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12/29/89 Mary Houser, v. State Farm Insurance

December 29, 1989

MARY HOUSER, PLAINTIFF-APPELLANT

v.

STATE FARM INSURANCE COMPANY, DEFENDANT-APPELLEE



Before reaching that issue, we note that the plaintiff has filed a motion to strike the "Additional Statement of Facts" contained in the defendant's appeal brief. She contends that the statement contains facts not in the record and contains Conclusions and arguments. We previously took this motion with the case. To the extent the defendant's statement of facts strays from the bare facts contained in the record, the plaintiff's motion is hereby granted.

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

549 N.E.2d 17, 193 Ill. App. 3d 125, 139 Ill. Dec. 694 1989.IL.2074

Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE and BARRY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The plaintiff, Mary Houser, brought a declaratory judgment action against the defendant, State Farm Insurance Company, to determine the extent of the plaintiff's uninsured motorist coverage. The defendant filed a motion for summary judgment. The trial court granted the motion, and the plaintiff appeals. We affirm.

The record shows that on May 31, 1986, the plaintiff was driving her car and was injured when the operator of an uninsured motor vehicle collided with her car. At the time, the plaintiff was insured by the defendant. Thereafter, the plaintiff made a written claim to the defendant for benefits under the uninsured motorist provisions of her policy. The defendant agreed to pay the $25,000 limit of the plaintiff's policy. The plaintiff then brought this declaratory judgment action seeking to establish that her uninsured motorist coverage exceeded the $25,000 policy limit.

The complaint alleged that the plaintiff was entitled to uninsured motorist benefits up to her policy's higher bodily injury liability limits, because the defendant had failed to offer uninsured motorist coverage up to those limits. The complaint also alleged that the defendant had failed to adequately advise the plaintiff about the nature of uninsured motorist coverage. The plaintiff contended that these alleged errors violated section 143a-2 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a-2), which required insurance companies to inform policyholders that they could get uninsured motorist coverage up to the same amount as their bodily injury liability coverage.

In reply, the defendant stated that following the enactment of section 143a -- 2, it had started a campaign in 1983 designed to inform its policyholders about the uninsured motorist coverage limits. As part of this campaign, Illinois policyholders were offered the opportunity to increase their uninsured motorist coverage. In addition, each policyholder was sent a booklet, NA59105d IL, which explained the coverage. The procedure used to send this information was a computerized mailing system. The computer was programmed to print the offer of new coverage and to insert booklets in mailings to policyholders. This information was then enclosed with the policyholders' premium renewal notices.

The defendant stated that since the plaintiff was a policyholder at the time of this campaign, she would have been mailed the offer and the booklet. As evidence that the plaintiff received this information, the defendant established that the plaintiff had paid the enclosed renewal premium.

In the course of discovery, however, the defendant gave the plaintiff booklet NA59102c IL, which discussed underinsured coverage, rather than booklet NA59105d IL, which discussed uninsured coverage. Upon discovering its mistake, the defendant moved for a continuance and filed affidavits explaining how the wrong document had been produced during discovery.

The defendant explained that at the time discovery was initially compiled, it assumed that the plaintiff's coverage in 1983 was the same as the coverage she had initially purchased in 1980. Based on this assumption, the defendant presumed that its computer had sent the plaintiff booklet NA59102c IL during its 1983 campaign. In final preparation for trial, however, the defendant realized that the plaintiff had changed her coverage status in 1981. Based on this change of coverage, the defendant contended that its computerized mailing system would have automatically mailed the plaintiff booklet NA59105d IL.

The trial court granted the defendant's motion for a continuance. Thereafter, the defendant filed a motion for summary judgment, contending that the plaintiff's claim failed to raise a genuine issue of material fact. The trial court granted the motion, finding that the defendant had offered the ...


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