Court of Appeals of Illinois, First District, Third Division
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant,
JOHN J. BENEDETTO, JR., Defendant-Appellee
Appeal from the Circuit Court of Cook County. No. 13 CH 06573. The Honorable Jean Prendergast-Rooney, Judge Presiding.
For Appellant: Frank C. Stevens, Taylor Miller LLC, Chicago, IL.
For Appellee: Kevin E. O'Reilly, Law Offices of Kevin E. O'Reilly, LLC, Chicago, IL.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.
[¶1] This interlocutory appeal arises from the trial court's order granting summary judgment to defendant, John J. Benedetto, Jr. On appeal, plaintiff State Farm Mutual Automobile Insurance Company contends that the trial court erroneously granted defendant's motion for summary judgment because wind shear does not constitute physical contact under defendant's motor vehicle insurance policy's uninsured motorist provision and Illinois law. We agree with plaintiff and reverse the judgment of the trial court.
[¶3] On April 10, 2003, plaintiff issued a policy of motor vehicle insurance (including uninsured motorist coverage) to defendant for his 2003 Big Dog 1750 motorcycle (the policy). Subsequently, on September 6, 2009, defendant filed an uninsured motor vehicle claim after the motorcycle left the roadway and hit a gravel shoulder, causing defendant and his wife to be thrown from the motorcycle. Defendant avers that wind shear from a still unidentified, passing semi-tractor trailer truck (semi) caused his motorcycle to leave the road. Plaintiff then filed a complaint for declaratory judgment on March 8, 2013, seeking a declaration that there was no uninsured motorist coverage available to defendant, and thus, plaintiff had no obligation to arbitrate his claim. Thereafter, both plaintiff and defendant filed cross-motions for summary judgment on the issue of whether uninsured motorist coverage was available to defendant under the policy.
[¶4] Both parties stipulated to the arbitration statements of defendant and his wife Colleen Benedetto which revealed that on the night of the incident, at approximately 7:30 p.m., defendant was operating his motorcycle in or near Chester, Illinois, with his wife Colleen as a passenger. They were traveling west on Highway 150, a two-lane highway, as the motorcycle came to a bend in the road. As defendant entered the curve, a semi coming from the opposite direction crossed over into his lane of travel. Defendant says he swerved to the right and avoided any physical contact with the semi but that his motorcycle was then propelled off the roadway by the wind shear of the passing semi onto a gravel shoulder and into a ditch where they were thrown off the motorcycle, sustaining injuries. For whatever reason, the semi failed to stop and its owner and operator driver remains unknown.
[¶5] The involved section of the policy in question is commonly referred to as a " hit and run" provision. In defendant's motion for summary judgment, defendant alleged that this policy provision was ambiguous and did not require physical contact between the insured and the unidentified hit-and-run driver to recover under the uninsured motorist provision and that, even if physical contact was required, wind shear sufficed. In turn, plaintiff alleged in its cross-motion for summary judgment that physical contact was required under both Illinois law and the unambiguous insurance policy and that wind shear does not constitute physical contact. The trial court granted defendant's motion, noting that wind shear was sufficient physical contact to invoke coverage under Illinois law. Plaintiff filed this timely appeal.
[¶7] Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment because wind shear does not constitute physical contact under the policy and Illinois law. Summary judgment is proper where the pleadings, admissions, depositions and affidavits demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Ioerger v. Halverson Construction Co., 232 Ill.2d 196, 201, 902 N.E.2d 645, 327 Ill.Dec. 524 (2008); 735 ILCS 5/2-1005 (West 2010). In determining whether a genuine issue of material fact exists, the court must consider such items strictly against the movant and liberally in favor of its opponent. Williams v. Manchester, 228 Ill.2d 404, 417, 888 N.E.2d 1, 320 Ill.Dec. 784 (2008). We review the trial court's order granting summary judgment de novo. Weather-Tite, Inc. v. University of St. Francis, 233 Ill.2d 385, 389, 909 N.E.2d 830, 330 Ill.Dec. 808 (2009).
[¶8] Duties of an insured are controlled by the terms and conditions of its insurance contract. American Country Insurance Co. v. Bruhn, 289 Ill.App.3d 241, 247, 682 N.E.2d 366, 224 Ill.Dec. 805 (1997). In construing an insurance policy, the primary function of the court is to ascertain and enforce the intentions of the parties as expressed in the agreement. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 108, 607 N.E.2d 1204, 180 Ill.Dec. 691 (1992). All provisions of an insurance contract should be read together to determine whether any ambiguity exists. General Insurance Co.of America v. Robert B. McManus, Inc., 272 Ill.App.3d 510, 514, 650 N.E.2d 1080, 209 Ill.Dec. 107 (1995). If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. Insurance Co. of Illinois v. Stringfield, 292 Ill.App.3d 471, 473-74, 685 N.E.2d 980, 226 Ill.Dec. 525 (1997). ...