                               Illinois Official Reports

                                     Appellate Court



                 Cincinnati Insurance Co. v. Pritchett, 2015 IL App (3d) 130809



Appellate Court          CINCINNATI INSURANCE COMPANY, Plaintiff-Appellant, v.
Caption                  ROBERT PRITCHETT, Defendant-Appellee.




District & No.           Third District
                         Docket No. 3-13-0809




Filed                    April 27, 2015




Decision Under           Appeal from the Circuit Court of Will County, No. 09-MR-663; the
Review                   Hon. Barbara Petrungaro, Judge, presiding.




Judgment                 Certified questions answered; cause remanded.




Counsel on               Brian J. Hunt (argued) and Angela M. Rentz, both of Hunt Law
Appeal                   Group, LLC, of Chicago, for appellant.

                         Christopher M. Norem (argued) and Benjamin R. Swetland, both of
                         Parente & Norem, P.C., of Chicago, for appellee.
     Panel                    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. Feb. 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 (Ill. Mar. 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
       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

                                                  -2-
     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
     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:
                  “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
                      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

                                                  -3-
                            physical contact with the hit-and-run vehicle, the facts of the ‘accident’
                            must be proved.” (Emphasis added.)
¶ 10        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.’ ”
¶ 11        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.
¶ 12        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 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.
¶ 13        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.
¶ 14        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.
¶ 15        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
       directing our appellate court to vacate its prior order and to answer the questions certified by
       the trial court.

¶ 16                                        ANALYSIS
¶ 17       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).


                                                    -4-
¶ 18        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.
¶ 19        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 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)).
¶ 20        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”).
¶ 21        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
       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:



                                                   -5-
               “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.”
¶ 22       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 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.
¶ 23       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
       automobile insurance policy covered such an accident. The insurer argued that the policy

                                                    -6-
       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.
¶ 24        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.”
¶ 25        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 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.
¶ 26        For the foregoing reasons, we answer both certified questions in the affirmative.

¶ 27                                          CONCLUSION

¶ 28      Certified questions answered; cause remanded.




                                                    -7-
