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Steven Thomas Kirk, As Assignee For Enver v. Allstate Insurance Company

May 22, 2012

STEVEN THOMAS KIRK, AS ASSIGNEE FOR ENVER
PLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY,
DEFENDANT-APPELLEE.



Appeal from the Hamiti, Circuit Court of Madison County. No. 10-L-50 Honorable Clarence W. Harrison II, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

NOTICE Decision filed 05/22/12. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Welch and Spomer concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Steven Thomas Kirk, as assignee for Enver Hamiti, appeals from an order of the circuit court of Madison County granting partial summary judgment in favor of defendant, Allstate Insurance Company (Allstate). The issue raised on appeal is whether the trial court erred in finding that Kirk induced a release of Hamiti, thereby absolving Allstate of any bad faith, and in granting partial summary judgment in favor of Allstate. We reverse and remand.

¶ 2 FACTS

¶ 3 On June 30, 2006, Hamiti was driving an automobile owned by Lindsey Skenderi, when he ran a stop sign and collided with a motorcycle operated by Kirk. Kirk's leg was amputated as a result of the injuries he sustained in the accident. Skenderi's car was insured by Allstate with liability limits in the amount of $100,000 per person and $300,000 per accident. Skenderi lived at 650 State Route 162 in Maryville, Illinois. Hamiti was also insured by his own automobile liability policy with Mercury Insurance Company (Mercury). His policy provided liability limits in the amount of $50,000 per person and $100,000 per accident.

¶ 4 On July 14, 2006, an Allstate claims adjuster, Jammie Kleparski, called Hamiti and recorded his statement. The adjuster specifically asked Hamiti if he lived at 650 State Route 162 in Maryville, Illinois. Hamiti told the adjuster he did not live there, but rather lived at 253 North 13th Street in Wood River, Illinois. Despite learning Hamiti's current address, Allstate sent all communications to Hamiti at the incorrect Maryville address until at least March 2008.

¶ 5 Kirk retained the Meyer Law Firm to represent him. After Hamati's recorded statement was obtained, Allstate assigned its employee, Rick Green, as the adjuster in the matter. Green acknowledged that liability was clearly on Hamiti and that Hamiti was an insured under the Allstate policy.

¶ 6 Given the extent of Kirk's injuries, the Meyer Law Firm believed that the injury was worth more than the combined policy limits of the Allstate and Mercury policies, which amounted to $150,000. Amy Meyer of the Meyer Law Firm made policy limit demands to both Allstate and Mercury. In particular, in September 2006, Meyer advised Green that the medical bills exceeded $100,000. Green admitted that early in negotiations both he and Allstate were aware that this was a case in which damages exceeded liability limits.

¶ 7 Meyer also indicated that her law firm was considering pursuing Skenderi's personal assets. Meyer believed that it was possible that Skenderi owned restaurants throughout the Midwest. Meyer did not show any interest in pursuing Hamiti's personal assets, but told Green she would pursue recovery from Hamiti's Mercury policy. Green advised Skenderi via letter that Kirk's damages exceeded the policy limits of her Allstate policy and recommended that she might want to hire her own attorney to protect her personal assets. While a similar letter was mailed to Hamiti, Hamiti never received it because Allstate sent it to the wrong address.

¶ 8 Because this was an excess case, Green had "alert conferences" with his supervisor, Sonje Sturdivant. On September 29, 2006, Sturdivant advised Green as follows:

"Please be sure to check client file for alternate policies to make sure that we do not have excess coverage. Was there a formal demand for the limit? If so, we need to respond in writing with a copy to the insured. Also, as documented, you will need to have insured hire his own counsel to handle the claim against his personal assets. Lastly, we will not issue payment until we can secure a release so if they are going to pursue insured, we will not issue check."

Green replied to Sturdivant that he would check for other policies and make sure a release was signed before issuing a check for the limits of liability. Green ...


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