{
  "id": 4267354,
  "name": "THADEUS NORRIS et al., as Special Adm'rs of the Estate of Tommy J. Norris, Deceased, Plaintiffs-Appellees, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Defendant-Appellant",
  "name_abbreviation": "Norris v. National Union Fire Insurance",
  "decision_date": "2006-10-17",
  "docket_number": "No. 1\u201405\u20143132",
  "first_page": "576",
  "last_page": "590",
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    {
      "type": "official",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
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          "parenthetical": "\"The Code compels mandatory arbitration of uninsured motorist claims as to liability and damages; these claims cannot be resolved in the judicial forum\""
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      "cite": "299 Ill. App. 3d 68",
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      "case_ids": [
        221426
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          "page": "73",
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      "cite": "605 N.E.2d 539",
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      "reporter": "N.E.2d",
      "year": 1992,
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        {
          "parenthetical": "purpose of section 143a(l) is to \"expedite the processing of uninsured motorist claims\""
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      "cite": "152 Ill. 2d 533",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
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        5603065
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      "pin_cites": [
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          "page": "541",
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      "cite": "572 N.E.2d 308",
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      "year": 1991,
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      "cite": "213 Ill. App. 3d 683",
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        2605480
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          "page": "687"
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          "page": "687"
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          "page": "687"
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      "cite": "781 N.E.2d 335",
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      "cite": "335 Ill. App. 3d 687",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        637092
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        {
          "parenthetical": "\"The State's insurance code requires automobile policies containing uninsured motorist clauses to provide for arbitration. See Ill. Rev. Stat. 1989, ch. 73, par. 755a et seq.\""
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      "cite": "212 Ill. App. 3d 712",
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        2599624
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        {
          "page": "714",
          "parenthetical": "\"The State's insurance code requires automobile policies containing uninsured motorist clauses to provide for arbitration. See Ill. Rev. Stat. 1989, ch. 73, par. 755a et seq.\""
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        3750268
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        10332523
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      "cite": "152 Ill. 2d 407",
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        5603236
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        3112113
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      "reporter": "Ill. App. 3d",
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        351119
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        {
          "page": "869"
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          "page": "870"
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          "page": "872-74"
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      "cite": "667 N.E.2d 877",
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        {
          "page": "880",
          "parenthetical": "\"An employee injured on the job by an underinsured third person is not permitted to recover UM benefits provided under a standard policy by an employer's motor vehicle insurer\""
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    {
      "cite": "423 Mass. 346",
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      "reporter": "Mass.",
      "case_ids": [
        1027960
      ],
      "year": 1996,
      "pin_cites": [
        {
          "page": "350",
          "parenthetical": "\"An employee injured on the job by an underinsured third person is not permitted to recover UM benefits provided under a standard policy by an employer's motor vehicle insurer\""
        }
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      "reporter": "N.E.2d",
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    {
      "cite": "416 Mass. 652",
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      "reporter": "Mass.",
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        819044
      ],
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    {
      "cite": "252 Neb. 1",
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        1327215
      ],
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        {
          "page": "4",
          "parenthetical": "exclusive remedy provision protected the employer's insurer in its role as the workers' compensation carrier, not in its roles as employer's underinsured motorist carrier"
        },
        {
          "page": "133-34",
          "parenthetical": "exclusive remedy provision protected the employer's insurer in its role as the workers' compensation carrier, not in its roles as employer's underinsured motorist carrier"
        }
      ],
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        "/neb/252/0001-01"
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    {
      "cite": "990 S.W.2d 621",
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      "case_ids": [
        11623195
      ],
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          "page": "625",
          "parenthetical": "exclusive remedy provision did not preclude recovery of uninsured motorist benefits because it was intended only to protect the employer, not its underinsured motorist insurance carrier"
        }
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    {
      "cite": "344 Ark. 555",
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        210147
      ],
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          "page": "564",
          "parenthetical": "\"it is clear that Hartford [employer's automobile insurer] was not the workers' compensation carrier, thus making that extension of the exclusive-remedy statute inapplicable here\""
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        {
          "page": "448",
          "parenthetical": "\"it is clear that Hartford [employer's automobile insurer] was not the workers' compensation carrier, thus making that extension of the exclusive-remedy statute inapplicable here\""
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    {
      "cite": "329 N.E.2d 1",
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      "year": 1975,
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        {
          "parenthetical": "\"In view of the language of the statute, and its legislative history, we hold that the general liability insurer is immune from suit when the basis alleged is negligent safety inspections\""
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    {
      "cite": "28 Ill. App. 3d 373",
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        5412648
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          "page": "384",
          "parenthetical": "\"In view of the language of the statute, and its legislative history, we hold that the general liability insurer is immune from suit when the basis alleged is negligent safety inspections\""
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        5766768
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        5493488
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        3575749
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        {
          "parenthetical": "\"When a judgment of the circuit court is reversed and the cause is remanded by this court with specific directions as to the action to be taken, it is the duty of the trial court to follow those directions\""
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        910257
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      "THADEUS NORRIS et al., as Special Adm\u2019rs of the Estate of Tommy J. Norris, Deceased, Plaintiffs-Appellees, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Defendant-Appellant."
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        "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nThis is the second time this case has come before the appellate court. The defendant National Union Fire Insurance Co. of Pittsburgh, PA. (National Union), contends the uninsured motorist coverage limits rulings against it the first time were wrong and asks us to change them. National Union also contends the statutorily required arbitration based on the first decision is not binding on the parties and should not have been confirmed by the trial court. We adhere to the rulings in the first Norris decision and we affirm the trial court\u2019s judgment on the arbitration award.\nFACTS\nA clear understanding of the issues before us requires us to recount the history of this case.\nPlaintiffs Thadeus and Nicolette Norris are special administrators of the estate of Tommy J. Norris, a truck driver employed by Jones Truck Lines, Inc. (Jones). Jones was insured under a commercial fleet general liability policy issued by National Union. On October 4, 1989, Tommy Norris was involved in a fatal accident with an uninsured motorist while working for Jones. The National Union policy had personal injury limits of $2 million per accident but did not include uninsured motorist coverage. Norris\u2019s estate received $200,000 in workers\u2019 compensation benefits as a result of his death.\nPlaintiffs filed suit seeking a declaration that National Union\u2019s policy should be reformed to include uninsured motorist coverage equal to the policy\u2019s bodily injury liability limits of $2 million. On cross-motions for summary judgment, the trial court granted plaintiffs\u2019 motion to reform the policy but ordered the policy reformed to the minimum statutory limits of $20,000 per person and $40,000 per occurrence. Because Norris\u2019s estate received $200,000 in workers\u2019 compensation benefits, the trial court held the workers\u2019 compensation setoff provision in the policy barred recovery under any possible uninsured motorist claim. Plaintiffs appealed.\nIn Norris v. National Union Fire Insurance Co., 326 Ill. App. 3d 314, 760 N.E.2d 141 (2001) (Norris I), this court considered: (1) whether the trial court correctly reformed the commercial trucking policy to require the insured to provide uninsured motorist benefits only in the amount of the statutory minimum requirements; (2) whether plaintiffs\u2019 receipt of workers\u2019 compensation benefits in excess of the statutory minimum for uninsured motorist coverage served as a setoff, barring plaintiffs\u2019 uninsured motorist claim; (3) whether the exclusive remedy afforded by the Workers\u2019 Compensation Act (820 ILCS 305/5(a) (West 2000)) barred plaintiffs\u2019 claim for uninsured motorist coverage against the decedent\u2019s employer or its insurer; and (4) whether plaintiffs\u2019 claim for uninsured motorist coverage was barred because the National Union policy specifically excluded employees who are injured during the course of employment and covered by workers\u2019 compensation coverage.\nThe court reversed the trial court\u2019s order and remanded the cause for further proceedings, finding the National Union policy should have been reformed to include uninsured motorist coverage up to the personal injury limits of the policy, $2 million. Norris, 326 Ill. App. 3d at 322. Since the reformation should have included uninsured motorist coverage up to $2 million, the court concluded consideration of whether workers\u2019 compensation benefits in excess of the statutory minimum uninsured motorist coverage act as a setoff against any recovery was \u201crendered unnecessary.\u201d Norris, 326 Ill. App. 3d at 322.\nThe court rejected National Union\u2019s argument that the exclusive remedy provision of the Workers\u2019 Compensation Act (820 ILCS 305/ 5(a) (West 2000)) barred plaintiffs\u2019 claims, finding \u201c[t]he category of third parties liable in tort to an injured employee is conspicuously absent from the language of the Workers\u2019 Compensation Act.\u201d Norris, 326 Ill. App. 3d at 323. The court also held the employee exclusion contained in the National Union policy was \u201cunenforceable as a matter of public policy in this situation.\u201d Norris, 326 Ill. App. 3d at 323. National Union filed a petition for leave to appeal to the Illinois Supreme Court, which was denied. Norris v. National Union Fire Insurance Co. of Pittsburgh, PA., 198 Ill. 2d 618, 770 N.E.2d 220 (2002).\nOn remand, the trial court ordered the matter to arbitration pursuant to the 1989 version of section 143a(l) of the Insurance Code. Ill. Rev. Stat. 1989, ch. 73, par. 755a(l) (\u201cany dispute with respect to [uninsured motorist] coverage shall be submitted for arbitration to the American Arbitration Association.\u201d) The defendant did not attempt to appeal the trial court\u2019s order. The arbitrator entered a $2 million award for plaintiffs, which was reduced to $1,575,500 based on the decedent\u2019s contributory negligence and the workers\u2019 compensation benefits received by decedent\u2019s estate. On June 3, 2005, plaintiffs filed a motion to confirm the arbitration award. National Union filed a rejection of the arbitration award and requested a trial, relying on Supreme Court Rule 95 (134 Ill. 2d R. 95). National Union did not file a motion to vacate the arbitration award. On August 19, 2005, the trial court confirmed the award, noting:\n\u201cThe law in effect at the time the policy was issued provided for mandatory and binding arbitration. If mandatory and binding arbitration means anything, it means that the losing party does not have a right to a trial de novo.\u201d\nDECISION\nNational Union contends this court\u2019s decision in Norris I should be overturned because it is palpably erroneous and works a manifest injustice against both insurers and insureds. National Union contends the law of the case doctrine does not bar reconsideration of the issues raised and decided in Norris I.\nPlaintiffs contend National Union forfeited its right to challenge Norris I as palpably erroneous because it failed to raise the issue on remand in the trial court. We fail to see how National Union could have raised such a challenge in the trial court. On remand, the trial court was bound to follow this court\u2019s directions. See Harris Trust & Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d 383, 387, 696 N.E.2d 697 (1998) (\u201cWhen a judgment of the circuit court is reversed and the cause is remanded by this court with specific directions as to the action to be taken, it is the duty of the trial court to follow those directions\u201d). Any argument to the contrary would have been futile. We find \u2022 forfeiture does not apply here.\nUnder the law of the case doctrine, questions of law decided on a previous appeal are binding on the trial court on remand as well as on the appellate court on a subsequent appeal. Martin v. Federal Life Insurance Co., 268 Ill. App. 3d 698, 701, 644 N.E.2d 42 (1994). However, the doctrine \u201cmerely expresses the practice of courts generally to refuse to reopen what has been decided; it is not a limit on their power.\u201d People v. Patterson, 154 Ill. 2d 414, 468-69, 610 N.E.2d 16 (1992).\nThe law of the case doctrine\u2019s purpose is \u201cto protect settled expectations of the parties, ensure uniformity of decisions, maintain consistency during the course of a single case, effectuate proper administration of justice, and bring litigation to an end.\u201d Petre v. Kucich, 356 Ill. App. 3d 57, 63, 824 N.E.2d 1117 (2005). The law of the case doctrine is also intended to maintain the prestige of the courts. Emerson Electric Co. v. Aetna Casualty & Surety Co., 352 Ill. App. 3d 399, 417, 815 N.E.2d 924 (2004). \u201c[I]f an appellate court issues contrary opinions on the same issue in the same case, its prestige is undercut.\u201d Emerson Electric Co., 352 Ill. App. 3d at 417. \u201cWhen an appellate court reverses and remands the cause with a specific mandate, the only proper issue on a second appeal is whether the trial court\u2019s order is in accord with the mandate.\u201d Petre, 356 Ill. App. 3d at 63.\nThere are two recognized exceptions to the law of the case doctrine\u2019s application: (1) when a higher reviewing court, subsequent to the lower court\u2019s decision, makes a contrary ruling on the same issue; and (2) when a reviewing court finds its prior decision was palpably erroneous. Martin, 268 Ill. App. 3d at 701; Stallman v. Youngquist, 152 Ill. App. 3d 683, 504 N.E.2d 920 (1987).\nI. Section 143a \u2014 2 of the Insurance Code\nNational Union contends the Norris I court erroneously held National Union\u2019s offer of uninsured motorist benefits to Jones was invalid under section 143a \u2014 2 of the Insurance Code.\nThe 1989 version of section 143a \u2014 2(1) of the Insurance Code provides:\n\u201cNo policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State *** unless uninsured motorist coverage as required in Section 143a of this Code is offered in an amount up to the insured\u2019s bodily injury limits.\u201d Ill. Rev. Stat. 1989, ch. 73, par 755a \u2014 2(1).\nTo satisfy the requirements of section 143a \u2014 2 of the Insurance Code, an offer must: (1) notify the insured in a commercially reasonable manner if the offer is not made in face-to-face negotiations; (2) specify the limits of the optional coverage without using general terms; (3) intelligibly advise the insured of the nature of the offer; and (4) advise the insured that optional coverage is available for a relatively modest premium increase. Cloninger v. National General Insurance Co., 109 Ill. 2d 419, 425-26, 465 N.E.2d 956 (1985). \u201cThe remedy for an inadequate offer of uninsured motorist coverage is to increase the existing coverage to limits equal to the bodily injury liability limits of the insured person\u2019s policy.\u201d Watson v. Hartford Casualty Insurance Co., 205 Ill. App. 3d 88, 95, 562 N.E.2d 1261 (1990).\nIn this case, the offer form instructed Jones to accept or reject uninsured coverage and informed Jones of the basic limits required in several states, including Illinois. As to Illinois, the form stated the basic limits required $30,000 in coverage. That was incorrect. The Insurance Code required a minimum of $20,000 per person and $40,000 per occurrence. The form also failed to identify how much additional coverage would cost.\nLarry E. May, director of risk management for Jones, testified at his deposition and by affidavit that it was Jones\u2019 corporate policy to reject uninsured motorist coverage where possible or, alternatively, to carry only the statutorily mandated minimum coverage. May testified at his deposition:\n\u201cQ. And I think you answered earlier, I just want to make sure the record is clear. You understood at all times when procuring insurance from National Union that you could purchase uninsured coverage up to your liability limits of $2 million?\nA. It was my understanding if I wanted it, they probably would sell me anything I was willing to pay for it.\nQ. Anything over\u2014\nA. Let me add one comment to that. They at all times offered me uninsured and underinsured motorist, and I at all times said no, as I\u2019ve told you in my initial presentation, I would reject \u2014 I do not want uninsured motorist or underinsured motorist to be a part of my program. If it\u2019s mandated by law, I will have to have it and you will have to cover it, but at whatever their absolute m\u00ednimums are. And at that point in time there is no need to talk about, well we can give you $5 million. I am not interested because I don\u2019t want it coming out of my pocket.\u201d\nMay did not directly answer the question asked: whether Jones knew National Union could provide it with uninsured motorist coverage up to the $2 million bodily injury policy limit. Nor did May explicitly say the $2 million limits were offered to Jones by National Union. An \u201coffer\u201d is required by section 143a \u2014 2(1) of the Insurance Code. Failure to obtain from May a clear statement that the $2 million limit was offered to Jones substantially weakens National Union\u2019s case for a finding of palpable error.\nIn Norris I, the majority held that as a result of the errors on the offer form, considering all presumptions in favor of the insured, it was as if no offer was made. Norris, 326 Ill. App. 3d at 322. The majority held it was \u201cunreasonable to ask a company or individual to accept or reject coverage that is incorrectly listed on the forms presented.\u201d Nor ris, 326 Ill. App. 3d at 321. While the majority recognized Jones had clearly marked an X in the space for rejecting uninsured motorist coverage, it concluded Jones could not make an informed choice to accept or reject since the offer was not made in a proper manner. Norris, 326 Ill. App. 3d at 322. The dissent, however, believed it was uncontested that National Union offered uninsured motorist coverage to Jones in an amount up to the insured\u2019s bodily injury limits. Norris, 326 Ill. App. 3d at 326.\nIf we are going to apply the palpably erroneous standard, we should endeavor to define it. New cases do. It comes up when courts are asked to deviate from the law of the case doctrine. See Stallman, 152 Ill. App. 3d at 689. No decision we have found explicitly defines the standard. But we are not without guidance. \u201cPalpable\u201d can be defined.\nThe abridged sixth edition of Black\u2019s Law Dictionary defines \u201cpalpable\u201d as \u201c[ejasily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.\u201d Black\u2019s Law Dictionary 767 (6th ed. 1991). In A Dictionary of Modern Legal Usage, second edition, \u201cpalpable\u201d is defined as \u201ctangible, apparent.\u201d A Dictionary of Modern Legal Usage 635 (2d ed. 1995).\nNot many Illinois decisions have applied the palpably erroneous standard to change the law of a specific case. It does happen. It happened in Stallman where the court decided to reconsider the parent-child tort immunity rule. Stallman, 152 Ill. App. 3d at 689. But the decision made it clear the palpably erroneous standard is used only when the court, in the first instance, remands the case for a new trial on all issues. On the second appeal, then, the court would actually reach a different decision based on a new and different trial. Stallman, 152 Ill. App. 3d at 689. See also Martin, 268 Ill. App. 3d at 701. That is not what happened in the case before us. Here, the mandate in Norris I foreclosed a trial on the issues. There are no new facts concerning coverage limits. All that remained to be done was to obtain an arbitrator\u2019s decision on the amount of recovery. Norris I did not turn on findings of law. It analyzed the record to conclude no contested factual issue existed \u2014 reformation takes the policy to the $2 million limit.\nThe other recognized exception to the law of the case doctrine\u2014 when a higher reviewing court makes a contrary ruling on the same issue \u2014 has not happened to Norris I. In fact, this court has relied on Norris I to support the proposition that \u201c 1 \u201cevery liability insurance policy issued for any motor vehicle registered or principally garaged in Illinois must provide coverage for bodily injury or death caused by an uninsured or hit-and-run vehicle.\u201d \u2019 \u201d Harrington v. American Family Mutual Insurance Co., 332 Ill. App. 3d 385, 392, 773 N.E.2d 98 (2002), quoting Norris, 326 Ill. App. 3d at 321, quoting Luechtefeld v. Allstate Insurance Co., 167 Ill. 2d 148, 152 (1995).\nWe conclude the law of the case doctrine prevents us from revisiting the Norris I reformation ruling. We reach this conclusion with some reluctance. Had the judges on this panel decided the issue in the first instance, the result well might have been different. But this is the second instance, and good legal policy reasons and the factual record compel the result we reach.\nThe law of the case doctrine, as we read it, applies to all of the issues raised by National Union. We could move directly to the arbitration issue raised by National Union, but for the sake of completeness, we will address National Union\u2019s other two reasons for contending Norris I should not be followed.\nII. Exclusive Remedy Provision\nNational Union contends the Norris I court\u2019s decision that the Workers\u2019 Compensation Act\u2019s exclusivity bar did not prohibit employees and their families from seeking and obtaining uninsured motorist benefits from the employer\u2019s insurer was palpably erroneous.\nSection 5(a) of the Illinois Workers\u2019 Compensation Act (the Act) states, in relevant part:\n\u201cNo common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.\u201d (Emphasis added.) 820 ILCS 305/5(a) (West 2000).\nHowever, section 143a(l) of the Insurance Code, which was passed after the adoption of the Workers\u2019 Compensation Act, provides that no policy shall be issued in Illinois unless uninsured motorist coverage is provided up to the statutorily required minimum set forth in section 7 \u2014 203 of the Illinois Vehicle Code \u201cfor the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.\u201d Ill. Rev. Stat. 1989, ch. 73, par. 755a(l).\nThe intent of the legislature in enacting section 143a was to ensure persons injured by an uninsured motorist are protected at least to the extent that compensation is made available to persons injured by a motorist insured for the legal limits. Severs v. County Mutual Insurance Co., 89 Ill. 2d 515, 519, 434 N.E.2d 290 (1982); American Service Insurance Co. v. Pasalka, 363 Ill. App. 3d 385, 390, 842 N.E.2d 1219 (2006). Nothing in the language of the statute excludes its application to employees injured by uninsured motorists during the course of their employment.\nIn this case, Jones was required to include uninsured motorist benefits up to the statutorily mandated minimum when he purchased his commercial fleet general liability policy from National Union. See Ill. Rev. Stat. 1989, ch. 73, par. 755a(l). Norris, a truck driver employed by Jones, was an intended beneficiary of the statutorily required protection. The injuries that ultimately led to Norris\u2019s death were caused by an uninsured third party, not by his employer or a co-employee. As the majority in Norris I noted, nothing in the Act explicitly precludes an employee\u2019s recovery of uninsured motorist benefits from the employer\u2019s automobile insurer. \u201cThe category of third parties liable in tort to an injured employee is conspicuously absent from the language of the Workers\u2019 Compensation Act.\u201d Norris, 326 Ill. App. 3d at 323.\nWe recognize the language \u201chis insurer or his broker to provide safety service, advice or recommendations for the employer\u201d in section 5(a) of the Act (820 ILCS 305/5(a) (West 2000)) has been interpreted to extend immunity beyond workers\u2019 compensation carriers to general liability insurers in one distinct area \u2014 liability for negligent safety inspections. See Mier v. Staley, 28 Ill. App. 3d 373, 384, 329 N.E.2d 1 (1975) (\u201cIn view of the language of the statute, and its legislative history, we hold that the general liability insurer is immune from suit when the basis alleged is negligent safety inspections\u201d). The apparent purpose of the amendment was to promote industrial safety inspections. Mier, 28 Ill. App. 3d at 385. However, nothing in the legislative history, Illinois case law, or the Act itself suggests the legislature intended to extend immunity to an employer\u2019s automobile insurer.\nAfter reviewing the analysis and reasoning of the Norris I court\u2019s decision, we agree \u201cthe bar contained in section 5(a) does not apply.\u201d Norris, 326 Ill. App, 3d at 323.\nAlthough no other Illinois case has considered this precise question, a majority of jurisdictions that have considered the question have reached a similar conclusion. See Elam v. Hartford Fire Insurance Co., 344 Ark. 555, 564, 42 S.W.3d 443, 448 (2001) (\u201cit is clear that Hartford [employer\u2019s automobile insurer] was not the workers\u2019 compensation carrier, thus making that extension of the exclusive-remedy statute inapplicable here\u201d); Philadelphia Indemnity Insurance Co. v. Morris, 990 S.W.2d 621, 625 (Ky. 1999) (exclusive remedy provision did not preclude recovery of uninsured motorist benefits because it was intended only to protect the employer, not its underinsured motorist insurance carrier); Muller v. Tri-State Insurance Co. of Minnesota, 252 Neb. 1, 4, 560 N.W.2d 130, 133-34 (1997) (exclusive remedy provision protected the employer\u2019s insurer in its role as the workers\u2019 compensation carrier, not in its roles as employer\u2019s underinsured motorist carrier). But see Berger v. H.P. Hood, Inc., 416 Mass. 652, 624 N.E.2d 947 (1993); National Union Fire Insurance Co. of Pittsburgh, PA. v. Figaratto, 423 Mass. 346, 350, 667 N.E.2d 877, 880 (1996) (\u201cAn employee injured on the job by an underinsured third person is not permitted to recover UM benefits provided under a standard policy by an employer\u2019s motor vehicle insurer\u201d).\nNational Union contends both Atlantic Mutual Insurance Co. v. Payton, 289 Ill. App. 3d 866, 869, 682 N.E.2d 1144 (1997), and Robertson v. Travelers Insurance Co., 95 Ill. 2d 441, 446-52, 682 N.E.2d 1144 (1983), make clear that the exclusive remedy provision operates in favor of an employer\u2019s insurer. National Union focuses on the court\u2019s statement in Payton that \u201cthe legislature created this exclusive remedy not only for employers and coemployees but also specifically and expressly for insurers.\u201d Payton, 289 Ill. App. 3d at 870.\nContrary to National Union\u2019s contention, neither Payton nor Robertson applies in this case. In Payton, the court held an employee was not entitled to uninsured motorist benefits from his employer\u2019s automobile insurance carrier because the co-employee who caused the injuries was immune from suit under section 5(a) of the Workers\u2019 Compensation Act. Payton, 289 Ill. App. 3d at 872-74. The court specifically noted, however, that the case differed from third-party cases, which do not involve employee, co-employee, and employer relationships. Payton, 289 Ill. App. 3d at 869.\nIn Robertson, our supreme court held an employee could not file a common law action for outrageous conduct against his employer\u2019s workers\u2019 compensation insurer because section 19(k) of the Act provided the exclusive remedy for the unreasonable or vexatious delay in payment of benefits. Robertson, 95 Ill. 2d at 449-50. The supreme court did not address whether section 5(a) of the Act granted immunity to an employer\u2019s general liability or uninsured motorist carrier.\nWe therefore find this court\u2019s prior decision regarding the applicability of the exclusive remedy provision was not palpably erroneous. In fact, it was correct.\nIII. Insurance Policy\u2019s Employment Exclusion\nNational Union contends the Norris I majority erroneously held the insurance policy\u2019s employment exclusions violated Illinois public policy.\n\u201c[A]n insurance policy is a contract between the [insurance] company and the policyholder, the benefits of which are determined by the terms of the contract unless the terms are contrary to public policy.\u201d Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 558, 591 N.E.2d 427 (1992). When the language of an insurance policy is clear and unambiguous the court will give effect to its terms. Grevas v. United States Fidelity & Guaranty Co., 152 Ill. 2d 407, 410, 604 N.E.2d 942 (1992). However, \u201c[t]he purpose underlying a statute cannot be circumvented by the insertion of a contrary or restricting provision in an insurance policy.\u201d Severs, 89 Ill. 2d at 520.\nIn this case, the insurance policy issued to Jones specifically excludes from coverage \u201cbodily injury\u201d to \u201c[a]n employee of the \u2018insured\u2019 arising out of and in the course of employment by the \u2018insured.\u2019 \u201d Exclusion three of the policy, entitled \u201cWorkers Compensation,\u201d also excludes \u201c[a]ny obligation for which the \u2018insured\u2019 or the \u2018insured\u2019s\u2019 insurer may be held liable under any workers compensation, disability benefits or unemployment compensation law or similar law.\u201d\nIn Norris I, the court held the exceptions were unenforceable as a matter of public policy. Norris, 326 Ill. App. 3d at 323. The court held:\n\u201cLogic dictates that a commercial trucking venture necessitates the use of employees to drive the trucks. It is highly likely that, like the decedent, some employees are going to get into traffic accidents with persons other than employers or co-employees. *** If the other driver had insurance, the Norris plaintiffs would be suing him and his insurer and would likely recover. As we have seen, the requirement of uninsured motorist coverage is mandated by the statute so as to facilitate an injured plaintiff or his or her heirs being made whole. In this particular situation, it would be both inequitable and against public policy to leave the heirs of this dead driver with no remedy.\u201d Norris, 326 Ill. App. 3d at 323-24.\nAlthough no other Illinois court has considered whether employee or workers\u2019 compensation exclusions preclude an employee from recovering uninsured motorist benefits, other jurisdictions that have considered the issue have held the exclusions do not apply when a negligent third party is at fault.\nIn Mirales v. Snoderly, 216 W. Va. 91, 602 S.E.2d 534 (2004), the West Virginia Supreme Court considered whether a workers\u2019 compensation exclusion to uninsured motorist coverage in a commercial business auto policy precluded an employee from recovering uninsured motorist benefits for injuries he sustained during the course of his employment as the result of an automobile accident with a negligent third party. The employee also received worker\u2019s compensation benefits. The court concluded the workers\u2019 compensation exclusion did not apply because the employee was injured by a third-party tortfeasor, not his employer. Mirales, 216 W. Va. at 97-98, 602 S.E.2d at 540-41.\nThe court\u2019s conclusion was based on the determination that while an employee may recover workers\u2019 compensation benefits for injuries that occurred in the course and scope of his employment, he \u201cis not statutorily- barred from also pursuing [his] claims against the third party as this individual does not enjoy the immunity afforded by the workers\u2019 compensation statutes.\u201d Mirales, 216 W Va. at 97, 602 S.E.2d at 540. See also Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92, 100 (Colo. 1995) (because the injured employee\u2019s claim was based on liability incurred by the third-party driver who caused the accident, the workers\u2019 compensation exclusion in the policy did not apply to the employee\u2019s uninsured benefits claim). Neither court concluded the exclusion violated public policy.\nIn this case, similar to M\u00edrales, decedent was injured by a third-party tortfeasor, not his employer or a co-employee. Since the exclusions in Jones\u2019s policy do not specifically refer to uninsured motorist coverage or to injuries caused by a negligent third party, we might have found a different reason to conclude the exclusions did not prevent plaintiffs\u2019 recovery of uninsured motorist benefits. In our opinion the employee and workers\u2019 compensation exclusions in Jones\u2019s policy simply do not apply to the facts of this case. See Mirales, 216 W Va. at 97, 602 S.E.2d at 540. In light of the purpose of section 143a(l), however, we cannot say this court\u2019s conclusion in Norris I that the exclusions violated public policy was palpably erroneous.\nIV Binding Arbitration\nNational Union contends the 1989 version of section 143a(l) of the Insurance Code provides for mandatory but nonbinding arbitration of uninsured motorist claims. In support, National Union points out that mandatory arbitration and binding arbitration are not always the same. Because the legislature did not use the word \u201cbinding\u201d to modify \u201carbitration,\u201d National Union contends the arbitration in this case cannot be read as binding.\nQuestions of statutory interpretation are issues of law reviewed de novo. In re Application of the County Collector, 356 Ill. App. 3d 668, 670, 826 N.E.2d 951 (2005). The primary rule in statutory interpretation is to determine and effectuate the intent of the legislature. In re Application of the County Collector, 356 Ill. App. 3d at 670. The best indication of legislative intent is the language of the statute. U.S. Bank National Ass\u2019n v. Clark, 216 Ill. 2d 334, 346, 837 N.E.2d 74 (2005). Words in the statute should be construed in context and given their plain and ordinary meaning. In re Application of the County Collector, 356 Ill. App. 3d at 670; Clark, 216 Ill. 2d at 346. If the statute\u2019s language is clear, extrinsic aids to interpretation are unnecessary. Clark, 216 Ill. 2d at 346; In re Application of the County Treasurer & ex officio Collector of Cook County, 323 Ill. App. 3d 1044, 1049, 753 N.E.2d 363 (2001). Where a term in a statute is ambiguous, use of the term in other parts of the statute or similar statutes can indicate the legislature\u2019s intent. In re Application of the County Collector, 356 Ill. App. 3d at 670.\nPointing to Illinois Supreme Court Rules 86 through 95, which provide for mandatory but nonbinding arbitration, National Union contends arbitration cannot be considered binding unless expressly indicated.\nContrary to National Union\u2019s contention, Supreme Court Rules 86 through 95 do not apply to this case. 134 Ill. 2d Rs. 85, 87 through 91, 93 through 95; 155 Ill. 2d Rs. 86, 92. Uninsured motorist claims are arbitrated pursuant to section 143a(l) of the Insurance Code, not Supreme Court Rule 86. See Allstate Insurance Co. v. Fisher, 212 Ill. App. 3d 712, 714, 571 N.E.2d 792 (1991) (\u201cThe State\u2019s insurance code requires automobile policies containing uninsured motorist clauses to provide for arbitration. See Ill. Rev. Stat. 1989, ch. 73, par. 755a et seq.\u201d). '\nAs National Union points out, a mandatory arbitration process has been established in several large urban counties in the State pursuant to Illinois Supreme Court Rule 86. But Supreme Court Rules 86 through 95 apply only where money damages do not exceed the maximum amount established by each judicial circuit. 155 Ill. 2d Rs. 86(b), (c). The maximum amount in Cook County is $30,000. See Cook Co. Cir. Ct. R. 18.3(b). The arbitration rules do not apply in this case, where the claim made by plaintiffs far exceeds the maximum limit anticipated by the supreme court rules. See State Farm, Insurance Co v. Harmon, 335 Ill. App. 3d 687, 688, 781 N.E.2d 335 (2002).\nSection 143a(l) of the Insurance Code provides:\n\u201cNo policy shall be renewed, delivered or issued for delivery in this State *** unless it is provided therein that any dispute with respect to the coverage shall be submitted for arbitration to the American Arbitration Association or for determination in the following manner: Upon the insured requesting arbitration, each party to the dispute shall select an arbitrator and the two arbitrators so named shall select a third arbitrator. If such arbitrators are not selected within 45 days from such request, either party may request that such arbitration be submitted to the American Arbitration Association.\u201d Ill. Rev. Stat. 1989, ch. 73, par. 755a(l) (now codified, as amended, at 215 ILCS 5/143a(l) (West 2004)).\nThis court has previously concluded arbitration conducted pursuant to section 143a(l) of the Insurance Code is binding. American Family Mutual Insurance Co. v. Baaske, 213 Ill. App. 3d 683, 572 N.E.2d 308 (1991). While we recognized in Baaske that arbitration is not always binding, we said arbitration is \u201cordinarily and popularly understood to be binding and to be an alternative to or replacement for the judicial resolution of a dispute.\u201d Baaske, 213 Ill. App. 3d at 687. For example, while Supreme Court Rules 86 through 95 provide for mandatory arbitration, the rules explicitly state the arbitration is not binding. Baaske, 213 Ill. App. 3d at 687. By contrast, neither the 1989 version of section 143a(l) nor the Insurance Code contains a similar provision. Baaske, 213 Ill. App. 3d at 687. See also State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 541, 605 N.E.2d 539 (1992) (purpose of section 143a(l) is to \u201cexpedite the processing of uninsured motorist claims\u201d); Brooks v. Cigna Property & Casualty Co., 299 Ill. App. 3d 68, 73, 700 N.E.2d 1052 (1998) (\u201cThe Code compels mandatory arbitration of uninsured motorist claims as to liability and damages; these claims cannot be resolved in the judicial forum\u201d).\nWe see no reason to depart from our prior decisions in Baaske and Brooks. Accordingly, we find mandatory arbitration pursuant to the 1989 version of section 143a(l) of the Insurance Code is binding.\nCONCLUSION\nWe find this court\u2019s rulings in Norris I were not palpably erroneous. We further find the arbitration conducted here was mandatory and binding pursuant to the 1989 version of section 143a(l) of the Insurance Code, as the trial court found.\nAffirmed.\nHOFFMAN and SOUTH, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE WOLFSON"
      }
    ],
    "attorneys": [
      "Clausen Miller, EC., of Chicago (Edward M. Kay, Paul Bozych, Melissa A. Murphy-Petros, and Paul V. Esposito, of counsel), for appellant.",
      "Topper & Weiss, Ltd., of Chicago (Barry Weiss, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "THADEUS NORRIS et al., as Special Adm\u2019rs of the Estate of Tommy J. Norris, Deceased, Plaintiffs-Appellees, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201405\u20143132\nOpinion filed October 17, 2006.\nClausen Miller, EC., of Chicago (Edward M. Kay, Paul Bozych, Melissa A. Murphy-Petros, and Paul V. Esposito, of counsel), for appellant.\nTopper & Weiss, Ltd., of Chicago (Barry Weiss, of counsel), for appellees."
  },
  "file_name": "0576-01",
  "first_page_order": 594,
  "last_page_order": 608
}
