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                                    Appellate Court                          Date: 2017.12.12
                                                                             10:04:31 -06'00'




        Allstate Fire & Casualty Insurance Co. v. Bochenek, 2017 IL App (1st) 170277



Appellate Court         ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
Caption                 Plaintiff-Appellee, v. WOJCIECH BOCHENEK, Defendant-
                        Appellant.



District & No.          First District, Second Division
                        Docket No. 1-17-0277



Filed                   September 29, 2017



Decision Under          Appeal from the Circuit Court of Cook County, No. 16-CH-10462; the
Review                  Hon. Kathleen M. Pantle, Judge, presiding.



Judgment                Affirmed.


Counsel on              Walter Z. Rywak, of Chicago, for appellant.
Appeal
                        Dean Haritos and Cynthia Ramirez, of Morse Bolduc & Dinos, LLC,
                        of Chicago, for appellee.



Panel                   JUSTICE HYMAN delivered the judgment of the court, with opinion.
                        Presiding Justice Neville and Justice Mason concurred in the
                        judgment and opinion.
                                              OPINION

¶1       Wojciech Bochenek was crossing the street with his wife, Barbara, and daughter when
     Barbara was struck and seriously injured by a hit and run driver. Barbara filed a claim with her
     insurer, Allstate Fire and Casualty Insurance Company, which paid her $100,000, the limit on
     her uninsured motorist coverage. Wojciech, who was fortunate to avoid being hit, also filed a
     claim under the policy for post-traumatic stress disorder (PTSD) and its physical
     manifestations, which he experienced after the accident. Allstate filed a declaratory judgment
     action against Wojciech seeking a declaration that he was not entitled to uninsured motorist
     benefits because he was not physically contacted by the hit and run vehicle, the $100,000 per
     person policy limit payable under the policy’s uninsured motorist provision had been met, and
     he did not qualify as an insured person for medical payments coverage under the policy. The
     parties filed cross-motions for summary judgment. The trial court granted Allstate’s motion
     and denied Wojciech’s motion.
¶2       Wojciech has appealed the trial court’s entry of summary judgment against him. We
     conclude that the trial court correctly found that the absence of physical contact between
     Wojciech and the hit and run vehicle precluded his recovery under the uninsured motorist
     provision of the policy and affirm on that basis.

¶3                                             Background
¶4        On the evening of February 24, 2015, Wojciech Bochenek, his wife Barbara Bochenek,
     and their daughter were crossing Harlem Avenue in Chicago. Barbara entered the intersection
     first and was struck by a hit and run driver traveling at a high rate of speed. Barbara was thrown
     into the air and landed on the sidewalk. Wojciech, walking behind Barbara, was not struck and
     suffered no actual physical injury.
¶5        Barbara filed an uninsured motorist claim with Allstate, which paid her $100,000, the
     uninsured policy limits for her claim. Wojciech also made a claim with Allstate seeking
     uninsured motorist benefits and medical payments for the PTSD and accompanying
     symptoms, including shortness of breath, heart palpitations, dizziness, and loss of sleep that he
     experienced after the accident.
¶6        At the time of the accident, Barbara and the couple’s daughter had an automobile insurance
     policy with Allstate. The policy included uninsured motorist coverage. Under the policy, an
     uninsured auto included a hit and run vehicle that causes “bodily injury to an insured person by
     physical contact with the insured person or with a vehicle occupied by that person.” The policy
     defines an insured person as the policyholder, a “resident relative” of the policy holder, and
     any person who is legally entitled to recover because of bodily injury to the policyholder, a
     resident relative, or an occupant of the insured auto with permission. Allstate concedes
     Wojciech was an insured person under the policy.
¶7        Allstate, which denied it owed Wojciech uninsured motorist benefits or medical payments
     under the policy, filed a three count complaint for declaratory judgment. Allstate sought a
     declaration that (i) only Barbara sustained a bodily injury as a result of the accident, that
     Wojciech’s emotional damages claim was derivative of his wife’s bodily injury, and the
     $100,000 per person policy limit payable under the policy’s uninsured motorist provision had
     been met (count I); (ii) Wojciech was not entitled to uninsured motorist coverage under the


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       policy because he was not was physically contacted by the hit and run vehicle (count II); and
       (iii) Wojciech did not qualify as an insured person for medical payments coverage under the
       policy as he was not in, getting into or out, occupying, or operating an automobile at the time of
       the accident and was not struck (count III).
¶8          The parties filed cross-motions for summary judgment. The trial court entered summary
       judgment for Allstate and against Wojciech, finding (i) the insurance policy to be clear and
       unambiguous, (ii) Wojciech’s PTSD and accompanying physical symptoms did not fall within
       the definition of “bodily injury” under the policy or Illinois law, (iii) the insurance policy and
       Illinois law provides uninsured motorist compensation only if the insured was physically
       contacted by the hit and run vehicle, and Wojciech was not, and (iv) the uninsured motorist
       coverage for the accident was exhausted by the payment of the limits of the policy to Barbara.
       The trial court also determined that Wojciech did not qualify as an insured person for purposes
       of medical payments coverage under the policy. Wojciech has abandoned this claim on appeal.
¶9          Proceeding only on the issues related to his uninsured motorist claim, Wojciech argues (i)
       Illinois law does not require physical contact between the insured and the uninsured vehicle in
       a hit and run accident, (ii) the physical contact requirement is intended to prevent fraudulent
       claims, which is not an issue because Barbara was hit by the uninsured vehicle, (iii) his injuries
       were caused by indirect contact with the uninsured vehicle, which is compensable under
       Illinois law, (iv) he was in the “zone of danger” when his wife was hit and should be able to
       recover for his injuries, and (iv) his injuries fall within the policy definition of “bodily injury.”

¶ 10                                               Analysis
¶ 11        Summary judgment is appropriate when no genuine issue of material fact exists and the
       moving party is entitled to judgment as a matter of law. Virginia Surety Co. v. Northern
       Insurance Co. of New York, 224 Ill. 2d 550, 556 (2007). In an insurance coverage case,
       cross-motions for summary judgment indicate the parties agree that no genuine of issues of
       material fact exist but dispute issues of law regarding the construction of the insurance policy.
       Liberty Mutual Fire Insurance Co. v. St. Paul Fire & Marine Insurance Co., 363 Ill. App. 3d
       335, 338-39 (2005). Our review is de novo. Virginia Surety Co., 224 Ill. 2d at 556.
¶ 12        In construing an insurance policy, the primary function of the court is to ascertain and
       enforce the intentions of the parties as expressed in the policy. Outboard Marine Corp. v.
       Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108 (1992). A court must afford unambiguous
       words their plain, ordinary, and popular meaning. Insurance Co. of Illinois v. Stringfield, 292
       Ill. App. 3d 471, 473-74 (1997).
¶ 13        Wojciech’s primary contention is that Illinois law does not require physical contact
       between the insured and the uninsured vehicle in a hit and run accident.
¶ 14        Part 5 of the policy provides, in pertinent part, “We will pay those damages an insured
       person is legally entitled to recover from the owner or operator of an uninsured auto because of
       bodily injury sustained by an injured person.” An uninsured auto under the policy includes “a
       hit and run vehicle which causes bodily injury to an insured person by physical contact with the
       insured person or with the vehicle occupied by that person.”
¶ 15        Wojciech does not contend that the policy is ambiguous as to whether the uninsured
       motorist clause requires physical contact but argues that the Illinois Insurance Code (Code)
       (215 ILCS 5/1 et seq. (West 2016)) does not require physical impact between the uninsured


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       vehicle and the insured and that a physical contact requirement is against public policy. See
       215 ILCS 5/143a (West 2016) (“Uninsured and hit and run motor vehicle coverage”). In the
       seminal case, Ferega v. State Farm Mutual Automobile Insurance Co., 58 Ill. 2d 109, 111
       (1974), our supreme court held that physical contact was required under the Code to collect
       uninsured motorist coverage. In Ferega, while the plaintiff was driving at night on a two-lane
       highway, he turned his vehicle to the right to avoid an oncoming vehicle in his own lane of
       travel and struck a culvert. Id. at 110. Plaintiff tried to collect for his injuries under his policy’s
       uninsured motorist clause, which defined a “ ‘hit-and-run motor vehicle’ ” as a vehicle
       “ ‘which cause[d] bodily injury to an insured arising out of physical contact of such vehicle
       with the insured or with a vehicle which the insured [was] occupying at the time of the
       accident.’ ” Id. The lower courts denied recovery because there had been no physical contact
       between the plaintiff’s vehicle and the unknown hit-and-run motor vehicle as required under
       the policy.
¶ 16        In its ruling, the supreme court affirmed the lower courts and denied plaintiff’s suggestion
       that the plain language of the statute and the policy should be judicially modified by altering
       the meaning of the word “hit” so that the element of physical contact was eliminated. Id. at
       111. In support, the supreme court quoted the opinion in Prosk v. Allstate Insurance Co., 82 Ill.
       App. 2d 457, 461 (1967), which stated that the Code “ ‘was not intended to include
       unidentified cars that may be present at the scene of an occurrence of bodily injury without a
       physical contact of the unidentified motor vehicle with the insured or an automobile occupied
       by the insured.’ ” Ferega, 58 Ill. 2d at 111 (quoting Prosk, 82 Ill. App. 2d at 461). The supreme
       court also observed that the statute was “aimed at the avoidance of fraudulent claims.” Id.
¶ 17        The supreme court reaffirmed Ferega in Lemke v. Kenilworth Insurance Co., 109 Ill. 2d
       350, 354 (1985) (noting legislature had amended section 143a eight times since Ferega, and
       thus, “legislative inaction subsequent to Ferega indicate[d] approval of the reasoning and
       holding in that case”). But the appellate courts in Illinois are divided about whether the
       supreme court intended a physical contact requirement to be permissible in a policy or required
       by the Code itself. For instance, in Illinois National Insurance Co. v. Palmer, 116 Ill. App. 3d
       1067, 1069 (1983), the First District noted that “[i]t [was] well established in Illinois that an
       insured cannot recover under the hit-and-run provision of the uninsured motorist coverage
       unless there [was] a physical contact of the unidentified motor vehicle with the insured or an
       automobile occupied by the insured.” (Internal quotation marks omitted.). Similarly, in Kannel
       v. State Farm Mutual Automobile Insurance Co., 222 Ill. App. 3d 1013, 1016 (1991), the
       Second District determined that “our supreme court ha[d] upheld the validity of insurance
       policies affording coverage for personal injuries in accidents caused by hit-and-run drivers
       only where the unknown vehicle makes physical contact with the insured or his vehicle.”
¶ 18        But, the Third District, as Wojciech notes, has rejected the argument that an insured must
       be contacted by the hit and run vehicle to recover uninsured motorists benefits. In Groshans v.
       Dairyland Insurance Co., 311 Ill. App. 3d 876, 879 (2000), the Third District “found that
       Illinois law [did] not require actual physical contact but merely permit[ted] an insurance policy
       to require such contact.” See also Cincinnati Insurance Co. v. Prichett, 2015 IL App (3d)
       130809, ¶ 20 (reaffirming Groshans and noting that legislature amended the Code after
       Groshans was issued and did not invalidate Groshans or clarify that coverage applies only in
       cases of physical contact).



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¶ 19       Wojciech suggests Groshans and Pritchett support his argument that he may recover under
       the uninsured motorist provision of the policy even though he was not physically contacted by
       the hit and run automobile. The assertion is misplaced. Even if we were to adopt the rationale
       of Groshans and Pritchett (which we do not), Wojciech still is not entitled to uninsured
       motorist benefits under the policy—the policy explicitly requires physical contact between an
       insured and the hit and run vehicle. While both Groshans and Pritchett conclude that Illinois
       law does not require actual physical contact, they find that it is a permissible requirement in an
       insurance policy. Under the plain and unambiguous language of the Allstate policy, an insured
       must have been physically contacted by the hit and run vehicle. Wojciech was not and thus
       may not recover.
¶ 20       Wojciech argues that one of the primary purposes of the physical contact requirement, as
       noted in Ferega, is to prevent fraud, which is not an issue because it is undisputed that the hit
       and run driver ran into his wife, causing serious injuries. We agree. But that does not negate the
       policy’s express requirement that there be physical contact to recover under the uninsured
       motorist provision.
¶ 21       Wojciech also notes that Illinois courts allow recovery for indirect physical contact when
       either an actual physical object from the hit-and-run vehicle indirectly strikes the insured’s
       vehicle or the indirect contact is a result of a chain of events. See Hartford Accident &
       Indemnity Co. v. LeJeune, 114 Ill. 2d 54, 59 (1986) (supreme court declined “to require that the
       ‘hit’ be direct” when hit-and-run vehicle hit a third car, which then hit the insured’s car);
       Palmer, 116 Ill. App. 3d at 1068, 1071 (where physical contact requirement was satisfied when
       lug nut flew off hit-and-run vehicle and hit insured’s car). While Wojciech asks us to find his
       case analogous to Hartford and Palmer, there simply was no contact, direct or indirect,
       between him and the hit and run driver. Thus, he cannot recover under the uninsured motorist
       provision of the policy.
¶ 22       Because we find that Wojciech’s claim is barred by the physical contact requirement of the
       policy, we need not address his contention that his physical and emotional injuries after the
       accident amount to “bodily injury” under the policy.

¶ 23      Affirmed.




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