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03/08/95 TONY TOPPS AND RHONDA WOODS v. UNICORN

March 8, 1995

TONY TOPPS AND RHONDA WOODS, PLAINTIFFS-APPELLEES,
v.
UNICORN INSURANCE COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Lester D. Foreman, Judge Presiding.

Released for Publication April 13, 1995.

Presiding Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Defendant, Unicorn Insurance Company, appeals the trial court's entry of summary judgment in favor of its insured, Tony Topps, and Rhonda Woods, (plaintiffs) a passenger in his vehicle which was struck by an alleged uninsured motorist, arising from a dispute over whether its insurance policy required arbitration of issues involving "coverage" for collisions with uninsured motorists. Defendant argues the trial court erred by: (1) deeming the arbitration provision contained in the insurance policy to be void and unenforceable; and (2) accepting plaintiffs' letter from the Illinois Department of Transportation (IDOT) as evidence of the adverse driver's and vehicle's insurance status.

We affirm.

Defendant issued Topps automobile insurance against uninsured motorists to become effective January 1992. The policy contained a section entitled "Family Protection Coverage (Uninsured Motorist Coverage)" which entitled the insured to damages for bodily injury, as stated in pertinent part:

"For the purposes of this coverage, determination to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration."

The policy also contained a subsection providing for arbitration:

"Arbitration. If any person making claim hereunder and the company do not agree that both the vehicle(s) and the driver(s) of the vehicle(s) with which any person making claim has had an accident, were not covered by liability insurance at the time of the accident, or do not agree that such person is legally entitled to recoverdamages from the owner or operator of an uninsured automobile because of bodily injury to an insured *** then these matters shall be submitted to arbitration." Emphasis added.

In February Topps was driving and Woods was a passenger in the insured vehicle when it was struck by another vehicle driven by Phillip Hardin in which his wife Lilly was a passenger. The collision caused plaintiffs to sustain bodily injuries. In December plaintiffs demanded arbitration of the insurance claim but refused to submit to arbitration the issue of the driver's or vehicle's uninsured status based upon a letter from the IDOT, which stated it had "no record of receiving a motor accident report or evidence of liability insurance" on behalf of Phillip or Lilly Hardin relating to the collision.

In April 1993 the Secretary of State entered an order after a safety responsibility hearing conducted pursuant to 625 ILCS 5/7-205(a) (West 1993), at which Topps but neither Hardin were present, finding "there is a reasonable probability of a civil judgment being rendered against Phillip or Lilly Hardin" as a result of the collision, and they have "failed to comply with the requirements of the Illinois Safety Responsibility Law" (see 625 ILCS 5/7-202 (West 1993) (exceptions to requirements as to security and suspension)). Hence, the Secretary ordered suspension of the Hardins' drivers' licenses and driving privileges.

Plaintiffs filed a declaratory judgment action and sought summary judgment which would provide a finding that the Hardins were uninsured at the time of the collision pursuant to the terms of defendant's insurance policy (count I), and that the arbitration provision of the policy is void and unenforceable.

After a hearing, the trial court entered an order finding that the issue of the uninsured status of the adverse driver in an uninsured motorist claim is an issue of "coverage" which must be decided by a court and that the arbitration provision is void and unenforceable. The court also allowed ...


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