                                          2015 IL App (3d) 130809

                                Opinion filed April 27, 2015
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                  A.D., 2015

     CINCINNATI INSURANCE COMPANY,                     )       Appeal from the Circuit Court
                                                       )       of the 12th Judicial Circuit,
            Plaintiff-Appellant,                       )       Will County, Illinois,
                                                       )
            v.                                         )       Appeal No. 3-13-0809
                                                       )       Circuit No. 09-MR-663
                                                       )
     ROBERT PRITCHETT,                                 )       Honorable
                                                       )       Barbara Petrungaro,
            Defendant-Appellee.                        )       Judge, Presiding.
                                                       )
                                                       )

     _______________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justices Carter and O'Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                  OPINION

¶1          The plaintiff, Cincinnati Insurance Co. (Cincinnati), filed this interlocutory appeal in

     connection with a declaratory judgment action it brought against the defendant, Robert Pritchett

     (Pritchett). Pritchett was covered under an automobile liability insurance policy issued by

     Cincinnati. Cincinnati filed suit in the circuit court of Will County seeking a declaration that it

     has no obligation to arbitrate Pritchett's claim for bodily injury and other claims arising from a
     single-car vehicle accident on October 10, 2007. Cincinnati and Pritchett filed cross-motions for

     summary judgment.

¶2          Relying on our appellate court's decision in Groshans v. Dairyland Insurance Co., 311

     Ill. App. 3d 876 (2000), the trial court found that the language of the Cincinnati policy at issue is

     ambiguous as to whether automobile accidents like Pritchett's, which did not involve physical

     contact between the insured's car and a hit-and-run vehicle, are covered under the policy.

     Accordingly, the trial court denied both parties' motions for summary judgment. Cincinnati filed

     a motion for reconsideration and clarification which the trial court denied.

¶3          Cincinnati then filed a motion to certify questions for interlocutory appeal under Illinois

     Supreme Court Rule 308(a) (eff. February 26, 2010). The trial court granted Cincinnati 's

     motion and certified the following two questions for interlocutory appeal:

                  "1. Is the policy language ambiguous in that it does not clearly require

            physical contact between an insured vehicle and another vehicle, either directly or

            through a continuous chain of events, for coverage to exist?;

                  2. Is the policy language ambiguous with respect to the necessity of physical

            contact between an insured vehicle and either a hit and run vehicle or an object

            caused by a hit and run vehicle to make contact with the insured vehicle through a

            continuous sequence of events?"

¶4          Although we initially declined to accept Cincinnati's petition seeking our review of these

     questions, our supreme court has by supervisory order directed us to accept the appeal and

     answer the certified questions. Cincinnati Insurance Co. v. Pritchett, No. 117102 (March 26,

     2014). We conclude that, like the policy language at issue in Groshans, the policy at issue in this

     case is ambiguous as to whether coverage extends to hit-and-run automobile accidents that

                                                       2
     involve no physical contact between the insured vehicle and either a hit-and-run vehicle or an

     object that a hit-and-run vehicle causes to make contact with the insured vehicle. Accordingly,

     we answer both certified questions in the affirmative and remand the case for further

     proceedings.

¶5                                                 FACTS

¶6          On October 10, 2007, Pritchett was driving a 2000 Mack semitrailer owned by his

     employer, Carl A. Anderson & Sons, Inc. (Anderson), when he was involved in a single-car

     accident. Pritchett was traveling westbound on Diehl Road toward the intersection of Diehl

     Road and Old Diehl Road. When Diehl Road approaches that intersection, the right westbound

     lane becomes a turn lane and curves to the right onto Old Diehl Road. Pritchett testified that he

     was traveling in the far right lane at approximately 40 miles per hour and intended to turn right

     onto Old Diehl Road. Pritchett claimed that, when he was approximately 50 to 100 feet from the

     right turn lane, a light green sedan passed his truck and cut in front of him, approximately one

     foot from his bumper. Pritchett claimed that, in response to this, Pritchett slammed on his brakes

     and turned the wheel to the right. His vehicle then hit the curb on the right side of the road and

     Pritchett turned the wheel to the left. As a result, the load in the truck shifted, causing the truck

     to flip over. Pritchett stated that the green sedan did not stop and continued westbound on Diehl

     Road. Pritchett stated that the green sedan never made contact with his vehicle.

¶7          There were two eyewitnesses to the accident, Janie Tomasek and Thomas Modzelewski.

     Both testified that there were no other vehicles in the vicinity of Pritchett's truck at the time of

     the accident. Tomasek was stopped at a stop sign at the intersection of Old Diehl Road and

     Diehl Road when she first saw Pritchett's truck. She testified that Pritchett was traveling in

     excess of the speed limit at approximately 45 miles per hour. She stated that Pritchett's truck

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       made contact with the curb, bounced back, and "popped" up on the curb a second time, causing

       the truck to flip over. Tomasek testified that she saw a sedan traveling in the left lane of Diehl

       Road approximately four to six car lengths in front of Pritchett's truck but did not pass Pritchett's

       truck or swerve into Pritchett's lane of travel. According to Tomasek, the sedan was never any

       closer than four to six car lengths from Pritchett's truck.

¶8            Modzelewski was standing on the porch of the employer's building when he first saw

       Pritchett's truck. He testified that Pritchett was traveling "awkwardly fast for that corner" when

       it approached the turn. Modzelewski stated that, after Pritchett's truck hit the curb, it "hopped the

       curb" and "it seemed like the driver overcompensated maybe and jackknifed and went over on its

       side." Modzelewski did not witness any other vehicles in the vicinity of Pritchett's truck at the

       time of the accident.

¶9            Cincinnati had issued a policy of automobile liability insurance to Anderson which was

       in effect at the time of Pritchett's accident. With respect to Uninsured Motorist Coverage, the

       policy stated:

¶ 10                    "A.    Coverage

                               1. We will pay all sums the 'insured' is legally entitled to recover

                        as compensatory damages from the owner or operator of an 'uninsured

                        motor vehicle.' The damages must result from 'bodily injury' sustained by

                        the 'insured' caused by an 'accident.' The owner's or operator's liability for

                        these damages must result from the ownership, maintenance or use of the

                        'uninsured motor vehicle.'

                                                              ***

                        F. Additional Definitions
                                                          4
                              As used in this endorsement:

                                                             ***

                                  4. 'Uninsured motor vehicle' means a 'motor vehicle':

                                                             ***

                                              c. That is a hit-and-run vehicle and neither the

                                  driver nor owner can be identified. The vehicle must hit, or

                                  cause an object to hit, an 'insured,' a covered 'auto' or a

                                  vehicle an 'insured' is 'occupying.' If there is no physical

                                  contact with the hit-and-run vehicle, the facts of the 'accident'

                                  must be proved." (Emphasis added.)

¶ 11          The policy required arbitration if the parties do not agree whether a claimant "is legally

       entitled to recover damages from a party responsible for the 'accident.' "

¶ 12          Pritchett made a claim under the uninsured motorist coverage in the Cincinnati policy.

       Cincinnati denied coverage and filed this declaratory judgment action, arguing that, for coverage

       to apply, "the [hit-and-run] vehicle must hit, or cause an object to hit, an 'insured,' a covered

       'auto' or a vehicle an 'insured' is 'occupying.' " By Pritchett's own admission, that did not occur

       here. The parties filed cross-motions for summary judgment.

¶ 13          The trial court denied both motions. In so ruling, the trial court relied principally on our

       appellate court's decision in Groshans. In Groshans, our appellate court held that the uninsured

       motorist provision of the automobile insurance policy at issue in that case was ambiguous as to

       whether coverage extended to automobile accidents that did not involve physical contact

       between the insured's car and a hit-and-run vehicle. The trial court ruled that the relevant

       language of the Cincinnati policy at issue in the instant case "appears to be identical to that in
                                                         5
       Groshans" and that, "[a]lthough Plaintiff contends that there is additional language, the policies

       appear to be very similar." Accordingly, the trial court ruled that, like the policy in Groshans,

       the Cincinnati policy is ambiguous. The trial court also ruled that, because there was no physical

       contact, Pritchett must prove the facts of the accident so that the court could ascertain whether

       coverage applies before the court would send the matter to arbitration.

¶ 14          Cincinnati subsequently filed a motion for reconsideration and clarification which the

       trial court denied. In its order denying reconsideration, the trial court again applied Groshans

       and reaffirmed the reasoning in its prior order. The trial court explained that the "first and

       second sentences of the [uninsured motorist liability] section appear to require actual physical

       contact, while the third sentence, like the policy in Groshans, requires the facts of the accident to

       be proved when there is no physical contact with the hit and run vehicle." Thus, the trial court

       reasoned that, as in Groshans, the Cincinnati policy was ambiguous.

¶ 15          Cincinnati then filed a motion to certify questions for interlocutory appeal under Illinois

       Supreme Court Rule 308(a). The trial court granted Cincinnati 's motion, finding that the court's

       order dismissing the parties' cross-motions for summary judgment "involves a question of law as

       to which there is substantial ground for difference of opinion and the immediate appeal from the

       Order may materially advance the ultimate termination of the litigation." After receiving

       proposed certified questions from the parties, the trial court issued an order certifying the

       questions as specified above.

¶ 16          Our appellate court initially denied Cincinnati's application for leave to appeal under

       Supreme Court Rule 308, but later vacated its prior order and entered an order allowing

       Cincinnati 's application for leave to appeal after our supreme court issued a supervisory order



                                                         6
       directing our appellate court to vacate its prior order and to answer the questions certified by the

       trial court.

¶ 17                                              ANALYSIS

¶ 18           Our analysis in this case is limited to answering the questions of law certified for

       interlocutory review, which is governed by a de novo standard of review. Thompson v. Gordon,

       356 Ill. App. 3d 447, 451 (2005).

¶ 19           The certified questions ask us to determine whether the Cincinnati policy unambiguously

       limited coverage for hit-and-run accidents to situations involving some type of physical contact

       between the insured's vehicle and the hit-and-run vehicle or between the insured's vehicle and an

       object that the hit-and-run vehicle caused to come in contact with the insured's vehicle. Before

       answering these questions, we must first address Cincinnati's argument the Illinois Insurance

       Code (Code) (215 ILCS 5/1 et seq. (West 2006)) requires such "physical contact" coverage

       limitations as a matter of law. We hold that the Code imposes no such requirement.

¶ 20           Section 143a(1) of the Code requires automobile liability insurance policies to include

       "protection of persons insured thereunder who are legally entitled to recover damages from

       owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of

       bodily injury, sickness or disease, including death, resulting therefrom." 215 ILCS 5/143a(1)

       (West 2006). The statute does not expressly limit such coverage to accidents involving physical

       contact. Our supreme court and our appellate court have ruled that the Code does not bar

       insurers from including such a limitation in a policy, have repeatedly upheld physical-contact

       limitations as "valid," and have found such limitations consistent with the statute's policy of

       preventing fraudulent claims. See, e.g., Ferega v. State Farm Mutual Automobile Insurance Co.,

       58 Ill. 2d 109, 111 (1974) ("[W]e see no inconsistency between the policy provisions [limiting

                                                         7
       coverage to accidents involving physical contact] and the requirements of the statute. Indeed,

       both seem to be entirely consistent and to be aimed to be entirely consistent and to be aimed at

       the avoidance of fraudulent claims."); Kannel v. State Farm Mutual Automobile Insurance Co.,

       222 Ill. App. 3d 1013 (1991). However, as we ruled in Groshans, the Code does not require

       insurers to limit coverage for hit-and-run accidents to situations involving direct or indirect

       physical contact. Groshans, 311 Ill. App. 3d at 878-79; see also id. at 879 ("Illinois law does not

       require actual physical contact [for hit-and-run coverage] but merely permits an insurance policy

       to require such contact" (emphases added)).

¶ 21          We acknowledge that some older decisions of our appellate court have held or implied

       that section 143a(1) requires insurers to limit coverage to accidents involving physical contact.

       See Swan v. Country Mutual Insurance Co., 306 Ill. App. 3d 958 (1999); Illinois National

       Insurance Co. v. Palmer, 116 Ill. App. 3d 1067 (1983). However, in Groshans, our appellate

       court ruled to the contrary and declined to follow those decisions. Groshans, 311 Ill. App. 3d at

       878-79. Although the legislature has amended section 143a of the Code twice since Groshans

       was issued, it has not invalidated Groshans or amended the statute to clarify that coverage

       applies only in cases of physical contact. This suggests that the legislature does not disapprove

       of Groshans' interpretation of the statute. See Ferega, 58 Ill. 2d at 111-12; see also Bruso v.

       Alexian Brothers Hospital, 178 Ill. 2d 445, 458 (1997) ("in amending a statute, the legislature is

       presumed to have been aware of judicial decisions interpreting the statute and to have acted with

       this knowledge").

¶ 22          Accordingly, we proceed to the certified questions, which ask us to determine whether

       the Cincinnati policy is ambiguous as to whether coverage extends only to accidents involving

       physical contact. The policy provides coverage for "all sums the 'insured' is legally entitled to

                                                         8
       recover as compensatory damages from the owner or operator of an 'uninsured motor vehicle.' "

       In section F(4)(c), the policy defines an "uninsured motor vehicle" to include, inter alia:

                      "a hit-and-run vehicle and neither the driver nor owner can be identified.

                      The vehicle must hit, or cause an object to hit, an 'insured,' a covered 'auto'

                      or a vehicle an 'insured' is 'occupying.' If there is no physical contact with

                      the hit-and-run vehicle, the facts of the 'accident' must be proved."

¶ 23          As Cincinnati notes, the second sentence of the above definition states that coverage

       applies only when the hit-and-run vehicle "hit[s], or causes an object to hit," the insured vehicle.

       When read in isolation, that sentence suggests a physical-contact requirement. However, the

       third sentence of the above definition states that coverage applies even when "there is no

       physical contact with the hit-and-run vehicle," so long as the facts of the accident are proved.

       When these two sentences are read together, the extent of the policy's physical-contact

       requirement (if any) becomes unclear and the policy becomes susceptible of two equally

       reasonable interpretations. On the one hand, the policy may be read as covering accidents in

       which the hit-and-run vehicle "hits" or "causes an object to hit" the insured's vehicle, but as

       requiring the facts to be proven in the latter scenario (i.e., when the alleged "contact" is with an

       "object" rather than with the hit-and-run vehicle itself). On this reading (which is urged by

       Cincinnati), the third sentence does not contradict or eliminate the physical-contact requirement

       imposed by the previous sentence; it merely explains how a certain type of physical contact must

       be proven. On the other hand, however, the policy might be read as covering certain accidents

       which involve no physical contact of any kind. The third sentence provides for coverage where

       there is no "physical contact with the hit-and-run vehicle," so long as the facts of the accident are

       proved. The phrase "physical contact with the hit-and-run vehicle" may reasonably be

                                                         9
       interpreted as including both direct physical contact with the hit-and-run vehicle and indirect

       contact with that vehicle by means of contact with an object that the hit-and-run vehicle causes to

       hit the insured's vehicle. On this reading, where the facts of the accident are proved, the policy

       covers all hit-and-run accidents, even those that do not involve any such physical contact. We

       find both of these conflicting interpretations of the Cincinnati policy to be reasonable.

       Therefore, the policy is ambiguous.

¶ 24          In further support of our holding, we note that the relevant language of the Cincinnati

       policy is materially indistinguishable from the policy language at issue in Groshans, which our

       appellate court found to be ambiguous. That policy language provided:

                      " ' We promise to pay damages, excluding punitive or exemplary damages,

              the owner or operator of an uninsured motor vehicle is legally obligated to pay

              because of bodily injury you suffer in a car accident while occupying a car, or as a

              pedestrian, as a result of having been struck by an uninsured motor vehicle.

                                                      ***

                      A hit-and-run motor vehicle, if the driver or owner cannot be identified

              and which strikes, or causes another vehicle to strike, you or a motor vehicle you

              are occupying is an uninsured motor vehicle. If there is no physical contact with

              the hit-and-run vehicle the facts of the accident must be proved.' " (Emphases

              omitted.) Groshans, 311 Ill. App. 3d at 877.

       The accident in Groshans, like the accident here, did not involve any physical contact between

       the insured's vehicle and the hit-and-run vehicle. (The insured in Groshans claimed that he

       swerved to avoid an alleged hit-and-run driver which caused his car to leave the roadway and roll

       over in a ditch. Groshans, 311 Ill. App. 3d at 877.) At issue was whether the insured's

                                                        10
       automobile insurance policy covered such an accident. The insurer argued that the policy

       provisions quoted above unambiguously restricted coverage to accidents involving physical

       contact with the hit-and-run vehicle. Rejecting this argument, our appellate court held that the

       policy provision requiring the facts of an accident to be proved when there is no physical contact

       with the hit-and-run vehicle was "susceptible to more than one reasonable interpretation," and

       therefore ambiguous. Id. at 879-80.

¶ 25            Cincinnati argues that the policy at issue in Groshans is distinguishable from the policy

       in this case for two reasons. First, Cincinnati maintains that the Groshans policy "does not

       define what an uninsured motor vehicle is." Second, Cincinnati contends that the Groshans

       policy sets forth only a single "coverage scenario," i.e., it provides coverage "only when a hit-

       and-run vehicle makes physical contact with an insured vehicle," whereas the Cincinnati policy

       provides coverage both in that scenario and when the hit-and-run vehicle causes an object to hit

       the insured vehicle. Cincinnati asserts that the "lack of a second coverage scenario creates

       ambiguity in the Groshans policy" because the Groshans policy later states that "[i]f there is no

       physical contact with the hit and run vehicle the facts of the accident must be proved." According

       to Cincinnati, its own policy, with its "two distinct coverage scenarios," "does not suffer from the

       same flaw."

¶ 26          We do not find these arguments persuasive. First, contrary to Cincinnati's argument, the

       Groshans policy defined what qualified as an "uninsured motor vehicle" under the policy.

       Specifically, the Groshans policy stated that " '[a] hit-and-run motor vehicle, if the driver or

       owner cannot be identified and which strikes, or causes another vehicle to strike, you or a motor

       vehicle you are occupying is an uninsured motor vehicle.' " (Emphases added, omitted, and in

       original.) Groshans, 311 Ill. App. 3d at 877. In addition, the Groshans policy did not set forth

                                                        11
       only a single "coverage scenario"; rather, like the Cincinnati policy, it provided coverage in two

       distinct circumstances. Specifically, it provided coverage when a hit-and-run motor vehicle "

       'strikes, or causes another vehicle to strike' " the insured's vehicle. (Emphasis added.) Id.

       Nevertheless, our appellate court held that a separate policy provision stating that " '[i]f there is

       no physical contact with the hit-and-run vehicle the facts of the accident must be proved' "

       rendered the Groshans policy ambiguous as to whether coverage was limited to accidents

       involving physical contact. Id. at 879. We find the Cincinnati policy ambiguous in the same

       respect.

¶ 27          For the foregoing reasons, we answer both certified questions in the affirmative.

¶ 28                                              CONCLUSION

¶ 29         Certified questions answered; cause remanded.




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