{ "id": 5411446, "name": "CLEMON COWENS, Petitioner-Appellant, v. ILLINOIS INSURANCE GUARANTY FUND, Respondent-Appellee", "name_abbreviation": "Cowens v. Illinois Insurance Guaranty Fund", "decision_date": "1993-06-28", "docket_number": "No. 1\u201492\u20140777", "first_page": "214", "last_page": "221", "citations": [ { "type": "official", "cite": "249 Ill. App. 3d 214" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "404 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5552527 ], "weight": 3, "pin_cites": [ { "page": "1045" }, { "page": "1046" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/1040-01" ] }, { "cite": "467 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 921", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633338 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0921-01" ] }, { "cite": "557 N.E.2d 1281", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466025 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/1015-01" ] }, { "cite": "598 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "233 Ill. App. 3d 36", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5196594 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0036-01" ] }, { "cite": "606 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5154482 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0376-01" ] }, { "cite": "246 Ill. App. 3d 909", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387081 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0909-01" ] }, { "cite": "515 N.E.2d 235", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 652", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467299 ], "weight": 2, "pin_cites": [ { "page": "655-56" }, { "page": "655", "parenthetical": "policy provided that \"arbitration will be barred unless commenced within two years after the date of the accident\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0652-01" ] }, { "cite": "552 N.E.2d 406", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "195 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2493150 ], "weight": 3, "pin_cites": [ { "page": "453" }, { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0447-01" ] } ], "analysis": { "cardinality": 723, "char_count": 16554, "ocr_confidence": 0.761, "pagerank": { "raw": 8.096923901916126e-08, "percentile": 0.4674726209906446 }, "sha256": "bfbf3642486c8a980f73c0d4d4f1fd4765427fc30249dc26ccf0b44c11da940b", "simhash": "1:1877cb82ce51b794", "word_count": 2552 }, "last_updated": "2023-07-14T16:37:18.171744+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CLEMON COWENS, Petitioner-Appellant, v. ILLINOIS INSURANCE GUARANTY FUND, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nPlaintiff Clemon Cowens appeals from a February 5, 1992, final order of the circuit court of Cook County which granted summary judgment to defendant Illinois Insurance Guaranty Fund. Plaintiff\u2019s action sought a declaration requiring defendant, as successor to the obligations of the now insolvent Reliable Insurance Company (Reliable), to arbitrate plaintiff\u2019s uninsured motorist claim. In an oral ruling, now embodied in the final order on appeal, the circuit court determined that plaintiff\u2019s arbitration demand was untimely as a matter of law because it was initiated two years following the accident in which plaintiff was injured. Plaintiff\u2019s main argument on appeal is that his arbitration demand was timely. We agree.\nThe record citations supporting plaintiff\u2019s \u201cstatement of facts\u201d demonstrate that the asserted \u201cfacts\u201d are nothing more than references to allegations within plaintiff\u2019s initial complaint. This is somewhat misleading. First, the operative complaint is now plaintiff\u2019s \u201c5th amended complaint for declaratory judgment and other relief,\u201d filed April 11, 1990. Second, defendant by answer has largely denied the allegations of this latter complaint. Finally, plaintiff\u2019s October 1990 motion for summary judgment merely incorporated the allegations of this complaint. Thus, contrary to plaintiff\u2019s characterization, most of the facts he asserts in his brief are not \u201cfacts,\u201d but allegations.\nInterestingly, defendant, which omitted a statement of facts in its response brief, includes a statement of facts in a supplemental brief. However, the facts there stated are little more than a duplication of plaintiff\u2019s initial statement of facts. Indeed, the record citations within this supplemental brief are largely the same as those contained in plaintiff\u2019s initial brief. Apparently, the underlying facts are no longer in dispute. This lack of factual dispute bears on the disposition we ultimately make.\nIn any event, certain undisputed facts do appear from the common law record. In an August 1990 motion for summary judgment, defendant admits that it assumed Reliable\u2019s obligations upon Reliable\u2019s being ordered into liquidation. Defendant further admits that Reliable issued a policy of automobile insurance to plaintiff which included, inter alia, uninsured motorist coverage. The language of this policy included the following provision:\n\u201cPART IV \u2014 FAMILY PROTECTION COVERAGE\nCoverage J \u2014 Family Protection (Damages for Bodily Injury). To 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 *** 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 coverage, 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.\u201d\nAn endorsement further provided:\n\u201cAMENDMENT OF ILLINOIS FAMILY AUTOMOBILE POLICY INSURING AGREEMENT AND CONDITIONS\n* * *\nPART IV \u2014 UNINSURED MOTORIST\n* * *\nIt is further agreed no suit, action or arbitration proceedings for the recovery of any claim under Family Protection/Uninsured Motorists Coverage shall be sustainable in any court of law or equity unless the insured shall have fully complied with all of the terms of this policy, nor unless commenced within two (2) years after the occurrence of the loss.\u201d (Emphasis added.)\nDefendant in its motion for summary judgment also admitted that plaintiff was involved in an accident on August 16, 1983, with an al-' leged uninsured motorist. Finally, defendant acknowledged that Reliable received on May 5, 1986, plaintiff\u2019s written demand for arbitration. In its summary judgment motion, defendant argued that the date of accident equalled the \u201cdate of loss\u201d for purposes of the policy\u2019s two-year limitation provision; thus, plaintiff\u2019s arbitration derpand was too late.\nPlaintiff also filed a motion for summary judgment. The motion requested that the court grant the relief requested in his fifth amended complaint, which sought a declaration that defendant was required to arbitrate plaintiff\u2019s claim. Plaintiff incorporated the allegations of his fifth amended complaint to support his motion.\nAt the summary judgment stage of the proceedings, the case was before the Honorable Judge Scotillo. Following briefing and argument on the parties\u2019 respective summary judgment motions, Judge Scotillo on December 27, 1990, entered an order which granted defendant\u2019s motion for summary judgment, denied plaintiff\u2019s motion for summary judgment and dismissed plaintiff\u2019s fifth amended complaint with prejudice.\nPlaintiff thereafter filed a motion for reconsideration. On May 28, 1991, Judge Scotillo granted plaintiff\u2019s motion to reconsider, vacated his prior order granting defendant summary judgment and ordered the matter to be reassigned.\nOn June 28, 1991, defendant filed a motion to reconsider the May 28, 1991, order or, in the alternative, for leave to file an interlocutory appeal. On July 23, 1991, the matter was transferred to Judge Hourihane who, for reasons which are not altogether clear, restyled defendant\u2019s motion into a renewed motion for summary judgment. Anyway, on February 5, 1992, Judge Hourihane granted defendant summary judgment. The court orally indicated that the two-year contractual limitation provision within the policy\u2019s endorsement was not ambiguous and obligated plaintiff to initiate arbitration proceedings within two years from the date of accident. Plaintiff appeals this ruling.\nFor the sake of being complete, and given that plaintiff is appealing from an award of summary judgment (which requires this court to construe the evidence in the light most favorable to plaintiff), the record can be construed to include the following matters as well.\nPlaintiff\u2019s August 16, 1983, automobile accident involved Otha G. Kimbrough. On October 3, 1983, plaintiff sent Kimbrough an attorney\u2019s lien and a letter requesting insurance information. Plaintiff alleges in his complaint that Kimbrough did not respond.\nOn October 18, 1983, plaintiff sent to the Illinois Department of Transportation, Financial Responsibility Section, a \u201cMotorist Report of Illinois Motor Vehicle Accident\u201d form. Plaintiff in his cover letter requested information regarding Kimbrough\u2019s insurance status at the time of the accident. Plaintiff alleges that he received no response from the Department of Transportation.\nPlaintiff also sent Reliable an attorney\u2019s lien on October 22, 1983. Plaintiff\u2019s cover letter indicated that, following an investigation, Kimbrough \u201cappeared\u201d to be an uninsured motorist. Reliable responded November 16, 1983, that it was in receipt of plaintiff\u2019s lien. This response requested \u201call supporting documentation\u201d and asserted that, following investigation, plaintiff would be contacted to discuss settlement. Plaintiff alleges in his complaint that he thereafter sent Reliable his special damages and that, in a telephone conversation with a Reliable claims adjuster, he learned Reliable would not discuss the matter until it received proof of Kimbrough\u2019s uninsured status.\nOn July 10, 1985, plaintiff filed an action against Kimbrough in the circuit court of Cook County. This action was filed within two years of the accident.\nOn April 30, 1986, Kimbrough provided plaintiff with an affidavit stating that he had no automobile liability insurance at the time of the accident. This affidavit was incorporated by reference into plaintiff\u2019s fifth amended complaint, which, as noted, plaintiff incorporated into his motion for summary judgment.\nOn May 5, 1986, plaintiff demanded arbitration in writing. Reliable responded shortly thereafter that plaintiff\u2019s demand for arbitration was untimely. On October 27, 1986, plaintiff instituted the instant action.\n\u201cThe law is a profession of words.\u201d Mellinkoff, The Language of the Law vii (1963), cited in Edward D. Re, Brief Writing and Oral Argument, 2 (5th ed. 1983).\nThe controlling issue on appeal turns on the interpretation to be given to the phrase \u201cnor -unless commenced within two (2) years after the occurrence of the loss.\u201d The circuit court interpreted the term \u201closs\u201d to mean \u201caccident.\u201d We find this construction to be erroneous as a matter of law.\nThe rules of contract construction apply to insurance policies, which courts interpret as a matter of law. (E.g., Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 453, 552 N.E.2d 406.) One of the fundamental rules of contract interpretation is that the court should seek to interpret provisions in accordance with the intent of the parties. (Heneghan, 195 Ill. App. 3d at 453.) Also, in interpreting the provisions of an insurance contract, the entire document should be examined, considering the language of the policy as well as the subject matter and purpose of the contract. Shelton v. Country Mutual Insurance Co. (1987), 161 Ill. App. 3d 652, 655-56, 515 N.E.2d 235.\nHere, it is clear that the parties did not intend the terms \u201caccident\u201d and \u201closs,\u201d neither of which is defined in the policy, to be synonymous. Reliable\u2019s policy simultaneously employs the words \u201closs,\u201d \u201caccident\u201d and \u201coccurrence.\u201d For example, the notice provision of the policy states: \u201cIn the event of an accident, occurrence or loss, written notice *** shall be given *** as soon as practicable.\u201d Another provision within the policy provides that - \u201c[t]his policy applies only to accidents, occurrences and loss during the policy period while the automobile is within the Unites States.\u201d\nApplying fundamental canons of contract construction to the parties\u2019 contract, it is apparent that the parties did not intend \u201closs\u201d to mean \u201caccident\u201d and \u201caccident\u201d to mean \u201closs.\u201d In short, \u201caccident\u201d means \u201caccident\u201d and \u201closs\u201d means \u201closs.\u201d The policy in this regard is unambiguous. Had the parties intended \u201closs\u201d to mean \u201caccident\u201d in the phrase in question, they merely would have used the term \u201caccident.\u201d See Shelton, 161 Ill. App. 3d at 655 (policy provided that \u201carbitration will be barred unless commenced within two years after the date of the accident\u201d).\nThe foregoing analysis only begs the following question: what does \u201closs\u201d mean? Clearly, like the term \u201caccident,\u201d \u201closs\u201d refers to an event. This is all the more clear when one considers that, in the limitation provision in question, the policy requires that arbitration be commenced \u201cwithin two (2) years after the occurrence of the loss.\u201d It is also worth pointing out that it is a limitation provision which this court is being asked to interpret. Some event must trigger the running of the limitations clock. Here, it is \u201cthe occurrence of the loss.\u201d\nWhile, as noted above, \u201closs\u201d cannot be synonymous with \u201caccident,\u201d a reasonable construction of the policy is that the two terms have a cause and effect relationship. An \u201caccident\u201d produces a \u201closs,\u201d but the opposite is not true: a \u201closs\u201d does not produce an \u201caccident.\u201d \u201cAccident\u201d is the cause, while \u201closs\u201d is the effect. The cause and effect relationship of the two cannot be ignored. Further, a \u201closs\u201d can be fixed in duration; however, it need not be. This is a critical observation within the context of the limitations clause at issue because the limitation clock does not begin to run until \u201cafter the occurrence of the loss.\u201d (Emphasis added.)\nCases which have interpreted the limitation clause in question generally agree that \u201closs\u201d can indeed extend in time beyond the happening of the underlying \u201caccident.\u201d (Glenn v. Prestige Casualty Co. (1993), 246 Ill. App. 3d 909; Whiting v. Prestige Casualty Co. (1992), 238 Ill. App. 3d 376, 606 N.E.2d 397; McCray v. Merit Insurance Co. (1992), 233 Ill. App. 3d 36, 598 N.E.2d 366; Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 557 N.E.2d 1281; Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 552 N.E.2d 406.) Frequently, for example, determining whether the party causing the insured\u2019s injury is uninsured requires litigation. (E.g., Comet Casualty Co. v. Jackson (1984), 125 Ill. App. 3d 921, 467 N.E.2d 269.) This litigation may extend beyond two years of the accident. If defendant\u2019s interpretation of the term \u201closs\u201d were to be applied in such a case, its own insured would be precluded from receiving uninsured motorist benefits coverage even before the insured established that he was in fact injured by such a motorist. Obviously, this is an absurd result, which the parties could not have intended.\nThe foregoing analysis is sufficient to reverse the circuit court, which granted defendant summary judgment on the premise that \u201closs\u201d meant \u201caccident.\u201d However, judicial economy requires that we consider another disposition.\nAs noted, defendant\u2019s supplemental brief recites as fact, inter alia, the existence of the Kimbrough affidavit. Defendant apparently does not contest the authenticity of this affidavit, and the record reveals no reason to challenge its authenticity. It was executed sometime in April 1986, and plaintiff demanded arbitration in writing on May 5, 1986. Plaintiff\u2019s demand, therefore, was timely as a matter of law.\nThere being no genuine issue of material fact, and pursuant to Supreme Court Rule 366(a)(5), we reverse and remand the case to the circuit court with directions to enter summary judgment for plaintiff declaring his entitlement to arbitration of his uninsured motorist claim. See McCray v. Merit Insurance Co. (1992), 233 Ill. App. 3d 36, 40, 598 N.E.2d 366 (granting similar relief).\nIn passing, we are aware of Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 404 N.E.2d 473, a First District, First Division case (Campbell and O\u2019Connor, JJ., concurring). Plaintiff there appealed from the dismissal of his September 15, 1978, petition to compel arbitration. The date of accident was March 27, 1976, and plaintiff\u2019s written demand for arbitration occurred on May 8, 1978. The basis of the dismissal was the policy language that arbitration must be commenced \u201cwithin two years after the occurrence of the loss.\u201d\nThe appellate court affirmed the dismissal. Language of the court\u2019s opinion arguably could be read as contradicting the language of the instant opinion. For example, we expressly found \u201cno ambiguity in the above-quoted policy provision.\u201d (Buchalo, 83 Ill. App. 3d at 1045.) This court opinion had previously quoted certain policy language, including the same two-year limitation provision as in this case. Later in the opinion, we refer to the May 8, 1978, letter from the insured to the insurer demanding arbitration. We note that this letter was sent \u201cafter expiration of the policy limit of time for the demand [of arbitration].\u201d Buchalo, 83 Ill. App. 3d at 1046.\nBuchalo is distinguishable. First, the opinion does not directly construe the term \u201closs.\u201d Apparently, the parties did not contest the meaning of the term. Second, the insured there was injured in a hit- and-run accident. Here, a question did exist as to whether Kimbrough was insured and, thus, whether uninsured motorist coverage existed in the first place. Finally, our conclusion in this case does not rest upon a determination that the term \u201closs\u201d is ambiguous. Rather, the analysis here rejects the argument that \u201closs\u201d and \u201caccident\u201d are synonymous and determines that a \u201closs\u201d can be reasonably construed to be ongoing for purposes of the limitation provision in the instant policy. For these reasons, Buchalo does not foreclose our holding herein.\nThe above disposition obviates the need to discuss plaintiff\u2019s other arguments on appeal.\nFor the foregoing reasons, we reverse the February 5, 1992, order of the circuit court which granted defendant summary judgment. We direct the circuit court on remand to enter summary judgment for plaintiff declaring his entitlement to arbitration of his uninsured motorist claim.\nReversed and remanded with directions.\nMANNING, P.J., and BUCKLEY, J., concur.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Sachs, Earnest & Associates, Ltd., of Chicago (Gregory R. Sun, of counsel), for appellant.", "Daniel G. S\u00faber & Associates, of Chicago (Daniel G. S\u00faber, of counsel), for appellee." ], "corrections": "", "head_matter": "CLEMON COWENS, Petitioner-Appellant, v. ILLINOIS INSURANCE GUARANTY FUND, Respondent-Appellee.\nFirst District (1st Division)\nNo. 1\u201492\u20140777\nOpinion filed June 28, 1993.\nSachs, Earnest & Associates, Ltd., of Chicago (Gregory R. Sun, of counsel), for appellant.\nDaniel G. S\u00faber & Associates, of Chicago (Daniel G. S\u00faber, of counsel), for appellee." }, "file_name": "0214-01", "first_page_order": 232, "last_page_order": 239 }