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06/30/97 STEVEN LAYCOCK AND CHARLES LAYCOCK v.

June 30, 1997

STEVEN LAYCOCK AND CHARLES LAYCOCK, PLAINTIFFS-APPELLANTS,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 95--MR--529. Honorable Robert E. Byrne, Judge Presiding.

Released for Publication July 30, 1997.

The Honorable Justice Inglis delivered the opinion of the court. McLAREN and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Inglis

JUSTICE INGLIS delivered the opinion of the court:

Plaintiffs, Steven Laycock and Charles Laycock, appeal from the orders of the trial court of Du Page County granting summary judgment for defendant, American Family Mutual Insurance Company (American Family). We affirm.

Plaintiffs brought a declaratory judgment action seeking uninsured motorist coverage under a policy of insurance issued by American Family to Charles. Plaintiffs alleged that on May 11, 1992, Charles' son, Steven, was involved in a near automobile collision with a vehicle driven by Scott Jungles, an uninsured motorist. Following this near collision, Jungles screamed at Steven and Steven drove away to avoid any problems. Jungles' car passed Steven's car and Jungles stopped his car in front of Steven's car, forcing Steven to stop. Jungles then exited his car and, shouting threats and obscenities, beat Steven on the face, head, neck, and eyes through Steven's open window, causing injuries to Steven. There was never any physical contact between the vehicles operated by Steven and Jungles.

Charles told American Family's adjusters, Rosalyn Tanksley and Hank Rassel, of the occurrence. Following an investigation, Rassel told Charles that they found that the injuries arose out of the fear and anger caused by the sudden stop and near collision, that it was unrelated to any preexisting, independent dispute or fight, and was, therefore, considered an accident covered by the policy. American Family paid $2,103 in medical expenses and informed Charles that such benefits were paid because it was an accident.

Thereafter, Charles notified Tanksley and Rassel that Jungles was convicted of battery and that he was going to file suit against Jungles for damages. On April 7 and 21, 1992, Charles sent letters to Tanksley confirming this, believing that there was no dispute as to coverage. Subsequently, Tanksley and Rassel told Charles that they did not dispute coverage or object to the lawsuit, but did not want to participate because it was not cost effective. Charles believed that no additional consent or notice had to be given in order to collect on the uninsured motorist claim.

On July 19, 1994, a civil judgment was entered against Jungles for $15,000 in damages. American Family refused to pay on the uninsured motorist claim or arbitrate. Plaintiffs then brought this declaratory judgment action requesting the trial court to find that their American Family automobile liability insurance policy provided coverage for compensatory damages arising from the occurrence and to order American Family to pay the $15,000 judgment pursuant to the uninsured motorist claim, or in the alternative to order arbitration.

The parties each filed motions for summary judgment concerning whether the occurrence arose out of the use of the uninsured motor vehicle. Plaintiffs' motion for summary judgment raised the issue of estoppel on the theory that comments made by Tanksley and Rassel led them to believe that, if they filed suit for damages, American Family would make payments to plaintiffs pursuant to the uninsured motorist provision of its policy. The trial court found that no coverage existed unless it determined that American Family was estopped from denying coverage. Thereafter, the trial court found that estoppel did not apply and granted American Family's motion for summary judgment. Plaintiffs filed a timely notice of appeal.

We begin our analysis by addressing the issue of whether the trial court properly granted summary judgment. Since the parties filed cross-motions for summary judgment, they agree that only a question of law is involved and invite the court to decide the issues based on the record. Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App. 3d 1049, 1051, 215 Ill. Dec. 593, 663 N.E.2d 1107 (1996). On appeal from the entry of summary judgment, the standard of review is de novo. Aryainejad, 278 Ill. App. 3d at 1051.

On appeal, plaintiffs first contend that the trial court erred in determining that the insurance policy issued by American Family did not provide uninsured motorist coverage with respect to the underlying action. The uninsured motorist provision of the policy in question provides:

"We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the uninsured motor vehicle."

Insurance policies are subject to the same rules of construction that apply to other types of contracts. Morgan v. CUNA Mutual Insurance Society, 242 Ill. App. 3d 1027, 1028, 183 Ill. Dec. 259, 611 N.E.2d 112 (1993). In construing an insurance policy, the main objective is to ascertain and enforce the intention of the parties as expressed in the agreement. Milwaukee Guardian Insurance, Inc. v Taraska, 236 Ill. App. 3d 973, 974, 176 Ill. Dec. 763, 602 N.E.2d 70 (1992). Where the language of an insurance policy is clear and unambiguous, it must be given its plain and ordinary meaning. State Farm Fire & Casualty Co. v. Hatherley, 250 Ill. App. 3d 333, 337, 190 Ill. Dec. 170, 621 N.E.2d 39 (1993). Insurance policies must be liberally construed in favor of the insured, ...


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