Lathrop v. Safeco Insurance Co.

2020 IL App (1st) 190741
No. 1-19-0741
Opinion filed July 23, 2020
Fourth Division

______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
MARK LATHROP, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 18 CH 7280
)
SAFECO INSURANCE COMPANY, ) Honorable
) Moshe Jacobius,
Defendant-Appellee. ) Judge, presiding.

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 Co. (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.
No. 1-19-0741

¶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

1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.

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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

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

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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.

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¶ 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 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

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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

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No. 1-19-0741

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 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.

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No. 1-19-0741

¶ 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

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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 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.

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¶ 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.

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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:

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.

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¶ 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

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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 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

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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

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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, 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.

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¶ 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

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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 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

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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.

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No. 1-19-0741

Cite as: Lathrop v. Safeco Insurance Co., 2020 IL App (1st) 190741

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CH-
7280; the Hon. Moshe Jacobius, Judge, presiding.

Attorneys George G. Argionis and Evan Finneke, of Argionis &
for Associates, LLC, of Chicago, for appellant.
Appellant:

Attorneys Matthew O. Sitzer and Matthew C. Wolfe, of Shook, Hardy &
for Bacon L.L.P., of Chicago, for appellee.
Appellee:

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