UM Coverage Mandated for Pedestrians, Despite Policy Language to the Contrary
By Don R. Sampen, published, Chicago Daily Law Bulletin, November 8, 2022
The 1st District Appellate Court, in a case of first impression, recently held that an insured under an automobile liability policy who, at the time of an accident was a pedestrian or bicyclist, was entitled to uninsured motorist coverage when struck by a hit-and-run driver, notwithstanding policy language to the contrary.
The case is Galarza v. Direct Auto Insurance Co., 2022 IL App (1st) 211595 (Sept. 30). The insureds, Fredy and Cristopher Guiracocha, were represented by the Disparti Law Group P.A. of Chicago. Shelist & Pena of Chicago represented the insurer, Direct Auto.
In 2020, 14-year-old Cristopher Guiracocha was struck by a hit-and-run driver while riding his bicycle. His father, Fredy, had automobile insurance with Direct Auto, including UM coverage of $25,000 per person.
Fredy filed a UM claim against Direct Auto, which denied coverage based on the policy language. The policy defined an “insured” as the named insured and certain relatives, but otherwise restricted coverage to insureds who are occupants of an “insured automobile.” Direct Auto took the position that, as a bicyclist, Cristopher Guiracocha was not an insured.
On summary judgment the trial court agreed with Direct Auto, and the Guiracochas appealed.
As a side note, this appeal was consolidated with another appeal (Galarza) involving Direct Auto and the same UM issue, but where the trial court decided against Direct Auto. The appellate court, however, dismissed the Galarza appeal for lack of jurisdiction due to the absence of a final judgment.
In an opinion by Justice Jesse G. Reyes, the 1st District reversed. He began his analysis by observing that clear policy language is typically enforced as written, but only if it does not violate public policy.
In this case Reyes said the public policy of Illinois was to protect members of the public injured in vehicular accidents. Thus, section 7-601 of the Illinois Vehicle Code, 625 ILCS 5/7-601, requires liability insurance for all motor vehicles in Illinois.
To that same end, section 143a, 215 ILCS 5/143a, requires the vehicle liability policy to include UM coverage. The UM coverage must be in an amount equal to the bodily injury liability limit, unless the insured has bodily injury coverage in excess of the $25,000 statutory minimum and specifically rejects that additional amount of UM coverage.
Reyes further observed that section 143a required that UM coverage be extended to all who are insured under the liability provisions of the policy.
Direct Auto here argued that Cristopher Guiracocha was not an insured for either the liability or UM portions of the policy, because as a bicyclist he was not riding in an insured vehicle.
UM coverage, however, wrote Reyes, is for the protection of persons insured under the automobile policy, and Direct Auto was attempting “whittle away” at coverage. Under Direct Auto’s interpretation, moreover, Cristopher Guiracocha was potentially left without compensation, which would run afoul of Illinois public policy.
In support of coverage, Reyes relied in part on Direct Auto Insurance Co. v. Merx, 2020 IL App (2d) 190050, where the court held that an insured was entitled to coverage even though she was not occupying her car at the time of the accident, but was a passenger in an uninsured vehicle. Reyes said no meaningful difference existed between the passenger in that case and Cristopher Guiracocha here.
Direct Auto further argued that the Illinois Department of Insurance allowed the policy to be issued with its restrictive language. Reyes held, however, that such approval did not preclude an insured from successfully challenging the validity of the policy provisions.
Reyes also distinguished Rosenberg v. Zurich American Insurance Co., 312 Ill. App. 3d 97 (2000), where a pedestrian was denied coverage under a retirement community’s automobile insurance policy. He indicated that section 143a broadly mandates protection for insured persons under a policy, thereby obviating “any need to delineate ‘pedestrians’ as a protected group.”
The court therefore reversed the summary judgment in favor of Direct Auto and held in favor of coverage for the Guirachochas.
According to this court, Illinois public policy mandates coverage under automobile liability UM provisions for pedestrians and bicyclists who would be insureds under such a policy if riding in an insured vehicle.
Insurance Department approval of policy language does not foreclose a challenge to such language by an insured.