{ "id": 5552527, "name": "MICHAEL BUCHALO, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE CO., Defendant-Appellee", "name_abbreviation": "Buchalo v. Country Mutual Insurance", "decision_date": "1980-04-21", "docket_number": "No. 79-912", "first_page": "1040", "last_page": "1048", "citations": [ { "type": "official", "cite": "83 Ill. App. 3d 1040" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "349 N.E.2d 485", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 279", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5378999 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0279-01" ] }, { "cite": "290 N.E.2d 371", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2760747, 2762870 ], "weight": 2, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0259-02", "/ill-app-3d/8/0259-01" ] }, { "cite": "296 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 241", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932959 ], "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0241-01" ] }, { "cite": "393 N.E.2d 1223", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3276581 ], "pin_cites": [ { "page": "303-05" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0298-01" ] }, { "cite": "58 Ill. 2d 596", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "323 N.E.2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 449", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2702244 ], "year": 1975, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0449-01" ] }, { "cite": "197 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "47 Ill. App. 2d 243", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5269170 ], "year": 1975, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/47/0243-01" ] }, { "cite": "373 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3423350 ], "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0662-01" ] }, { "cite": "400 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074014 ], "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0376-01" ] }, { "cite": "30 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "374 Ill. 576", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2531766 ], "opinion_index": 0, "case_paths": [ "/ill/374/0576-01" ] }, { "cite": "370 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3398709 ], "pin_cites": [ { "page": "701-02" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0699-01" ] }, { "cite": "396 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 495", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3288241 ], "pin_cites": [ { "page": "497-98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0495-01" ] }, { "cite": "312 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406059 ], "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0398-01" ] }, { "cite": "384 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3316267 ], "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0611-01" ] }, { "cite": "395 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490191 ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0108-01" ] } ], "analysis": { "cardinality": 831, "char_count": 18604, "ocr_confidence": 0.848, "pagerank": { "raw": 2.6477424256786787e-07, "percentile": 0.8237669454860109 }, "sha256": "f89e4838f26c14180463547c755c6381a3aad694f31e5e181f67aa1c7756fb37", "simhash": "1:272278f65e3da2e7", "word_count": 3035 }, "last_updated": "2023-07-14T21:00:47.613815+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL BUCHALO, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE CO., Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nMichael Buchalo (plaintiff) appeals from an order dismissing with prejudice his petition to compel arbitration filed against Country Mutual Insurance Company (defendant).\nThe petition alleged plaintiff was injured by the negligence of a hit- and-run driver on March 27, 1976. Defendant had issued a personal vehicle policy to plaintiff. The identity of the negligent driver was never determined.\nThe complaint also alleged a legal conclusion that plaintiff \u201chas complied with all terms and conditions of his policy of insurance.\u201d It alleged defendant has refused to name an arbitrator and to arbitrate. Plaintiff prayed arbitration be compelled under the Uniform Arbitration Act (111. Rev. Stat. 1977, ch. 10, par. 101 et seq.).\nThe policy of insurance contains this uninsured motorist endorsement by which defendant agreed:\n\u201cTo pay all sums which the Insured 000 shall be legally entitled to recover as damages from the owner or operator of an Uninsured Vehicle because of bodily injury, \u00b0 \u00b0 # sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such Uninsured Vehicle; provided, 000 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\nConcerning arbitration, the policy provides:\n\u201cIf the Insured and the Company do not agree as to the Insured\u2019s right to recover damages for such injury or as to the amount payable as damages under this Section, then each party shall, upon written demand of the Insured or upon written demand of the Company, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within thirty days, then upon the request of the Insured or the Company such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the Insured and the Company, ** 0\nDefendant filed a motion to dismiss the petition. This motion cited the following policy provision imposing a limitation period:\n\u201cNo suit, action or arbitration proceedings for the recovery of any claim under this Section shall be sustainable in any court of law or equity unless the insured shall have fully complied with all of terms of this policy, nor unless commenced within two (2) years after the occurrence of the loss.\u201d\nThe motion to dismiss averred plaintiff\u2019s petition was filed September 15,1978, after expiration of the two-year period. The motion also averred plaintiff did not allege he had filed a written demand for arbitration within two years of the occurrence.\nThis motion was properly filed under section 45 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 45.) This motion admitted the properly pleaded factual allegations of the complaint (Johnston v. City of Bloomington (1979),. 77 Ill. 2d 108, Ill. 395 N.E.2d 549), but not legal conclusions stated by the pleader (Zagar v. Gomberg (1978), 66 Ill. App. 3d 611, 612, 384 N.E.2d 426). This motion raised an issue of law as to whether the petition for arbitration was timely filed under the policy.\nBut, on December 18,1978, plaintiff filed an unverified \u201cstatement of facts.\u201d This document alleged that on April 2, 1976, defendant was notified by plaintiff\u2019s counsel in writing of the accident and plaintiff\u2019s claim. On April 29, 1976, defendant took a written statement from plaintiff regarding the claim, and an \u201coral demand for arbitration\u201d was made to defendant\u2019s claim adjuster. On July 10, 1976, plaintiff\u2019s counsel sent notice to defendant demanding arbitration but stating that arbitration would not be necessary if defendant negotiated in good faith with a view toward settlement. Negotiations were conducted by the parties until terminated by defendant.\nAlso on December 18, 1978, plaintiff filed his \u201cpetition in answer to defendant\u2019s motion to dismiss.\u201d This unverified document alleged plaintiff made oral demand for arbitration on April 29, 1976, to defendant\u2019s claim adjuster. It alleged that on July 10, 1976, plaintiff\u2019s counsel sent a written demand for arbitration to defendant. The document then proceeded with a legal argument raising contentions such as the uninsured motorist provision being void as against public policy. Appended to this document is an affidavit by counsel for plaintiff alleging that on April 29, 1976, at the home of plaintiff, the attorney made an oral demand for arbitration to defendant\u2019s claim adjuster. The claim adjuster \u201cagreed the oral demand was sufficiently within the terms of the insurance policy to protect Plaintiff\u2019s claim.\u201d Appended to this document is a copy of a letter dated July 10, 1976, sent by plaintiff\u2019s counsel to defendant:\n\u201cAs we discussed recently, I believe that Mr. Buchalo\u2019s case is worth more than $100,000.00 and that we will seek to stack per the \u2018Glidden case\u2019.\u201d As you advised, your principal does not believe we can stack. Therefore, I believe the best thing to do with respect to this case is to arbitrate. I will, in the future, forward you the name of our arbitrator.\nAs long as we can negotiate this file with the view of settlement, I believe that my demand stated in this letter will comply with your policy requirements.\nAs stated to you in previous letters, my client and I wish to comply with all your policy requirements. I suggest you contact your principal and advise me of your position.\u201d\nOn February 2, 1979, defendant filed a \u201cresponse to plaintiff\u2019s petition.\u201d This document contained a legal argument and citation of authorities.\nOn February 2, 1979, defendant filed an affidavit by its claim adjuster. Affiant stated that on April 29, 1976, he was at plaintiff\u2019s home. He discussed plaintiff\u2019s injuries with trial counsel for plaintiff. Said counsel made no oral demand for arbitration and the affiant \u201cmade no such acknowledgment of same.\u201d Affiant never made any offer or promise of settlement to plaintiff or his attorney.\nAfter a hearing, on February 21, 1979, the trial court dismissed plaintiff\u2019s suit with prejudice.\nOn March 6, 1979, plaintiff filed an unverified motion for reconsideration. This document cited and argued legal authorities. Appended thereto as exhibits are 13 copies of letters including the copy of the letter from plaintiff\u2019s counsel to defendant, dated July 10,1976, above quoted. Included therein is \u00e1 letter to defendant from plaintiff\u2019s counsel dated May 8, 1978, as follows:\n\u201cIt has been sometime since we have written you concerning the above case.\nIn the intervening time, pursuant to your request, I have attempted to obtain the bills from Jackson Park Hospital. I note that there is not a date set for the arbitration of this matter. Pursuant to Section 2 of my client\u2019s insurance policy, please be advised that I herein demand arbitration on the matter and in further answer thereof, select as my arbitrator, Sheldon R. Brenner, 180 North LaSalle Street, Chicago, Illinois.\nI am forwarding a copy to Mr. Brenner and instructing him to pursue the litigation as soon as possible.\u201d\nOn March 6, 1979, the trial court denied plaintiff\u2019s motion for reconsideration of the dismissal.\nThe statement of facts and the petition in answer to. defendant\u2019s motion to dismiss filed by plaintiff on December 18, 1978, are legally unauthorized in conjunction with a section 45 motion. We are not aware of any provision in law which provides for or requires the filing of factual statements, responses, or petitions in response to a motion to dismiss a complaint for legal insufficiency under section 45. The same is true of defendant\u2019s response to plaintiff\u2019s petition filed February 2, 1979.\nThe difference between a motion under section 45 and a motion depending upon affidavits is fully explained in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605. There the supreme court expressly disapproved a procedure whereby a motion to dismiss under section 45 was intermingled with a motion for summary judgment. (See also Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 497-98, 396 N.E.2d 34.) However, for the sake of completeness and for purposes of fairness, since both parties have expanded the scope of the matter beyond application of section 45, we will consider this case as a motion filed under section 48 of the Civil Practice Act.\nPlaintiff\u2019s present counsel contends in this court that plaintiff\u2019s letter of July 10, 1976, filed within the limitation period of the policy, was a proper demand for arbitration as a matter of law; an issue is raised as to whether defendant should be estopped to assert policy provisions requiring a written demand or whether said provisions were waived; and whether the above cited policy provisions are void as against public policy because they operate to deprive the plaintiff of legally required uninsured motorist coverage.\nWe cannot find that all of the facts sought to be advanced by plaintiff here are properly before us. As above shown, a number of factual matters sought to be raised by plaintiff are in many instances not supported by affidavit. The one exception is the affidavit by former counsel for plaintiff filed December 18, 1978, regarding the alleged oral demand for arbitration. But no point was raised by defendant in the trial court or in this court regarding insufficiency of the unverified material. Consequently, although these various allegations should have been supported by affidavit (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)), we conclude that the point has been waived by defendant. (See Crowe v. Public Building Com. (1977), 54 Ill. App. 3d 699,701-02,370 N.E.2d 32.) We will therefore consider each and all of the contentions raised in this court by present counsel for plaintiff despite the legal irregularities above discussed.\nI.\nRegarding the sufficiency of the letter of July 10, 1976, sent to defendant by plaintiff\u2019s former counsel, plaintiff cites Pioneer Life Insurance Co. v. Alliance Life Insurance Co. (1940), 374 Ill. 576, 30 N.E.2d 66, to the effect that ambiguous expressions whereby an insurer seeks to limit its liability will be construed most strongly against it. We find no ambiguity in the above-quoted policy provision. It provides clearly and simply for arbitration if the parties fail to agree upon an adjustment. The language requires that each party shall \u201cupon written demand of the insured or upon written demand of the company, select a competent and disinterested arbitrator.\u201d \u201cAn insurance policy in which no ambiguity appears is to be read as any other contract, that is, according to the plain and ordinary meaning of its terms.\u201d Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 378, 400 N.E.2d 921.\nIn the case before us the letter of July 10,1976, did not constitute such a demand. The letter is at best a statement of opinion by plaintiff\u2019s former counsel that he believed \u201cthe best thing to do with respect to this case is to arbitrate.\u201d The statement follows that counsel would, \u201cin the future, forward you the name of our arbitrator.\u201d This letter does not constitute an unequivocal demand for arbitration.\nThe statement in the next paragraph of the letter regarding \u201cmy demand stated in this letter\u201d throws no light upon this subject. Patently, in this context, the word \u201cdemand\u201d refers to the amount of settlement requested by the writer of the letter. This second paragraph of the letter refers to continued negotiations between the parties. In addition, this letter is insufficient under the policy because it fails to name the plaintiff\u2019s arbitrator. This letter is uniquely contrasted by the subsequent letter sent May 8,1978, after expiration of the policy limit of time for the demand. In this letter, former counsel for plaintiff stated a demand for arbitration coupled with a statement of the name and address of plaintiff\u2019s arbitrator.\nThe learned trial judge carefully considered the pleadings as well as all of the other material presented by the parties. At the hearings on the original motion to dismiss and also on the motion to reconsider, he concluded the letter of July 10, 1976, could not be considered a demand for arbitration. We agree with that result.\nII.\nOn the issue of waiver and estoppel, the policy provides:\n\u201cNotice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy nor estop the Company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed except by endorsement or a change in the Declarations issued to form a part of this policy signed by a duly authorized representative of the Company.\u201d\nHowever, in our opinion, we need not rely upon this policy provision in reaching the conclusion that no waiver or estoppel is shown by this record. A determination of this matter is made by comparison of the affidavit of former counsel for plaintiff and the counteraffidavit of the claim adjuster for defendant. The affidavit of former counsel states he \u201cmade an oral demand for arbitration under the terms of Defendant\u2019s policy which was orally acknowledged\u201d by the claim adjuster who in turn \u201cagreed the oral demand was sufficiently within the terms of the insurance policy to protect Plaintiff\u2019s claim.\u201d The affidavit of the claim adjuster states he and the attorney discussed the nature and extent of the client\u2019s injuries and how the injuries occurred. Affiant also states the attorney \u201cmade no oral demand for arbitration\u201d and affiant made no acknowledgment of any such demand.\nPresent counsel for plaintiff criticized the allegations in the affidavit of the claim adjuster as being conclusionary and not complying with Supreme Court Rule 191. (Ill. Rev. Stat. 1977, eh. 110A, par. 191.) However, the same objection may be raised, with even greater reason, to the affidavit of former counsel. See Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 668, 373 N.E.2d 645.\nIn the instant case, plaintiff would have the burden of proving waiver or estoppel. The evidence \u201cmust be clear, precise and unequivocal.\u201d (Jennings v. Bituminous Casualty Corp. (1964), 47 Ill. App. 2d 243, 249, 197 N.E.2d 513, cited in Allstate Insurance Co. v. National Tea Co. (1975), 25 Ill. App. 3d 449, 462, 323 N.E.2d 521, appeal denied (1975), 58 Ill. 2d 596.) The affidavit of the claim adjuster is a clear denial of the making of any oral demand for arbitration. In addition, if plaintiff\u2019s former counsel did in fact make an oral demand for arbitration, it was totally unnecessary to write defendant the letter dated July 10, 1976, which counsel now contends is a written demand for arbitration and then to write a second letter to defendant on May 8, 1978, which is unquestionably a written demand for arbitration in compliance with the policy.\nWe find a complete definition and discussion of the terms waiver and estoppel, together with many citations, in Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 303-05, 393 N.E.2d 1223. This material in the Florsheim opinion leads to the conclusion that neither estoppel nor waiver is operative here. The many authorities there stated convince this court that this record shows the plaintiff did not rely upon any act, conduct or nonaction of the insurer to its detriment, and the plaintiff was not in any manner misled by any acts or statements of the insurer or its agents.\nIII.\nThe final contention of plaintiff is the two-year limitation period for filing of suit or arbitration proceedings, as expressed in the policy as above set forth, is void because it operates to deprive plaintiff of his full statutory rights for recovery against the insurer for the conduct of an uninsured motorist. It is correct, as plaintiff points out, that the pertinent statute forbids renewal or issuance of a liability policy without providing coverage in situations involving \u201cuninsured motor vehicles and hit-and-run motor vehicles.\u201d (Ill. Rev. Stat. 1977, ch. 73, par. 755a.) The law of Illinois thus requires full protection of insured persons in this type of situation. (Kaszeski v. Fidelity and Casualty Co. (1973), 54 Ill. 2d 241, 246, 296 N.E.2d 743.) The remaining problem, however, is whether the limitation expressed in the policy provision here prevents full exercise by plaintiff of all of his rights under the statute.\nPlaintiff cites and relies upon Burgo v. Illinois Farmers Insurance Co. (1972), 8 Ill. App. 3d 259,290 N.E.2d 371. In Burgo, this court held invalid a policy limitation period of one year for the institution of arbitration proceedings concerning an uninsured motorist. The court reasoned, in view of the statute above cited, that the insurer could not legally reduce the limitation period for arbitration beyond the applicable period of limitation upon the claim itself. Since the statute in question did not mention a time limit, the usual statute of limitations should be applicable. (Burgo, 8 Ill. App. 3d 259, 264.) However, we find Burgo properly differentiated in Coyne v. Country Mutual Insurance Co. (1976), 39 Ill. App. 3d 279, 349 N.E.2d 485. In Coyne, the court held the two-year contractual limitation regarding institution of arbitration proceedings, as in the case at bar, did not violate the pertinent statute above cited.\nPlaintiff also urges the limitation period renders meaningless the statute pertaining to giving of security in case of accidents involving an uninsured motorist. (Ill. Rev. Stat. 1977, ch. 95*2, par. 7 \u2014 100 et seq.) We reject this contention. The case before us involves not the usual uninsured motorist but a hit-and-run motorist. Therefore plaintiff necessarily, and by the allegations of his own complaint, could have had no knowledge regarding financial responsibility of tortfeasor.\nFor these reasons the judgment appealed from is affirmed.\nJudgment affirmed.\nO\u2019CONNOR and CAMPBELL, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "William J. Harte, Ltd., of Chicago, for appellant.", "John T. Burke, of Chicago (David O. Lehman, of counsel), for appellee." ], "corrections": "", "head_matter": "MICHAEL BUCHALO, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE CO., Defendant-Appellee.\nFirst District (1st Division)\nNo. 79-912\nOpinion filed April 21, 1980.\nWilliam J. Harte, Ltd., of Chicago, for appellant.\nJohn T. Burke, of Chicago (David O. Lehman, of counsel), for appellee." }, "file_name": "1040-01", "first_page_order": 1062, "last_page_order": 1070 }