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Cope v. State Farm Fire & Casualty Co.
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0216 Rel
Case Date: 12/05/2001
                   NOTICE
Decision filed 12/05/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-00-0216

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


KENNETH L. COPE, SHEILA M. COPE,
and KENDRA L. COPE,

     Plaintiffs-Appellees,

v.

STATE FARM FIRE AND CASUALTY
COMPANY,

     Defendant-Appellant.

)


)
)

)
)


Appeal from the
Circuit Court of
St. Clair County.


No. 96-CH-308


Honorable
Patrick M. Young,
Judge, presiding.

 

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Kenneth L. Cope, Sheila M. Cope, and Kendra L. Cope (plaintiffs) filed suit againstState Farm Fire and Casualty Company (defendant) and asked the St. Clair County circuitcourt to reform their personal-liability umbrella policy (umbrella policy) to reflect uninsured-motorist coverage of $1 million. Following a bench trial, the circuit court found in favor ofplaintiffs and reformed the umbrella policy. On appeal, defendant claims that the circuitcourt erred in reforming the umbrella policy to provide excess uninsured-motorist coverage,because plaintiffs had neither requested nor paid for that coverage and because defendanthad no duty under the Illinois Insurance Code (Code) (215 ILCS 5/1 et seq. (West 1994))to offer or make available excess uninsured-motorist coverage as a component of itsumbrella policy. Defendant also asserts that plaintiffs' claim for reformation is barred by theapplicable statute of limitations.

The facts pertinent to this appeal follow. On October 18, 1994, Kendra Cope wasstanding near a street-side telephone booth when she was hit by an uninsured motor vehicle.She suffered severe injuries. At the time of the incident, plaintiffs had an automobileliability policy issued by defendant that provided $100,000 in uninsured-motorist coverage. Plaintiffs also had an umbrella policy that provided up to $1 million in excess coverage. Theumbrella policy was initially purchased on January 4, 1983, and was renewed annually. Theumbrella policy had been renewed on January 4, 1994. The 12-month policy period was toexpire January 4, 1995. At the time of the incident, Kendra Cope resided with her parents,Kenneth Cope and Sheila Cope, and she was an insured under her parents' policies. Plaintiffs' umbrella policy provided excess coverage for several liability policies, includingtheir automobile-liability coverage, homeowner's coverage, recreational-motor-vehicleliability coverage, watercraft-liability coverage, and residential-rental-liability coverage. Plaintiffs' umbrella policy did not include excess coverage for injuries caused by uninsuredor underinsured motor vehicles. Although defendant made excess uninsured-motoristcoverage available as an option under its umbrella policy, plaintiffs did not purchase thatcoverage.

During the initial period that Kendra Cope was hospitalized, plaintiffs' insuranceagent contacted plaintiffs to inform them that uninsured-motorist coverage applied in caseswhere a vehicle hit a pedestrian and to notify them that they had $100,000 in uninsured-motorist coverage for this loss. Sometime later, plaintiffs called their agent to ask whetherthey had additional uninsured-motorist coverage under their umbrella policy. The agent toldplaintiffs they did not have that coverage. The agent reminded plaintiffs that they hadelected not to carry that coverage and that they had signed the application rejecting thatcoverage. Once defendant was notified of the loss, it tendered the $100,000 in uninsured-motorist coverage.

Plaintiffs filed suit against defendant and sought a reformation of their umbrellainsurance contract to reflect that plaintiffs had $1 million in excess uninsured-motoristinsurance available to cover the October 18, 1994, incident. Plaintiffs sought a reformationon the theory that defendant had failed to make a meaningful offer informing them of theavailability of uninsured-motorist coverage as an option under its umbrella coverage and thelimits and costs of that coverage. After a bench trial, the circuit court entered a judgmentin favor of plaintiffs and granted the prayer for the reformation of the umbrella policy. Thecourt found that the offer of excess uninsured-motorist coverage made by defendant wasinsufficient to enable plaintiffs to make an informed decision to accept or reject thatcoverage. The court reformed the umbrella policy to reflect that $1 million in uninsured-motorist coverage was available to cover the October 1994 loss, and it referred the claim toarbitration for a resolution of plaintiffs' damages.

On appeal, defendant claims that the trial court erred in granting plaintiffs' prayer forthe reformation of the umbrella policy. Defendant contends that insurance companies haveno legal duty to provide excess uninsured-motorist coverage as a component of umbrellacoverage and that, in any event, plaintiffs' agent adequately informed them of the availabilityof the excess uninsured-motorist coverage and plaintiffs neither requested nor paid apremium for excess uninsured-motorist coverage. Defendant also points out that the insuredhas a responsibility to know the content of his policy and to examine his policy to determinewhether all the requested coverages and limits of coverage are included in the policy, andit argues that plaintiffs breached this duty because they never questioned their agent ordefendant about the fact that excess uninsured-motorist coverage was not listed on thedeclarations page of their umbrella policy.

In response, plaintiffs argue that if an insurer voluntarily chooses to make excessuninsured-motorist coverage available, it has a duty to provide a meaningful offer outliningthe scope, limits of liability, and estimated cost of that coverage. Plaintiffs rely uponCloninger v. National General Insurance Co., 109 Ill. 2d 419, 488 N.E.2d 548 (1985), and,alternatively, the doctrine of voluntary undertaking to support their claim that defendant hadand breached the duty to make a meaningful offer.

In this case, the trial court found that defendant's offer was not sufficient to allowplaintiffs to make an informed decision about whether to accept or reject the optional excessuninsured-motorist coverage. Implicit in this finding is a determination that defendant hada duty to make a meaningful offer regarding the scope and cost of that coverage. However,the trial court did not indicate the source for that duty. Contrary to plaintiffs' argument,section 143a-2 of the Code (215 ILCS 5/143a-2 (West 1994)) does not impose such a dutyon insurance companies. Section 143a-2(5) plainly states, "Insurers providing liabilitycoverage on an excess or umbrella basis are neither required to provide[] nor *** prohibitedfrom offering or making available [excess uninsured-motorist coverage]." 215 ILCS5/143a-2(5) (West 1994); see Cincinnati Insurance Co. v. Miller, 190 Ill. App. 3d 240, 248,546 N.E.2d 700, 705 (1989).

It is important to remember that an umbrella policy is at issue in this case. The typeof insurance coverage provided in an umbrella policy differs from that provided inautomobile-liability coverage and consequently falls outside the scope of the Illinoisuninsured-motorist insurance laws. See Hartbarger v. Country Mutual Insurance Co., 107Ill. App. 3d 391, 396, 437 N.E.2d 691, 694 (1982). Section 143a-2(1) of the Code (215ILCS 5/143a-2(1) (West 1994)) governs additional uninsured-motorist coverage andrequires an insurer to provide uninsured-motorist coverage in an amount equal to theinsured's bodily injury liability limits, unless specifically rejected by the insured. There isno comparable requirement governing the provision of uninsured-motorist coverage in anumbrella policy. Even if we were to assume for the sake of argument that therequirements of section 143a-2 were applicable to uninsured-motorist coverage in umbrellapolicies as plaintiffs contend, their position would not be improved. A number ofsubstantive legislative revisions have been made to section 143a-2 since Cloninger v.National General Insurance Co., 109 Ill. 2d 419, 488 N.E.2d 548 (1985), was decided. The1990 version of the statute (Ill. Rev. Stat., 1990 Supp., ch. 73, par. 755a-2(1)) applies in thiscase because the umbrella policy (though initially issued in 1983) has been renewed multipletimes since the effective date of those revisions. See Coronado v. Fireman's FundInsurance Co., 131 Ill. App. 3d 450, 453, 475 N.E.2d 1048, 1051 (1985); Dickirson v.Pacific Mutual Life Insurance Co., 319 Ill. 311, 315, 150 N.E. 256, 257 (1926). InDeGrand v. Motors Insurance Corp., 146 Ill. 2d 521, 533, 588 N.E.2d 1074, 1080 (1992),the Illinois Supreme Court considered the revisions to section 143a-2 and determined thatthe legislature had intentionally removed the "meaningful offer" requirements set out in theCloninger decision. The supreme court held that the 1990 version of section 143a-2required an insurer to describe the extent of the coverage and to advise the insured of hisright to reject any coverage in excess of the statutory minimum. DeGrand, 146 Ill. 2d at531, 588 N.E.2d at 1079. The supreme court stated that the 1990 version no longer requiredthe insurer to make a "meaningful" or "commercially reasonable" offer but, rather, placedthe duty to reject the additional coverage on the insured. DeGrand, 146 Ill. 2d at 533, 588N.E.2d at 1080.

As to plaintiffs' voluntary-undertaking theory of liability, it is well-established thatthe duty of care imposed upon a defendant is limited to the extent of its undertaking. SeeFrye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32, 605 N.E.2d 557, 560 (1992). Assuming,arguendo, that the doctrine is applicable in an economic-loss case, the fact that defendantchose to make excess uninsured-motorist coverage available as an option under its umbrellapolicy does not automatically impose on it a duty to meet the Cloninger meaningful-offerrequirements. In this case, the extent of defendant's undertaking, at most, was to notifyconsumers that excess uninsured-motorist coverage was an available option under itsumbrella policy. Plaintiffs have never alleged that they were unaware of the availability ofthat coverage; rather, plaintiffs have alleged that they were not provided with sufficientinformation to make an informed decision about whether to accept or reject the coverage.

In this case, plaintiffs have not shown that defendant had a statutory or common-lawduty to make a meaningful offer informing consumers of the availability, limits, and costsof the optional uninsured-motorist coverage it made available under its umbrella policy. Norhave they shown that defendant voluntarily undertook such a duty. In the absence of ashowing that there was a legal duty, we decline to impose such a responsibility on defendantin this case merely because it chose to make excess uninsured-motorist coverage available. The trial court erred in entering a judgment reforming plaintiffs' umbrella policy to includeup to $1 million in uninsured/underinsured-motorist coverage. Given that the resolution ofthis issue is dispositive of the case, we need not address the statute-of-limitations issue.

For the reasons stated above, the judgment in favor of plaintiffs is reversed.

Reversed.

WELCH and RARICK, JJ., concur.

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