{ "id": 3125619, "name": "DEBORAH LEMKE, Appellant, v. KENILWORTH INSURANCE COMPANY, Appellee", "name_abbreviation": "Lemke v. Kenilworth Insurance", "decision_date": "1985-12-20", "docket_number": "No. 61391", "first_page": "350", "last_page": "356", "citations": [ { "type": "official", "cite": "109 Ill. 2d 350" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "45 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896944 ], "pin_cites": [ { "page": "397-98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0388-01" ] }, { "cite": "124 Ill. App. 3d 924", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3428486 ], "pin_cites": [ { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0924-01" ] }, { "cite": "21 Ill. 2d 396", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2729895 ], "year": 1984, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0396-01" ] }, { "cite": "95 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111376 ], "year": 1961, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0541-01" ] }, { "cite": "77 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490305 ], "weight": 2, "pin_cites": [ { "page": "380-81" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0364-01" ] }, { "cite": "99 Ill. 2d 49", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1979, "pin_cites": [ { "page": "55" } ], "opinion_index": 0 }, { "cite": "58 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2952505 ], "weight": 3, "pin_cites": [ { "page": "110" }, { "page": "111-12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0109-01" ] }, { "cite": "128 Ill. App. 3d 1158", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3494678 ], "pin_cites": [ { "page": "825" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/130/0819-01" ] }, { "cite": "124 Ill. App. 3d 924", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3428486 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/124/0924-01" ] } ], "analysis": { "cardinality": 517, "char_count": 10636, "ocr_confidence": 0.753, "pagerank": { "raw": 3.7317739198167447e-07, "percentile": 0.8943309050064309 }, "sha256": "98d8b31e331f84da3315dc07b1db17cff594ed69a88b69379ae08a968c95d3a1", "simhash": "1:ab7749c44537dfe5", "word_count": 1675 }, "last_updated": "2023-07-14T21:33:34.159568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEBORAH LEMKE, Appellant, v. KENILWORTH INSURANCE COMPANY, Appellee." ], "opinions": [ { "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nPlaintiff, Deborah A. Lemke, filed an unverified two-count complaint against defendant, Kenilworth Insurance Company, in the circuit court of Kane County. The action was for a breach of the uninsured-motorist provision of an automobile liability policy in force between the parties. Thereafter, plaintiff filed an unverified amended four-count complaint. On motion of the defendant, the circuit court dismissed the amended complaint with prejudice. On appeal the appellate court, in a Rule 23 order, affirmed. (128 Ill. App. 3d 1158.) We granted plaintiff\u2019s petition for leave to appeal.\nPlaintiff raises two issues. First, we are asked to overrule this court\u2019s decision in Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, and hold that a policy requirement of physical contact as a condition precedent to recovery in accidents between an insured and an unidentified, unapprehended vehicle is void as against public policy. Second, we are asked to find error in the circuit court\u2019s dismissal of plaintiff\u2019s amended complaint.\nThis case arose as a result of an accident occurring in December 1980. Plaintiff filed a claim with defendant for her injuries pursuant to the uninsured-motorist provision. Defendant denied the claim, citing the policy\u2019s provision that recovery under her uninsured-motorist provision requires \u201cphysical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident.\u201d Plaintiff\u2019s suit followed.\nPlaintiff alleged in her original complaint that the accident was caused when an unidentified and unapprehended vehicle turned across her path of travel. She further alleged that her vehicle struck a utility pole as she attempted to avoid colliding with the second vehicle. Plaintiff\u2019s original complaint did not allege physical contact between her vehicle and the second vehicle. Plaintiff subsequently amended her complaint to include an allegation of physical contact with the second vehicle.\nDefendant moved to dismiss the amended complaint. As to that count of the amended complaint which did not allege physical contact, defendant argued that the decision in Ferega precluded plaintiff\u2019s recovery absent physical contact between her vehicle and the second vehicle. As to that count of the amended complaint which alleged physical contact, defendant argued that, under the policy, arbitration was the proper forum to determine coverage and the extent of plaintiff's recovery, if any.\nThe circuit court addressed only the \u201cno contact\u201d count of plaintiff\u2019s amended complaint in dismissing the suit with prejudice. The court found the holding in Ferega dispositive. The court did not address the propriety of dismissing the \u201ccontact\u201d count of plaintiff\u2019s amended complaint because plaintiff did not raise a specific challenge to the dismissal of that count.\nThe appellate court, in affirming, also addressed only the \u201cno-contact\u201d count of the amended complaint since, on appeal, plaintiff did not raise, as error, the dismissal of the \u201ccontact\u201d count. The appellate court also found Ferega dispositive. Plaintiffs petition for rehearing was denied. In her petition for rehearing, plaintiff challenged, for the first time, the propriety of the circuit court\u2019s dismissal of the \u201ccontact\u201d count of her amended complaint.\nThe factual predicate of plaintiff\u2019s \u201cno-contact\u201d count is indistinguishable from Ferega. There, the insured, seeking to recover under his uninsured-motorist coverage, sustained injuries when he attempted-to avoid striking an oncoming vehicle which had crossed into his lane of traffic; the other vehicle was and remained unidentified and unapprehended; the policy in force at the time of the accident required actual physical contact between the insured vehicle and a hit-and-run vehicle as a condition precedent to recovery; and there had been no physical contact between the insured and the hit-and-run vehicles. (Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, 110.) Ferega held that a requirement of physical contact as a condition precedent to recovery under the terms of uninsured-motorist coverage was valid and enforceable. 58 Ill. 2d 109, 111-12.\nBecause plaintiff cannot distinguish her case from Ferega, she asks that we overrule it and hold that a requirement of physical contact is void as against public policy absent express statutory language requiring such contact. Plaintiff points to the statutory provision mandating coverage to protect insured drivers against losses occasioned by uninsured and hit-and-run vehicles. (Ill. Rev. Stat. 1979, ch. 73, par. 755a.) From its original enactment, the legislature has not defined the term hit- and-run vehicle (Ill. Rev. Stat. 1963, ch. 73, par. 755a). Plaintiff contends that the absence of a definition of hit- and-run vehicle manifests the legislature\u2019s intent to avoid imposing any conditions which would limit recovery. Plaintiff concludes that the requirement of physical contact is a limitation on recovery in contravention of the broad remedial policy behind the coverage mandated by section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 755a). In response, defendant urges that we reaffirm Ferega because the legislature has impliedly adopted its holding and reasoning.\nFerega was decided in 1974. Since then, the legislature has amended section 143a eight times. (See Ill. Ann. Stat., ch. 73, par. 755a, at 162 (Smith-Hurd Supp. 1985), for a listing of the amendments to section 143a since its reenactment effective October 1, 1973.) The first amendment went into effect July 1, 1978. The most recent amendment took effect September 19, 1984.\nWe believe that the legislature has been and continues to be conversant with Ferega. Absent evidence to the contrary, not present on this record, we presume that legislative inaction subsequent to Ferega indicates approval of the reasoning and holding in that case. (See, e.g., People v. Foster (1983), 99 Ill. 2d 49, 55; Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 380-81.) \u201cThe construction this court has placed upon [section 143a] has in effect become part of the [section], and a change in that construction by this court would amount to amending the statute. The power to accomplish this does not lie in the courts.\u201d (Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 381.) We therefore reaffirm Ferega.\nAs to plaintiff\u2019s second issue, she asserts that the trial court erred in dismissing the \u201ccontact\u201d count of her amended complaint. Plaintiff, however, has waived this issue by her failure to raise it before the trial court. The general rule in Illinois governing issues raised for the first time on appeal is clear. Issues concerning alleged error not raised in the trial court are waived and, therefore, cannot be raised for the first time on appeal. Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 550; People ex rel. Ball v. Anderson (1961), 21 Ill. 2d 396, 402; Hargrove v. Gerill Corp. (1984), 124 Ill. App. 3d 924, 925.\nOur review of the record indicates that plaintiff had ample opportunity to object in the trial court to dismissal of the \u201ccontact\u201d count in her amended complaint. Yet, no objection was made. The record shows that the trial court held a hearing on defendant\u2019s motion to dismiss. During this hearing, plaintiff repeatedly argued that the question of coverage in the absence of physical contact was a matter of law to be decided by the court. However, counsel did not argue that the factual question of physical contact was also one for the trial court. In fact, this issue was raised for the first time in plaintiff\u2019s petition for rehearing in the appellate court. Consequently, the issue is waived. People v. Mallett (1970), 45 Ill. 2d 388, 397-98.\nFor the reasons stated, the judgment of the appellate court is affirmed.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE MORAN" }, { "text": "JUSTICE SIMON,\nspecially concurring:\nWhile I am in accord with the result reached here, I fear that the majority\u2019s explanation as to why the \u201ccontact\u201d issue was waived may be relied upon as a precedent, and this would, in my judgment, be misleading. The majority states that the circuit judge \u201cdid not address the propriety of dismissing the \u2018contact\u2019 count\u201d (109 Ill. 2d at 352), that the plaintiff failed to specifically challenge dismissal of that count, and therefore the issue is waived. This analysis, as I view it, misreads the record. It also involves an incorrect application of the principle that an issue must be raised in the trial court in order to be preserved for review.\nA separate count of plaintiffs amended complaint alleged that she was injured when her vehicle had physical contact with that of another motorist. The defendant\u2019s motion to dismiss raised the sufficiency of the entire complaint, including the \u201ccontact\u201d count, on the ground that the contract of insurance required that the parties settle disputes by arbitration. At the hearing on defendant\u2019s motion, counsel for the insurance company specifically mentioned both the \"contact\u201d and \u201cno contact\u201d allegations of the complaint. The circuit judge expressly dismissed \u201cthe case (both counts)\u201d with prejudice. Thus it is untenable to maintain that the circuit judge did not address the \u201ccontact\u201d count.\nThis is the point on which I view the majority opinion as misleading. Inasmuch as the \u201ccontact\u201d count was before the court, and the court ruled upon it, nothing further was required to preserve the issue for review. That plaintiff\u2019s argument centered on the \u201cno contact\u201d issue is irrelevant. This is not a case in which the plaintiff failed to object to the circuit court\u2019s procedures in dismissing the complaint. (See Hargrove v. Gerill Corp. (1984), 124 Ill. App. 3d 924.) Instead the claimed error resulted from the court\u2019s substantive ruling. Plaintiff therefore, contrary to the majority\u2019s reasoning, was entitled to raise the contact issue on her appeal. Nonetheless, by failing to raise the issue until the petition for rehearing in the appellate court, the plaintiff did finally waive it. Villaqe of Mundelein v. Taylor (1985), 130 Ill. App. 3d 819, 825.", "type": "concurrence", "author": "JUSTICE SIMON," } ], "attorneys": [ "William H. Wake and Bruce F. Bowman, of Aurora, for appellant.", "No appearance for appellee.", "Lord, Bissell & Brook, of Chicago (Richard E. Mueller, Hugh C. Griffin and Diane I. Jennings, of counsel), for intervenor-appellee Illinois Insurance Guaranty Fund." ], "corrections": "", "head_matter": "(No. 61391.\nDEBORAH LEMKE, Appellant, v. KENILWORTH INSURANCE COMPANY, Appellee.\nOpinion filed December 20, 1985.\nSIMON, J., specially concurring.\nWilliam H. Wake and Bruce F. Bowman, of Aurora, for appellant.\nNo appearance for appellee.\nLord, Bissell & Brook, of Chicago (Richard E. Mueller, Hugh C. Griffin and Diane I. Jennings, of counsel), for intervenor-appellee Illinois Insurance Guaranty Fund." }, "file_name": "0350-01", "first_page_order": 362, "last_page_order": 368 }