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02/28/96 FIREMAN'S FUND INSURANCE COMPANIES v.

February 28, 1996

FIREMAN'S FUND INSURANCE COMPANIES, PLAINTIFF-APPELLEE,
v.
DEBORAH BUGAILISKIS, DEFENDANT-APPELLANT (RONALD BUGAILISKIS, DEFENDANT).



Appeal from the Circuit Court of Lake County. No. 93--L--1649. Honorable Patrick N. Lawler, Judge, Presiding.

Released for Publication April 2, 1996.

The Honorable Justice Thomas delivered the opinion of the court: McLAREN, P.j., and Hutchinson, J., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), defendant, Deborah Bugailiskis, appeals the denial of her motion to dismiss plaintiff's complaint demanding a jury trial of defendant's underinsured motorist claim. The issues on appeal are: (1) whether an underinsured motorist coverage arbitration clause which allows arbitration awards to be appealed only when they exceed the minimum liability amount set forth in the Illinois Safety Responsibility Law is void as against public policy; and (2) if the clause is valid, whether it allows a jury trial as to liability and damages or only as to damages. We reverse and remand.

On March 26, 1989, defendant was injured when a vehicle operated by Rob Delaney ran over her legs. Defendant filed a complaint in the circuit court of Lake County, and Rob Delaney's insurer paid its policy limit of $25,000. At the time of the occurrence, Ronald Bugailiskis, defendant's father, had an automobile insurance policy with plaintiff, Fireman's Fund Insurance Company, providing underinsured motorist coverage in the amount of $300,000. Ronald Bugailiskis was a party to the lawsuit but is not a party to this appeal. Defendant asserted a claim under that policy for the amount of the damages which exceeded the $25,000 paid by Delaney's carrier.

The claim was submitted to arbitration. On October 8, 1993, the arbitration panel found plaintiff liable and found that defendant's damages were $192,414.99. The panel also found that defendant's comparative negligence was 27 1/2% which resulted in a net award of $139,500.85.

The arbitration provision in the policy provided in relevant part:

"A decision agreed to by two of the arbitrators will be binding as to:

a. Whether the insured is legally entitled to recover damages; and

b. The amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the Illinois Safety Responsibility Law. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within 60 days of the arbitrator's decision. If this demand is not made, the amount of damages agreed to by the arbitrators will be binding."

Pursuant to the arbitration provision, plaintiff rejected the award. On December 2, 1993, plaintiff filed a complaint demanding a jury trial.

On August 8, 1995, the trial court denied defendant's motion to dismiss but found that plaintiff was entitled to a trial only as to the damages issue. On August 17, 1995, the trial court entered an order pursuant to Supreme Court Rule 308 finding that the issues created by defendant's motion to dismiss involve questions of law as to which there is a substantial ground for difference of opinion and that an immediate appeal of the August 8, 1995, order may materially advance the ultimate termination of the litigation. On August 31, 1995, defendant filed an ...


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