Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois No. 00-MR-512 Honorable Herman Haase Judge, Presiding
The opinion of the court was delivered by: Presiding Justice Lytton
State Farm Mutual Automobile Insurance Company (State Farm) filed a declaratory judgment action against James J. George. State Farm moved for summary judgment, and the trial court granted the motion. We affirm.
James J. George and Erin Lyn Hitch had a minor child, Taylor N. Hitch. James and Erin never married or lived together, and Taylor lived with James at all times relevant to this case. On July 2, 1998, Erin was a passenger in a vehicle that was involved in a single car accident. Erin was killed. The driver of the vehicle had no liability insurance.
James had an automobile insurance policy with State Farm. Erin was not an insured under James' policy, but Taylor was insured because she resided with her father.
James made an uninsured motorist claim on behalf of Taylor for the loss of society she suffered because of her mother's death. State Farm filed an action asking the court to declare that Taylor could not recover under James' policy and later filed a motion for summary judgment, which the trial court granted.
On appeal, James argues that Illinois' uninsured motorist act, section 143a of the Illinois Insurance Code (215 ILCS 5/143a (West 2000)) (Act), requires that an insured be covered for loss of society caused by the death of an individual who is not insured under the policy. He claims that more restrictive language in the policy violates the Act.
The statute requires coverage "for the protection of persons insured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom." (215 ILCS 5/143a (1) (West 2000)). We must decide whether the Act mandates coverage for loss of society when the actual bodily injury is sustained by any person, or solely by an insured person.
Because no Illinois cases have reached this issue, the parties rely on cases from several other states that have construed identical, or nearly identical, language. The majority of jurisdictions have held that insurance policies need not compensate for damages for loss of society. See, e.g., Valiant Insurance Co. v. Webster, 567 So.2d 408 (Fla. 1990); Farmers Insurance Exchange v. Chacon, 939 P.2d 517 (Colo. App. 1997); Livingston v. Omaha Property and Casualty Insurance Co., 927 S.W.2d 444 (Mo. App. 1996); Lafleur v. Fidelity & Casual Co. of New York, 385 So.2d 1241 (La. App. 1980). A minority of states have found that the statute plainly requires such coverage. See Sexton v. State Farm Mutual Automobile Insurance Co., 433 N.E.2d 555, 558-59 (Ohio 1982); Hinners v. Pekin Insurance Co., 431 N.W.2d 345, 347 (Iowa 1988). We agree with those states that have denied uninsured motorist coverage under these circumstances.
In Illinois, the Act applies to, "insured persons *** entitled to recover damages *** because of bodily injury ***." (215 ILCS 5/143a (1) (West 2000)). We believe that this language is ambiguous; it can be reasonably read either to mandate coverage for loss of society or to allow for its exclusion. The disagreement among state courts in their reading of identical language highlights this ambiguity. Because the plain language is unclear, we may look to the purpose behind the law and the evils it was designed to remedy. Kunkel v. Walton, 179 Ill. 2d 519, 533-34, 689 N.E.2d 1047, 1053 (1997).
The public policy underlying the Act is to place insured parties injured by an uninsured driver in substantially the same position they would have been in if the driver had been insured. Hoglund v. State Farm Mutual Automobile Insurance Co., 148 Ill. 2d 272, 279, 592 N.E.2d 1031, 1035 (1992). The Act protects insured parties; obviously, it does not extend its protection to those who are uninsured. Further, collateral claims based on physical injury to another are derived only from the underlying claim of the physically injured person; they are not separate and distinct claims. See, e.g., Schweighart v. Standard Mutual Insurance Co., 227 Ill. App. 3d 249, 591 N.E.2d 121 (1992)(loss of consortium claim is derivative of a claim for bodily injury); Cross v. Country Companies, 188 Ill. App. 3d 847, 544 N.E.2d 1246 (1989)(same). Thus, we believe that loss of society cannot be recovered under a policy where the injured party could not recover.
In Farmers Insurance Exchange v. Chacon, 939 P.2d 517, a case with similar facts, the Colorado appellate court reasoned that,
"[T]he statute does not compel coverage for a person who is not an insured under the terms of a policy. See 12 M. Rhodes, Couch on Insurance § 45:624 (1981)([Uninsured motorist] statutes are not intended to create new rights in favor of the injured party, but such statutes create a new procedure for recovery, not against the tortfeasor, but against the injured party's insurer).
Had the mother lived, she could not have made a claim for her injuries under the liability provisions of defendant's policy. Her claim and any derivative claim to which the children might be entitled, which includes a wrongful death claim, would have been made under her own insurance policy. The children's claim, therefore, would necessarily be ...