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01/31/97 FRED LITTLE v. ECONOMY PREFERRED INSURANCE

January 31, 1997

FRED LITTLE, PLAINTIFF-APPELLANT,
v.
ECONOMY PREFERRED INSURANCE CO., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jackson County. No. 95-MR-31. Honorable E. Dan Kimmel, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Justice Maag, specially concurring. Justice Goldenhersh, dissenting

The opinion of the court was delivered by: Hopkins

JUSTICE HOPKINS delivered the opinion of the court:

Plaintiff, Fred Little, appeals from the Jackson County circuit court's order granting summary judgment in favor of defendant, Economy Preferred Insurance Co. (Economy). The issue we consider on appeal is whether Economy is entitled to raise during arbitration the issue of the contributory negligence of plaintiff. We affirm the trial court's finding that plaintiff's contributory negligence should be considered in determining what plaintiff is legally entitled to recover.

Plaintiff was injured in an automobile accident on March 26, 1992, with an underinsured driver. Plaintiff settled his cause of action against the underinsured driver for the limit of the policy, $50,000, and then filed a timely claim for underinsured motorist benefits under his policy of insurance with Economy. Plaintiff demanded arbitration of his claim.

Before the arbitration hearing, Economy informed plaintiff of its intention to assert the defense of plaintiff's contributory negligence for the injuries he sustained in the automobile accident. In response, plaintiff filed a complaint for declaratory judgment, claiming that Economy was not entitled to assert the defense of plaintiff's contributory negligence. Plaintiff alleged in his complaint for declaratory judgment that the defense of contributory negligence is personal to the underinsured driver and, therefore, not available to Economy and that plaintiff's claim against Economy is a contractual dispute in which the tort defense of contributory negligence is not allowed. The trial court rejected plaintiff's argument, denied plaintiff's motion for summary judgment, and entered summary judgment in favor of Economy.

The policy of automobile insurance Economy issued to plaintiff contains the following pertinent provision:

"We will pay all sums the insured is legally entitled to recover as damages from the owner or driver of an *** underinsured motor vehicle."

Plaintiff argues that his right of recovery exists only as a result of the above contract language and that Economy has no right to assert the tort defense of contributory negligence. In support of this argument, plaintiff relies upon Allstate Insurance Co. v. Elkins, 77 Ill. 2d 384, 33 Ill. Dec. 139, 396 N.E.2d 528 (1979).

In Elkins, the supreme court determined that the defense of interspousal tort immunity could not be used by an insurance company to defeat an uninsured motorist's claim, as the defense is personal to each spouse and may only be used or waived by a spouse, not by an insurance company. Plaintiff argues that the defense of interspousal tort immunity is similar to the defense of contributory negligence and that Economy should not be allowed to assert the tort defense of contributory negligence in order to defeat plaintiff's contractual underinsured motorist claim. We disagree. The defense of interspousal tort immunity is an affirmative defense which, if not waived, may allow a spouse to move for dismissal of a cause of action brought by the other spouse. Wirth v. City of Highland Park, 102 Ill. App. 3d 1074, 1081, 58 Ill. Dec. 294, 430 N.E.2d 236 (1981); 735 ILCS 5/2-619 (West 1992). However, even though interspousal tort immunity provides a spouse a defense to a direct cause of action by the other spouse, it does not bar an action for contribution by a third party. Wirth, 102 Ill. App. 3d at 1081-82.

In contrast, the defense of contributory negligence is a factual defense that allows a defendant to reduce his liability by the percentage plaintiff is responsible for his own injuries. The contributory fault statute provides:

"In all actions on account of bodily injury or death or physical damage to property, based on negligence, *** the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought." 735 ILCS 5/2-1116 (West 1992).

Plaintiff argues that the contributory negligence defense is personal to the underinsured driver and is not available to Economy, as there is no relationship between the underinsured driver and Economy that allows Economy to assert tort defenses available to the underinsured driver alone. Plaintiff's argument fails because it is contrary to the explicit language of the contributory fault statute (735 ILCS 5/2-1116 (West 1992)), which applies to "all actions on account of bodily injury or death or damage to property, based on negligence." The statute is not written to apply to a particular class of litigants but, rather, applies across the board to "all actions." Plaintiff cites no authority that would lead us to a contrary conclusion, and we have found none in our own search of the law.

Plaintiff next argues that Economy cannot use the defense of contributory negligence in this case, since plaintiff's claim against Economy is entirely based upon contract law. What plaintiff fails to recognize is that this contract of automobile insurance provides for coverage in the event of injuries sustained as the result of tortious conduct. Hence, plaintiff would have no claim against the insurance company absent the insurance policy, but he would have ...


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