Scott v. Ambassador Ins. Co.
Decision Date | 04 September 1981 |
Docket Number | No. 80-2277,80-2277 |
Citation | 100 Ill.App.3d 184,55 Ill.Dec. 627,426 N.E.2d 952 |
Parties | , 55 Ill.Dec. 627 Joe SCOTT and Mattie Scott, Plaintiffs-Appellants, v. AMBASSADOR INSURANCE CO., an Illinois corporation, Defendant-Appellee. |
Court | United States Appellate Court of Illinois |
Pollina, Critz & Phelan, Northbrook, and Lord, Bissell & Brook, Chicago, for defendant-appellee; Dennis R. Pollina, Northbrook, and Hugh C. Griffin, Chicago, of counsel.
Plaintiffs appeal from the dismissal of Count III of their complaint which purported to state a class action for alleged tortious breach of contract with plaintiffs and other members of the class.
In pertinent part, Count III alleges that plaintiffs are representatives of a class of people who purchased automobile liability insurance policies from defendant which included uninsured motorists coverage; that they "have been unable to amicably settle uninsured motorists claims with defendant"; that defendant "through a continuous course of deliberate, wilful and wanton procrastination" refused to consider the claims of plaintiffs and class members "without a lawsuit being filed to compel settlement"; that defendant wilfully and wantonly breached its duty to act in good faith and to deal fairly with the plaintiffs and class members; that, as a result, plaintiffs and the class members were required to retain the services of attorneys to recover under their policies; and that they were damaged in the amount of the fees paid to those attorneys for which they asked judgment. A motion to dismiss Count III was granted in an order which includes language making it appealable under Supreme Court Rule 304(a) (Ill.Rev.Stat.1979, ch. 110A, par. 304(a)), and this appeal followed.
OPINIONThe sole issue, as stated by the parties, is whether the four prerequisites to a class action were sufficiently set forth in Count III to withstand a motion to dismiss. These prerequisites, as provided in section 57.2(a) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 57.2(a)), are
A motion to dismiss admits as true all facts well pleaded, together with reasonable inferences drawn from those facts (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538), but only for the purpose of determining whether as a matter of law those facts sufficiently state a claim upon which relief may be granted (O'Fallon Development Co. v. Ring (1967), 37 Ill.2d 84, 224 N.E.2d 782), and conclusions unsupported by allegations of specific fact are not admitted (Lucchetti v. Lucchetti (1980), 82 Ill.App.3d 630, 37 Ill.Dec. 852, 402 N.E.2d 854).
Upon appeal from a dismissal for failure to state the proper grounds for a class action, we are first required to determine whether plaintiffs' complaint stated a valid cause of action. (Landesman v. General Motors Corp. (1978), 72 Ill.2d 44, 18 Ill.Dec. 328, 377 N.E.2d 813.) As stated by the court in Landesman :
72 Ill.2d at 48, 18 Ill.Dec. at 329, 377 N.E.2d at 814.
In substance, it is alleged in Count III that defendant breached a duty to act in good faith towards plaintiffs and the other class members by refusing to consider settlement of their uninsured motorists claims, and they were thus required to retain attorneys to effect a recovery of those claims. In this regard, we note that the insurance policy issued to plaintiffs is not included in the record, but the uninsured motorists endorsement thereto is set forth in their complaint as follows:
"The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, 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."
It is clear that this endorsement of itself creates no duty to settle any claims and that it requires payment only when an insured is legally entitled to recover damages from the owner or operator of an uninsured automobile for "bodily injuries" sustained in an accident involving the uninsured vehicle. Here, there is no assertion in Count III that plaintiffs or the class members were legally entitled to damages from the owner or operator of an uninsured automobile. Moreover, the endorsement assumes the possibility that a settlement may not be effected by providing that the determination of legal entitlement to damages and the amount thereof was to be made by an agreement of the parties and, upon their failure to agree, by arbitration. While it might be inferred from the allegation of Count III that the parties could not make such a determination, there is no allegation that defendant refused to participate in arbitration proceedings....
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