The opinion of the court was delivered by: Justice McBRIDE
Appeal from the Circuit Court of Cook County Honorable Aaron Jaffe, Judge Presiding.
Plaintiff Allstate Insurance Company (Allstate) brought this declaratory judgment action against defendant Leonard D. Davenport, in which it sought to determine whether benefits were due to defendant on an automobile insurance policy. The trial court entered summary judgment in favor of plaintiff. Defendant now appeals, contending that material questions of fact exist and the trial court was thus precluded from entering summary judgment in favor of plaintiff.
On April 14, 1986, defendant was involved in an automobile accident. At the time of the accident, defendant was in the scope of his employment with the Chicago Transit Authority (CTA) and was operating a vehicle owned by the CTA.
Defendant sustained injuries to his back that kept him from working from the time of the accident until June 1986. Defendant returned to his job as a supervisor of rail maintenance at the CTA in early June of 1986 and worked until July 8, 1986. After further treatment, defendant again returned to work at the CTA from October 30, 1986, until May 22, 1987. During these periods of work, defendant received the same amount of pay and had the same job title as he had had previously but his duties were lessened due to his back condition. At his deposition in this case, defendant indicated that he could not perform many of the duties related to his job and received significant aid from others in carrying out those duties during the periods he returned to work. After May 22, 1987, defendant entered the hospital for surgery on his back and has not worked since. The only injury defendant had suffered to his back was from the April 14, 1986, automobile accident. According to reports in the record from Dr. David Birnbaum, defendant's physician, defendant suffers from arachnoiditis, degenerative disc disease and intermittent sciatica. These conditions, the result of the accident, have disabled defendant. Dr. Birnbaum's report indicated that defendant will continue to suffer severe, incapacitating pain and his condition is not expected to improve.
At the time of the accident, defendant had an automobile insurance policy with plaintiff that included coverage for disability income protection. Defendant's policy with plaintiff stated that plaintiff would pay defendant's disability income benefits only if the disability:
"(1) commences within 20 days of the date of the accident; and
(2) during the first year after commencement continuously prevents the insured person from performing every duty pertaining to his occupation; and
(3) during the second and subsequent years after commencement continuously prevents the insured person from engaging in any occupation or employment for wage or profit."
In addition to the provisions regarding "own occupation" disability benefits (provision 2, above), and "any occupation" disability benefits (provision 3, above), the policy included an exclusion stating that the coverage did not apply to a disability sustained in the course of an occupation while operating or performing any duties related to the use of a commercial automobile.
In September 1990, Allstate paid defendant one year's worth of disability benefits under the "own occupation" disability benefits provision in the policy.
As a result of the accident, defendant filed a claim for workers' compensation benefits. In a March 14, 1994, decision by an arbitrator, defendant was found to have sustained injuries that caused him to be completely disabled and that rendered him "wholly and permanently incapable of work." The arbitrator awarded defendant a worker's compensation benefit of $511.81 per week for the remainder of his life.
In 1995, plaintiff filed a complaint for declaratory judgment, alleging that defendant's "own occupation" disability benefits were not payable because defendant was not continuously prevented from performing every duty related to his occupation in the first year after his accident. Plaintiff also alleged that "any occupation" disability benefits were not payable because defendant was not continuously prevented from engaging in any occupation or employment for wage or profit during the second year following his accident. The complaint further alleged that defendant was not entitled to either type of disability benefits because his accident fell within the exclusion for injuries sustained while operating a commercial automobile in the course of an occupation.
Defendant filed an answer and counterclaim alleging that plaintiff's failure to pay him disability benefits was "vexatious and without reasonable cause."
Plaintiff moved for summary judgment on its complaint for declaratory judgment. Defendant responded, maintaining, among other things, that plaintiff had waived its objections to paying him disability benefits by paying him "own occupation" disability benefits in 1990. At an April 9, 1997, hearing on plaintiff's motion for summary judgment, the attorney for plaintiff informed the court that because plaintiff had voluntarily paid defendant "own occupation" total disability benefits for the first year, the only issue before the court was whether Allstate owed "any occupation" payments to defendant for the second and subsequent years following the accident. Plaintiff's attorney argued that because defendant had continued to work at his job with the CTA for at least a full month into the second year, he was not continuously prevented from engaging in any occupation. The trial court entered summary judgment in favor of plaintiff and against defendant. The court noted that the standards for receiving "own" and "any" disability benefits were different and found that because defendant had worked for a portion of the second year following his accident, he had ...