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Powell v. American Service Insurance Co.

Court of Appeals of Illinois, First District, First Division

February 18, 2014

RANDY POWELL, Plaintiff-Appellant,
v.
AMERICAN SERVICE INSURANCE COMPANY, an Illinois Insurance Corporation, Defendant-Appellee

Appeal from the Circuit Court of Cook County. No. 11 L 9770. Honorable Frank Castiglione, Judge Presiding.

SYLLABUS

In an action arising from an automobile accident that occurred when plaintiff was making a U-turn in front of a vehicle operated by defendant's insured and the insured crashed into plaintiff's vehicle, the trial court properly dismissed plaintiff's second amended complaint against the insurer, as the assignee of the insured's rights, alleging that her insurer acted in bad faith by failing to settle plaintiff's claim within the $20,000 policy limits, since plaintiff failed to allege a reasonable probability that defendant's insured would be found liable for plaintiff's injuries, especially when plaintiff made no allegations that he was making a proper U-turn pursuant to the requirements of section 11-802(a) of the Illinois Vehicle Code, including the requirement that the U-turn be made " in safety and without interfering with other traffic."

For Appellant: Charles A. Cohn, Erwin Cohn, of counsel, Cohn & Cohn, Chicago, Illinois.

For Appellee: John J. Piegore, Brian H. Sanchez, of counsel, Sanchez Daniels & Hoffman, Chicago, IL.

JUSTICE DELORT delivered the judgment of the court, with opinion. Justices Hoffman and Cunningham concurred in the judgment and opinion.

OPINION

DELORT, JUSTICE

Page 12

[¶1] Plaintiff Randy Powell appeals from the dismissal with prejudice of his second amended complaint against defendant, American Service Insurance Company (ASI). The circuit court found that plaintiff failed to state a claim for bad-faith failure to settle within policy limits and dismissed the complaint pursuant to section 2-615 (735 ILCS 5/2-615 (West 2010)) of the Illinois Code of Civil Procedure. For the following reasons, we affirm.

[¶2] BACKGROUND

[¶3] On February 7, 2001, plaintiff allegedly sustained injuries in an automobile accident in Mundelein, Illinois, involving ASI's insured, Katie Linares. Plaintiff sued Linares in Lake County, claiming that she negligently operated her motor vehicle. ASI defended Linares in accordance with the terms of her automobile liability policy, which had an indemnity limit of only $20,000 per person. On June 5, 2006, plaintiff's counsel made a demand for settlement for the $20,000 policy limit. ASI rejected the settlement offer.

[¶4] The case proceeded to trial. A jury found Linares 60% at fault and plaintiff 40% at fault for the accident. The jury awarded plaintiff a net verdict of $47,951.15 plus costs. After trial, Linares assigned her rights under the policy to plaintiff, who then filed his initial complaint for bad faith against ASI on September 16, 2011.

[¶5] The circuit court dismissed plaintiff's original and first amended complaints, both with leave to replead. On August 9, 2012, plaintiff filed a second amended complaint, in which he alleged:

Page 13

" 6. Based on information known to the defendant, American Service, at and prior to the transmission of the above described letter [requesting settlement for the policy limits], including the deposition testimony in the prior action of Randy Powell and of Katie Linares, both taken on December 18, 2002, facts were readily apparent that the principal proximate cause of the accident causing injury to the then plaintiff, Randy Powell, was the failure of the then defendant, Katie Linares, to keep a proper lookout for the vehicle driven by Powell. Specifically, Linares was operating her vehicle on northbound Medline Drive, a private street or corporate driveway in Mundelein, Illinois, behind the van being operated by Powell, saw him make a left turn attempting to make a U-turn and stopping in front of the Linares vehicle either perpendicular or at a northwest angle to the northbound roadway, and, rather than apply her brakes or attempt to veer behind the van driven by Powell, veered directly into the van striking it broadside with a strong impact.
7. As a result of the aforementioned facts, the defendant, American Service, was on notice, at and prior to the transmission of the above described letter, that its insured failed to see and properly react to what was obvious in front of her and probable operation of her vehicle at excessive speed and that there was a reasonable probability of a finding of at least 50 percent fault against its insured, Linares.
8. Based on the information known to defendant, American Service, at and prior to the transmission of the above described letter, the defendant, American Service, was aware that there was a worker's compensation lien for worker's compensation benefits paid to and for the benefit of Powell arising from the accident that was the basis of the prior action, in excess of $74,000.00 of which there were medical charges then in excess of $23,000.00, which facts created a reasonable probability that recovery of Powell at trial would be in excess of the $20,000.00 policy limit of the policy issued by American Service to Linares."

[¶6] Plaintiff alleged that ASI had a reasonable opportunity to settle plaintiff's claim against Linares within the policy limits. He also alleged ASI's failure to settle within the policy limits constituted bad faith because ASI: (1) refused to participate in settlement negotiations or alternatively refused to participate in settlement negotiations in good faith; (2) refused settlement offers made by plaintiff to settle his claim within the policy limits; (3) failed to advise Linares of the settlement offer; and (4) failed to keep the interests of Linares equal to its own. Plaintiff sought a total of $40,449.43 in damages, which was the remainder of the $27,915.15 judgment after the policy limit was subtracted, plus postjudgment interest and costs.

[¶7] ASI moved to dismiss the second amended complaint, arguing that plaintiff failed to plead sufficient facts to show a reasonable probability that Linares was at least 50% at fault. ASI also asserted plaintiff failed to plead sufficient facts demonstrating a reasonable probability of damages in excess of the policy limits.

[¶8] The circuit court concluded that plaintiff failed to plead facts showing a reasonable probability of recovery in excess of the policy limits. Noting that this was plaintiff's ...


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