City’s Tort Immunity Did Not Trigger Uninsured Motorist Coverage For Driver
By Don R. Sampen, published, Chicago Daily Law Bulletin, March 22, 2022
The 1st District Appellate Court recently held that automobile uninsured motorist coverage did not apply to a claim by an insured driver against the city of Chicago after being struck by a city-owned ambulance, even though the city was entitled to governmental immunity from the insured’s injury claim.
The case is Unique Insurance Co. v. Tate, 2022 IL App (1st) 210491 (Feb. 18). The insurer, Unique, was represented by Goldberg Segalla LLP of Chicago. McCready, Garcia & Leet P.C. of Chicago represented the insured, Corey Tate.
Tate sued the city in 2018, claiming he was injured when struck by a city ambulance and that he incurred damages in excess of $30,000. The city moved for summary judgment under the Local Governmental and Governmental Employees Tort Immunity Act, which grants local governmental entities immunity in the absence of willful and wanton conduct.
The court granted the city’s motion and dismissed the case with prejudice. Tate then filed an uninsured motorist claim with Unique, and further sought to arbitrate pursuant to the arbitration clause in the policy.
That same day Unique filed a two-count complaint seeking a declaration of no coverage. Count 1 sought a determination that uninsured motorist coverage did not apply because the city was self-insured and did not meet the policy’s definition of an uninsured motorist. Count 2 sought a ruling that the judgment in Tate’s suit against the city collaterally estopped him from seeking uninsured motorist coverage.
The policy provided uninsured motorist coverage under Part B of the policy. That part required payment by Unique when Tate became “legally entitled to recover” compensatory damages from an uninsured motorist.
The policy defined an “uninsured motor vehicle” as one that lacked insurance applicable “at the time of the accident.” It also excluded from the definition a vehicle “owned or operated by a self-insurer” and one “owned by any governmental unit or agency.”
Following the briefing, the trial court stayed the arbitration and granted summary judgment to Unique. It found that the policy’s definition of an uninsured vehicle did not include the city’s ambulance and was not against public policy. It further held Tate was collaterally estopped from pursuing coverage. He took this appeal.
In an opinion by Justice Thomas E. Hoffman, the 1st District affirmed. Tate’s main argument on appeal was that, despite the facts that the ambulance was self-insured by the city and the city was a government entity, the policy’s definition of an uninsured vehicle was unduly restrictive and violated section 143a of the Insurance Code, 215 ILCS 5/143a.
That section requires generally that every liability insurance policy provide coverage caused by an uninsured vehicle. For the purpose of that requirement, Tate relied on case law mandating that the uninsured coverage place the claimant in substantially the same position as if the uninsured driver had been minimally insured.
Tate further supported his position by citing Franey v. State Farm Mutual Automobile Insurance Co., 5 Ill. App. 3d 1040 (1972). The court there found that an “uninsured motorist” definition excluding motor vehicles owned by the United States and all other governmental entities was unduly restrictive. The Franey court observed in a supplemental opinion that, if the driver of a governmental automobile is uninsured, then the mandatory uninsured motorist coverage would necessarily apply.
Hoffman acknowledged that Franey offered support for Tate’s position that the Unique policy definition excluding government vehicles in general was overly restrictive. He further said, however, that Franey offered no support for the proposition that self-insured vehicles could not be excluded from the definition of uninsured vehicles.
Hoffman also rejected the proposition that a self-insured driver is an uninsured driver, because, by statute, self-insurance satisfies the financial responsibility requirements of the Vehicle Code. See 625 ILCS 5/108-2. Accordingly, the policy’s exclusion of self-insured vehicles from the definition of an uninsured vehicle is not at odds with section 143a.
Tate further argued that, even apart from the uninsured requirements of the Insurance Code, the court should further consider whether Tate was entitled to recover “underinsured motorist” policy benefits. As to this argument, however, Hoffman found that Tate had failed to assert it in the trial court, and he therefore forfeited the argument.
In sum, the court affirmed the judgment in favor of Unique based on the policy’s definition of uninsured motor vehicle. The court found it unnecessary to consider whether Tate was collaterally estopped to pursue coverage.
Self-insurance may satisfy the requirements of the Vehicle Code for purposes of determining the availability of uninsured motorist benefits due a claimant seeking to recover against a self-insured owner.