Severs v. Country Mut. Ins. Co.
| Decision Date | 26 November 1980 |
| Docket Number | No. 80-114,80-114 |
| Citation | 46 Ill.Dec. 793,414 N.E.2d 846,91 Ill.App.3d 350 |
| Parties | , 46 Ill.Dec. 793 Mary Heidi SEVERS, by her mother, Geri S. Severs, Individually and as next friend, and Perry A. Severs, Jr., Plaintiffs-Appellants, v. COUNTRY MUTUAL INSURANCE COMPANY, a corporation and Dixie L. Rodgers, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Robert D. Francis, Dunham, Boman & Leskera, East St. Louis, and Clinton J. Thurston, Cairo, for plaintiffs-appellants.
Wagner, Bertrand, Bauman & Schmieder, Belleville, for Country Mut. Ins. Co.; Bernard H. Bertrand, Belleville, of counsel.
This declaratory judgment action was brought to construe an automobile insurance policy issued to plaintiff Perry A. Severs, Jr., by defendant Country Mutual Insurance Company. Severs' one-year-old daughter, Mary Heidi Severs, was injured on August 1, 1974, in a one-vehicle accident while the insured automobile was being operated by defendant Dixie L. Rodgers.
The company denied liability coverage on the basis of a policy provision excluding coverage as to bodily injury sustained by the insured or his relatives. The company further denied coverage under the uninsured motorist portion of the policy on the basis that the plaintiffs' action, filed December 4, 1978, was not timely commenced. The trial court ultimately agreed with the insurer and dismissed the complaint with prejudice. This appeal followed.
We see no point in discussing the family-member exclusion to the liability coverage, which was unambiguous and clearly applicable. Because it was applicable, the uninsured motorist provisions of the policy then came into play. That portion of the policy obligated the company to pay "all sums which the insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an uninsured vehicle because of bodily injury * * * caused by accident and arising out of the ownership, maintenance or use of such uninsured vehicle * * *." It is undisputed that Mary Heidi Severs is an insured under the policy. However, the company relies on the following provision contained in the uninsured motorist section of the policy:
"No suit, action or arbitration proceedings for the recovery of any claim under this section shall be sustainable in any court of law or equity * * * unless commenced within two (2) years after occurrence of the loss."
Although the precise issue presented for our determination-whether a minor insured may be deprived of uninsured motorist protection for personal injuries by a policy provision requiring her representative to file suit within two years of the accident-appears to be one of first impression, we think that it is easily answered in the negative, in light of analogous decisions of our courts.
In Burgo v. Illinois Farmers Insurance Co. (1st Dist. 1972), 8 Ill.App.3d 259, 290 N.E.2d 371, the court invalidated a policy provision requiring the insured motorist to demand arbitration or file suit against the uninsured motorist within one year, declaring that a contractual limitation may not place an insured in a substantially different position than he would have been in had the tortfeasor carried the insurance coverage required by statute. (See also Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 269 N.E.2d 295.) The court in Burgo stated:
In a later case, Coyne v. Country Mutual Insurance Co. (2d Dist. 1976), 39 Ill.App.3d 279, 349 N.E.2d 485, the court upheld a two-year policy limitation which placed the insured in the same position he would have been in had the offending motorist been insured. The instant case, however, unlike Coyne, involves a minor plaintiff. A minor has by statute two years after attaining age 18 in which to file suit. (Ill.Rev.Stat. 1973, ch. 83, par. 22.) We think it clear that the contractual provision under examination here, by placing the minor plaintiff in a substantially different position than she would have been in had the tortfeasor carried the required insurance coverage, would violate both the statute of limitations, and the uninsured motorist statute; it is therefore against public policy and void.
The insurer's argument based on contract principles is unpersuasive in light of the special consideration traditionally given to the claims of minors by the courts. To paraphrase the Supreme Court in Wilbon v. D. F. Bast Co., Inc. (1978), 73 Ill.2d 58, 22 Ill.Dec. 394, 382 N.E.2d 784, logic, justice, and precedent all require that a child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement not be left to the whim or mercy of her next friend, nor be precluded from enforcing her rights unless clearly barred from doing so by some statute or constitutional provision. No such bar exists here.
For the foregoing reasons, we reverse the judgment of the Circuit Court of St. Clair County and remand this cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
The insurance company has not inflicted any injury upon plaintiff and it is not guilty of any tort. Plaintiff's action is grounded strictly in contract. That contract, the insurance policy, is in all respects in compliance with the provisions of the Illinois Insurance Code. Now, in a case of first impression in Illinois, the majority has held that a statutory exception to the time limitation for bringing an action in tort, which favors minors, incompetents and those imprisoned for crime, applies as well to the law of contracts. If the only consequence of the result reached by the majority was that the plaintiff may recover in this case, then the result would be more fetching. As it is, however, the consequences stemming from the majority opinion and the precedent it establishes, will have an impact that will reach well beyond a simple recovery in this isolated case.
The right of the plaintiff to recover is based upon contract, not tort, and the terms of the contract should be honored. The minor plaintiff was not a party to that contract and furnished no part of the consideration for its execution. There is no suggestion of any conduct by defendant or its agents that would amount to a waiver or estoppel.
The general rule is that a minor cannot enter into a binding contract. Avoidance is available to him when he attains his majority and for a reasonable time thereafter. But where competent parties enter into a contract that beneficially affects a minor, the minor is bound by the terms of the contract and cannot, simply by reason of his minority, alter the contract terms, either...
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