Rein v. State Farm Mutual Automobile Insurance

SIXTH DIVISION
March 4, 2011

No. 1-10-0764

LAUREN REIN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 09 CH 22568
)
STATE FARM MUTUAL AUTOMOBILE INSURANCE )
COMPANY, ) The Honorable
) LeRoy K. Martin,
Defendant-Appellee. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the judgment of the
court, with opinion.

Justices McBride and R.E. Gordon concurred in the judgment
and opinion.

OPINION

The circuit court granted summary judgment to defendant

State Farm Mutual Automobile Insurance Company in plaintiff

Lauren Rein's declaratory action seeking a judgment that she was

entitled to insurance coverage following an injury-causing, hit-

and-run accident. The circuit court held Rein's action was

barred by State Farm's automobile policy provision requiring any

arbitration or suit seeking uninsured motorist coverage be

"commenced within two years after the date of the accident."

Rein asserts her letter to State Farm sent six days before the

two-year period expired, which stated her "intention to pursue an

Uninsured/Underinsured Motorist Claim," timely commenced the
No. 1-10-0764

arbitration proceedings based on the appellate court's most

recent decision from the Fifth District interpreting a similar

automobile policy provision.

We decline to follow the Fifth District case. Instead, we

follow two older First District cases that rejected a similar

contention by an insured that the arbitration process was timely

commenced based on a letter sent by the insured's attorney that

did not expressly request arbitration or disclose an arbitrator

on the insured's behalf within two years of the accident as

required by the express terms of the automobile insurance policy.

Consequently, we affirm.

BACKGROUND

On April 5, 2007, Rein was injured in a hit-and-run, two-

vehicle accident where the other driver was never identified.

Rein was insured by a State Farm automobile insurance policy that

provided coverage for bodily injury caused by the driver of an

uninsured vehicle, including a " 'hit-and-run' land motor vehicle

whose owner or driver remains unknown." On March 30, 2009,

Rein's counsel gave notice to State Farm via facsimile and

certified mail stating that he represented Rein with regard to

her auto accident. No prior contact between Rein and State Farm

regarding the accident is disclosed in the record. Counsel's

letter stated in pertinent part:

"YOU ARE HEREBY NOTIFIED that it is our

intention to pursue an Uninsured/Underinsured

2
No. 1-10-0764

Motorist Claim against State Farm Insurance

under the above-captioned policy on behalf of

Laura A. Rein.

Please open a claim file on this matter.

Upon receipt of this letter, please

contact the undersigned so we may discuss the

matter in greater detail."

State Farm received the facsimile on March 30, 2009, and the

certified letter on April 2, 2009. State Farm denied Rein's

claim some time thereafter. Rein's letter made no mention of

arbitration.

Rein filed a declaratory action on July 9, 2009, to compel

State Farm to arbitrate her uninsured motorist claim.

On December 1, 2009, State Farm moved for summary judgment

pursuant to section 2-1005 of the Code of Civil Procedure (735

ILCS 5/2-1005 (West 2008)) contending Rein was barred from

seeking arbitration by an express provision of the policy:

"Under the uninsured motor vehicle coverages, any arbitration or

suit against us will be barred unless commenced within two years

after the date of the accident." State Farm argued Rein's letter

did not "commence" arbitration within two years of the accident

consistent with interpretations of similar limitations provisions

by two First District cases: Buchalo v. Country Mutual Insurance

Co., 83 Ill. App. 3d 1040, 404 N.E.2d 473 (1980), and Shelton v.

Country Mutual Insurance Co., 161 Ill. App. 3d 652, 515 N.E.2d

3
No. 1-10-0764

235 (1987).

Rein responded there is only one appellate court and the

Fifth District case of Hale v. Country Mutual Insurance Co., 334

Ill. App. 3d 751, 778 N.E.2d 721 (2002), as the most recent

explication on the issue, was controlling. Quoting Hale, Rein

conceded her counsel's letter was "not perfect" but her implied

intent to commence arbitration was sufficient. Hale, 334 Ill.

App. 3d at 755.

State Farm urged the circuit court to disregard Hale, which

gave a broader interpretation than Buchalo and Shelton to a

similar limitations provision.

At oral arguments on the motion, Judge LeRoy K. Martin did

not disagree with Rein's broad claim that a circuit court sitting

in the First District was bound by all appellate court decisions

regardless of the district. However, Judge Martin concluded that

Hale conflicted with Buchalo and Shelton, which, as First

District cases, he was bound to follow. Judge Martin granted

summary judgment to State Farm.

This timely appeal followed.

ANALYSIS

Summary judgment is warranted when " 'the pleadings,

depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.' " Arangold Corp. v. Zehnder, 204 Ill. 2d

4
No. 1-10-0764
142, 146, 787 N.E.2d 786 (2003) (quoting 735 ILCS 5/2-1005(c)

(West 2000)). We review the grant of summary judgment de novo.

Arangold, 204 Ill. 2d at 146. We construe de novo provisions of

an insurance policy. American Service Insurance Co. v. Pasalka,

363 Ill. App. 3d 385, 842 N.E.2d 1219 (2006).

Rein raises three arguments to reverse the circuit court's

grant of summary judgment: (1) there exists no conflict in First

and Fifth District jurisprudence: Buchalo and Shelton are

distinguishable and Hale is controlling; (2) her counsel's letter

"commenced" arbitration as it constituted the "first step" in the

arbitration process; and (3) a strict interpretation of the

policy's limitations provision contravenes public policy.

State Farm counters the policy's limitations provision is

valid; Rein's letter cannot reasonably be read as "commencing"

arbitration; and the circuit court correctly followed Buchalo and

Shelton, which conflict with Hale.

We begin with Rein's public policy argument.

Public Policy
In her main brief, Rein cites Pasalka as the only authority

for her claim. In Pasalka, the insurance company sought to apply

its two-year limitations provision to uninsured motorist claims

that its insureds were forced to file after the insurance company

for the other drivers became insolvent. The insurance company

for the each of the other drivers became insolvent more than two

years after the accident. Pasalka, 363 Ill. App. 3d at 387.

5
No. 1-10-0764
Ultimately, we held that the application of the two-year

limitations period under those facts violated public policy

because "this state requires that an uninsured motorist provision

be written into every auto insurance policy." Pasalka, 363 Ill.

App. 3d at 387. We did not hold that the limitations provision

itself was against public policy, but its application under the

particular facts of Pasalka made the state-mandated protection

"illusory," which contravened public policy. Pasalka, 363 Ill.

App. 3d at 387, 394.

We find no authority for Rein's actual contention that the

two-year limitations provision in State Farm's policy itself

contravenes public policy. Hale, a case Rein contends we should

follow, expressly rejected an identical claim. An insurance

policy's two-year limitations provision is "not contrary to

public policy ***." Hale, 334 Ill. App. 3d at 754 (citing

Buchalo, 83 Ill. App. 3d 1040, Coyne v. Country Mutual Insurance

Co., 39 Ill. App. 3d 279, 349 N.E.2d 485 (1976), and Shelton, 161

Ill. App. 3d 652). We are unpersuaded that a different result
should obtain here.

Buchalo and Shelton Are Not Distinguishable

The parties agree on one point: if Buchalo and Shelton

cannot be distinguished, then they conflict with the holding in

Hale. In that event, Rein argues we should follow Hale; State

Farm contends Buchalo and Shelton are the better reasoned

decisions. All three cases are very similar to the case at bar.

6
No. 1-10-0764
In Buchalo, as here, the insured was injured by a hit-and-

run driver that was never identified. Buchalo, 83 Ill. App. 3d

at 1041. The insurance policy provided " 'No *** arbitration

proceedings *** shall be sustainable *** unless commenced within

two (2) years after the occurrence of the loss.' " Buchalo, 83

Ill. App. 3d at 1042. To commence arbitration proceedings under

the policy, " 'each party shall, upon written demand of the

Insured or upon written demand of the [insurance] Company, select

*** [an] arbitrator.' " Buchalo, 83 Ill. App. 3d at 1042. Less

than four months after the injury, the insured's counsel sent a

letter to the insurer stating, " '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.' " Buchalo, 83

Ill. App. 3d at 1043. The insured took no further action within

the two-year period. Buchalo, 83 Ill. App. 3d at 1044. This

court held the insured's "letter does not constitute an

unequivocal demand for arbitration." Buchalo, 83 Ill. App. 3d at

1045. We found the letter "insufficient under the policy because
it fails to name the plaintiff's arbitrator." Buchalo, 83 Ill.

App. 3d at 1046. We affirmed the circuit court's dismissal of

the insured's petition to compel arbitration. Buchalo, 83 Ill.

App. 3d at 1048.

In Shelton, the plaintiff-insured was injured by an

underinsured driver. Shelton, 161 Ill. App. 3d at 654. The

plaintiff's automobile insurance policy required the insured to

7
No. 1-10-0764
commence " 'suit, action or arbitration *** within two years

after the date of the accident.' " Shelton, 161 Ill. App. 3d at

655. About 18 months after the accident, plaintiff's counsel

mailed a " 'Notice of Attorney's Lien' " to the insurer asserting

that the insured had hired an attorney "to prosecute her claim

for underinsured motorist benefits *** and that he now claimed a

lien therefor." Shelton, 161 Ill. App. 3d at 654. The plaintiff

took no further action before the expiration of the two-year

limitations period. Shelton, 161 Ill. App. 3d at 654. When her

claim was denied, the insured filed suit to pursue underinsured

motorist benefits. Shelton, 161 Ill. App. 3d at 654. The

circuit court dismissed the insured's action as untimely; we

affirmed the dismissal because the arbitration process was not

commenced within two years following the accident. Shelton, 161

Ill. App. 3d at 662-63.

Rein writes that Buchalo and Shelton are distinguishable.

"Buchalo involved a policy which required that 'each party shall

"upon written demand of the insured or upon written demand of the
company, select a competent and disinterested arbitrator" '

within the two year limitations period in the policy." According

to Rein, because no "written request" for arbitration is required

by the State Farm provision, Buchalo is distinguishable. Shelton

is distinguishable because the issue before us was waived in that

case. "[T]he insurance company was 'not afforded to submit

evidence or argument as to whether the notice of attorney's lien

8
No. 1-10-0764
constituted valid notice and since the insured did not present

the issue in the trial court, it was 'not properly before' the

appellate court and hence was waived." We do not agree that the

distinctions of Buchalo and Shelton offered by Rein are

meaningful.

While the State Farm policy in this case requires only a

"request" for arbitration, unlike the "written demand" for

arbitration required in the policy before the Buchalo court,

similar to the policy in Buchalo, the State Farm policy here

required the insured to name an arbitrator in the request for

arbitration: "If the insured requests arbitration, each party to

the dispute shall select an arbitrator." Rein's failure to

"select an arbitrator" in her letter places her case within the

ruling in Buchalo. The insured's letter in Buchalo was

insufficient on two grounds: no unequivocal demand for

arbitration was made and it "fail[ed] to name the plaintiff's

arbitrator." Buchalo, 83 Ill. App. 3d at 1046.

Nor does the language Rein quotes from Shelton distinguish
it from this case. The language applied only to the "tolling"

argument the insured in Shelton asserted. Shelton, 161 Ill. App.

3d at 662. While the tolling argument was forfeited because it

was not raised before the circuit court, the Shelton court

observed, "we seriously doubt that there is any equation between

a notice of attorney's lien and a 'proof of loss' [that might

well have tolled the running of the limitations period]."

9
No. 1-10-0764
Shelton, 161 Ill. App. 3d at 663. In any event, Rein does not

assert a "tolling" argument before us, which makes the quoted

language inapposite. Rein nonetheless contends she preserved the

issue of the "adequacy and timeliness of notification" in the

proceedings below and her letter was not a mere notice of

attorney's lien as in Shelton, but "specifically mention[ed] that

Plaintiff was seeking uninsured motorist benefits within the two

years." Though the adequacy and timeliness of her letter were

raised below, preservation of the issue adds no merit to the

adequacy of the letter and the different nature of her letter

does not distinguish her case from Shelton.

We find Buchalo and Shelton indistinguishable from the case

before us. Each stands for the proposition that the requirements

in the limitations provision of an insurance policy will be

upheld. Under Buchalo, to commence arbitration proceedings, an

insured's letter must make an unequivocal demand for arbitration

and name the arbitrator on behalf of the insured consistent with

the policy's provision. Buchalo, 83 Ill. App. 3d at 1045. Under
Shelton, a policy's two-year limitations period to commence

arbitration is binding on the insured. Shelton, 161 Ill. App. 3d

at 655. In other words, for an insured's letter to commence the

arbitration process, it must satisfy the express terms of the

limitations provision of the insurance contract. This

requirement is compelled by the well-established rule that a

clear and unambiguous insurance policy provision is applied "

10
No. 1-10-0764
'according to the plain and ordinary meaning of its terms.' "

Shelton, 161 Ill. App. 3d at 655 (quoting Dora Township v.

Indiana Insurance Co., 78 Ill. 2d 376, 378, 400 N.E.2d 921

(1980)); Buchalo, 83 Ill. App. 3d at 1045 (citing Dora Township,

78 Ill. 2d at 378).

Conflict with Hale

Even without the guidance of Buchalo and Shelton, and the

authorities cited therein, we are unpersuaded by the reasoning in

Hale that the bar in the limitations provision of the State Farm

policy may be avoided by a letter such as Rein's.

As in Shelton, the insured in Hale was injured by an

underinsured motorist. Hale, 334 Ill. App. 3d at 752. The

automobile insurance policy contained a two-year limitations

provision. Hale, 334 Ill. App. 3d at 752-53. The policy

provided: " 'Arbitration proceedings will not commence until we

receive your written demand for arbitration.' " Hale, 334 Ill.

App. 3d at 753. Within two years of the accident, the insured's

attorney sent a letter to the insurer stating that he had been
retained to represent the insured and, essential to the Hale

court's holding, that " '[i]t appears that we have an

underinsured claim.' " Hale, 334 Ill. App. 3d at 753. The

insurance company denied coverage because no timely demand for

arbitration was made. The circuit court dismissed as time-barred

the insured's action seeking a declaration that the underinsured

claim was timely made. Hale, 334 Ill. App. 3d at 753. The Fifth

11
No. 1-10-0764
District reversed.

The Hale court found "[t]he language utilized by [the

insured's] attorney was not perfect but served the purpose of

notifying [the insurer] of the underinsured-motorist claim."

Hale, 334 Ill. App. 3d at 755. It held the "timely notification

of a claim is sufficient." Hale, 334 Ill. App. 3d at 755. "To

hold otherwise would mean that with every minor claim, the

attorney would need to formally request arbitration or fear

malpractice for failing to do so. The insurance industry could

not desire that outcome because its companies would be inundated

with premature arbitration demands." Hale, 334 Ill. App. 3d at

755.

Because the underlying action against the underinsured

motorist remained unresolved at the two-year anniversary of the

accident, the Hale court reasoned: the insured's "attorney could

not possibly know for certain whether he had [an underinsured

motorist] claim, because at the time of the [letter] writing the

underlying liability suit had not been concluded." Hale, 334
Ill. App. 3d at 754. Thus, without knowing whether the

underinsured driver was liable, the insured's counsel in Hale

could not reasonably be expected to demand arbitration on the

insured's underinsured motorist coverage, which served as the

insured's only avenue to resolve an underinsured claim. Hale,

334 Ill. App. 3d at 755. Thus, the court found the insured's

letter of notice of an underinsured motorist claim sent within

12
No. 1-10-0764
two years of the accident constituted a timely written demand for

arbitration. Hale, 334 Ill. App. 3d at 755. Without identifying

or discussing contrary cases, the court declared, "To the extent

that other cases are contrary to our holding, we disagree with

those cases." Hale, 334 Ill. App. 3d at 755.

Our disagreement with Hale is two-fold.

First, the Hale court appeared to hold that "notice" of an

underinsured claim could serve as a "demand" for arbitration

under the limitations provision. We disagree with the suggestion

that the purpose behind a limitations provision is to require

that notice be given. We are aware of no other authority that

holds mere notice may somehow satisfy an express limitations

provision of an insurance contract. Where a limitations

provision requires explicit action by the insured to avoid the

two-year bar, we are unconvinced that notice equates with

explicit action. The dispositive question is whether the insured

has commenced "suit, action or arbitration" within two years of

the accident. The answer lies in the clear and unambiguous
language of the limitations provision declaring what must be done

to comply with that provision.

"[I]t is a well-settled precept of Illinois law that because

the primary objective in interpreting the provisions of an

insurance policy is to give effect to the parties' intentions,

where a policy provision is clear and unambiguous, its language

must be taken in its plain, ordinary and popular sense."

13
No. 1-10-0764
Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d

278, 303, 757 N.E.2d 481 (2001). Thus, compliance with a

limitations provision of an insurance contract, written in clear

and unambiguous language, is the only means to avoid the two-year

bar. We are unpersuaded that mere notice of an underinsured

claim is sufficient when the limitations provision requires "a

written demand (or request) for arbitration."

If mere notification of a claim were sufficient to preserve

an underinsured or uninsured motorist claim, an insured could

simply notify the insurer it has such a claim and delay

indefinitely naming an arbitrator on the insured's behalf. Stale

claims would result, the avoidance of which the Hale court itself

recognized was an aim of a limitations provision: "A limitations

period requires necessary litigation to be brought within such

time so that the facts of the case can still be established with

the utmost certainty before that proof becomes stale or

completely lost." Hale, 334 Ill. App. 3d at 754. To avoid stale

claims, arbitration must be commenced within two years of an
accident involving an underinsured or uninsured motorist claim.

To commence arbitration, an insured must comply with the

requirements in the policy's limitations provision; that is, an

insured must make an "unequivocal demand for arbitration"

(Buchalo, 83 Ill. App. 3d at 1045) and "name the [insured]'s

arbitrator" (Buchalo, 83 Ill. App. 3d at 1046) as the State Farm

policy before us requires.

14
No. 1-10-0764
Second, Hale's concern over inundating insurance companies

"with premature arbitration demands" is misplaced. Hale, 334

Ill. App. 3d at 755. We see no reason to concern ourselves with

a burden the insurance companies chose to impose upon themselves.

Cf. Pasalka, 363 Ill. App. 3d at 393 (in rejecting the insurance

company's appeal, we noted "[the insurance company's] suggestion

would place a burden on policyholders and their counsel to file

numerous unnecessary and questionable claims"). To the extent

"premature arbitration demands" become a burden on insurance

companies based on the holdings in Buchalo, Shelton, and the

instant case, we rest assured that insurance companies will

either modify the provisions of their policies to ameliorate that

burden or learn to live with those demands as apparently they

have since Buchalo was decided in 1980. In any event, we cannot

agree that the possibility insurance companies may face a high

number of "premature arbitration demands" means that we can

ignore a clear and unambiguous limitations provision in an

insurance contract that imposes certain requirements on an
insured. See Pasalka, 363 Ill. App. 3d at 393 ("We have no

quarrel with an insurer's right to limit its exposure").

We decline to follow Hale as Rein urges.

Counsel's Letter

Rein's letter did not constitute the "first step" in the

arbitration process as she claims. Rein's letter did not mention

arbitration. Nor can we agree that Rein's letter may reasonably

15
No. 1-10-0764
be understood to request arbitration "implicitly." Even if such

a reading were reasonable, the State Farm policy also required

that within two years of the accident an arbitrator be selected

by Rein to commence the arbitration process. No plausible claim

can be made that her selection of an arbitrator was implicitly

and timely made based on the contents of her letter.

Single Appellate Court

We briefly address Rein's claim that the circuit court below

was required to follow Hale based on a holding from our supreme

court: "[I]t is 'fundamental in Illinois that the decisions of an

appellate court are binding on all circuit courts regardless of

locale.' [Citation.] The notion that circuit courts are bound

only by the appellate court decisions from their own district is

a relic of the pre-1964 Illinois Constitution of 1870 and has

been expressly disavowed by our court." Bryant v. Board of

Election Commissioners, 224 Ill. 2d 473, 479, 778 N.E.2d 721

(2007) (quoting People v. Harris, 123 Ill. 2d 113, 128, 526

N.E.2d 335 (1988)).

However, the cited rule applies only when no conflict in
appellate court districts exist. "[W]hen conflicts arise

amongst the districts, the circuit court is bound by the

decisions of the appellate court of the district in which it

sits." Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82,

92, 679 N.E.2d 1224 (1997); Bryant, 224 Ill. 2d at 478.

The circuit court correctly ruled that it was bound by

16
No. 1-10-0764
Buchalo and Shelton, which are indistinguishable from the case at

bar.

CONCLUSION

The circuit court properly entered summary judgment in favor

of State Farm and against its insured Lauren Rein in her

declaratory judgment suit to compel arbitration of her uninsured

motorist claim because the arbitration process was not commenced

within two years following the accident. Rein's letter, sent six

days before the expiration of the two-year period, failed to

expressly "request" arbitration and did not "select" an

arbitrator on Rein's behalf as required by the limitations

provision of the State Farm policy.

Affirmed.

17
No. 1-10-0764

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
__________________________________________________________________________

LAUREN REIN,
Plaintiff-Appellant,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant-Appellee.
________________________________________________________________

No. 1-10-0764

Appellate Court of Illinois
First District, Sixth Division

Filed: March 4 , 2011
_________________________________________________________________

PRESIDING JUSTICE GARCIA delivered the opinion of the court.
McBRIDE and R.E. GORDON, JJ., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable LeRoy K. Martin, Judge Presiding.
_________________________________________________________________

For PLAINTIFF- John S. Xydakis, P.C.
APPELLANT 7518 W. Madison Street, Suite 200
Forest Park, Illinois 60130

For DEFENDANT- John R. Adams
APPELLEE Taylor Miller LLC
33 North LaSalle Street, Suite 2222
Chicago, Illinois 60602

18