Boyd v. Madison Mutual Insurance Co.

JUSTICE WELCH,

dissenting:

I disagree with the majority in this case. The question before this court is whether the amended section 143a — 2(7) of the Illinois Insurance Code impairs the existing contractual obligations between the plaintiffs and Madison Mutual or creates a new obligation in the contract, and as such prohibits the court from retroactively applying it. (Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2(7).) I find that it does neither. Thus, the trial court may apply it retroactively.

Statutory provisions which are applicable to insurance policies and in effect at the time the policy is issued or renewed are treated as part of the agreement (Weisberg v. Royal Insurance Co. (1984), 124 Ill. App. 3d 864, 868, 464 N.E.2d 1170, 1173.) Furthermore, subsequent statutory provisions may be given retroactive effect if they merely affect remedy or procedures. These subsequent amendments will then “be enforceable under the new procedure, without regard to whether they accrued before or after such change of law.” (Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 270-71, 470 N.E.2d 615, 622-23.) Only where the amended statute impairs an obligation or a substantive right in the preexisting contract the court may not apply that statute retroactively. (McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 113-14, 419 N.E.2d 608, 610.) While the prohibition against such acts by the legislature is constitutionally protected (U.S. Const., art I, sec. 10), a statute which affects a substantive right may be applied retroactively if “a contrary intent is expressed or clearly implied by the language therein or the circumstances surrounding its enactment.” Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 271, 470 N.E.2d 615.

In this case, at the time the insurance policy at issue was renewed, section 143a — 2(5) of the Illinois Insurance Code provided:

“On or after July 1, 1983, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed *** unless underinsured motorist coverage is included ***.” (Ill. Rev. Stat. 1983, ch.73, par. 755a — 2(5).)

Under the enacted statutory provision, the insurance company acquired new liability for underinsured motorists which the parties subsequently included in their contract at the time of the policy renewal in November 1983. However, neither the statute nor the policy in question provided a procedure in which the insured may collect on the policy. Realizing this dilemma in which an insured may be placed as in this case, the legislature enacted an amendment to section 143a — 2 which became effective January 1, 1985. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(7).) The new amendment provides:

“(7) Subrogation against underinsured motorists. No insurer shall exercise any right of subrogation under a policy providing additional uninsured motorist coverage against an underinsured motorist where the insurer has been provided with written notice in advance of a settlement between its insured and the underinsured motorist and the insurer fails to advance a payment to the insured, in an amount'‘equal to the tentative settlement, within 30 days following receipt of such notice.”

In order to provide a harmonious meaning to the amended section 143a — 2, each provision of the statute must be construed in relation to the other provisions. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 389, 390, 415 N.E.2d 1034, 1041, cert. denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) In this statute, the intent of the legislature is clearly implied by the language. The legislature intended to affect all insurance contracts with underinsuredmotorists provisions whether or not they were entered into prior to January 1, 1985.

However, the majority states that any subsequent enactment will not be construed as part of the policy issued or renewed prior to the effective date even if the subject matter of those enactments may be characterized as matters of remedy or procedure under the policy. In arguing its position the majority cites Weisberg v. Royal Insurance Co. (1984), 124 Ill. App. 3d 864, 464 N.E.2d 1170, 1173.) In Weisberg, the court stated that where a new statute extends liability such as a new and longer statute of limitations, the amended statute cannot be applied retroactively in a contract made prior to the new statute. Only where the parties renewed the insurance contract after the statute’s effective date will the new statute become effective. Further, the court stated that where a statute invalidates an agreement’s provision and substitutes its own time period for liability, the statute imposes a new liability, obligation and burden and as such, the statute alters a mutually agreed upon term of the contract and cannot be a mere change in a statutory remedy or procedure. Thus, the court held that where a procedure alters a substantive right the court may not apply it retroactively.

In this case, the procedure in the amended statute neither creates a new liability, imposes a new burden, nor alters a substantive right. The duty to pay has not been extended or changed in any way. To hold otherwise, I find, would permit this court to commit a reprehensible fraud upon such policyholders who are duty bound to pay premiums for this coverage while the insurance companies place policyholders into a Catch-22 situation when collecting on an underinsured-motorist claim. It is not until renewal of the insurance policy after the effective date of the amended statute will the policyholders’ situation be remedied.

For the foregoing reasons, I would affirm the orders of the circuit court of St. Clair County.