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Brooks v. CIGNA Property and Casualty Companies

September 01, 1998

EUGENE BROOKS, PLAINTIFF-APPELLANT,
v.
CIGNA PROPERTY AND CASUALTY COMPANIES, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Rakowski delivered the opinion of the court

Appeal from the Circuit Court of Cook County.

Honorable Richard E. Neville, Judge Presiding.

While working for Illinois Trailer Equipment Company, plaintiff Eugene Brooks was injured by an uninsured motorist. He notified his employer's insurance carrier, Cigna Property and Casualty Companies (Cigna), of his uninsured motorist claim under section 143a of the Illinois Insurance Code (Code) (215 ILCS 5/143a (West 1996) (formerly Ill. Rev. Stat. 1983, ch. 73, par. 755a)) and demanded arbitration. Eleven years after the accident with no resolution of his claim, Brooks filed suit against Cigna, alleging breach of contract and "vexatious delay." Cigna moved to compel arbitration, which the circuit court granted. Brooks now argues he cannot be compelled to arbitrate the claim. Because we conclude that arbitration under the Code is mandatory and cannot be waived, we affirm.

FACTS

Brooks was injured in 1984 when involved in an automobile accident with Preston Strickland, an uninsured driver. At the time of the accident, Brooks was driving a truck owned by his employer, Illinois Trailer Equipment Company. Illinois Trailer Equipment Company had a policy of automobile insurance with Cigna that provided for uninsured motorist benefits. Brooks notified Cigna of his claim. At some point, Cigna offered to settle. Brooks rejected the settlement offer and renewed his previous demand for arbitration. His demand went unanswered and, in 1995, Brooks filed suit. Cigna's motion to dismiss based on the statute of limitations was granted. We reversed that decision in an unpublished order under Supreme Court Rule 23 (Brooks v. Cigna Property & Casualty Cos., No. 1-96-2101 (January 23, 1997)), and remanded to the circuit court for further proceedings. On remand, Cigna filed a motion to compel arbitration that was granted. The trial court did not address Brooks' "vexatious delay" count and that count remains pending in the trial court. We have jurisdiction pursuant to Supreme Court Rule 307(a). 166 Ill. 2d R. 307(a).

ANALYSIS

I. MOTION TO STAY APPEAL

Taken with the case is Brooks' motion to stay appeal. Because the constitutionality of section 143a is presently pending before the Illinois Supreme Court and the validity of section 143a is key to his appeal, Brooks contends this appeal must be stayed until the supreme court resolves the issue.

In Reed v. Farmers Insurance Group, 291 Ill. App. 3d 1068 (1997), the third district declared section 143a unconstitutional. The supreme court granted leave to appeal (Reed v. Farmers Insurance Group, 175 Ill. 2d 553 (1997)).

After thoroughly reviewing the merits of Brooks' motion and considering the benefits of staying this appeal, we deny Brooks' motion to stay. The statute found unconstitutional in Reed is the 1996 version of the statute, not the 1983 statute that is relevant to the instant case. The 1996 version contains different provisions, in particular, the "escape hatch" provision allowing for review of arbitration awards above minimal financial liability limits but binding awards below those limits. The crux of the Reed decision was the inequity and unconscionability of this provision in that it favors insurers because arbitration awards above liability limits are non-binding and awards lower than those limits are binding. See Reed, 291 Ill. App. 3d 1068. In the instant case, the relevant version of section 143a contains no "escape hatch" provision. The statutory language is neutral and there is no differentiation between awards below the limits and those above the limits. Based on the difference in the statutory provisions and because the third district's decision centered on the offensive nature of the distinction between high and low awards, we conclude that the supreme court's resolution of Reed would not affect the issues before us.

Accordingly, we deny Brooks' motion to stay appeal.

II. STANDARD OF REVIEW

"A motion to compel arbitration is in the nature of a prayer for injunctive relief, and a denial [or grant] of that motion can be reviewed by an appellate court as an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1)." Yandell v. Church Mutual Insurance Co., 274 Ill. App. 3d 828, 830 (1995). The standard is whether the trial court abused its discretion in granting or denying the motion to compel. Yandell, 274 Ill. App. 3d at 831. "The sole issue before the appellate court on an ...


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