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Safeway Insurance Co. v. Hister

March 31, 1999

SAFEWAY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
SANETTA HISTER, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice McBRIDE

Appeal from the Circuit Court of Cook County

Honorable Dorothy Kirie Kinnaird, Judge Presiding

On June 15, 1995, defendant Sanetta Hister (Hister) was involved in a hit-and-run accident. Hister sought uninsured motorist coverage from plaintiff Safeway Insurance Company (Safeway), claiming that she could not identify the owner or operator of the vehicle that hit her. On October 9, 1997, Safeway filed a declaratory judgment action to stay arbitration of Hister's claim, alleging that the owner or operator of the hit-and-run vehicle was, in fact, ascertainable, thereby precluding uninsured motorist coverage under Hister's policy. Safeway alleged that a description of the hit-and-run vehicle and a license plate number had been given to the police on the date of the accident. A copy of the police traffic accident report was attached as an exhibit to Safeway's complaint.

The police report indicated that the hit-and-run vehicle was an Oldsmobile with a license plate number of ERC 882, however, no identifying state was listed. Safeway also alleged that it had discovered the owner of this Oldsmobile to be April Petty (Petty). A copy of the title and registration record for an Illinois license plate number ERC 882 (listing the owner of the automobile as Petty) was also attached as an exhibit to Safeway's complaint. Safeway requested a permanent stay of Hister's arbitration claim.

Hister then filed a motion to compel arbitration under her policy, arguing Safeway was attempting to limit its coverage in violation of the Illinois Insurance Code. See 215 ILCS 5/143a (West 1996). Hister alleged that she did not obtain a license number for the hit-and-run vehicle, could not identify its driver, and did not know how a license plate number appeared on the traffic accident report. Hister's affidavit was attached in support of these allegations.

Safeway responded to Hister's motion to compel by again alleging that Hister had failed to show that the owner or operator of the vehicle which hit her could not be identified. Attached were the police report and State title information regarding the Oldsmobile, as well as a "sworn statement" of Hister in which she recounted the details of the accident in question.

On January 22, 1998, the trial court denied Hister's motion to compel arbitration and granted Safeway leave to file an amended complaint. On January 29, Safeway filed an amended complaint for declaratory judgment and a motion to stay the arbitration of Hister's hit-and-run claim pending resolution of Safeway's declaratory judgment action. On February 6, Hister filed her answer denying all relevant allegations.

On the same day, Hister filed a motion for summary judgment relying on its previously filed motion to compel arbitration. In opposing Hister's motion for summary judgment, Safeway relied on its previous response to Hister's motion to compel. The trial court granted Hister's motion for summary judgment, and this appeal followed.

We review de novo a trial court's grant of summary judgment. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7, 688 N.E.2d 106 (1997). We are mindful that summary judgment should be granted only where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the non-movant, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1994); Berlin, 179 Ill. 2d at 7. But, we are also reminded that the summary judgment procedure is an important tool in the administration of Justice, and its use in a proper case is to be encouraged because its benefits inure not only to the litigants in the savings of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials. Fooden v. Board of Governors of State Colleges and Universities, 48 Ill. 2d 580, 272 N.E.2d 497 (1971).

Safeway contends on appeal that it presented sufficient evidence establishing a question of fact existed as to whether the identity of the owner or operator of the hit-and-run vehicle was ascertainable. We disagree.

Before beginning our analysis we note the relevant portion of Hister's automobile insurance policy describes a hit-and-run motor vehicle as "one which causes bodily injury to an insured arising out of physical contact of such motor vehicle with the insured * * * provided, (a) there cannot be ascertained the identity of either the operator or owner of such hit-and-run motor vehicle."

Hister's motion for summary judgment was supported by her own affidavit, in which she stated that due to the injuries she sustained she did not obtain a license number for the hit-and-run vehicle, she could not identify its driver, and she did not know how a license plate number appeared on the traffic accident report. Safeway submitted no counter-affidavits contradicting the facts alleged in Hister's affidavit. When affidavits presented in support of summary judgment are not contradicted by counter-affidavits, they must be taken as true, even though the adverse party's pleadings allege contrary facts. Laurence v. Flashner Medical Partnership, 206 Ill. App. 3d 777, 784, 565 N.E.2d 146 (1990). If a party moving for summary judgment supplies facts which, if left uncontradicted, would entitle the party to a judgment as a matter of law, the opposing party cannot rely on its pleadings alone to raise issues of material fact. Barber-Colman Co. v. A & K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1070-71, 603 N.E.2d 1215 (1992). Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986).

Although the court at the summary judgment stage does not try the issues, evidence that would be inadmissible at trial may not be considered in support of or in opposition to a motion for summary judgment. Kaplan v. Disera, 199 Ill. App. 3d 1093, 557 N.E.2d 924 (1991). Accordingly, the trial court must consider and decide whether the affidavits and attachments which purport to create a genuine issue of material fact would be admissible evidentiary matter at a trial on the merits. Harris Bank Hinsdale, 235 Ill. App. 3d 1013, 1025, 601 N.E.2d 1330 (1992).

Safeway points to various documents attached to its pleadings that, it contends, should have precluded entry of summary judgment against it. Specifically, Safeway relies on copies of the police traffic accident report, the title and registration record of Petty's vehicle, and Hister's "sworn statement." We ...


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