment. Plaintiffs also appeal the trial court's order dismissing, with prejudice, their action alleging defendant's violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 261 et seq.).

On November 6, 1984, Bernice Petersen was injured when she was struck by an automobile operated by an underinsured motorist. The underinsured motorist had an automobile insurance policy which provided bodily injury liability coverage with limits of $25,000 per person. That entire sum was paid to the Petersens as a result of the accident.

George Petersen purchased his Allstate policy effective May 1, 1976, and has renewed the policy semiannually during the relevant time period. At the time of the November 6, 1984 accident, the Petersens' policy provided uninsured motorists coverage with limits of $15,000 per person and $30,000 per occurrence, and bodily injury liability coverage with limits of $50,000 per person and $100,000 per occurrence. The policy did not provide any underinsured motorist coverage.

Bernice Petersen's medical expenses exceeded the $25,000 she received from the underinsured tortfeasor. The Petersens seek to recover these additional funds from their own auto insurance carrier (Allstate). To accomplish this result, the Petersens sued to reform their Allstate policy to include underinsured motorist coverage in the amount of their bodily injury coverage of $50,000 per person and $100,000 per occurrence. This would allow Bernice Petersen to recover $25,000 from Allstate in addition to the $25,000 already recovered from the underinsured at-fault driver's insurance company. The Petersens' claim against Allstate is based on the alleged failure of Allstate to make a valid offer of underinsured coverage, up to their present bodily injury limits, in violation of section 143a-2(3) of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 755a-2(3)).

The trial court determined that Allstate's offer of September 30, 1983, satisfied section 143a-2 of the Illinois Insurance Code as a matter of law and that the alleged failure of Allstate to have made such an offer previously was not relevant. The issues presented are: (1) whether Allstate made a proper offer of underinsured motorist coverage to the plaintiffs as required by section 143a-2(3) of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 755a-2(3)); and (2) whether the trial court correctly decided that purchasers of insurance are not protected by the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 261 et seq.). I

In order to place the issues in proper perspective, we must briefly review the public concern about underinsured motorists, together with the enactments of the Illinois legislature to relieve that concern. Approximately "twenty states have underinsured motorist statutes. These statutes provide increased protection for the named insured. This allows the insured to benefit by paying a relatively small premium for increased coverage. . . . [Some] statutes give coverage for underinsured motorist coverage by operation of law and do not follow an increased premium, . . . other states make the coverage optional . . .." R. Anderson, Couch on Insurance § 45:649 (2d ed. 1981).

The Illinois underinsured motorist statute makes it mandatory on the part of the insurance carrier to offer such coverage to its insured and optional on the part of the insured to accept or reject the offer. Section 143a -- 2(3) ...


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