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12/17/97 COUNTRY MUTUAL INSURANCE COMPANY v. DONALD

December 17, 1997

COUNTRY MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DONALD BIRNER AND AMERICAN FAMILY MUTUAL INSURANCE COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court for the 10th Judicial Circuit, Tazewell County, Illinois. No. 96--MR--35, Consolidated with 96--SC--198. Honorable Donald C. Courson, Judge, Presiding.

Released for Publication January 21, 1998.

Presiding Justice Lytton delivered the opinion of the court. Breslin and Michela, JJ., concur.

The opinion of the court was delivered by: Lytton

PRESIDING JUSTICE LYTTON delivered the opinion of the court:

Attorney Donald Birner filed a personal injury suit on behalf of his client, Teresa Perrine, and subsequently obtained a settlement from the tortfeasor's insurance carrier, American Family Mutual Insurance Company. The settlement included payment of the full amount due to Perrine's insurance company, Country Mutual Insurance Company, as subrogee. Country Mutual refused to pay Birner for his services. Birner filed a small claims action. Country Mutual responded by filing suit for declaratory judgment against Birner and American Family, obtained a default arbitration award against American Family and requested that the court confirm the arbitration award. The two cases were consolidated in the circuit court. The trial judge found in favor of Birner and American Family and against Country Mutual. We affirm.

The claims between the parties were decided pursuant to motions for summary judgment. 735 ILCS 5/2--1005 (West 1994). A motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2--1005 (West 1996); Wells v. Enloe, 282 Ill. App. 3d 586, 589, 669 N.E.2d 368, 371, 218 Ill. Dec. 425 (1996). When reviewing an order granting summary judgment, this court conducts a de novo review. Jewish Hospital of St. Louis v. Boatmen's National Bank of Belleville, 261 Ill. App. 3d 750, 755, 633 N.E.2d 1267, 1272, 199 Ill. Dec. 276 (1994).

On November 23, 1993, Teresa Perrine was injured in an automobile accident with a car driven by Trina Leeds. Perrine's car was insured by Country Mutual, while Leeds' vehicle was insured by American Family. Country Mutual paid her medical bills, which totalled $4400.80.

On April 7, 1994, Country Mutual sent a letter advising American Family about the payment of Perrine's medical bills, and claiming a subrogation lien. Over the next sixteen months, the companies exchanged correspondence about the subrogation claim.

On November 8, 1995, Perrine retained attorney Donald Birner pursuant to a contingency fee agreement. The next day Country Mutual sent Birner a letter, which stated in pertinent part,

"Country Mutual Insurance Company's policy provides for the right of recovery of all medical payments made on behalf of [Teresa Perrine] * * * . Country Mutual Insurance is exercising this right of recovery by pursuing it's recovery through inter-company arbitration. We are asking you to not include payments Country Mutual Insurance Company has made in any personal injury settlement."

A similar letter was sent by Country Mutual to Birner one week later.

On November 9, 1995, Birner filed suit in the circuit court Tazewell County, naming Perrine and her husband as plaintiffs and Trina Leeds as defendant. The complaint requested, among other things, recovery of the same medical expenses that Country Mutual's had paid on Perrine's behalf.

On that same day, November 9, 1995, Country Mutual initiated the arbitration process by mailing a petition with the Conference of Casualty Insurance Companies (CCIC) arbitration program. The petition named American Family as the respondent. Under the terms of the CCIC program, American Family was obliged to answer the petition in the arbitration proceedings on or before December 22, 1995. American Family did not file an answer.

On January 12, 1996, Birner wrote to Country Mutual, advising that he was involved in negotiations with American Family. Birner requested that Country Mutual reconsider its refusal ...


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