Buchalo v. Country Mut. Ins. Co., 79-912

• Citation: 83 Ill.App.3d 1040,404 N.E.2d 473,39 Ill.Dec. 89
• Decision Date: 21 April 1980
• Docket Number: No. 79-912,79-912
• Parties: , 39 Ill.Dec. 89 Michael BUCHALO, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE CO., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 473

404 N.E.2d 473 83 Ill.App.3d 1040, 39 Ill.Dec. 89 Michael BUCHALO, Plaintiff-Appellant,
v.
COUNTRY MUTUAL INSURANCE CO., Defendant-Appellee. No. 79-912. Appellate Court of Illinois, First District, First Division. April 21, 1980.

Page 474

[83 Ill.App.3d 1041] [39 Ill.Dec. 90] William J. Harte, Ltd., Chicago, for plaintiff-appellant.

Page 475

[39 Ill.Dec. 91] John T. Burke, Chicago (David O. Lehman, Chicago, of counsel), for defendant-appellee.

GOLDBERG, Presiding Justice.

Michael Buchalo (plaintiff) appeals from an order dismissing with prejudice his petition to compel arbitration filed against Country Mutual Insurance Company (defendant).

The petition alleged plaintiff was injured by the negligence of a hit-and-run driver on March 27, 1976. Defendant had issued a personal vehicle policy to plaintiff. The identity of the negligent driver was never determined.

The complaint also alleged a legal conclusion that plaintiff "has complied with all terms and conditions of his policy of insurance." It alleged defendant has refused to name an arbitrator and to arbitrate. Plaintiff prayed arbitration be compelled under Ill.Rev.Stat.1977, ch. 10, pars. 101 et seq.

The policy of insurance contains this uninsured motorist endorsement by which defendant agreed:

[83 Ill.App.3d 1042] "To pay all sums which the Insured * * * shall be legally entitled to recover as damages from the owner or operator of an Uninsured Vehicle because of bodily injury, * * * sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such Uninsured Vehicle; provided, * * * determination as to whether the Insured or such representative is legally entitled to recover such damages, and if so the amount thereof shall be made by agreement between the Insured or such representative and the Company or, if they fail to agree, by arbitration."

Concerning arbitration, the policy provides:

"If the Insured and the Company do not agree as to the Insured's right to recover damages for such injury or as to the amount payable as damages under this Section, then each party shall, upon written demand of the Insured or upon written demand of the Company, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within thirty days, then upon the request of the Insured or the Company such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the Insured and the Company, * * *."

Defendant filed a motion to dismiss the petition. This motion cited the following policy provision imposing a limitation period:

"No suit, action or arbitration proceedings for the recovery of any claim under this Section shall be sustainable in any court of law or equity unless the insured shall have fully complied with all of terms of this policy, nor unless commenced within two (2) years after the occurrence of the loss."

The motion to dismiss averred plaintiff's petition was filed September 15, 1978, after expiration of the two-year period. The motion also averred plaintiff did not allege he had filed a written demand for arbitration within two years of the occurrence.

This motion was properly filed under section 45 of the Civil Practice Act. (Ill.Rev.Stat.1977, ch. 110, par. 45.) This motion admitted the properly pleaded factual allegations of the complaint (Johnston v. City of Bloomington (1979), 77 Ill.2d 108, 111, 32 Ill.Dec. 319, 395 N.E.2d 549), but not legal conclusions stated by the pleader (Zagar v. Gomberg (1978), 66 Ill.App.3d 611, 612, 23 Ill.Dec. 632, 384 N.E.2d 426). This motion raised an issue of law as to whether the petition for arbitration was timely filed under the policy.

But, on December 18, 1978, plaintiff filed an unverified "statement of facts." This document alleged that on April 2, 1976, defendant was [83 Ill.App.3d 1043] notified by plaintiff's counsel in writing of the accident and plaintiff's claim. On April 29, 1976, defendant took a written statement from plaintiff regarding

Page 476

[39 Ill.Dec. 92] the claim, and an "oral demand for arbitration" was made to...