{
  "id": 2525441,
  "name": "Liberty Mutual Insurance Company, Plaintiff-Appellant, v. Fred A. Duray, Defendant-Appellee",
  "name_abbreviation": "Liberty Mutual Insurance v. Duray",
  "decision_date": "1972-04-06",
  "docket_number": "No. 54632",
  "first_page": "187",
  "last_page": "190",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "41 Ill.2d 91",
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  "analysis": {
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  "last_updated": "2023-07-14T19:05:48.814564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Liberty Mutual Insurance Company, Plaintiff-Appellant, v. Fred A. Duray, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE McGLOON\ndelivered the opinion of the court:\nThis is an appeal from an order of the Circuit Court granting defendant Duray\u2019s motion to dismiss plaintiff Liberty Mutual\u2019s complaint for declaratory judgment and a subsequent order refusing to vacate the order of dismissal. The trial court ruled favorably upon defendant\u2019s motion on the basis that a previous order of the Circuit Court, denying plaintiff\u2019s petition to stay arbitration, was res judicata of the matters raised in the complaint for declaratory judgment. Plaintiff argues on appeal that the denial of its petition to stay arbitration was not a bar to its suit for declaratory judgment. Plaintiff argues on appeal that the denial of its petition to stay arbitration was not a bar to its suit for declaratory judgment, and furthermore, that its complaint states a good cause of action.\nWe affirm.\nDuray was injured by a racing car driven by one Mark Perrin who was racing at the Rockford Speedway, at which Duray was a spectator. Perrin was uninsured, and consequently Duray filed a \u201cDemand for Arbitration\u201d pursuant to the uninsured motorist provision of the insurance policy issued by Liberty Mutual Insurance Company, under which he was an insured. Liberty Mutual thereafter filed an answer and an objection to hearing locale, both of which were denied by the American Arbitration Association. Liberty Mutual then filed in the Circuit Court a petition to stay arbitration which reads in relevant part as follows:\n\u201c4. That Petitioner denies that the alleged uninsured motorist was operating a \u201chighway vehicle\u2019 as defined in the aforementioned policy at the time of the occurrence complained of.\n5. That the dispute is one of policy construction.\n6. That coverage questions are not arbitrable under the arbitration clause of said policy.\n7. That only the issues of liability and damages are the subject of arbitration.\nWHEREFORE, your Petitioner LIBERTY MUTUAL INSURANCE COMPANY prays the Court for an Order staying the arbitration proceedings now pending before the American Arbitration Association under their No. 51 20 0206 67.\u201d\nDuray filed a motion to dismiss this petition, and Liberty Mutual answered the motion to dismiss. On August 1, 1967, the following order was entered by the Circuit Court:\n\u201cThe matters having been heard before this court, the court having jurisdiction thereof and being fully advised in the premises.\nIT IS HEREBY ORDERED that the Petition to Stay Arbitration filed herein by Liberty Mutual Insurance Co. is hereby denied.\u201d\nNo appeal was ever taken from this order.\nOn December 14, 1967, Liberty Mutual filed its complaint for declaratory judgment in the Circuit Court requesting that the court consider and adjudicate the question of coverage. This action was dismissed on the ground that the order of August 1 was res judicata of the issues raised. Liberty Mutual then filed a motion to vacate this order of dismissal which was denied.\nLiberty Mutual begins its argument by urging that questions of coverage are matters of law and not properly subject to arbitration. It alleges that it only agrees to arbitrate the issues of liability and damages when its insured is injured by an uninsured motorist driving a \u201chighway vehicle.\u201d Liberty Mutual further alleges that there is an issue of fact as to whether the vehicle driven by Perrin was a \u201chighway vehicle\u201d under the terms of the policy, and that such an issue is properly decided by a court of law since it goes to the heart of whether or not there is an argument to arbitrate. The case of Flood v. Country Mutual Insurance Co. (1968), 41 Ill.2d 91, 242 N.E.2d 149 is cited as authority for this argument.\nThe Flood case stands for the proposition that matters of coverage are not subject to arbitration. However, in Flood the court was considering an appeal from the denial of Country Mutual\u2019s petition for stay of arbitration. In the case at bar, we are not being asked to rule upon the correctness of the August 1 order dismissing Liberty Mutual\u2019s petition to stay arbitration, but rather we are requested to rule on the validity of the separate order dismissing Liberty Mutual\u2019s later complaint for declaratory judgment on the basis that the August 1 order was res judicata of the issues raised in the complaint.\nThe petition to stay arbitration was brought under Section 2(b) of the Uniform Arbitration Act (Ill. Rev. Stat. 1969, ch. 10, par. 102(b)) which states:\n\u201c(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.\u201d\nIn order to determine whether an agreement to arbitrate existed between the parties at bar, the court before which this action was brought would have had to determine the issue of coverage. If there was coverage under the policy, then arbitration should have proceeded. Liberty Mutual argues that the issue it presented to the Circuit Court was limited to the question of whether the Circuit Court would take jurisdiction in the dispute over the interpretation of the insurance policy. The inarticulated presumption here is that the section of the Uniform Arbitration Act invoked in the petition to stay arbitration authorizes the court to do no more than freeze the status quo of the parties while the petitioning party determines whether to bring an action for declaratory judgment or some other remedy in which the substantive issue of the availability of arbitration can be decided.\nWe do not find this to be the case. The statute provides that when the existence of an agreement to arbitrate comes into issue, it \u201c* * * shall be forthwith and summarily tried and the stay ordered if found for the moving party.\u201d Thus, once the issue is raised in the pleadings, the statute provides for substantive disposition by the court prior to the issuance of the stay order.\nLiberty Mutual\u2019s attempt to limit the issue raised in its petition to stay arbitration was without effect, for when res judicata was pleaded as a bar to the complaint for declaratory judgment, it was not only a bar to the particular issue raised by Liberty Mutual in the petition to stay arbitration, \"but to every point which properly belongs to the subject of litigation, and which the parties, exercising a reasonable degree of diligence, might have brought forward in time.\u201d Howard T. Fisher & Asso. Inc. v. Shinner Realty Co. (1960), 24 Ill.App.2d 216, 223, 164 N.E.2d 266, 270; Prochotsky v. The Union Central Life Ins. Co. (1972), 2 Ill. App.3d 354.\nThis rule has evolved not only to assure litigants of an eventual termination of their lawsuits, but also to prevent the collateral impeachment of court rulings. Although Liberty Mutual complains that the court considering its petition to stay arbitration refused to hear evidence on its policy defenses, its remedy was to appeal that court\u2019s adverse decision, not to seek a more favorable forum in which to litigate the same matter.\nThe propriety of the August 1 order is not before this court. The issue before us is whether res judicata was properly raised as a basis to dismiss Liberty Mutual\u2019s complaint for declaratory judgment, and we find that it was.\nJudgment affirmed.\nDEMPSEY and McNAMARA, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "Jack L. Watson, of Schaffenegger & Watson, of Chicago, for appellant.",
      "George F. Archer and Lawrence P. Hickey, both of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Liberty Mutual Insurance Company, Plaintiff-Appellant, v. Fred A. Duray, Defendant-Appellee.\n(No. 54632;\nFirst District\nApril 6, 1972.\nJack L. Watson, of Schaffenegger & Watson, of Chicago, for appellant.\nGeorge F. Archer and Lawrence P. Hickey, both of Chicago, for appellee."
  },
  "file_name": "0187-01",
  "first_page_order": 209,
  "last_page_order": 212
}