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04/21/89 James Downen Et Al., v. Country Mutual Insurance

April 21, 1989

JAMES DOWNEN ET AL., PLAINTIFFS-APPELLANTS

v.

COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE

AS WE STATED IN WEIHL

v.

DIXON (1977), 56 ILL. APP. 3D 251, 253- 54, 371 N.E.2D 881, 883:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

537 N.E.2d 445, 181 Ill. App. 3d 716, 130 Ill. Dec. 378 1989.IL.585

Appeal from the Circuit Court of Bond County; the Hon. John L. DeLaurenti, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. WELCH, P.J., and LEWIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

David Barrett, a passenger in a car driven by Tommy Maxwell, was injured in an automobile wreck. Barrett's injuries were more than Maxwell's insurance could cover.

David Barrett, in a case that preceded this case, filed suit against Country Mutual Insurance Company, attempting to "stack" the underinsured motorist coverage under the Country Mutual insurance policies owned by James and Louise Downen, his stepfather and mother. (Barrett v. Country Mutual Insurance Co. (1988), 165 Ill. App. 3d 1167 (unpublished Rule 23 order).) The main issue in Barrett was whether the insurance policy was ambiguous with respect to a "no stacking" clause which limited coverage. We held that David Barrett could not "stack" the underinsured motorist coverage and specifically found that the amount of underinsured coverage available to Barrett under defendant's policies was $100,000.

James and Louise Downen then brought this suit against Country Mutual asking the circuit court to declare $250,000 as the amount of available coverage under the same policies previously construed in Barrett, and for the same injuries received in the Maxwell wreck. They base their case on the following allegations: (1) defendant failed to offer underinsured motorist coverage to plaintiffs as required by the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 613 et seq.); (2) defendant failed to advise them that underinsured motorist coverage was available in the same amounts as bodily injury liability coverage; and (3) defendant failed to specify the amount of the premiums and the nature and extent of the underinsured coverage available.

The circuit court of Bond County granted defendant's motion to dismiss, holding that James and Louise Downen, as individuals, lacked standing to bring this suit. The circuit court also held that plaintiffs' action was barred by the res judicata effect of the earlier Barrett decision.

After their case was dismissed, plaintiffs orally moved to amend their complaint to add a count for damages for Barrett's personal injuries he got in a second wreck which ultimately killed him. The court denied plaintiffs' motion., Plaintiffs appeal the dismissal and the denial of the motion to amend.

Plaintiffs, the Downens, argue that they are the ones who purchased the insurance contract that covered Barrett, and therefore, they have standing. However, the complaint has no allegation that James and Louise Downen were injured in any way by, or in consequence of, the Maxwell wreck.

"Standing is an aspect of justiciability in which the primary focus is upon the personal stake in the outcome of the controversy of the person seeking the adjudication of a particular issue. (Flast v. Cohen.) The person seeking to invoke the jurisdiction of the court must have some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. (59 Am. Jur. 2d Parties § 26 (1971).) A sufficient interest in the actual controversy is equally a prerequisite for a person to maintain an action for a declaratory judgment (Ill. Rev. Stat. 1975, ch. 110, par. 57.1), and where such an interest is lacking, the plaintiff does not have standing to bring the action (Clark Oil & Refining Corp. v. City of Evanston, 23 Ill. 2d 48, 177 N.E.2d 191)."

Here, plaintiffs have not alleged personal injury to them, or injury to any substantive or legally protected interest of their own. They do not ...


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