Downen v. Country Mut. Ins. Co.
Decision Date | 21 April 1989 |
Docket Number | No. 5-87-0814,5-87-0814 |
Citation | 130 Ill.Dec. 378,181 Ill.App.3d 716,537 N.E.2d 445 |
Parties | , 130 Ill.Dec. 378 James DOWNEN, Louise Downen, and Louise Downen, Administrator of the Estate of David Barrett, deceased, Plaintiffs-Appellants, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee. |
Court | United States Appellate Court of Illinois |
Brugge & Becker, Breese (William J. Becker, Thomas Heiligenstein, of counsel), for plaintiffs-appellants.
Stephen W. Thomson and Charles C. Compton, Reed, Armstrong, Gorman, Coffey, Thomson and Gilbert, P.C., Edwardsville, for defendant-appellee.
David Barrett, a passenger in a car driven by Tommy Maxwell, was injured in an automobile wreck. Barrett's injuries were more than Maxwell's insurance could cover.
David Barrett, in a case that preceded this case, filed suit against Country Mutual Insurance Company, attempting to "stack" the underinsured motorist coverage under the Country Mutual insurance policies owned by James and Louise Downen, his stepfather and mother. (Barrett v. Country Mutual Insurance Company (1988), 165 Ill.App.3d 1167, 129 Ill.Dec. 972, 536 N.E.2d 1022 (unpublished Rule 23 order).) The main issue in Barrett was whether the insurance policy was ambiguous with respect to a "no stacking" clause which limited coverage. We held that David Barrett could not "stack" the underinsured motorist coverage and specifically found that the amount of underinsured coverage available to Barrett under defendant's policies was $100,000.00.
James and Louise Downen then brought this suit against Country Mutual asking the circuit court to declare $250,000.00 as the amount of available coverage under the same policies previously construed in Barrett, and for the same injuries received in the Maxwell wreck. They base their case on the following allegations: (1) defendant failed to offer underinsured motorist coverage to plaintiffs as required by the Illinois Insurance Code; (2) defendant failed to advise them that underinsured motorist coverage was available in the same amounts as bodily injury liability coverage; and (3) defendant failed to specify the amount of the premiums and the nature and extent of the underinsured coverage available.
The circuit court of Bond County granted defendant's motion to dismiss, holding that James and Louise Downen, as individuals, lacked standing to bring this suit. The circuit court also held that plaintiffs' action was barred by the res judicata effect of the earlier Barrett decision.
After their case was dismissed, plaintiffs orally moved to amend their complaint to add a count for damages for Barrett's personal injuries he got in a second wreck which ultimately killed him. The court denied plaintiffs' motion.
Plaintiffs appeal the dismissal and the denial of the motion to amend.
Plaintiffs, the Downens, argue that they are the ones who purchased the insurance contract that covered Barrett, and therefore, they have standing. However, the complaint has no allegation that James and Louise Downen were injured in any way by, or in consequence of, the Maxwell wreck.
As we stated in Weihl v. Dixon (1977), 56 Ill.App.3d 251, 253-54, 13 Ill.Dec. 789, 791, 371 N.E.2d 881, 883:
Here, plaintiffs have not alleged personal injury to them, or injury to any substantive, or legally protected interest of their own. They do not allege facts that would give them standing.
As a result, we affirm.
The trial court also correctly held that this action was barred by the doctrine of res judicata.
The present declaratory judgment action asked a circuit court to declare the policy limits for the same underinsured motorist coverage under the same policies covering the same insured for the same injuries sustained in the same wreck that was the subject matter of the first declaratory judgment action. What plaintiffs have done here is assert a different theory of relief arising out of the common...
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