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Smith v. Allstate Insurance Company

December 03, 1999

LARRY S. SMITH, PLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Campbell

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.

HONORABLE ALBERT GREEN, JUDGE PRESIDING.

Plaintiff Larry Smith appeals an order of the circuit court of Cook County granting summary judgment in favor of defendant Allstate Insurance Company (Allstate) in a declaratory judgment action. The record on appeal indicates that this appeal is related to this court's prior decision in Smith v. Allstate Insurance Co., 292 Ill. App. 3d 432, 686 N.E.2d 74 (1997). Although many of the facts relevant to this appeal appear therein, a brief restatement of the case follows, along with additional facts relevant to this appeal.

On July 8, 1994, plaintiff filed a complaint for declaratory judgment against defendant. The complaint alleged that on January 21, 1993, plaintiff was driving a car east on Golf Road, near the intersection with Narragansett Street, in Morton Grove. Michael Garrity was driving west on Golf Road; Brian Barry and Brendan Mahoney were passengers in the car Garrity was driving. According to the complaint, Garrity negligently caused a collision between the car he was driving and Smith's car. Plaintiff's complaint further alleges that the collision caused him to suffer severe and permanent injuries, including spinal injuries, incomplete paraplegia, prosthetic hypertrophy and sexual dysfunction.

Plaintiff, plaintiff's wife Phyllis, Mahoney, the estate of Barry and three Barrys individually (the Barrys), all filed suit against Michael Garrity and John Garrity, the owner of the car operated by Michael Garrity. The record in this case contains a copy of the First Amended Complaint Larry and Phyllis Smith filed against the Garritys. Count I, sounding in negligence, was brought by Larry Smith. Count II, brought by Phyllis Smith, sought damages for loss of consortium, alleging that as a result of negligently caused injury to Larry, she had "been deprived, and is reasonably certain to be deprived in the future, of the society, companionship and conjugal relationship with her husband."

On January 21, 1993, Michael Garrity was an insured driver under a policy issued by State Farm Insurance Company (State Farm) to John Garrity, the owner of the car operated by Michael Garrity. The single limit liability coverage under the State Farm Policy was $100,000 per person/$300,000 per occurrence. Michael Garrity also had $2,000,000 in umbrella coverage from State Farm at the time of the collision. Thus, the maximum coverage available to satisfy the aforementioned claims was $2,300,000.

During the pretrial proceedings in the Garrity matter, State Farm agreed to tender the policy limits on behalf of the Garritys, provided that the matter was settled as to all four claimants. On March 16, 1994, the trial court entered an order granting the Garritys motion for a good faith settlement order. The order dismissed the claims against the Garritys with prejudice and without costs, with the following amounts being paid in settlement: (1) Larry Smith -- $600,000; (2) Phyllis Smith -- $350,000; (3) the Barrys -- $950,000; and (4) Mahoney -- $400,000.

Plaintiff attached copies of releases purportedly signed by Larry and Phyllis Smith in the Garrity case to his appellate brief, though he does not note where they appear in the record on appeal. The identically worded documents purport to release the Garritys

"from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 21st day of January, 1993, at or near Golf Rd. & Narragansett, Chicago, Cook County, Illinois."

A claim brought by the Barrys against Larry Smith was also dismissed with prejudice, without costs or any amount being paid in settlement.

Plaintiff's complaint for declaratory judgment in this matter alleged that on January 21, 1993, plaintiff's car was insured by defendant Allstate. The record shows that Larry and Phyllis were named insureds on an Allstate Policy which provided in part as follows:

"Part V -- Uninsured Motorists Coverage -- Coverage SS

We will pay damages for bodily injury or property damage which a person insured is legally entitled to recover from the owner or operator of an uninsured auto."

The policy also defines an uninsured auto not only as a motor vehicle for which no insurance was in effect at the time of the accident, but also as an underinsured auto, which is a motor vehicle which has insurance below the limits of liability ...


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