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09/18/95 JOHN BUAIS v. SAFEWAY INSURANCE COMPANY

September 18, 1995

JOHN BUAIS, AS FATHER AND NEXT FRIEND OF JASON L. BUAIS, A MINOR, PLAINTIFF-APPELLANT,
v.
SAFEWAY INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Buckley and Braden, JJ., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

In this case we examine the remedies available to a policy-holder who claims he has been treated unfairly by his insurance company.

BACKGROUND

On June 9, 1987, six-year-old Jason L. Buais was struck by a car as he crossed the street. He suffered a concussion, multiple abrasions of the head and chest, and a ruptured left kidney that was removed in emergency surgery.

The driver of the car was not insured at the time of the accident. Jason's father, John Buais (Buais), filed an uninsured motorist claim with his own insurance company, Safeway Insurance Company (Safeway). The policy provided that arbitration was the only way to resolve any dispute which arose under the policy.

The matter eventually was submitted to arbitration. The arbitrator, in a written decision dated October 26, 1989, awarded Buais $15,000--the full amount of the policy.

Plaintiff contends Safeway had all the information it needed to resolve the dispute before arbitration, but failed to investigate the matter or make any kind of offer during the 30 months between the accident and the arbitrator's decision.

After the arbitration was completed, the plaintiff filed a complaint against Safeway in the Circuit Court. It alleged that Safeway breached an implied covenant of good faith and fair dealing by withholding benefits until the arbitration hearing was held, causing the plaintiff to expend monies for legal fees and other costs. In addition to the common law claim, the plaintiff alleged the bad faith behavior of Safeway warranted the imposition of statutory damages under section 155 of the Insurance Code. 215 ILCS 5/155 (West 1992).

After a series of complaint dismissals and amendments, the trial court entered a final order dismissing the plaintiff's cause of action, ruling that an insurer has no duty to participate in settlement discussions before arbitrating the claim.

For reasons that follow, we affirm the trial court's dismissal of the plaintiff's common law claim, but reverse and remand its dismissal of the section 155 claim.

DECISION

First, a matter of procedure. We note that the motions brought by Safeway in the trial court do not refer to any section of the Code of Civil Procedure. The courts have spoken on that subject:

"Meticulous practice dictates that a lawyer specifically designate whether her motion to dismiss is pursuant to section 2-615 or section 2-619. [Citation.] The failure to do so may not always be fatal, but reversal is required if prejudice results to the nonmovant." Illinois Graphics Co. ...


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