Johnson v. American Family Mut. Ins. Co., 4-89-0590

• Decision Date: 08 February 1990
• Docket Number: No. 4-89-0590,4-89-0590
• Parties: , 140 Ill.Dec. 783 Darren M. JOHNSON, a Minor, by His Mother and Next Friend Judith Ooton, Plaintiff-Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellee (Judith Ooton, Plaintiff-Appellant).
• Court: United States Appellate Court of Illinois

Page 668

550 N.E.2d 668 193 Ill.App.3d 794, 140 Ill.Dec. 783 Darren M. JOHNSON, a Minor, by His Mother and Next Friend
Judith Ooton, Plaintiff-Appellant,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellee
(Judith Ooton, Plaintiff-Appellant). No. 4-89-0590. Appellate Court of Illinois,
Fourth District. Feb. 8, 1990.

Rehearing Denied March 9, 1990.

Page 669

[193 Ill.App.3d 795] [140 Ill.Dec. 784] Garry W. Bryan, Ray Moss & Associates, P.C., Clinton, for plaintiff-appellant.

[193 Ill.App.3d 796] Frederic L. Kenney, Armstrong, Winters, Prince, Featherstun & Johnson, Decatur, for defendant-appellee.

Justice SPITZ delivered the opinion of the court:

This is an appeal by plaintiffs Darren M. Johnson, a minor, by his mother and next friend, Judith Ooton, and Judith Ooton individually, from an order of the circuit court of Macon County granting summary judgment in favor of defendant American Family Mutual Insurance Company. Plaintiff's amended complaint is framed in six counts. The amended complaint alleges that on or about June 16, 1986, the minor plaintiff was struck by two automobiles while riding his bicycle. One automobile was operated by Scott Vanderlaan and the other by Michael Rogers. The complaint alleges that each of the operators of the automobiles was negligent and their negligence proximately caused injuries to plaintiff exceeding $100,000. Defendant insured Rogers and tendered $100,000, while Economy Fire

Page 670

[140 Ill.Dec. 785] and Casualty insured Vanderlaan. Economy tendered $25,000.

In addition, Ooton had an automobile insurance policy with defendant which provided $100,000 of liability coverage per person, but did not include underinsured motorist coverage equal to the bodily liability limits. It is alleged defendant's agents and employees failed to offer such coverage even though such an offer was required by statute. (Ill.Rev.Stat.1985, ch. 73, par. 755a-2(1), (5).) It is further alleged that, had the offer been made, Ooton would have purchased that amount of underinsured motorist coverage. It is further alleged that Vanderlaan was underinsured at the time of the incident.

As a result, recovery in the amount of $75,000 is sought for defendant on behalf of the minor for the minor's injuries under the theory of failure to offer underinsured motorist coverage (count I), and recovery for $75,000 plus attorney fees for consumer fraud (count II, alleging the failure to offer underinsured motorist coverage in an amount equal to the bodily liability limits constituted a misrepresentation, concealment, suppression, or omission of a material fact within the meaning of the Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1985, ch. 121 1/2, par. 261 et seq.)). In count III, plaintiff minor requests judgment in the amount of $75,000, plus attorney fees on the theory that defendant's refusal to honor plaintiff's claim for $75,000 was vexatious and unreasonable, thereby entitling the minor plaintiff to reasonable attorney fees, costs, and penalties under the Illinois Insurance Code (Ill.Rev.Stat.1985, ch. 73, par. 767).

Counts IV, V, and VI are based on the same theories of recovery [193 Ill.App.3d 797] as counts I, II, and III, respectively. However, counts IV, V, and VI pray for judgment in favor of Ooton, individually, since she was liable for the minor plaintiff's medical expenses.

Attached to the defendant's motions for summary judgment as exhibits were answers to interrogatories and portions of the transcript of Ooton's discovery deposition, wherein it is admitted plaintiffs received $100,000 from Rogers and $25,000 from Vanderlaan. Also attached as an exhibit was one of defendant's insurance policies, which states in part VI, paragraph 5: "When we pay damages under this policy to a person who also collects from another, the amount collected from the other shall be repaid to us to the extent of our payment."

Based on this contractual language, defendant took the position plaintiff is not entitled to additional recovery since the payment to plaintiff of $100,000 by Rogers equals or exceeds the $100,000 limit of liability for underinsured motorist coverage had such coverage been included in Ooton's policy. Defendant also contended that payments from Rogers and Vanderlaan must be set off against the underinsured motorist coverage limits, arguing that, as a matter of law, either the alleged underinsured coverage limits were satisfied or were exhausted. With regard to counts I, II, and III only, defendant's motion for summary judgment also relies on the fact that Rogers was insured by defendant and, when the claim against Rogers was settled, a release was executed on behalf of Darren Johnson by his guardian Judith Ooton releasing Rogers and defendant from further liability arising out of the June 16, 1986, collision.

Plaintiffs filed a cross-motion for partial summary judgment relating to counts I, II, IV, and V. In their motion, plaintiffs relied on Ooton's deposition in an attempt to establish that defendant failed to offer underinsured motorist coverage to her. Plaintiffs contended that the issue of underinsured motorist coverage applies only to the $25,000 paid by Vanderlaan and, therefore, plaintiffs are entitled to summary judgment as a matter of law.

On June 23, 1989, after...