Filip v. North River Ins. Co.

• Decision Date: 29 June 1990
• Docket Number: No. 1-88-1503,1-88-1503
• Citation: 559 N.E.2d 17,147 Ill.Dec. 17,201 Ill.App.3d 351
• Parties: , 147 Ill.Dec. 17 Anita FILIP, Plaintiff-Appellee, v. The NORTH RIVER INSURANCE COMPANY, a foreign corporation and subsidiary of Crum & Forster Personal Insurance, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 17

559 N.E.2d 17

201 Ill.App.3d 351, 147 Ill.Dec. 17

Anita FILIP, Plaintiff-Appellee, v. The NORTH RIVER INSURANCE COMPANY, a foreign corporation and subsidiary of Crum & Forster Personal Insurance Defendant-Appellant.

No. 1-88-1503.

Appellate Court of Illinois First District, First Division.

June 29, 1990.

Johnson, Cusack & Bell, Ltd., Chicago (Scott W. Hoyne, of counsel), for defendant-appellant.

Milton M. Blumenthal & Associates, Chicago (Michael L. Blumenthal, of counsel), for plaintiff-appellee.

Justice CAMPBELL delivered the opinion of the court:

Defendant, The North River Insurance Company ("North River"), appeals from the entry of summary judgment in favor of plaintiff, Anita Filip, named insured on an automobile liability policy issued by North River (the "Policy"), in an action seeking a declaratory judgment as to North River's obligation under the Policy for plaintiff's claim for loss of consortium due to the physical injuries suffered by her husband, George, also a named insured on the Policy, when he was struck by an uninsured motorist. The sole issue on appeal is whether the loss of consortium suffered by plaintiff constitutes a "bodily injury" within the terms of the Policy. For the following reasons, the judgment of the trial court is affirmed.

The following facts are relevant to this appeal. The Policy provides for maximum uninsured motorist coverage limits of $100,000 per person and $300,000 per accident for bodily injury. George Filip submitted a claim to North River for his physical injuries and plaintiff submitted a claim for loss of consortium. North River paid George Filip $100,000, the maximum per person liability. However, it denied plaintiff's claim on the ground that its payment to George had fulfilled its obligations under the Policy. Consequently, plaintiff filed a verified complaint for declaratory judgment as to the rights and liabilities of the parties regarding her loss of consortium claim.

North River moved for judgment on the pleadings, arguing that plaintiff was not entitled to recovery because she had not been involved in the accident and had sustained no direct injury. In response, plaintiff filed a counter-motion for summary judgment, arguing that pursuant to the Policy's definition of "bodily injury," loss of consortium is covered. The trial court denied North River's motion for judgment on the pleadings and granted plaintiff's motion for summary judgment. In reaching its decision, the trial court stated:

"[T]he term bodily injury is, in the instant case, defined to mean injury among other things, and * * * loss of consortium [is] * * * a 'personal injury.' "

North River's timely appeal followed.

It is well-accepted that parties to an insurance policy are bound by the agreements that they make (Giardino v. Fierke (1987), 160 Ill.App.3d 648, 112 Ill.Dec. 559, 513 N.E.2d 1168) and definitions contained within the Policy are controlling. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill.2d 486, 86 Ill.Dec. 493, 475 N.E.2d 872.) This is particularly true when an insurance policy defines terms in a manner which differs from the ordinary understanding of the terms. (Allstate Insurance Co. v. Handegard (1984), 70 Or.App. 262, 688 P.2d 1387.) In the present case the Policy broadly defines "Bodily injury" as "injury, sickness, disease or death." Loss of consortium has been consistently defined by Illinois courts as an "injury." (Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill.App.3d 223, 112 Ill.Dec. 748, 514 N.E.2d 214; Pease v. Ace Hardware Home Center (1986), 147 Ill.App.3d 546, 101 Ill.Dec. 161, 498 N.E.2d 343; Brown v. Metzger (1983), 118 Ill.App.3d 855, 74 Ill.Dec. 405, 455 N.E.2d 834.) Therefore, by its own terms, the Policy includes loss of consortium as a compensable bodily injury.

In arguing against this interpretation, North River relies on Gass v. Carducci (1964), 52 Ill.App.2d 394, 202 N.E.2d 73; Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill.App.3d 223, 112 Ill.Dec. 748, 514 N.E.2d 214; and Lepic v. Iowa Mutual Insurance Co. (Iowa 1987), 402 N.W.2d 758. A review of these cases finds them to be distinguishable and unpersuasive. In Gass and Lepic, the courts construed the terms "one person" and "each person" as they appeared in the respective policies. In the present case, an entirely different term, i.e., "bodily injury," is at issue. In Creamer, the policy defined "bodily injury" as "bodily injury to a person and sickness, disease or death which results from it." (161 Ill.App.3d 223, 224, 112 Ill.Dec. 748, 514 N.E.2d 214.) Predicated on that definition, the Creamer court held that "bodily injury," as defined by the relevant policy, did not include loss of consortium, which was a type of personal injury. In contrast to the policy in Creamer, the Policy in the present case defines "bodily injury" as "injury," thereby broadening the ordinary definition of "bodily injury" to encompass all types of injury, including the personal injury of loss of consortium.

North River further argues that section 755a of the Insurance Code (Ill.Rev.Stat.1989, ch. 73, par. 755a) provides extrinsic evidence as to its intent not to include loss of consortium in its definition of "bodily injury." Section 755a provides, in relevant part:

[N]o policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued ... unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Sec. 7-203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom * * *."

North River argues that its Policy language "mimics almost exactly the language of" section 755a. North River is correct in stating that its Policy definition "almost" replicates the language of section 755a. However, it is the Policy's deviation from the exact language of section 755a which renders North River's argument unpersuasive. Unlike the Policy, section 755a does not define "bodily injury." Rather, it merely sets forth separate circumstances which will trigger an insurer's liability for damages, i.e., "bodily injury, sickness or disease, including...