{ "id": 351186, "name": "RICARDA MULLER, Plaintiff-Appellant, v. FIREMEN'S FUND INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Muller v. Firemen's Fund Insurance", "decision_date": "1997-06-27", "docket_number": "No. 1\u201496\u20143139", "first_page": "719", "last_page": "727", "citations": [ { "type": "official", "cite": "289 Ill. App. 3d 719" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "234 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "91 Ill. App. 2d 156", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2819005 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "162" }, { "page": "163" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0156-01" ] }, { "cite": "548 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 405", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512746 ], "year": 1989, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0405-01" ] }, { "cite": "585 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "146 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597145 ], "year": 1991, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0001-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "634 N.E.2d 1093", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "158 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780289 ], "year": 1994, "pin_cites": [ { "page": "531-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0527-01" ] }, { "cite": "465 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633854 ], "year": 1984, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0142-01" ] }, { "cite": "631 N.E.2d 1349", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 1054", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863383 ], "year": 1994, "pin_cites": [ { "page": "1061" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/1054-01" ] }, { "cite": "566 N.E.2d 759", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2554482 ], "year": 1991, "pin_cites": [ { "page": "1028" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/1015-01" ] }, { "cite": "226 N.E.2d 624", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "37 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2863576 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "356" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0352-01" ] } ], "analysis": { "cardinality": 791, "char_count": 17458, "ocr_confidence": 0.758, "pagerank": { "raw": 9.578371222356784e-08, "percentile": 0.5258488043125294 }, "sha256": "bae3fdc4d07029d8efc2a83c18f2ab164d3ba45263fd0fb7b44792b033264601", "simhash": "1:bbe7178b3c459dbb", "word_count": 2853 }, "last_updated": "2023-07-14T21:29:08.370768+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RICARDA MULLER, Plaintiff-Appellant, v. FIREMEN\u2019S FUND INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe plaintiff, Ricarda Muller, filed a three-count complaint against her insurer, Firemen\u2019s Fund Insurance Company (Firemen\u2019s), alleging that Firemen\u2019s breached her automobile insurance contract (count I), that she was entitled to extracontractual relief based on Firemen\u2019s vexatious delay in responding to her claim (count ID, and that she was entitled to arbitration of her claim (count III). The trial court directed a verdict in favor of Firemen\u2019s on count II and subsequently ruled on the merits of counts I and III in Firemen\u2019s favor. The trial court denied Muller\u2019s post-trial motion and this appeal followed. We reverse and remand.\nOn March 19, 1986, Muller was involved in a multivehicle accident while traveling west on Palatine Road near Wolf Road in Prospect Heights. Thirteen of the vehicles involved were listed in the police report. Muller claimed to have been knocked unconscious and, therefore, was unable to identify which vehicle or vehicles struck her car. Muller filed a personal injury action against the 13 drivers identified in the police report. However, all of the defendants in that action were granted summary judgment or dismissed due to Muller\u2019s inability to identify the vehicle that struck her.\nMuller also filed a claim for uninsured motorist benefits under her insurance policy with Firemen\u2019s. The uninsured motorist section of Muller\u2019s policy provides in pertinent part:\n\"Part C \u2014 Uninsured Motorists Coverage\nWe will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:\n1. Sustained by a covered person; and\n2. Caused by an accident.\nThe owner\u2019s or operator\u2019s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.\n***\n. 'Covered person\u2019 as used in this Part means:\n1. You or any family member.\n'Uninsured motor vehicle\u2019 means a land motor vehicle or trailer of any type:\n* * *\n3. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:\na. you or any family member;\nFiremen\u2019s denied the claim since it determined that Muller could not prove that the accident involved an uninsured vehicle as defined under the policy. After her personal injury suit was dismissed, Muller filed a three-count complaint against Firemen\u2019s. Count I alleged that Firemen\u2019s breached the insurance contract by failing to provide Muller with uninsured motorist benefits; count II alleged Muller was entitled to damages under section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 1994)) based on Firemen\u2019s alleged unreasonable and vexatious delay in responding to her uninsured motorist claim; and count III requested that the trial court compel Firemen\u2019s to arbitrate Muller\u2019s uninsured motorist claim.\nFiremen\u2019s denied all material allegations against it and asserted several affirmative defenses. Firemen\u2019s again argued that Muller was not entitled to uninsured motorist benefits because she was unable to provide any information about the vehicle or vehicles that allegedly caused her accident and claimed damages. Firemen\u2019s filed a motion for summary judgment, which the trial court denied. The trial court\u2019s determination was apparently based, at least in part, on the deposition testimony of Doo V. Kim, one of the 13 defendants involved in the accident. When asked how many cars were involved in the accident, Kim replied: \"I really have no idea. There were so many cars involved in the accident, probably at least four or five cars ran away.\u201d\nWhen Muller\u2019s action against Firemen\u2019s came up for trial, the parties agreed that, in lieu of live testimony, they would stipulate to the following evidence:\n\"1. Firemen\u2019s Fund Insurance Company ('FFIC\u2019) issued to RICARDA MULLER policy No. VZE 1071 65 47.\n2. Policy No. VZE 1071 65 47 was in full force and effect on March 19, 1986.\n3. A true, correct and complete copy of said policy is attached hereto as Exhibit 'A.\u2019\n4. On March 19, 1986 plaintiff was involved in an accident while driving her 1984 Oldsmobile Toronado westbound on Palatine Road near Wolf Road in Prospect Heights, Cook County, Illinois.\n5. If plaintiff was called to testify in these proceedings, she would testify that she sustained injuries as a result of the aforesaid accident.\n6. At said time and place, the vehicle being operated by plaintiff was struck by vehicle(s) that no one can identify before plaintiff\u2019s vehicle came into contact with any other vehicle or object.\n7. Plaintiff is unable to identify what vehicle(s) came in contact with her vehicle in said accident, whether said vehicle(s) were insured or not or whether said vehicle(s) left the scene after the accident.\n8. No person is able to identify what vehicle(s) came in contact with plaintiffs vehicle in said accident, whether said vehicle(s) were insured or not or whether said vehicle(s) left the scene after the accident.\n9. FFIC is unable to identify what vehicle(s) came in contact with plaintiffs vehicle in said accident, whether said vehicle(s) were insured or not or whether said vehicle(s) left the scene after the accident.\n10. Plaintiff is unable to identify what vehicle(s) at the scene of said accident caused her alleged bodily injuries.\n11. No person is able to identify what vehicle(s) at the scene of said accident caused plaintiffs alleged bodily injuries.\n12. FFIC is unable to identify what vehicle(s) at the scene of said accident caused plaintiffs alleged bodily injuries.\n13. Plaintiff is unable to identify what vehicle(s) which left the scene of the accident caused her alleged bodily injuries.\n14. No person is able to identify what vehicle(s) which left the scene of the accident caused plaintiffs alleged bodily injuries.\n15. FFIC is unable to identify what vehicle(s) which left the scene of the accident caused plaintiffs alleged bodily injuries.\n16. That the parties agree that the issues of proximate cause, injury and damages are not being raised in this trial proceeding and will be arbitrated between the parties, as necessary, depending on this Court\u2019s finding of uninsured motorist coverage.\u201d\nThe stipulations and the Firemen\u2019s policy comprised the only evidence submitted by the parties. At the close of Muller\u2019s case in chief, which basically consisted of Muller\u2019s counsel discussing the complaint and the stipulations and answering questions from the trial judge, Firemen\u2019s moved for a directed verdict on all counts. The trial court entered a directed verdict in Firemen\u2019s favor only as to count II. Muller does not appeal this ruling.\nImmediately thereafter, counsel for Firemen\u2019s addressed the court as follows:\n\"Your honor, again, because this is a trial proceeding and the directed verdict was denied, we\u2019re asking the Court to now consider and weigh the evidence and determine if plaintiff has established by a preponderance of the evidence more probable than not that he was hit by a vehicle that fled the scene or ran *** away from the scene, because apparently that is \u2014 the sum focus in this case is on that aspect of our definition.\u201d\nAfter a lengthy discussion among counsel for both parties and the trial judge regarding the meaning of the policy terms \"hit and run\u201d and \"cannot be identified,\u201d but with no further evidence submitted, the trial judge found as follows:\n\"I am now bound by what is contained in those stipulations and whatever reasonable inferences that I could draw from them.\nI\u2019m going to enter judgment against the plaintiff in favor of the defendant because I do not find that the stipulated facts that have been agreed to here establish coverage. They simply do not tell me really anything. So I can\u2019t enter judgment in favor of the plaintiff.\u201d\nThe trial court entered judgment in favor of Firemen\u2019s and against Muller on count I. The trial court further ruled that Firemen\u2019s could not be compelled to arbitrate the claim as requested and entered judgment in favor of Firemen\u2019s on count III. Thereafter, the trial court denied Muller\u2019s post-trial motion to vacate or, alternatively, for a new trial. Muller filed a timely appeal from both the judgment and the denial of her post-trial motion.\nThis case presents a rather unique situation since the parties presented no evidence at trial other than their stipulations and the insurance contract in issue. Generally, we will not disturb the judgment of a trial court unless that judgment is manifestly against the weight of the evidence. Schulenburg v. Signatrol, Inc., 37 Ill. 2d 352, 356, 226 N.E.2d 624 (1967). The reason for such a deferential standard of review is a recognition that the trial judge as the trier of fact has an opportunity to observe the demeanor of the witnesses as they testify and, therefore, occupies a far superior position to determine their credibility and the weight to be given to their testimony. Schulenburg, 37 Ill. 2d at 356. However, when, as in this case, the evidence before the trial court consists solely of documentary evidence, the rationale underlying a deferential standard of review is inapplicable, and a reviewing court will make an independent decision on the facts. In re Estate of Hook, 207 Ill. App. 3d 1015, 1028, 566 N.E.2d 759 (1991).\nIllinois courts have consistently held that the claimant under an insurance policy has the burden of proving that she comes within the terms of coverage. Watkins v. American Service Insurance Co., 260 Ill. App. 3d 1054, 1061, 631 N.E.2d 1349 (1994); Gibson v. State Farm Mutual Automobile Insurance Co., 125 Ill. App. 3d 142, 148, 465 N.E.2d 689 (1984). Thus, Muller bore the burden of establishing by a preponderance of the evidence that her car was struck by a \"hit and run vehicle whose operator or owner cannot be identified.\u201d\nMuller alleges that the stipulations negated any need for her to present further evidence and that the trial court was given sufficient facts to determine that coverage existed in this case. She argues that the trial court\u2019s denial of Firemen\u2019s motion for a directed finding as to counts I and III implicitly established that she presented a prima facie case of coverage. According to Muller, the fact that Firemen\u2019s failed to present any evidence to rebut this presumption of coverage meant that there was no contrary evidence on which the trial court could conclude that judgment should be entered against her. Therefore, Muller contends that her evidence became conclusive and she should have prevailed.\nFiremen\u2019s argues in its brief that Muller \"could not (and never can) satisfy her prima facie case by identifying the vehicle which struck her, or the operator of that vehicle.\u201d However, we conclude that such a requirement is unnecessary and, moreover, is contrary to the language of Firemen\u2019s policy, which defines an uninsured motor vehicle as a \"hit and run vehicle whose operator or owner cannot he identified.\u201d (Emphasis added.)\nWithout question, the stipulations entered into between the parties establish that Muller\u2019s vehicle was struck by another vehicle and that the owner and operator of that vehicle cannot be identified. The only factual question remaining is whether, under the circumstances of this case, the vehicle that struck Muller can be termed a \"hit and run\u201d vehicle.\nSection 143a of the Illinois Insurance Code requires that all automobile insurance policies provide coverage for the protection of persons insured thereunder who are entitled to recover damages for bodily injury from the owners or operators of hit-and-run motor vehicles. 215 ILCS 5/143a (West 1994). Muller\u2019s policy with Firemen\u2019s provides such coverage, the relevant portions of which are quoted above. Significantly, however, neither the statute nor Firemen\u2019s policy defines the phrase \"hit and run.\u201d\nAbsent statutory definition, the words and phrases used in a statute will be given their plain and ordinary meanings. Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 531-32, 634 N.E.2d 1093 (1994). The same rule of construction is applicable to undefined terms in insurance policies. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108, 607 N.E.2d 1204 (1992). In ascertaining the plain and ordinary meaning of words, courts often consult dictionaries. People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 15, 585 N.E.2d 51 (1991).\nBlack\u2019s Law Dictionary defines \"hit-and-run accident\u201d as a \"[cjollision generally between motor vehicle and pedestrian or with another vehicle in which the operator of vehicle leaves scene without identifying himself.\u201d Black\u2019s Law Dictionary 730 (6th ed. 1990). Webster\u2019s Third New International Dictionary defines \"hit and run\u201d as \"leaving the scene of an accident without stopping to render assistance or to comply with legal requirements.\u201d Webster\u2019s Third New International Dictionary 1074 (1986). We believe that the stipulations entered into between the parties to this case bring Muller\u2019s accident within either of these commonly accepted definitions of \"hit and run.\u201d\nSection 11 \u2014 403 of the Illinois Vehicle Code mandates that the driver of any vehicle involved in a motor vehicle accident resulting in injury, death, or property damage shall give his or her name, address, registration number, and the name of the owner of the vehicle to the person struck. 625 ILCS 5/11 \u2014 403 (West 1994). The purpose of this statute is to inform those who have been injured or damaged by another driver of that driver\u2019s identity. People v. Kerger, 191 Ill. App. 3d 405, 409, 548 N.E.2d 36 (1989). In this case, the parties have stipulated that neither Muller, Firemen\u2019s, nor any other person is able to identify the vehicle that struck Muller. Consequently, we can conceive of no reasonable inference to be drawn from such a stipulation other than that the driver of the vehicle that struck Muller failed to comply with the requirements of section 11 \u2014 403 of the Illinois Vehicle Code and, as such, the occurrence falls within the commonly accepted definition of a \"hit and run.\u201d\nOur reasoning is consistent with Walsh v. State Farm Mutual Automobile Insurance Co., 91 Ill. App. 2d 156, 234 N.E.2d 394 (1968). In Walsh, the plaintiff\u2019s insurance policy defined a \"hit and run\u201d automobile as one where \"there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile.\u2019 \u201d 91 Ill. App. 2d at 162. The plaintiff was struck from behind by another vehicle while she waited for a traffic light. She became afraid to exit her vehicle when she saw that the male driver was slumped over the wheel and making faces at her. The driver followed erratically behind her for awhile and then swerved around her car and proceeded on. At that point, the plaintiff was able to identify the car as a red Rambler station wagon. The reviewing court affirmed the trial court\u2019s finding of coverage, concluding that the phrase \"cannot be ascertained\u201d in her policy included, not only situations where the driver had fled the scene, but also where the identity of the driver could not be discovered because the insured reasonably feared a risk of her own physical safety. Walsh, 91 Ill. App. 2d at 163.\nFiremen\u2019s contends that the \"key\u201d distinguishing factor in Walsh was that the plaintiff described the driver, specified the type of vehicle that struck her, and determined that the vehicle left the scene. However, a close reading of the case reveals that the court\u2019s holding was based on its determination that the term \"cannot be ascertained\u201d included those situations in which the behavior of the insured, i.e., her fear in exiting the vehicle, was in part responsible for the lack of identification of the offending vehicle. Walsh, 91 Ill. App. 2d at 163. Here, Muller was allegedly rendered unconscious and was, therefore, unable to specify which of the many vehicles involved in the accident had hit her. While it is true that the plaintiff in Walsh was able to identify the make of the vehicle that hit her, we find this to be a distinction without a difference. We see no reason why an insurance company would accept this fleeting identification as sufficient to allow coverage for a \"hit-and-run\u201d driver and would reject an insured\u2019s statement that she was hit by another car but was rendered unconscious and incapable of providing any details of the vehicle or vehicles that struck her.\nFor the reasons stated above, we believe that the stipulations of the parties together with the terms of Muller\u2019s policy with Firemen\u2019s establish that Muller was involved in an accident with a \"hit and run vehicle whose operator or owner cannot be identified,\u201d thus bringing her claim within the uninsured motorist coverage afforded under her policy. Consequently, we reverse the judgment entered in favor of Firemen\u2019s on counts I and III of Muller\u2019s complaint and remand this case to the circuit court with instructions to order the parties to arbitrate the claim in accordance with the terms of the subject policy of insurance.\nReversed and remanded with directions.\nHOURIHANE and SOUTH, JJ., concur.", "type": "majority", "author": "JUSTICE HOFFMAN" } ], "attorneys": [ "Joseph A. Tere, of Chicago, for appellant.", "Stellate & Schwartz, Ltd., of Chicago (Esther Joy Schwartz, James Scott McMahan and Donald E. Stellato, of counsel), for appellee." ], "corrections": "", "head_matter": "RICARDA MULLER, Plaintiff-Appellant, v. FIREMEN\u2019S FUND INSURANCE COMPANY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201496\u20143139\nOpinion filed June 27, 1997.\nRehearing denied August 14, 1997.\nJoseph A. Tere, of Chicago, for appellant.\nStellate & Schwartz, Ltd., of Chicago (Esther Joy Schwartz, James Scott McMahan and Donald E. Stellato, of counsel), for appellee." }, "file_name": "0719-01", "first_page_order": 737, "last_page_order": 745 }