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Estate of Price v. Universal Casualty Company

May 14, 2001

THE ESTATE OF NORMA PRICE, DECEASED, PLAINTIFF-APPELLANT,
v.
UNIVERSAL CASUALTY COMPANY, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice O'mara Frossard

Not Released For Publication

THE ESTATE OF NORMA PRICE, DECEASED, PLAINTIFF-APPELLANT,
v.
UNIVERSAL CASUALTY COMPANY, DEFENDANT-APPELLEE.

The opinion of the court was delivered by: Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

Honorable Bernetta D. Bush, Judge Presiding.

 Plaintiff, the estate of Norma Price, appeals the trial court's denial of her cause of action under section 155 of the Insurance Code (215 ILCS 5/155 (West 1998)) against defendant, Universal Casualty Company. Plaintiff's decedent (Norma) was involved in a hit-and-run accident and obtained an arbitration award for uninsured motorists benefits. After defendant refused to pay the arbitration award, plaintiff brought this complaint to confirm the arbitration award and for section 155 damages. Plaintiff's complaint alleged that "Universal's conduct in this cause in failing to seek judicial determination of coverage disputes prior to the arbitrator [sic], in failing to participate in the arbitration[,] and failing and refusing to pay said award in full and in a timely manner, despite repeated demands for payment of same, amount to vexatious and unreasonable conduct within the meaning of [section 155]." On appeal, plaintiff argues that the trial court's denial of her section 155 claim is against the manifest weight of evidence.

Initially, we note that plaintiff mainly relied on documentary evidence to establish a section 155 violation. Although the trial court initially denied plaintiff's counsel's request to admit into evidence documents that he received pursuant to a request to produce, the court allowed plaintiff's counsel to admit into evidence original documents from defendant's claim file. In addition, the court allowed plaintiff to call defendant's claim manager, who testified that these documents were contained in defendant's file and maintained in the ordinary course of business. The court also admitted into evidence correspondences between the parties' counsel. Finally, the court either took judicial notice of or, without any objection, admitted into evidence several court orders.

The documentary evidence established that on January 30, 1997, Norma was in a motor vehicle accident and sustained personal injuries. Norma reported the claim to defendant on February 4, 1997, and defendant described the accident in its claim form as a "Hit & Run." On September 17, 1998, defendant's claims manager wrote "this is a one-vehicle accident where our insured apparently claimed that they [sic] were cut-off by an unknown vehicle and forced into a wall resulting in an impact with a fixed object." Defendant's claims manager further wrote that the police report did not mention that Norma came in contact with an uninsured vehicle and that he was waiting to raise that issue until Norma gave a sworn statement. Defendant's claims manager additionally wrote that a report in the file indicated that Norma sustained a broken wrist and herniated disk.

The case was scheduled for arbitration. On February 1, 1999, defendant moved to stay the arbitration, which the circuit court denied in case number 98 CH 13682. On February 22, 1999, the arbitrator then found in favor of Norma and awarded her $20,000, the limits of her insurance policy. On March 2, 1999, plaintiff filed this action. On August 19, 1999, the trial court granted plaintiff's motion for summary judgment to confirm the arbitration award. The court ordered defendant to pay plaintiff $20,000, costs, and interest from the date of the award. Defendant then offered to settle with plaintiff for $15,000 and told plaintiff's counsel that if plaintiff did not accept the offer, defendant would appeal.

On September 24, 1999, plaintiff's counsel wrote to defendant's counsel to determine the status of the case. Plaintiff's counsel noted that he had left telephone messages on September 22, 23 and 24, 1999, which had not been returned. Plaintiff's counsel gave defendant until September 29, 1999, to make full payment of the judgment or plaintiff would start collection proceedings. On September 30, 1999, defendant delivered to plaintiff's counsel a check for $20,450. In an attached letter, defendant's counsel recognized that plaintiff's counsel "may have calculated interest and costs differently." Defense counsel explained that if his calculations were less than plaintiff's, he would "deliver a check for the balance upon your notification."

On September 30, 1999, plaintiff's counsel responded that the total due to plaintiff, including interest from the date of the arbitration award until September 30, 1999, and costs was $21,329. Plaintiff's counsel, therefore, requested defendant to pay an additional $829 to satisfy the judgment. On October 8, 1999, defense counsel responded that "[defendant] will not be paying interest from the date of the arbitration award." Defense counsel further stated that plaintiff brought the declaratory action at her own "peril." Defense counsel offered to "listen" if plaintiff revised her demand. Plaintiff then instituted garnishment proceedings, and on November 18, 1999, the court ordered defendant's garnishee to pay plaintiff $929.

After plaintiff rested, defendant moved for a directed finding. The court ruled that it had been presented with no "real evidence in the court's view that would substantiate the claim of vexatious interruption and delay in a trial." Despite this finding, the court discussed the nature of the evidence before it. The court believed that defendant was "aggressive" and that delay could be inferred from the documents. The court, however, believed that some of the delay could also be attributed to plaintiff. The court also found some "vexation" but attributed this to the nature of the contested litigation. The court, therefore, granted defendant's motion for a directed finding. This appeal followed.

As defendant correctly notes, the trial court granted defendant's motion for a directed finding pursuant to section 2-1110 of the Code of Civil Procedure. 735 ILCS 5/2-1110 (West 1998). Section 2-1110 allows a defendant to move for a finding in the defendant's favor at the close of plaintiff's case. It further states: "In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence." 735 ILCS 5/2-1110 (West 1998). Under this section, the court conducts a two-part analysis. First, it determines whether plaintiff has presented a prima facie case, and, if not, it enters judgment in favor of the defendant. In re Estate of Goldstein, 293 Ill. App. 3d 700, 709 (1997). If the court finds that plaintiff has presented a prima facie case, the court then considers the general weight and quality of the evidence before it, including evidence favorable to the defendant. In re Estate of Goldstein, 293 Ill. App. 3d at 709. After weighing this evidence, the court applies the standard of proof required for the underlying case to determine whether sufficient proof remains to sustain plaintiff's prima facie case. Wehde v. Regional Transportation Authority, 237 Ill. App. 3d 664, 676 (1992). If the court finds insufficient proof to satisfy the required burden of proof, the court should grant the motion and enter judgment against the plaintiff. Wehde, 237 Ill. App. 3d at 676. The trial court's decision under the second part of this analysis will not be disturbed unless it is against the manifest weight of the evidence. Evans v. Gurnee Inns, Inc., 268 Ill. App. 3d 1098, 1102 (1994).

In this case, the record indicates that the trial court weighed and evaluated plaintiff's evidence. After defendant moved for a directed judgment, the court indicated that it "was leaning towards entering a judgment for the time" defendant delayed in paying the arbitration award. However, after reviewing plaintiff's counsel's affidavit detailing the time he spent on the case, the court noted that plaintiff filed a garnishment proceeding before receiving defendant's letter that disputed the amount of interest defendant owed. Therefore, based on the court's oral ruling and its discussion of the evidence, the court determined that plaintiff satisfied her prima facie case but provided insufficient "competent" evidence to satisfy her burden of ...


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