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09/29/89 James Eipert Et Al., On v. State Farm Mutual

September 29, 1989

SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

JAMES EIPERT et al., on behalf of themselves and all others

545 N.E.2d 497, 189 Ill. App. 3d 630, 136 Ill. Dec. 973 1989.IL.1571

Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and COCCIA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiffs appeal from the dismissal of their amended class action complaint for failure to state a cause of action under section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615). Plaintiffs raise two issues: (1) whether defendant was required to provide underinsured motorist coverage in an insurance policy when uninsured motorist coverage was purchased in the minimum statutory amount; and (2) whether underinsured motorist coverage was implied by law in a policy if defendant failed to offer the insured an opportunity to purchase such coverage prior to July 1, 1983. For the following reasons, we affirm.

The amended two-count complaint alleged the following facts. Plaintiff Charles Eipert had an automobile insurance policy with defendant, State Farm Mutual Automobile Insurance Company, since prior to July 1, 1983, which was renewed every six months. The policy had coverage limits of $100,000 per person and $300,000 per occurrence for liability, and although plaintiffs do not specifically allege this, it can be inferred from the complaint that the policy had limits of $15,000/$30,000 for uninsured motorist coverage. The policy never contained underinsured motorist coverage.

On August 19, 1984, Eipert's son, James, was a passenger on a motorcycle that was involved in an accident. The driver of the motorcycle was at fault, and his insurance policy limits were $15,000/$30,000. James' medical bills were more than $20,000, which exceeded the at-fault driver's policy limits. Eipert's policy did not cover James' medical bills because it did not include a provision for underinsured motorist coverage.

In count I of the amended complaint, plaintiffs alleged that section 143a-2(5) of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755a-2(5) (repealed by Pub. Acts 81-999, § 4.4, 83-230, § 4, eff. Dec. 31, 1989)) required underinsured motorist coverage on all policies issued or renewed after July 1, 1983. Plaintiffs alleged that defendant did not comply with the Code because underinsured motorist coverage was not included in their policies.

In count II, plaintiffs alleged that section 143a-2(3) (Ill. Rev. Stat. 1985, ch. 73, par. 755a-2(3) (repealed by Pub. Acts 81-999, § 4.4, 83-230, § 4, eff. Dec. 31, 1989)) required defendant to offer underinsured motorist coverage between March 1, 1980, and July 1, 1983. The complaint alleged that during the time period, defendant did not offer Eipert underinsured motorist coverage and he did not reject such coverage. Plaintiffs alleged that as a result, underinsured motorist coverage was implied by law in his policy until July 1, 1983. Plaintiffs further alleged that after July 1, 1983, defendant changed the underinsured motorist coverage implied by law in the policy without advising Eipert that the coverage was no longer included in the policy. This change was effected without complying with the terms of the policy relevant to changes in policy provisions.

Defendant moved to dismiss plaintiffs' amended complaint for failure to state a cause of action. The trial court granted the motion, finding that: (1) section 143a--2(5) did not require defendant to provide underinsured motorist coverage when the uninsured motorist coverage was purchased at the statutory minimum level of $15,000/30,000; and (2) the underinsured motorist coverage was not implied by law in the policy because the loss did not occur prior to July 1, 1983. Plaintiffs now appeal.

Opinion

In reviewing the dismissal of an action under section 2--615, the court must accept all well-pled facts and reasonable inferences from plaintiff's complaint as true. (Logsdon v. Shelter Mutual Insurance Co. (1986), 143 Ill. App. 3d 957, 493 N.E.2d 748.) The complaint must be liberally construed and the dismissal should not be affirmed if it indicates "a possibility of recovery." Glazewski v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 401, 407, 466 N.E.2d 1151, ...


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