Appeal from the Circuit Court of Williamson County. No. 91-MR-17. Honorable C. David Nelson, Judge, presiding.
The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins, P.j., and Maag, J., concur.
The opinion of the court was delivered by: Goldenhersh
The Honorable Justice GOLDENHERSH delivered the opinion of the court:
Plaintiff, Stephen Michael Stefan, appeals from the judgment of the circuit court of Williamson County granting a motion to dismiss in favor of defendants, State Farm Mutual Automobile Insurance Company (hereinafter State Farm) and Robert Bahr, Jr., d/b/a Bahr Insurance Agency (hereinafter Bahr, Jr.).
On appeal, plaintiff raises the following questions for our consideration: (1) whether the trial court erred in ruling that State Farm made a proper offer of uninsured motorist coverage pursuant to the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1991, ch. 73, par. 613 et seq. (now 215 ILCS 5/1 et seq. (West 1994))), and (2) whether there is a cause of action for breach of a voluntary undertaking where an insurance producer assumes the duty of reviewing annually the insured's insurance coverage. We reverse and remand.
On October 12, 1990, plaintiff was involved in an automobile accident with William Sanson, who struck plaintiff while he was riding a bicycle. Plaintiff sustained serious injuries as a result of the accident. Sanson was insured with West American Car Insurance Company with bodily injury limits of $20,000 per person. Sanson's insurer settled with plaintiff, paying $20,000, the limits of its coverage. At the time of the occurrence, plaintiff had automobile insurance coverage from State Farm, with limits of $50,000 per person for bodily injury and $100,000 per occurrence, and uninsured motorist coverage of $20,000 per person and $40,000 per occurrence. Plaintiff did not have underinsured motorist coverage.
Plaintiff first obtained automobile insurance from State Farm through Robert Bahr, Sr., prior owner of Bahr Insurance Agency, in July 1975. Robert Bahr, Sr., procured and maintained insurance exclusively through State Farm. Subsequent to January 1, 1988, Bahr, Jr., as successor to Robert Bahr, Sr., offered services to procure and maintain insurance for plaintiff. Bahr, Jr., continued to place plaintiff's automobile insurance with State Farm.
Plaintiff filed a two-count complaint, count I against State Farm and count II against Bahr, Jr. In his fourth amended complaint, filed on December 30, 1994, plaintiff alleges that from January 1, 1988, through October 23, 1990, plaintiff had, on occasion, requested that Bahr, Jr., update his policies of insurance, including the automobile insurance. Plaintiff recalled asking Bahr, Jr., if plaintiff had everything he needed with respect to his automobile insurance coverage. Bahr, Jr., initiated State Farm's "Family Insurance Check-Up Program," whose purpose is "to review the adequacy of the insured's coverage in light of their specific circumstances and needs and to recommend the appropriate changes that better serve the insured." Plaintiff alleges that when plaintiff's automobile insurance was renewed on December 24, 1989, Bahr, Jr., failed to inform plaintiff of the availability and benefits of underinsured motorist coverage and failed to recommend that plaintiff procure underinsured motorist coverage. Plaintiff further alleges that State Farm breached its statutory duty to make a proper offer of uninsured motorist coverage equal to the bodily injury liability coverage, thereby denying plaintiff the opportunity to purchase underinsured motorist protection.
On January 23, 1994, defendants filed a motion to dismiss plaintiff's fourth amended complaint. To support its motion to dismiss, defendants submitted the discovery deposition of Kathy Malone, a service supervisor at State Farm Mutual Insurance Company's headquarters in Bloomington. In her deposition, Malone testified that, as service supervisor, she is responsible for making sure the computer system is programmed to send out statutory notices concerning uninsured and underinsured motorist coverage, as well as billing notices. Malone explained that when the new uninsured and underinsured motorist law became effective, State Farm began sending out notices offering uninsured and underinsured motorist coverage beginning on July 1, 1983. State Farm sent to its policyholders a notice and insert, explaining uninsured and underinsured coverage, with billings for semiannual and annual payment plans and with every renewal until June 30, 1984. The insert and notice informed the insured of the additional coverage and instructed the insured to return the lower portion of the notice with his next payment if the insured elected the higher limits. If the insured failed to return the lower portion with the next payment, it was assumed that the insured rejected the offer of additional coverage.
Upon reviewing the tape dump of the computer record and the company procedures process guide for the uninsured motorist offer, Malone opined that plaintiff did receive an offer in December 1983 to increase his uninsured motorist limits to match his bodily injury limits. Malone testified that the tape dump began with a certain date and ended with a certain date. This indicated that the mailing of the notices for the uninsured motorist offer and the insert were sent out in accordance with the program. However, the tape dump did not contain notations that the uninsured motorist insert was sent out to a particular insured. Malone based her conclusions that plaintiff received notice of the uninsured motorist coverage offer on the fact that plaintiff received billings in December 1983 and in June 1984. As part of the billing process during that period of time, the computer would generate rate data for increased uninsured and underinsured motorist coverage, which included the information contained in the insert.
On July 25, 1995, the trial court granted defendants' motion to dismiss, finding that State Farm complied with its obligations to offer uninsured motorist coverage to plaintiff; that Bahr, Jr., was the exclusive agent of State Farm and as such had no independent duty to offer plaintiff additional uninsured motorist coverage; and that Bahr, Jr., did not have a duty by virtue of his relationship with plaintiff or by virtue of the "Family Insurance Check-Up" to provide plaintiff with the "highest degree of protection," since that term is too indefinite and uncertain to be enforceable. Plaintiff now appeals.
Plaintiff contends that the trial court erred in finding that State Farm complied with its statutory obligation to offer plaintiff additional uninsured and underinsured motorist coverage pursuant to then sections 755a-2(1) and (5) of the Code (Ill. Rev. Stat. 1983, ch. 73, pars. 755a-2(1), (5) (now 215 ILCS 5/143a-2(1), (4) (West 1994))). Plaintiff asserts that the trial court improperly dismissed his complaint because the pleadings raised a material and genuine question of fact regarding plaintiff's alleged receipt of the notice and insert offering uninsured and underinsured motorist coverage, which State ...