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Smagala v. Owen

August 20, 1999

STANLEY SMAGALA, PLAINTIFF-APPELLANT,
v.
COLIN OWEN, INDIV. AND AS REPRESENTATIVE OF THOSE UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO POLICY NO. PFS888/92/5214, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 96 L 015247 Honorable Sheldon J. Gardner, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

Plaintiff, Stanley Smagala, brought this breach of contract action against defendant, Colin Owen, individually and as a representative of Lloyd's of London Insurance Co. (Lloyd's), seeking to recover under the personal accident insurance policy plaintiff purchased from Lloyd's. Defendant filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), which the trial court granted. Plaintiff appeals, contending that: (1) the trial court abused its discretion in granting defendant's motion to dismiss because plaintiff was disabled within 12 months of his injury; (2) plaintiff's complaint is not time-barred; and (3) the insurance policy violates public policy and the doctrine of reasonable expectations.

For the following reasons, we affirm.

To decide this case, we must interpret the terms of a personal accident insurance policy covering a professional athlete. This is a case of first impression.

Plaintiff was a professional football player with the Dallas Cowboys for the 1990 season playing the position of defensive cornerback. In 1992, plaintiff purchased a personal accident insurance policy from defendant for $2,532. The policy was effective from June 15, 1992, to July 21, 1993. The relevant portions of the policy are as follows:

"Underwriters, hereinafter called'the Insurer', agree with the Holder, named in the Schedule attached hereto, to insure the person or persons as identified in the Schedule, hereinafter called 'the Insured Person', against any bodily injury caused by an accident occurring during the policy period or sickness first manifesting itself during the policy period which shall solely and independently of any other cause within 12 months from the date of such accident or manifesting of such sickness results in the commencement of the permanent total disablement, as herein defined, of the Insured Person and thereby prevent him from continuing his occupation as stated in the Schedule."

"Permanent total disablement" is defined as:

"the Insured Person's complete and total physical inability to engage in his occupation as stated in the Schedule for 12 continuous months. Provided at the end of such 12 months, the Insured Person is adjudged in accordance with the provisions of paragraph 1 of Part 1 -agreement of this policy to be completely unable ever again to engage in such occupation."

Part I paragraph 1 states:

"Any claim made under this policy shall be subject to the approval of two independent medical referees, one to be appointed by the holder and one by the insurer. In the event the aforesaid independent medical referees are unable to concur in their opinion that insured is permanently and totally disabled, a third independent medical referee will be appointed by the president of the American Medical Association and/or his nominee and any decision of such third referee shall be final and binding upon all parties hereto."

The insurance policy also contains eight additional exclusionary clauses. Number eight, which is the subject of this appeal, states as follows:

"No action at law or in equity shall be brought to recover under this policy prior to the expiration of 12 months from the commencement of the permanent total disablement as herein defined. No such action shall be brought after the expiration of three years from the commencement of such permanent total disablement."

After procuring the insurance policy, plaintiff was employed by the Pittsburgh Steelers to play the position of defensive cornerback. On August 17, 1992, while playing for the Pittsburgh Steelers in a preseason game, plaintiff injured his right knee. As a result, plaintiff was unable to play football during the 1992 season. Plaintiff underwent an operation on his right knee in the off-season and engaged in rehabilitation therapy. In 1993, during a summer training camp with the Pittsburgh Steelers, plaintiff had difficulty with his right knee and also pulled a hamstring. On August 23, 1993, plaintiff was released from the team.

In March 1994, plaintiff traveled to Indiana to participate in the National Football League (NFL) tryouts. NFL scouts timed plaintiff at 4.6 seconds in the 40-yard dash. Plaintiff's amended complaint alleged that 4.39 seconds is the standard time for a person in the position of defensive cornerback to run the 40-yard dash. After plaintiff's injury and rehabilitation, he never regained the ability to run at a speed of 4.39 seconds or less. Plaintiff subsequently demanded payment under the insurance policy with defendant because he ...


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