Lathrop v. Safeco Insurance Co.

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2021.10.13
16:49:32 -05'00'
Lathrop v. Safeco Insurance Co., 2020 IL App (1st) 190741Appellate Court MARK LATHROP, Plaintiff-Appellant, v. SAFECO INSURANCE
Caption COMPANY, Defendant-Appellee.
District & No. First District, Fourth Division
No. 1-19-0741
Filed July 23, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 18-CH-7280; the
Review Hon. Moshe Jacobius, Judge, presiding.
Judgment Reversed and remanded.
Counsel on George G. Argionis and Evan Finneke, of Argionis & Associates,
Appeal LLC, of Chicago, for appellant.
Matthew O. Sitzer and Matthew C. Wolfe, of Shook, Hardy & Bacon
L.L.P., of Chicago, for appellee.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Justice Burke concurred in the judgment and opinion.
Presiding Justice Gordon concurred in part and dissented in part, with
opinion.
OPINION
¶1 Plaintiff, Mark Lathrop, was injured while riding his bicycle and made a claim on his
mother’s auto insurance policy to defendant, Safeco Insurance Company (Safeco), for
uninsured motorists coverage based on his collision with a hit-and-run driver. Safeco denied
Lathrop’s claim, concluding that he failed to comply with the policy provision to report the
accident involving a hit-and-run driver to the police within 24 hours or “as soon as practicable”
because he filed the police report 11 days after the accident.
¶2 Lathrop filed a complaint in the circuit court for declaratory relief against Safeco, and the
parties subsequently filed cross-motions for summary judgment. The circuit court granted
summary judgment in favor of Safeco and against Lathrop.
¶3 On appeal, Lathrop argues that he complied with the policy provision to report the hit-and-
run accident to the police within a reasonable time because he could not identify the offending
driver or vehicle and no one else witnessed the incident; he was in shock after the collision and
did not realize the seriousness of his injury until the pain increased days afterward and he
sought medical treatment; he was not aware that a bicycle collision would trigger coverage
under his mother’s auto insurance policy; he had to travel to the police station to report the
incident in person while he was suffering severe pain and wearing a neck brace; he timely
made the police report after he realized he had suffered a severe neck fracture and determined
that he wanted to bring a claim; and the passage of 11 days did not affect the ability of the
police or Safeco to investigate the accident due to the lack of evidence in this case. Lathrop
asks this court to reverse the ruling of the circuit court and order this matter to proceed to
arbitration.
¶4 For the reasons that follow, we reverse the judgment of the circuit court and remand the
case for further proceedings. 1
¶5 I. BACKGROUND
¶6 Based on the pleadings, affidavits, depositions, admissions, and exhibits on file, Lathrop,
at the time of the incident in question, had worked as a laborer or handyman, had graduated
from high school and taken some college-level courses on finance and commodity trading, and
was 56 years old. On the afternoon of September 10, 2015, he was riding his bicycle south on
Elmwood Street in Evanston, Illinois, in the direction of traffic. This was a residential area
without a lot of traffic. He had passed a police station and was approaching Greenleaf Street
when he heard a horn from the vehicle behind him. Before he could turn his head to look back,
his left shoulder was struck by the passenger-side mirror of a passing white truck. That contact
pushed Lathrop toward the parked vehicles on his right and caused him to fall and hit his
forehead on the back of a parked truck. When his forehead hit the truck, his head snapped
backwards. He fell to the ground with his bicycle, landing on his back.
¶7 Lathrop felt dazed but stood up after a minute. The offending truck driver did not stop.
Lathrop did not observe any witnesses to the incident and did not know what to do. He had his
cellphone in his possession but did not call the police because he was in shock and could not
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
1
appeal has been resolved without oral argument upon the entry of a separate written order.
-2-
identify the license plate number or any markings of the offender’s truck. Although Lathrop
felt some neck and forehead pain immediately after the collision, he thought that the pain would
subside and that medical treatment was unnecessary. His bicycle was damaged but still
rideable. He decided to go home and rest, so he initially walked one-half block with his bicycle
and then rode it about one mile to a bus stop. He took two buses to go home.
¶8 At the time of the incident, Lathrop lived with his mother in Northbrook, Illinois. When he
arrived home, he was upset about what had happened and watched television. When his mother
came home, he told her that he was hit by a truck and his neck “kind of” hurt. Over the next
few days, Lathrop had headaches and felt increased neck pain. On September 13, 2015, he
went to a hospital emergency room and underwent computed tomography (CT) scans of his
cervical spine and head. He was diagnosed with a cervical odontoid fracture, given pain
medication, and referred to a spine specialist. When Lathrop saw the spine specialist on
September 18, 2015, Lathrop stated that he injured his head and neck when a truck ran him off
the road and pushed him into a parked car. Lathrop was in severe pain in the days following
the collision and wore an immobilizing neck brace.
¶9 Lathrop’s mother had a Safeco automobile insurance policy at the time of the hit-and-run
incident. Because Lathrop had a serious neck injury, his mother and doctors advised him to
file a police report regarding the hit-and-run accident. Lathrop had to report the collision at an
Evanston police station in person because the matter was now an off-scene or delayed hit-and-
run report. On September 21, 2015, Lathrop went to an Evanston police station and reported
the hit-and-run incident.
¶ 10 Also in September 2015, counsel for Lathrop sent a demand for arbitration letter to Safeco
concerning the personal injury Lathrop suffered in the collision. Lathrop, who was listed as a
“rated driver” on his mother’s Safeco auto insurance policy, sought compensation under the
uninsured/underinsured motorists coverage and medical payments provisions of the policy.
Lathrop resided with his mother at the time of the collision and was a “family member” as
defined in his mother’s Safeco policy. Lathrop provided a recorded statement to Safeco, and
the parties exchanged written discovery. Lathrop also provided his medical records and
deposition testimony about the collision under oath.
¶ 11 Lathrop’s injury did not improve with conservative care, so he underwent a cervical fusion
and wire stabilization of his odontoid fracture in January 2016.
¶ 12 In May 2018, Safeco informed Lathrop that he was not entitled to uninsured motorist bodily
injury coverage under the policy due to his failure to report the hit-and-run accident to the
police within 24 hours or as soon as practicable.
¶ 13 Lathrop then filed a complaint for declaratory relief, which asked the circuit court to find
and declare that (1) Safeco was obligated to provide uninsured motorist coverage to Lathrop,
(2) Lathrop was in full compliance with the insurance policy provision to give notice as soon
as practicable, and (3) Safeco was obligated to proceed with arbitration according to the terms
of the policy.
¶ 14 In its answer, Safeco denied Lathrop’s allegation that he was an insured under the terms of
his mother’s Safeco policy and argued that the interpretation of the policy in relation to
Lathrop’s alleged facts was a legal matter for the court to decide and resolve. In its affirmative
defenses, Safeco asserted that Lathrop failed to (1) cooperate in the investigation of this claim
and (2) report the alleged hit-and-run incident to the police until 11 days after the occurrence,
in violation of the policy provision that required a person to “report an accident to the police
-3-
or other civil authority within twenty-four (24) hours or as soon as practicable if a hit-and-run
driver is involved.” Safeco argued that it had no duty to provide uninsured motorists coverage
or other coverage to Lathrop.
¶ 15 In response, Lathrop denied the allegations in Safeco’s affirmative defenses.
¶ 16 Thereafter, the parties filed cross-motions for summary judgment. Safeco argued that it did
not owe Lathrop any uninsured motorists coverage under his mother’s auto insurance policy
because the policy terms were clear and exact and there was no dispute that Lathrop failed to
comply with the condition precedent to report the alleged hit-and-run accident to the police
within 24 hours or as soon as practicable. Specifically, Safeco argued that nothing impeded
Lathrop from satisfying that condition precedent because he had his cellphone in his
possession; had cycled past the Evanston police station shortly before the accident occurred;
and was conscious, ambulatory, and not in need of immediate medical care after the accident.
Safeco also argued that Lathrop failed to report the September 10 accident to the police after
he received medical treatment from a hospital on September 13 and was seen by a spine
specialist on September 18. According to Safeco, Lathrop’s prior personal injury lawsuits and
involvement in collisions with vehicles as a bicyclist or pedestrian indicated that he was
knowledgeable about seeking recovery for claimed injuries.
¶ 17 Lathrop argued that, given all the surrounding circumstances, he complied with the policy
provision to report the hit-and-run accident to the police as soon as practicable, i.e., within a
reasonable time, when he went to an Evanston police station 11 days after the accident to file
in person his off-scene report. Specifically, Lathrop argued that the Safeco policy requirement
to report the hit-and-run accident to the police “as soon as practicable” was ambiguous because
it was a subjective rather than a specific timeframe. Lathrop also argued that, despite the severe
pain he was suffering, he was diligent in reporting the accident to the police when he learned
about the seriousness of his injury, the potential coverage under his mother’s auto insurance
policy, and the police department’s in-person reporting requirement.
¶ 18 In April 2019, the circuit court granted summary judgment in favor of Safeco and against
Lathrop, finding that Lathrop was not entitled to uninsured motorists coverage under the policy
because he failed to comply with a condition precedent to coverage. Specifically, the court
found that the clear and unambiguous policy provision required Lathrop to report the hit-and-
run accident to the police within 24 hours, “absent extenuating circumstances (i.e.,
incapacitation)”; however, “[i]f extenuating circumstances were present, then [Lathrop] was
required to report the accident to the police ‘as soon as practicable.’ ” The court concluded that
“no factor, event, or condition imped[ed] or inhibit[ed Lathrop] from reporting his accident to
the police within 24 hours because the record established that, shortly before the accident,
Lathrop had cycled past an Evanston police station, which was about one-half mile away from
the scene of the accident. Furthermore, Lathrop “was conscious, ambulatory, and not in need
of immediate care after the accident.” Also, he was in possession of his cell phone, his bicycle
was still rideable, and he was able to cycle to a bus stop and take two buses home.
¶ 19 When considering Lathrop’s sophistication in matters of commerce and insurance, the
court noted his education level and prior involvement “in multiple prior accidents” and two
personal injury lawsuits. The court did not find credible Lathrop’s testimony that he did not
know his mother’s automobile insurance policy would have provided coverage for his bicycle
hit-and-run accident and required him to report the accident to the police. Finally, the court
stated that a delay in reporting a hit-and-run accident hinders the ability of the police or the
-4-
insurer to successfully investigate and obtain evidence on the identity of the vehicle or driver
who fled the accident scene.
¶ 20 Lathrop appealed.
¶ 21 II. ANALYSIS
¶ 22 First, Lathrop argues that the circuit court erred by granting summary judgment in favor of
Safeco because the ambiguous language of the disputed policy provision, which must be
construed liberally in favor of coverage, must be interpreted to require a person seeking
uninsured/underinsured motorists coverage to report the accident to the police within 24 hours
but, if the matter involved a hit-and-run driver, as in the instant case, then the person seeking
uninsured/underinsured motorists coverage must report the accident to the police as soon as
practicable. Lathrop argues that the circuit court erroneously held him to a standard not stated
in the policy when the court construed the “as soon as practicable” reporting requirement to
apply only when extenuating circumstances, like incapacitation, impeded or inhibited a
claimant from reporting the accident to the police within 24 hours.
¶ 23 Second, Lathrop argues that he was entitled to summary judgment on his claim to declare
Safeco obligated to provide uninsured motorists coverage to him and proceed to arbitration
because the undisputed facts established that he reported the accident to the police as soon as
practicable where he did not realize the severity of his injuries until he sought medical
treatment, he did not know a bicycle accident would trigger coverage under his mother’s auto
insurance policy, and Safeco was not prejudiced by his report to the police 11 days after the
accident because that passage of time had no effect on the investigation of his claim since he
could not identify the offending driver or truck and no one else witnessed the accident.
¶ 24 Safeco argues that the circuit court correctly interpreted the policy provision to require
Lathrop to report the hit-and-run accident to the police within 24 hours and not “as soon as
practicable.” However, even if the “as soon as practicable” reporting requirement applied to
Lathrop, Safeco argues that he failed to meet that requirement because the undisputed facts
show that he was capable of reporting the accident sooner than 11 days after its occurrence.
¶ 25 On appeal, we review a trial court’s entry of summary judgment de novo (Andrews v.
Cramer, 256 Ill. App. 3d 766, 769 (1993)), which means our review is independent of the trial
court’s reasoning and decision (Bank of America, N.A. v. Adeyiga, 2014 IL App (1st) 131252,
¶ 56 (“De novo consideration means that the reviewing court performs the same analysis that
a trial judge would perform.”)).
¶ 26 Summary judgment is proper where the pleadings, affidavits, depositions, admissions, and
exhibits on file, when viewed in the light most favorable to the nonmovant, reveal that there is
no issue as to any material fact and that the movant is entitled to judgment as a matter of law.
735 ILCS 5/2-1005 (West 2016); Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004). The
function of summary judgment is not to try cases but to isolate those cases that present only
legal questions and thereby enable the court, as the trier of law, to summarily dispose of the
legal questions involved. City of Chicago v. Dickey, 146 Ill. App. 3d 734, 737 (1986).
Summary judgment “is to be encouraged as an aid in the expeditious disposition of a lawsuit.”
Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
¶ 27 When the parties file cross-motions for summary judgment, they agree that there are no
genuine issues of material fact and ask the court to decide the questions presented as a matter
-5-
of law and based on the record. Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶ 25; Steadfast
Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 755 (2005). “However, the mere
filing of cross-motions for summary judgment does not establish that there is no issue of
material fact, nor does it obligate a court to render summary judgment.” Pielet v. Pielet, 2012
IL 112064, ¶ 28. “[W]here there is a dispute as to a material fact, summary judgment should
be denied and the issue decided by the trier of fact.” Id. ¶ 53.
¶ 28 “The construction of an insurance policy and a determination of the rights and obligations
thereunder are questions of law for the court and appropriate subjects for disposition by
summary judgment.” Konami (America), Inc. v. Hartford Insurance Co. of Illinois, 326 Ill.
App. 3d 874, 877 (2002). In construing an insurance policy, the court follows the rules of
contract interpretation to ascertain the intent of the parties to the contract. Id. at 878-79;
Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 433 (2010). To ascertain the meaning of
the policy’s words, the court must view the policy as a whole with due regard to the type of
insurance purchased, the risk undertaken, and the overall purpose of the contract. AMCO
Insurance Co. v. Erie Insurance Exchange, 2016 IL App (1st) 142660, ¶ 20.
¶ 29 In Illinois, the general rule is that, when an insurer attempts to place limits on the uninsured
motorist provisions of its insurance policy, the limitations must be construed in favor of the
policyholder and strongly against the insurer. Hartford Accident & Indemnity Co. v. LeJeune,
114 Ill. 2d 54, 59 (1986). If the words in an insurance policy are unambiguous, a court must
give the words their plain, ordinary, and popular meaning. Indiana Insurance Co. v. Liaskos,
297 Ill. App. 3d 569, 573 (1998). But if the words are susceptible to more than one meaning,
they are ambiguous and will be construed in favor of the insured and against the insurer that
drafted the policy. Konami (America), Inc., 326 Ill. App. 3d at 879. However, a “policy
provision is not rendered ambiguous simply because the parties disagree as to its meaning,”
and courts “will not strain to find an ambiguity where none exists.” Founders Insurance Co.,
237 Ill. 2d at 433. “Although ‘creative possibilities’ may be suggested, only reasonable
interpretations will be considered.” Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill.
2d 11, 17 (2005).
¶ 30 Under his mother’s Safeco auto insurance policy, Lathrop was listed as an additional driver
and also was covered as a family member, i.e., a person who was related to the insured by
blood and a resident of the insured’s household. The insurance policy provision at issue
provides, in relevant part:
“PART E—DUTIES AFTER AN ACCIDENT OR LOSS
We have no duty to provide coverage under this policy unless there has been full
compliance with the following duties:
A. We must be notified promptly of how, when and where the accident or loss
happened. Notice should also include the names and addresses of any injured
persons and of any witnesses.
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense of any claim
or suit.
***
C. A person seeking Uninsured/Underinsured Motorists Coverage must also:
-6-
1. Report the accident to the police or other civil authority within twenty-
four (24) hours or as soon as practicable if a hit and run driver is involved.”
¶ 31 Based on the principles of contract interpretation, we find that the disputed policy provision
required Lathrop, a person seeking uninsured motorists coverage, to report the accident
involving the hit-and-run driver to the police within 24 hours or as soon as practicable. We
reject the strained interpretation urged by Lathrop, which is not consistent with the rules of
grammar and punctuation, that this provision created two separate accident reporting
requirements: either as soon as practicable if a hit-and-run driver was involved or within 24
hours if the accident did not involve a hit-and-run driver. We also reject the interpretation urged
by Safeco, which adds terms and conditions not expressed in the language of the policy to
conclude that Lathrop was required to report the accident to the police within 24 hours because
no extenuating circumstances prevented him from making such a report and the “as soon as
practicable” reporting requirement applied only in situations involving extenuating
circumstances.
¶ 32 “Practicable” is defined as:
“that which may be done, practiced, or accomplished; that which is performable,
feasible, possible ***. Within liability policy providing that when accident occurred,
written notice should be given by or on behalf of insured to insurer *** as soon as
practicable, ‘practicable’ was held to mean feasible in the circumstances. Frey v.
Security Ins. Co. of Hartford, D.C.Pa., 331 F.Supp. 140, 143.” Black’s Law Dictionary
1172 (6th ed. 1990).
In the context of a policy covering liability for personal injury and property damage, Illinois
courts have construed the phrase “as soon as practicable” to mean within a reasonable time,
and what is reasonable depends on the facts and circumstances of the case. Country Mutual
Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311-12 (2006) (citing Barrington
Consolidated High School v. American Insurance Co., 58 Ill. 2d 278, 281-82 (1974)).
¶ 33 Lathrop argues that the issue of whether he reported the hit-and-run accident to the police
within a reasonable time should be analyzed under the same factors Illinois courts may use to
determine whether an insured gave the insurer reasonable notice of an occurrence or lawsuit
that falls within the coverage of the policy, i.e., (1) the specific language of the policy’s notice
provision, (2) the insured’s sophistication in commerce and insurance matters, (3) the insured’s
awareness of an event that may trigger insurance coverage, (4) the insured’s diligence in
ascertaining whether policy coverage is available, and (5) prejudice to the insurer. See West
American Insurance Co. v. Yorkville National Bank, 238 Ill. 2d 177, 185-86 (2010); Country
Mutual Insurance Co., 222 Ill. 2d at 313. Lathrop made this same argument to the circuit court,
which stated that the five-factor analysis did not govern the interpretation of the police report
policy provision at issue here. Nevertheless, the circuit court conducted the five-factor analysis
and concluded that Lathrop’s police report 11 days after the accident was not made within a
reasonable time under the circumstances.
¶ 34 We agree with the circuit court that the five-factor analysis used to determine the timeliness
of an insured’s notice to its insurer is not entirely relevant to and thus does not govern the
determination of whether Lathrop reported the accident to the police within a reasonable time.
Generally, the question of what constitutes a reasonable time is a question of fact to be decided
by the jury, but if—as here—there is no controversy as to the facts, the question of
reasonableness is for the judge to decide. Jones v. Universal Casualty Co., 257 Ill. App. 3d
-7-
842, 853 (1994). “Ordinarily, we will not reverse a trial court’s findings of fact unless they are
against the manifest weight of the evidence.” Danada Square, LLC v. KFC National
Management Co., 392 Ill. App. 3d 598, 608 (2009). Here, however, we review de novo the
circuit court’s judgment that Lathrop’s 11-day wait to report the accident to the police was
unreasonable because the only evidence presented to the circuit court was documentary and
the circuit court did not have the benefit of viewing and hearing Lathrop testify when the court
determined his credibility. See The Travelers Indemnity Co. v. Rogers Cartage Co., 2017 IL
App (1st) 160780, ¶ 12; see also Danada Square, LLC, 392 Ill. App. 3d at 608 (where the
question is the legal conclusion to be drawn from a given set of facts, our review is de novo);
Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001) (“If the facts are uncontroverted and the issue is
the trial court’s application of the law to the facts, a court of review may determine the
correctness of the ruling independently of the trial court’s judgment.”).
¶ 35 A determination on whether an insured performed a required action within a reasonable
time involves a flexible analysis that may vary depending on the nature, purpose, and
circumstances of such action. Requiring an insured to report an accident involving a hit-and-
run driver to the police within a reasonable time advances the interests of extending coverage
for legitimate claims and protecting the insurer from fraudulent claims. Considering the
undisputed facts and circumstances here, we judge that Lathrop satisfied the policy
requirement to report the accident to the police within a reasonable time when he made that
report 11 days after the accident. Although Lathrop had his cell phone at the time of the
accident and had cycled past a police station that was about a one-half mile from the scene of
the accident, he did not call the police because he was in shock, did not know what to do, and
had no information to give the police about the identity of the offending driver or truck and no
one else witnessed the accident on that residential street with little traffic.
¶ 36 Furthermore, Lathrop mistakenly thought that he was not seriously injured and the pain
would subside after he went home and rested. Instead of cycling back to the police station,
which was in the opposite direction of his route home, Lathrop walked a short distance and
then rode his bicycle to a nearby bus stop so he could take two buses to go home. After two
days, he went to a hospital emergency room because his head and neck pain became more
severe. He was diagnosed with a cervical odontoid fracture and referred to a spine specialist.
Three days later, he went to his appointment with that specialist.
¶ 37 In his deposition, Lathrop testified that his dyslexia adversely affected his reading
comprehension and he was not aware that his bicycle accident could trigger coverage under
his mother’s auto insurance policy, which he did not purchase and had never read. Although
Lathrop’s assertion about his inexperience in insurance matters was not credible based on his
prior litigation of personal injury claims as a bicyclist or pedestrian against drivers, no evidence
showed that the prior litigation involved uninsured motorists coverage under his mother’s or
another person’s auto insurance policy.
¶ 38 After Lathrop realized the severity of his injuries, he followed the advice of the medical
staff and his mother to file a police report, which he learned had to be done in person at an
Evanston police station because the matter was now an off-scene or delayed hit-and-run report.
Despite being on medication for his severe head and neck pain, he went to the Evanston police
station 11 days after the accident and reported the matter. Under the circumstances of this case,
the elapsed time of 11 days was not outside the ambit of what a fair-minded person could
conclude to be reasonable. See Strom International, Ltd. v. Spar Warehouse & Distributors,
-8-
Inc., 69 Ill. App. 3d 696, 701 (1979) (discussing decisions from other jurisdictions that
determined as a matter of law the question of what constituted a reasonable time to perform an
action required by a contractual provision).
¶ 39 III. CONCLUSION
¶ 40 We conclude that Lathrop, under the undisputed facts of this case, complied with the
unambiguous policy provision to report the hit-and-run accident to the police as soon as
practicable. Thus, the circuit court erred in denying Lathrop’s motion for summary judgment
and in allowing Safeco’s cross-motion.
¶ 41 For the foregoing reasons, we reverse the judgment of the circuit court that granted
summary judgment in favor of Safeco and against Lathrop. We remand this cause for further
proceedings.
¶ 42 Reversed and remanded.
¶ 43 PRESIDING JUSTICE GORDON, concurring in part and dissenting in part:
¶ 44 I must respectfully dissent from the majority’s reversal of the trial court’s denial of
plaintiff’s motion for summary judgment, and I concur with the majority’s reversal of the
summary judgment in favor of defendant, but for different reasons, and as a result, I must write
separately.
¶ 45 Our Illinois Supreme Court has found that summary judgment “is a drastic means of
disposing of litigation, and this court has a duty to construe the record strictly against the
movant and liberally in favor of the nonmoving party.” Murray v. Chicago Youth Center, 224
Ill. 2d 213, 245-46 (2007). “Summary judgment should not be allowed unless the moving
party’s right to judgment is clear from doubt, because plaintiffs are not required to prove their
cases at the summary judgment stage.” Murray, 224 Ill. 2d at 246. As a result, summary
judgment is not appropriate (1) if “there is a dispute as to a material fact” (Jackson v. TLC
Associates, Inc., 185 Ill. 2d 418, 424 (1998)), (2) if “reasonable persons could draw divergent
inferences from the undisputed material facts” (Jackson, 185 Ill. 2d at 424), or (3) if
“reasonable persons could differ on the weight to be given the relevant factors” of a legal
standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 269 (2007)).
¶ 46 The issue in this case is whether plaintiff complied with the unambiguous policy provision
of defendant’s insurance policy to report the hit-and-run incident to the police as soon as
practicable when plaintiff first filled out a police report 11 days after the incident.
¶ 47 Whether reasonable notice has been given depends on the facts and circumstances of each
case. Illinois courts apply the following factors when determining whether notice has been
given within a reasonable time: “(1) the specific language of the policy’s notice provision;
(2) the insured’s sophistication in commerce and insurance matters; (3) the insured’s
awareness of an event that may trigger insurance coverage; (4) the insured’s diligence in
ascertaining whether policy coverage is available; and (5) prejudice to the insurer.” West
American Insurance Co. v. Yorkville National Bank, 238 Ill. 2d 177, 185-86 (2010) (citing
Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 313 (2006)).
¶ 48 In reversing the trial court, the majority states that, “[c]onsidering the undisputed facts and
circumstances here, we judge that Lathrop satisfied the policy requirement to report the
-9-
accident to the police within a reasonable time when he made that report 11 days after the
accident” (supra ¶ 35) without applying the factors needed to make that determination. When
I apply the factors, I find that there are factual issues that must be decided. The trial court
applied the five factors and made factual determinations on a motion for summary judgment
when factual issues should be decided by the trier of fact. Plaintiff claimed he was “an
unsophisticated insured.” The trial court pointed out that he attended college-level courses,
where he studied finance for over a year, as well as commodity trading, and had been in
multiple prior accidents. However, the trial court made a factual determination that any
reasonable driver would recognize that an accident might trigger insurance coverage regardless
of whether it was a hit-and-run.
¶ 49 There are issues concerning factors two, three, and four as to plaintiff’s sophistication in
being aware that his incident triggered uninsured motorist coverage in his mother’s insurance
policy and whether he was diligent. Uninsured motorist coverage is a specific coverage that
most nonlawyers may not be aware of. The fact that he had other incidents on his bicycle where
he made insurance claims does not mean he was aware of the fact that this incident on a bicycle
triggered the uninsured motorist coverage in his mother’s insurance policy. In addition, his
medical physician’s records disclose that he told his physician that he was run off the road, not
struck by the mirror of the truck. If it is later proven that there was no contact, it is possible
there would be no liability for the alleged hit-and-run driver and that would be prejudicial to
defendant without a trial on the merits. Most importantly, there is a factual issue as to whether
defendant was prejudiced by the plaintiff’s 11-day notice. Although I find that ordinarily an
11-day notice would be reasonable, a court must follow the factors set forth by the supreme
court in making that determination. Since the trial court did not utilize these factors, I would
reverse the summary judgment in favor of defendant and affirm the denial of plaintiff’s motion
for summary judgment and instruct the trial court to follow the five factors our supreme court
set forth in a trial on the merits.
- 10 -