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Parish v. Country Mutual Insurance Co.

July 28, 2004

[5] TROY PARISH AND DEBRA PARISH, PLAINTIFFS-APPELLANTS,
v.
COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



[6] Appeal from Circuit Court of Sangamon County. No. 03MR252. HonorableLeo J. Zappa, Jr., Judge Presiding.

[7] The opinion of the court was delivered by: Justice Myerscough

[8]  In June 2003, Troy and Debra Parish filed a complaint against Country Mutual Insurance Company (Country Mutual), seeking declaratory relief. In October 2003, Country Mutual filed a motion to dismiss Troy and Debra's complaint. In November 2003, the trial court entered an order granting Country Mutual's motion to dismiss. Troy and Debra appeal, arguing the two-year limitations provision to bring any legal action against Country Mutual found in the insurance policy impermissibly limited the time they could assert a claim for underinsured benefits under the policy. We affirm.

[9]  I. BACKGROUND

[10]   Debra Parish was involved in a motor vehicle accident on March 16, 1999. Debra allegedly sustained injuries as a result of the accident. As of July 26, 2001, Country Mutual, Debra's insurer, had paid $1,842.10 for Debra's medical treatment under the med-pay provision of the insurance policy. In September 2001, more than two years after the accident, Debra had surgery as a result of the accident.

[11]   The other driver involved in the accident with Debra was insured by Geico Direct Insurance (Geico). Sometime prior to December 27, 2002, Debra settled with Geico for the limits of its policy, $20,000. On December 27, 2002, Troy and Debra placed Country Mutual on notice of their intent to file a claim under the underinsured provisions of their insurance policy. In April 2003, Country Mutual denied any underinsured coverage because the time for Troy and Debra to present an underinsured motorist claim under the insurance policy expired in May 2001, two years after the date of the accident.

[12]   In June 2003, Troy and Debra filed a complaint against Country Mutual, asking the trial court to declare Troy and Debra were entitled to the underinsured coverage. In October 2003, Country Mutual filed a motion to dismiss Troy and Debra's complaint based on the two-year limitations clause found in the policy. In November 2003, the court granted Country Mutual's motion to dismiss. This appeal followed.

[13]   II. ANALYSIS

[14]   According to Troy and Debra's brief, they concede the two-year limitations clause at issue in this case has been upheld by Illinois courts in many situations. However, Troy and Debra argue the facts in this case distinguish this case from those prior decisions. We disagree and affirm.

[15]   A. Standard of Review

[16]   Country Mutual states in its brief "[t]he decision to grant or deny a request for declaratory relief rests within the sound discretion of the trial court, and that determination will not be disturbed absent an abuse thereof." Troy and Debra also state in their brief the trial court's "decision is in error and against the manifest weight of the evidence." However, because the trial court granted Country Mutual's motion to dismiss under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2002)), we review the decision de novo. AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 688, 695 N.E.2d 882, 886 (1998). The parties "fail to distinguish between refusing to grant declaratory relief after consideration of the merits and granting of a motion to dismiss on the pleadings." AG Farms, 296 Ill. App. 3d at 688, 695 N.E.2d at 886.

[17]   B. Insurance Policy Provisions

[18]   Section 2 of the insurance policy at issue explains the uninsured and underinsured motorist coverage provided by the policy. Under section 2, the policy lists a series of conditions pertaining to the uninsured and underinsured motorist coverage the policy provides. The final condition listed under section 2 states:

[19]   "Legal Action Against Us. No suit, action, or arbitration proceedings for recovery of any claim may be brought against us until the insured has fully complied with all the terms of this policy. Further, any suit, action, or arbitration will be barred unless commenced within two years after the date of the accident. Arbitration proceedings will not commence until we receive your written demand for arbitration." (Emphasis in original).

[20]   In this case, Troy and Debra did not inform Country Mutual of their intent to file a claim under the underinsured provisions of their insurance policy until December 2002, more than ...


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