Liberty Mut. Fire Ins. Co. v. Loring
| Decision Date | 30 January 1968 |
| Docket Number | Gen. No. 52386 |
| Citation | 91 Ill.App.2d 372,235 N.E.2d 418 |
| Parties | LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. Evelyn LORING, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Howard, French & Healy, Chicago, for plaintiff-appellant.
Levisohn, Loring, Arrigo & Rosinia, Chicago, for defendant-appellee.
Defendant began arbitration proceedings before the American Arbitration Association pursuant to a provision in an automobile liability insurance policy issued by plaintiff to defendant. The proceedings are predicated upon a provision in the policy giving either party the right to demand arbitration of certain questions when a dispute arises with regard to the uninsured motorist provisions of the policy. Plaintiff thereupon brought this action for a declaratory judgment denying coverage under the uninsured motorist provisions on the ground that there was no physical contact between defendant's vehicle and the 'hit-and-run' vehicle. The trial court dismissed the complaint for a declaratory judgment and plaintiff appeals.
Plaintiff maintains that under the terms of its policy of insurance, and under the law of Illinois, physical contact between the vehicle of its insured and that of the uninsured motorist is necessary to the existence of a 'hit-and-run' situation, that without physical contact there can be no coverage under the policy, and that the question of coverage, under the terms of the policy, if for a court of law and not for submission to and determination by an arbitration body. Defendant, on the other hand, maintains the subject policy requires arbitration of all controversies between plaintiff and defendant with respect to the uninsured motorist provisions, including the determination of whether theren was physical contact between the vehicles and resultant coverage under the policy.
On September 18, 1964, during the period the subject policy of insurance was in force, defendant was involved in an automobile accident on U.S. Highway 45 near Central Road in Cook County. Defendant filed a claim with plaintiff under the policy, alleging that her automobile was struck by a 'hit-and-run' vehicle, whose identity was unknown, causing her vehicle to veer into the oncoming lane of traffic and to collide with another vehicle, resulting in injuries to defendant. Defendant thereafter filed a demand for arbitration, as stated above, claiming that she suffered damages as a result of a 'hit-and-run' vehicle. Through its complaint for a declaratory judgment, plaintiff denied the existence of a 'hit-and-run' vehicle, denied physical contact between any such vehicle and that of defendant, and denied defendant had any cause of action against the alleged 'hit-and-run' motorist. The complaint went on the request a declaration by the court that the subject policy affords no coverage to the defendant for the injuries sustained by her as a result of the accident.
The subject policy in pertinent part defines a 'hit-and-run' vehicle as:
'* * * a highway vehicle which cause bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such vehicle * * *.'
The policy further provides:
'If any person making claim under the Uninsured Motorists Coverage and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing thereunder, then upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association * * *.'
To be afforded coverage under the 'hit-and-run' portion of the uninsured motorist provisions of the subject policy the insured must show among other matters not here relevant, that the identity of the owner or operator of the other vehicle cannot be ascertained, and that there was physical contact between the insured's vehicle and the other vehcle. Not only...
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