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Valentine v. Founders Insurance Co.

September 13, 2010

FRANCIS J. VALENTINE, PLAINTIFF,
v.
FOUNDERS INSURANCE COMPANY, A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff and Defendant filed cross-motions for partial summary judgment on the issue of liability. The issue before me is whether Plaintiff is entitled to underinsured motorist ("UIM") coverage under Defendant's Insurance Agreement. For the following reasons, Defendant's motion for summary judgment is granted. Plaintiff's motion for summary judgment is denied.

I. PRELIMINARY MATTERS

Plaintiff filed his motion for partial summary judgment on liability on November 23, 2009. Defendant asks that I strike Plaintiff's motion for failure to comply with the requirements set forth by Northern District of Illinois Local Rule 56.1. Local Rule 56.1 provides that a moving party must serve and file with each motion for summary judgment "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." L.R. 56.1. Furthermore, the statement of material facts is to consist of short numbered paragraphs, with each paragraph referencing affidavits, or other supporting materials.

Plaintiff failed to comply with Local Rule 56.1 and instead included a declaration in his motion for summary judgment providing various facts in numbered paragraphs that include citations to various exhibits to his motion. It is within my discretion to require strict compliance with the Local Rules. Federal Trade Commission v. Bay Area Business Council, 423 F.3d 627, 633-34 (7th Cir. 2005). Though Plaintiff is not in strict compliance with the rule, I decline to strike his pleading.

Pursuant to Local Rule 56.1, each party opposing a motion for summary judgment must file a concise response to the movant's statement of facts. All material facts set forth by the moving party will be deemed admitted unless controverted by the statement of the opposing party. L.R. 56.1(b)(3)(c). Plaintiff failed to respond to Defendant's Rule 56.1 statement of facts. Therefore, Defendant's statement of material facts is deemed admitted.

II. STATEMENT OF FACTS

Defendant, Founders Insurance Company ("Founders"), issued a Private Passenger Automobile Insurance Policy, policy number APIN227681, to Francis J. Valentine (Plaintiff) for the period of August 2, 2007 to August 2, 2008 ("the Policy"). The Policy provided liability coverage, uninsured motorist coverage, and property damage coverage with respect to covered automobile accidents involving an insured under the Policy.

Plaintiff was involved in a car accident with another vehicle in Winter Park, Florida on September 14, 2007. As a result of this accident, Plaintiff suffered personal injuries. The driver of the other vehicle was insured with GMAC Insurance ("GMAC") and it was determined that the accident was due to the fault of the driver of the other vehicle.

On September 25, 2007, an employee of Founders was contacted by Plaintiff by telephone. Plaintiff reported his accident and inquired about Medical Payments coverage under the policy. Founders mailed a letter to Plaintiff on October 2, 2007 declining coverage for his Medical Payments claim on the basis that the Policy did not include Medical Payments coverage. The same day, Founders received a package in the mail of documents regarding Plaintiff's treatment and medical bills. On October 5, 2007, Founders mailed a letter to Plaintiff enclosing an Accident Report Form so that Founders could investigate Plaintiff's potential claims for property damages to his vehicle.

The parties were in contact via telephone over the next few weeks. On January 24, 2008, Plaintiff informed Founders via telephone that he had settled his personal injury claim with the driver of the other vehicle, Robert Martino, and his insurer, GMAC, for $10,000.00. This amount represented the applicable limits of insurance available under the GMAC insurance policy. Plaintiff informed Defendant of his intent to make a claim for UIM benefits under his Policy. Founders received written notice of Plaintiff's settlement and intention to make a claim on January 31, 2008. A form letter asking Plaintiff to contact Founders was sent on February 10, 2008, and on February 13, 2008, Founders mailed a letter to Plaintiff acknowledging his claim and requesting additional documents. Plaintiff sent the requested documents to Founders on February 27, 2008. Founders made unsuccessful attempts to contact Plaintiff via telephone after the receipt of Plaintiff's materials, and again on May 19, 2008 after it received a voicemail from Plaintiff.

Founders requested that Plaintiff's claim be reviewed by coverage counsel in Indiana. On June 9, 2008, while Plaintiff's claim was being reviewed by Founder's counsel, Plaintiff filed the instant action. On June 27, 2008 Founders informed Plaintiff that coverage for his UIM claim was denied. Founders determined that no coverage existed under the Policy because Plaintiff violated the Policy by not sending it written notice of his tentative settlement with GMAC as required by the Policy.

The UNDERINSURED MOTORIST COVERAGE states in part:

INSURING AGREEMENT

A. We will pay damages under this coverage caused by an accident with an "underinsured motor vehicle" only if 1. or 2. below applies:

1. The limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payments ...


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