{ "id": 3551924, "name": "CHARLES ELLIOTT et al., Plaintiffs-Appellants, v. INTER-INSURANCE EXCHANGE OF THE CHICAGO MOTOR CLUB, Defendant-Appellee", "name_abbreviation": "Elliott v. Inter-Insurance Exchange of the Chicago Motor Club", "decision_date": "1988-04-29", "docket_number": "No. 87-882", "first_page": "702", "last_page": "708", "citations": [ { "type": "official", "cite": "169 Ill. App. 3d 702" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "468 N.E.2d 501", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 131", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564012 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0131-01" ] }, { "cite": "388 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 844", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3238587 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0844-01" ] }, { "cite": "430 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 681", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3072193 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0681-01" ] }, { "cite": "476 N.E.2d 4", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 633", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3439612 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0633-01" ] }, { "cite": "374 N.E.2d 1086", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5626927 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/1040-01" ] }, { "cite": "242 N.E.2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "41 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2854175 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0091-01" ] }, { "cite": "396 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489785 ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0384-01" ] }, { "cite": "381 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 62", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3338584 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0062-01" ] }, { "cite": "489 N.E.2d 1100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 60", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495543 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0060-01" ] }, { "cite": "393 N.E.2d 1223", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3276581 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0298-01" ] }, { "cite": "447 N.E.2d 1358", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626580 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0962-01" ] }, { "cite": "504 N.E.2d 193", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 269", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574172 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0269-01" ] }, { "cite": "424 N.E.2d 1193", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 1122", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8501035 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/1122-01" ] }, { "cite": "466 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 972", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3632541 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0972-01" ] }, { "cite": "430 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 1042", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3076794 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/1042-01" ] }, { "cite": "809 F.2d 347", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1643327 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f2d/809/0347-01" ] }, { "cite": "18 U.S.C. \u00a71961", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1984, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 649, "char_count": 13390, "ocr_confidence": 0.762, "pagerank": { "raw": 1.596754188822039e-07, "percentile": 0.6831720691051872 }, "sha256": "20a587f821d865c5080d7221534a90b3bac9b296263d7f8621a62df4cdb55124", "simhash": "1:5ba412f4698796c5", "word_count": 2138 }, "last_updated": "2023-07-14T17:11:49.091625+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES ELLIOTT et al., Plaintiffs-Appellants, v. INTER-INSURANCE EXCHANGE OF THE CHICAGO MOTOR CLUB, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nThis is an appeal by plaintiffs, five members of the Elliott family, from a grant of summary judgment in favor of defendant, Inter-Insurance Exchange of the Chicago Motor Club, on one count (count I) of a three-count complaint. This cause of action arose out of collision between plaintiffs\u2019 automobile and a vehicle driven by an alleged uninsured motorist. On August 8, 1981, when the accident occurred, the injured plaintiffs were covered by an insurance policy that included uninsured motorist coverage issued by defendant.\nIn February 1984, plaintiffs filed their three-count complaint against defendant. They sought a declaratory judgment in count I, alleging that after plaintiffs had fully complied with the terms of the insurance contract, defendant refused to settle their accident claim in response to repeated demands to do so. Plaintiffs further alleged that defendant requested them to file a lawsuit against the uninsured motorist. Plaintiffs did file suit and received default judgments in October 1983 in the aggregate of $215,000. Plaintiffs claimed that defendant refused to compensate them for the judgments as requested under the uninsurance provisions of their policy and that such refusal was a breach of contract. Plaintiffs requested the court to declare defendant liable for that portion of the judgments covered under the policy. Count II alleged bad-faith conduct by defendant for failure to give plaintiffs written consent to sue the tortfeasor and vexatious and unreasonable conduct in refusing to process their claim. Count III alleged a class action against defendant on behalf of persons similarly situated to plaintiffs.\nDefendant filed a motion to strike in lieu of answer asserting, among other things, that the dispute was arbitrable pursuant to the policy\u2019s arbitration clause. The trial court ordered defendant to answer. In August 1984, defendant answered, denying knowledge that the other driver was uninsured and asserting affirmative defenses, including a policy clause that required written consent by the insurer to any lawsuit against a tortfeasor by the insured before the insurer could be bound by any resulting judgment. The arbitration clause of the policy was also asserted as a defense. That clause provided that if the insurer and insured do not agree concerning the claimant\u2019s legal entitlement to damages or to the amount thereof, either party may make written demand for arbitration and the dispute shall then be settled by arbitration in accordance with the rules of the American Arbitration Association. Defendant also filed a two-count counterclaim for a declaratory judgment asserting that the tortfeasor was not an uninsured motorist, and also that plaintiffs breached the insurance contract. As part of their response to defendant\u2019s counterclaim, plaintiffs set forth the affirmative defenses of laches and estoppel.\nAfter the subsequent filing of many motions and pleadings, defendant filed a demand for arbitration in February 1985, requesting resolution of the disputes over liability and the alleged injuries and damages. In opposition to the motion, plaintiffs argued that the issues of liability and damages had already been determined by the judgments and that, in any event, defendant had waived arbitration. In July 1985, the trial court granted plaintiffs\u2019 motion to stay arbitration. After the demand for arbitration, plaintiffs filed a complaint in the United States District Court under the Racketeering Influenced and Corrupt Organizations Act (18 U.S.C. \u00a71961 et seq. (1984)) containing many of the same allegations as those in the complaint in the present case. (Elliott v. Chicago Motor Club (N.D. Ill. May 2, 1986), No. 85C \u2014 03180 (memorandum opinion), aff\u2019d on other grounds (7th Cir. 1986), 809 F.2d 347.) In May 1986, the district court dismissed the complaint with prejudice.\nIn the present case, cross-motions for summary judgment were filed and a hearing was held in October 1986. At the hearing, the trial court noted that the question of whether the tortfeasor was uninsured had not been determined, and further, that the court was not concerned with the arbitration issue until after it had determined whether the provisions of the policy\u2019s judgment consent clause had been met or waived. In February 1987, the trial court issued a memorandum opinion and a subsequent order granting summary judgment in defendant\u2019s favor as to count I of plaintiffs\u2019 complaint, i.e., no breach of contract by defendant for failure to pay the judgments under the policy. The court expressly found that there was no waiver by defendant and that it was not bound by the judgments because no written consent for suit had been given. The court further stated that there was no vehicle left to plaintiffs to recover damages except by arbitration. In so holding, the court relied on the case of Feerer v. North River Insurance Co. (1981), 102 Ill. App. 3d 1042, 430 N.E.2d 36. The court also vacated that portion of an October 1986 order that had granted summary judgment for defendant on count II of its countercomplaint and transferred the matter to the law division for trial on issues raised therein, i.e., whether there was an uninsured motorist, the arbitration issue, and whether plaintiffs had breached the contract.\nPlaintiffs appealed from the granting of summary judgment to defendant on count I of their complaint, which order was made final and appealable. Although this appeal only involves count I, it is necessary to discuss certain intertwined issues raised in the other counts of both parties\u2019 pleadings.\nOn appeal, plaintiffs contend that defendant cannot rely on the judgment consent clause because it is estopped as a result of its bad-faith conduct in refusing to give written consent. Plaintiffs also argue that defendant has waived its right to arbitration because of its wrongful and vexatious conduct.\nUnder Illinois law, both estoppel and waiver must be affirmatively pleaded or they are waived. (Dayan v. McDonald\u2019s Corp. (1984), 125 Ill. App. 3d 972, 466 N.E.2d 958.) A defense not properly pleaded is deemed waived although it may appear to be within the evidence. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 424 N.E.2d 1193.) Here, plaintiffs did not plead estoppel or waiver in count I of their complaint although they did raise the doctrines as affirmative defenses to defendant\u2019s counterclaim, which claim is not before this court. Moreover, defects in pleadings cannot be cured by argument. (Burnett v. Donath (1984), 127 Ill. App. 3d 131, 468 N.E.2d 501.) These rules regarding the doctrines of estoppel and waiver apply to situations in which a plaintiff raises the defenses in his pleadings as well as when they are asserted as affirmative defenses by a defendant. Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 504 N.E.2d 193.\nHowever, affirmative defenses may be raised in a motion for summary judgment even though they were not raised in the pleadings. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358.) In the case at bar, plaintiffs did not raise the defenses in their summary judgment motion. However, it has been held that the issue of failure to plead the defenses of estoppel and waiver may be waived by the defendant\u2019s failure to object when the defenses were raised in a plaintiff\u2019s answer to the defendant insurer\u2019s summary judgment. Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.\nIn the present case, plaintiffs\u2019 response to defendant\u2019s summary judgment motion was entitled, \u201cPlaintiffs\u2019 Memorandum In Support of Their Reply to Response to Plaintiffs\u2019 Motion for Summary Judgment and Plaintiffs' Response to Defendant\u2019s Motion for Summary Judgment.\u201d The text of this reply is as jumbled as its title, and basically asserts, with respect to plaintiffs\u2019 count I, that the issues to be determined are whether there was an uninsured motorist, plaintiffs\u2019 compliance with the policy terms, defendant\u2019s improper withholding of written consent to sue, and whether the arbitration clause precludes this action. Defendant replied to this response contending that it did not specifically address the issue in defendant\u2019s motion for declaratory judgment as to count I, i.e., whether the insurer was liable under the policy for the judgments in plaintiffs\u2019 favor under a breach of contract theory. Defendant also objected to the filing of purported joint pleadings. Plaintiffs have consistently filed pleadings that combined the distinct and separate issues pleaded in count I and count II in a multifarious manner.\nIt is clear that plaintiffs\u2019 count I, which is the only complaint before this court, requested only a declaration that defendant breached the policy for not paying the judgments received by plaintiffs. There is no mention of lack of written consent, bad faith, estoppel, or waiver, nor was plaintiffs\u2019 complaint amended to conform to their arguments, which they had a right to do even after entry of summary judgment. (See Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1005.) Accordingly, since these issues have not been properly raised as to count I, they are not properly before this court for review.\nIn any event, the trial court properly found that the judgment awards are not binding on defendant on the basis that no consent to sue was given by the insurer. Defendant asserted the policy arbitration clause as a defense to plaintiffs\u2019 complaint. Under the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 101 et seq.), the court is the appropriate tribunal to determine questions involving the res judicata and/or collateral estoppel effect of a prior adjudication award. (Monmouth Public Schools, District No. 38 v. Pullen (1985), 141 Ill. App. 3d 60, 489 N.E.2d 1100.) Moreover, where parties have contracted to resolve insurance policy disputes through arbitration, a declaratory judgment should not be sought until after arbitration unless the dispute involves the question of whether a valid arbitration agreement exists and, if so, whether the disputed issue is arbitrable. Allstate Insurance Co. v. Elkins (1978), 63 Ill. App. 3d 62, 381 N.E.2d 1, aff'd (1979), 77 Ill. 2d 384, 396 N.E.2d 528.\nThe Uniform Arbitration Act does not control which issues are subject to arbitration; that is governed by the arbitration agreement between the parties. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149.) And, whether a dispute is within the scope of an arbitration clause should be determined at the earliest possible moment and such determination is controlled by judicial guidelines. Farris v. Hedgepeth (1978), 58 Ill. App. 3d 1040, 374 N.E.2d 1086.\nThe arbitration agreement in the present case provides that disputes regarding liability or amount of damages shall be arbitrated upon written demand of either party. Defendant has demanded arbitration. Our supreme court has held that under such an agreement, the threshold question of coverage is to be determined by the court. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149.) Defendant has asserted that the other driver involved in plaintiffs\u2019 accident was not an uninsured motorist. Clearly, whether he was an insured driver is relevant to the issue of coverage and must be determined by the trial court before arbitration can proceed. (See Clark v. Country Mutual Insurance Co. (1985), 131 Ill. App. 3d 633, 476 N.E.2d 4.) Moreover, the question as to whether defendant waived arbitration should also be determined by the court and, in this case, the court expressly found that there was no waiver.\nThe object of arbitration is to achieve final disposition of disputes in an easier, more expeditious, and less expensive manner than by litigation; it is the favored method of settling disputes. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1981), 102 Ill. App. 3d 681, 430 N.E.2d 249.) The legal maneuverings in the case before us appear to be in contravention of this policy, especially since the accident underlying this dispute occurred more than six years ago. We agree with the district court which, in dismissing plaintiffs\u2019 Federal lawsuit, stated that plaintiffs\u2019 actions in both State and Federal courts \u201cseem to consist of herculean efforts to avoid arbitration, the statutory method of dispute resolution.\u201d (Elliott v. Chicago Motor Club (N.D. Ill. May 2, 1986), No. 85C \u2014 03180, memorandum opinion at 9, aff\u2019d on other grounds (7th Cir. 1986), 809 F.2d 347.) In other words, one cannot avoid compliance with an arbitration clause by merely alleging that the other party breached the contract. See Stuart-Dean Co. v. Lurie (1979), 69 Ill. App. 3d 844, 388 N.E.2d 118.\nIn conclusion, we affirm the trial court\u2019s grant of summary judgment for defendant on count I for the above reasons and remand the cause to the trial court for further proceedings.\nAffirmed and remanded.\nSULLIVAN and PINCHAM, JJ., concur.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "Brunswick & Keefe, of Blue Island (Ellen J. Bennett, of counsel), for appellants.", "Christine E. Smith and John J. O\u2019Connor, both of Chicago, for appellee." ], "corrections": "", "head_matter": "CHARLES ELLIOTT et al., Plaintiffs-Appellants, v. INTER-INSURANCE EXCHANGE OF THE CHICAGO MOTOR CLUB, Defendant-Appellee.\nFirst District (5th Division)\nNo. 87\u2014882\nOpinion filed April 29, 1988.\nBrunswick & Keefe, of Blue Island (Ellen J. Bennett, of counsel), for appellants.\nChristine E. Smith and John J. O\u2019Connor, both of Chicago, for appellee." }, "file_name": "0702-01", "first_page_order": 724, "last_page_order": 730 }