Little v. Economy Preferred Insurance Co.

                               No. 5-95-0698

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________
                                )
FRED LITTLE,                    )  Appeal from the
                                )  Circuit Court of
     Plaintiff-Appellant,       )  Jackson County.
                                )
v.                              )  No. 95-MR-31
                                )
ECONOMY PREFERRED INSURANCE CO.,)  Honorable
                                )  E. Dan Kimmel,
     Defendant-Appellee.        )  Judge, presiding.
_________________________________________________________________

     JUSTICE HOPKINS delivered the opinion of the court:
     Plaintiff, Fred Little, appeals from the Jackson County
circuit court's order granting summary judgment in favor of
defendant, Economy Preferred Insurance Co. (Economy).  The issue we
consider on appeal is whether Economy is entitled to raise during
arbitration the issue of the contributory negligence of plaintiff.
We affirm the trial court's finding that plaintiff's contributory
negligence should be considered in determining what plaintiff is
legally entitled to recover.  
     Plaintiff was injured in an automobile accident on March 26,
1992, with an underinsured driver.  Plaintiff settled his cause of
action against the underinsured driver for the limit of the policy,
$50,000, and then filed a timely claim for underinsured motorist
benefits under his policy of insurance with Economy.  Plaintiff
demanded arbitration of his claim.
     Before the arbitration hearing, Economy informed plaintiff of
its intention to assert the defense of plaintiff's contributory
negligence for the injuries he sustained in the automobile
accident.  In response, plaintiff filed a complaint for declaratory
judgment, claiming that Economy was not entitled to assert the
defense of plaintiff's contributory negligence.  Plaintiff alleged
in his complaint for declaratory judgment that the defense of
contributory negligence is personal to the underinsured driver and,
therefore, not available to Economy and that plaintiff's claim
against Economy is a contractual dispute in which the tort defense
of contributory negligence is not allowed.  The trial court
rejected plaintiff's argument, denied plaintiff's motion for
summary judgment, and entered summary judgment in favor of Economy. 
     The policy of automobile insurance Economy issued to plaintiff
contains the following pertinent provision:
          "We will pay all sums the insured is legally entitled to
     recover as damages from the owner or driver of an ***
     underinsured motor vehicle."
Plaintiff argues that his right of recovery exists only as a result
of the above contract language and that Economy has no right to
assert the tort defense of contributory negligence.  In support of
this argument, plaintiff relies upon Allstate Insurance Co. v.
Elkins, 77 Ill. 2d 384 (1979).
     In Allstate, the supreme court determined that the defense of
interspousal tort immunity could not be used by an insurance
company to defeat an uninsured motorist's claim, as the defense is
personal to each spouse and may only be used or waived by a spouse,
not by an insurance company.  Plaintiff argues that the defense of
interspousal tort immunity is similar to the defense of
contributory negligence and that Economy should not be allowed to
assert the tort defense of contributory negligence in order to
defeat plaintiff's contractual underinsured motorist claim.  We
disagree.  The defense of interspousal tort immunity is an
affirmative defense which, if not waived, may allow a spouse to
move for dismissal of a cause of action brought by the other
spouse.  Wirth v. City of Highland Park, 102 Ill. App. 3d 1074,
1081 (1981); 735 ILCS 5/2-619 (West 1992).  However, even though
interspousal tort immunity provides a spouse a defense to a direct
cause of action by the other spouse, it does not bar an action for
contribution by a third party.  Wirth, 102 Ill. App. 3d at 1081-82.
     In contrast, the defense of contributory negligence is a
factual defense that allows a defendant to reduce his liability by
the percentage plaintiff is responsible for his own injuries.  The
contributory fault statute provides: 
     "In all actions on account of bodily injury or death or
     physical damage to property, based on negligence, *** the
     plaintiff shall be barred from recovering damages if the trier
     of fact finds that the contributory fault on the part of the
     plaintiff is more than 50% of the proximate cause of the
     injury or damage for which recovery is sought."  735 ILCS 5/2-
     1116 (West 1992). 
     Plaintiff argues that the contributory negligence defense is
personal to the underinsured driver and is not available to
Economy, as there is no relationship between the underinsured
driver and Economy that allows Economy to assert tort defenses
available to the underinsured driver alone.  Plaintiff's argument
fails because it is contrary to the explicit language of the
contributory fault statute (735 ILCS 5/2-1116 (West 1992)), which
applies to "all actions on account of bodily injury or death or
damage to property, based on negligence."  The statute is not
written to apply to a particular class of litigants but, rather,
applies across the board to "all actions."  Plaintiff cites no
authority that would lead us to a contrary conclusion, and we have
found none in our own search of the law.  
     Plaintiff next argues that Economy cannot use the defense of
contributory negligence in this case, since plaintiff's claim
against Economy is entirely based upon contract law.  What
plaintiff fails to recognize is that this contract of automobile
insurance provides for coverage in the event of injuries sustained
as the result of tortious conduct.  Hence, plaintiff would have no
claim against the insurance company absent the insurance policy,
but he would have no cause of action against the underinsured
driver without an allegation of negligence against the underinsured
driver.   
     Plaintiff's claim against his insurance company is an action
"on account of bodily injury" based upon plaintiff's allegation of
negligence on the part of the underinsured driver.  735 ILCS 5/2-
1116 (West 1992).  The fact that plaintiff's claim against Economy
would not exist without the contract of insurance does not negate
the fact that the underlying cause of action is "on account of
bodily injury" based upon the negligence of the underinsured
driver.  735 ILCS 5/2-1116 (West 1992).  Hence, Economy is entitled
to raise the defense of plaintiff's contributory negligence in the
arbitration proceedings in order for the arbitrator to determine
the damages plaintiff is "legally entitled to recover" under the
insurance policy.  As Economy correctly points out, the arbitrator
cannot assess the type and amount of damages available to plaintiff
without reference to Illinois law, which includes the contributory
fault statute which bars any recovery to plaintiff if he is more
than 50% responsible for his own injuries.      
     We hold that the trial court did not abuse its discretion in
finding:  "[The defense of contributory negligence] is not a
defense which is personal to certain parties and then goes away
***.  It is a limitation which applies to all actions based on
negligence[,] and therefore, contributory negligence must be
considered in determining what Plaintiff is legally entitled to
recover."  Accordingly, we affirm the trial court's entry of
summary judgment in favor of Economy.

     Affirmed.

     JUSTICE MAAG, specially concurring:
     Section 2-1116 of the Code of Civil Procedure provides that
"[t]he plaintiff shall be barred from recovering damages" if the
plaintiff is more than 50% at fault.  (Emphasis added.)  735 ILCS
5/2-1116 (West 1992).  The insurance policy at issue obligates the
insurer to pay "all sums the insured is legally entitled to
recover" from the owner or driver of the underinsured vehicle. 
(Emphasis added.)  Our supreme court has defined the phrase legally
entitled to recover to mean that a claimant must be able to prove
the elements of her claim to be entitled to recover damages. 
Elkins, 77 Ill. 2d  at 390-91, 396 N.E.2d  at 531.  In our practice
prior to Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981), and
comparative fault, it was the duty of the plaintiff to plead and
prove freedom from contributory negligence.  Peterson v. Campbell,
105 Ill. App. 3d 992, 434 N.E.2d 1169 (1982).  With the advent of
comparative fault, contributory negligence became an affirmative
defense for defendant to plead and prove.  Failure to plead the
defense waives it, regardless of the evidence.  Blackburn v.
Johnson, 187 Ill. App. 3d 557, 543 N.E.2d 583 (1989).
     With this background I believe that the decision in Elkins
must be evaluated to determine whether that decision controls the
instant case.  The Elkins court was concerned with interspousal
immunity.  Immunity is based chiefly upon a person's status. 
Wright v. Grove Sun Newspaper Co., 873 P.2d 983 (Okla. 1994). 
Generally, immunities are personal to the individual or entity and
arise as a result of that person's or entity's position or status, 
e.g., interspousal immunity, judicial immunity, parent/child
immunity.  This was the situation in Elkins, and as a result the
defense of interspousal immunity, being personal, was not available
to the insurer.
     In contrast, the defense of contributory negligence is not
personal.  No special status or position is involved.  Rather, the
plaintiff's conduct is simply evaluated to determine whether
ordinary care was exercised.  If the plaintiff was contributorily
negligent, then damages are reduced accordingly.  If the plaintiff
was more than 50% at fault, he may not recover.  The fact that
interspousal immunity and contributory negligence are both
affirmative matters to be pleaded by the defendant is not
controlling.  Rather, I believe that Elkins simply holds that
"immunities" (being personal) cannot be claimed by anyone other
than the party enjoying the immunity.
     I therefore concur.

     JUSTICE GOLDENHERSH, dissenting:
     I respectfully dissent.  
     In my view the majority errs in finding that comparative
negligence would apply in the determination and arbitration as to
what sum plaintiff may recover.  In particular, the majority, in
reaching this conclusion, misconstrues Allstate Insurance Co. v.
Elkins, 77 Ill. 2d 384, 396 N.E.2d 528 (1979).
     Elkins is clearly the controlling case in this situation.  The
language of the two policies is substantially similar, and the
logic of Elkins applies.  The supreme court followed authorities
from other jurisdictions, which it cited in its opinion, showing
that "recovery has been permitted when the claimant shows conduct
on the part of the tortfeasor spouse which would entitle the
claimant to recover damages even though a defense available to the
tortfeasor would defeat actual recovery."  Elkins, 77 Ill. 2d  at
389, 396 N.E.2d  at 530.  Our supreme court concluded that the
claimant need only show entitlement to damages.
          "We agree with the appellate court that the proper
     interpretation of the words `legally entitled to recover'
     means that the claimant must be able to prove the elements of
     her claim necessary to entitle her to recover damages.  That
     the tortfeasor uninsured motorist in an action brought against
     him might be in a position to invoke a defense of limitations
     or some form of statutory immunity is relevant to the question
     of the right to enforce payment, but does not affect the
     claimant's legal entitlement to recovery.  In interpreting the
     provisions of an insurance policy the intent of the parties is
     the most significant factor and any ambiguity should be
     construed in favor of the insured.  (Kaufmann v. Economy Fire
     & Casualty Co. (1979), 76 Ill. 2d 11[, 389 N.E.2d 1150].)" 
     Elkins, 77 Ill. 2d  at 390-91, 396 N.E.2d  at 531.
The Elkins court affirmed the ruling of the appellate court, which
noted that the insurer did not stand in the shoes of the underlying
defendant who could assert a defense such as this.  Allstate
Insurance Co. v. Elkins, 63 Ill. App. 3d 62, 66, 381 N.E.2d 1, 4 
(1978).  The supreme court in Elkins concluded that the claimant
need only show entitlement to damages and that an affirmative
defense bar such as spousal immunity could not be raised.  Elkins,
77 Ill. 2d  at 389, 396 N.E.2d  at 531.  
     The majority notes that the Elkins decision predated the
doctrine of comparative fault in Illinois.  This position fails to
recognize that the doctrine in existence at the time Elkins was
decided was contributory negligence, which operated as a complete
bar.  See Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981). 
This is a distinction without a difference.  The same may be said
of the majority's position that comparative fault by statute
applies to "all actions."  It still constitutes an affirmative
defense, just as spousal immunity, which, according to Elkins, 
cannot be raised by the insurer.  Elkins, 77 Ill. 2d  at 390-91, 396 N.E.2d  at 531.  
     Based on the clear holding of Elkins, I would find that the
trial court abused its discretion in its order and reverse and
remand the case for further proceedings.                                      NO. 5-95-0698
                                     IN THE
                          APPELLATE COURT OF ILLINOIS
                                 FIFTH DISTRICT
___________________________________________________________________________
FRED LITTLE,                    )  Appeal from the
                                )  Circuit Court of
     Plaintiff-Appellant,       )  Jackson County.
                                )
v.                              )  No. 95-MR-31
                                )
ECONOMY PREFERRED INSURANCE CO.,)  Honorable
                                )  E. Dan Kimmel,
     Defendant-Appellee.        )  Judge, presiding.
___________________________________________________________________________

Opinion Filed:                  January 31, 1997
___________________________________________________________________________

Justices:      Honorable Terrence J. Hopkins, J.
                         
               Honorable Gordon E. Maag, J., 
               Specially concurs 

               Honorable Richard P. Goldenhersh, J.,
               Dissents
___________________________________________________________________________
                         
Attorney       Mark D. Prince, Hughes & Associates, 1317 West Main Street,
for            P.O. Box 579, Carbondale, IL 62903
Appellant      
___________________________________________________________________________

Attorney       Stephen W. Stone, Brandon & Schmidt, P.O. Box 3898,
for            Carbondale, IL 62902-3898
Appellee       
___________________________________________________________________________