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10/27/89 and Welfare Fund, v. Gregory S. Hickman Et Al.

October 27, 1989

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 841 HEALTH AND WELFARE FUND, PLAINTIFF AND THIRD-PARTY, DEFENDANT-APPELLANT

v.

GREGORY S. HICKMAN ET AL., DEFENDANTS (KAY MYERS, AS MOTHER AND NEXT FRIEND OF VICKI MYERS, THIRD-PARTY, PLAINTIFF-APPELLEE; GREGORY S. HICKMAN, THIRD-PARTY DEFENDANT)



546 N.E.2d 1056, 190 Ill. App. 3d 658, 138 Ill. Dec. 1 1989.IL.1698

Appeal from the Circuit Court of Jackson County; the Hon. George Oros, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON and CHAPMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

This appeal is from the judgment entered November 4, 1987, in the circuit court of Jackson County granting summary judgment in favor of intervening third-party plaintiff Vicki Myers, a minor by her mother and next friend Kay Myers, and against third-party defendant International Union of Operating Engineers Local 841 Health and Welfare Fund (hereinafter IUOE).

On April 18, 1985, an automobile accident resulted in injury to Vicki Myers, who was a passenger in a vehicle owned by her father, Paul Myers, and then being driven by her brother, Michael Myers. The vehicle with which they collided, and the only other vehicle involved in the accident, was driven by Gregory Hickman. The medical treatment obtained by Vicki Myers was covered under a group insurance policy issued to IUOE by United of Omaha, a Mutual of Omaha Company. The policy provided hospital benefits and major medical benefits, along with other benefits not pertinent to this case. These benefits were provided for IUOE employees, one of whom was Paul Myers, and their dependents, one of whom was Vicki Myers.

On November 3, 1986, pursuant to section 2-403 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-403), and the subrogation rights provided in the group insurance plan, IUOE filed suit against Michael Myers and Gregory Hickman, the drivers of the two vehicles involved in the accident which resulted in Vicki Myers' injury, seeking to recover monies expended for Vicki Myers' medical treatment. The subrogation provision contained in the group insurance policy reads as follows:

"SUBROGATION

Definitions

'Subrogation' means the Company's right to recover any policy payments:

(a) made because of an injury to the protected person or a dependent caused by a third party's wrongful act or negligence; and

(b) which the protected person or a dependent later recovers from the third party or the third party's insurer.

'Third Party' means another person or ...


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