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Groushans v. Dairyland Insurance Company

February 25, 2000

KARL GROSHANS, JR., AND LISA GROSHANS, PLAINTIFFS-APPELLANTS,
v.
DAIRYLAND INSURANCE COMPANY DEFENDANT-APPELLEE. JUDGE, PRESIDING



Appeal from the Circuit Court for the 14th Judicial Circuit, Whiteside County, Illinois No. 98--MR--32 Honorable Dan A. Dunagan

The opinion of the court was delivered by: Justice Breslin

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiffs Karl Groshans, Jr. and Lisa Groshans filed suit against defendant Dairyland Insurance Company (Dairyland) seeking a declaratory judgment that they are entitled to coverage under their Dairyland policy for a hit-and-run accident in which no contact was made between the vehicles. The court granted Dairyland's motion for summary judgment. We reverse and hold that when a hit-and-run accident occurs there need be no physical contact between another vehicle and an insured's vehicle in order for an insured to recover, absent specific language in a policy requiring such contact.

FACTS

The hit-and-run accident which is the subject of this lawsuit occurred while Karl was driving his parents' vehicle home from school with his sister, Lisa, in the passenger seat. The Groshanses were approaching the top of a large hill when Karl allegedly saw an oncoming car swerving into his lane. Karl claims that when he turned right to avoid an accident, the tires of his car ran onto the gravel shoulder of the road and he lost control of the vehicle. His car then swerved left across the road, went into a ditch, and rolled several times before coming to a stop. The Groshanses' car never made contact with the other vehicle. Both Karl and Lisa were injured.

The Groshanses filed a declaratory judgment action regarding the extent of coverage under their policy with Dairyland. After taking depositions, cross-motions for summary judgment were filed by the parties. For purposes of the cross-motions, both parties essentially agreed to the facts of the incident giving rise to this lawsuit.

The relevant portions of the Dairyland policy held by the Groshanses are as follows:

We promise to pay damages, excluding punitive or exemplary damages, the owner or operator of an uninsured motor vehicle is legally obligated to pay because of bodily injury you suffer in a car accident while occupying a car, or as a pedestrian, as a result of having been struck by

***

A hit-and-run motor vehicle, if the driver or owner cannot be identified and which strikes, or causes another vehicle to strike, you or a motor vehicle you are occupying, is an uninsured motor vehicle. If there is no physical contact with the hit-and-run vehicle, the facts of the accident must be proved. The Groshanses argued that they were entitled to coverage under that paragraph of their policy which deals with hit-and-run vehicles. Dairyland argued that the plaintiffs could not recover under the policy because no contact was made with the hit-and-run vehicle. The circuit court granted Dairyland's motion for summary judgment. The Groshanses appeal.

A motion for summary judgment is properly granted when the pleadings, depositions, admissions and affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Machinery Transports of Illinois v. Morton Community Bank, 293 Ill. App. 3d 207, 687 N.E.2d 533 (1997). An appellate court performs its review de novo. Container Corp. v. Wagner, 293 Ill. App. 3d 1089, 689 N.E.2d 259 (1997).

In this case, we are called upon to determine whether the trial court erred in granting Dairyland's motion for summary judgment, thereby ruling as a matter of law that the Groshanses were not entitled to uninsured motorist coverage under Dairyland's insurance policy.

The parties initially disagree about whether Illinois law requires physical contact between the insured's vehicle and a hit-and-run vehicle for an insured to recover under an uninsured motorist policy. Dairyland contends that case law in Illinois provides that physical contact is required. The Groshanses argue that Illinois law merely permits an insurance contract to require actual contact between the vehicles, but that actual contact is not required by law.

Ferega v. State Farm Mutual Automobile Insurance Co., 58 Ill.2d 109, 317 N.E.2d 550 (1974), speaks directly to this issue. In Ferega, the plaintiff ran off the road to avoid an oncoming car, much as Karl did in the case before us. Unlike this case, however, the policy held by the plaintiff in Ferega included a clause requiring physical contact between the hit-and-run vehicle and a vehicle occupied by the insured at the time of the accident. The supreme court found this provision of the policy to be consistent with section 143a of the Illinois Insurance Code (215 ILCS 5/143a (West 1998)) which requires that all automobile liability insurance policies ...


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