Muller v. Firemen's Fund Insurance Co.

                                                  FIFTH DIVISION
                                                  Filed: 6/27/97








No. 1-96-3139

RICARDA MULLER,                         )APPEAL FROM THE
                                        )CIRCUIT COURT OF
     Plaintiff-Appellant,               )COOK COUNTY
                                        )
          v.                            )
                                        )
FIREMEN'S FUND INSURANCE COMPANY,       )HONORABLE
                                        )MARGARET STANTON MCBRIDE,
     Defendant-Appellee,                )JUDGE PRESIDING.


     JUSTICE HOFFMAN delivered the opinion of the court:

     The plaintiff, Ricarda Muller, filed a three-count complaint
against her insurer, Firemen's Fund Insurance Company (Firemen's),
alleging that Firemen's breached her automobile insurance contract
(count I), that she was entitled to extra-contractual relief based
on Firemen's vexatious delay in responding to her claim (count II),
and that she was entitled to arbitration of her claim (count III). 
The trial court directed a verdict in favor of Firemen's on count
II and subsequently ruled on the merits of counts I and III in
Firemen's favor.  The trial court denied Muller's post-trial motion
and this appeal followed.  We reverse and remand.
     On March 19, 1986, Muller was involved in a multi-vehicle
accident while traveling west on Palatine Road near Wolf Road in
Prospect Heights.  Thirteen of the vehicles involved were listed in
the police report.  Muller claimed to have been knocked unconscious
and, therefore, was unable to identify which vehicle or vehicles
struck her car.  Muller filed a personal injury action against the
13 drivers identified in the police report.  However, all of the
defendants in that action were granted summary judgment or
dismissed due to Muller's inability to identify the vehicle that
struck her.
     Muller also filed a claim for uninsured motorist benefits
under her insurance policy with Firemen's.  The uninsured motorist
section of Muller's policy provides in pertinent part:
     "Part C-Uninsured Motorists Coverage
     We will pay damages which a covered person is legally
     entitled to recover from the owner or operator of an
     uninsured motor vehicle because of bodily injury:
          1. Sustained by a covered person; and
          2. Caused by an accident.
     The owner's or operator's liability for these damages
     must arise out of the ownership, maintenance or use of
     the uninsured motor vehicle.
          ***
     'Covered person' as used in this Part means:
          1. You or any family member.
          ***
     'Uninsured motor vehicle' means a land motor vehicle or
     trailer of any type:
          ***
          3. Which is a hit and run vehicle whose operator or
     owner cannot be identified and which hits:
               a. you or any family member; 
               ***." (Emphasis in original.)
     Firemen's denied the claim since it determined that Muller could
not prove that the accident involved an uninsured vehicle as
defined under the policy.  After her personal injury suit was
dismissed, Muller filed a three-count complaint against Firemen's. 
Count I alleged that Firemen's breached the insurance contract by
failing to provide Muller with uninsured motorist benefits; count
II alleged Muller was entitled to damages under section 155 of the
Illinois Insurance Code (215 ILCS 5/155 (West 1994) based on
Firemen's alleged unreasonable and vexatious delay in responding to
her uninsured motorist claim; and count III requested that the
trial court compel Firemen's to arbitrate Muller's uninsured
motorist claim.
     Firemen's denied all material allegations against it and
asserted several affirmative defenses.  Firemen's again argued that
Muller was not entitled to uninsured motorist benefits because she
was unable to provide any information about the vehicle or vehicles
which allegedly caused her accident and claimed damages.  Firemen's
filed a motion for summary judgment which the trial court denied. 
The trial court's determination was apparently based, at least in
part, on the deposition testimony of Doo V. Kim, one of the 13
defendants involved in the accident.  When asked how many cars were
involved in the accident, Kim replied: "I really have no idea. 
There were so many cars involved in the accident, probably at least
four or five cars ran away."
     When Muller's action against Firemen's came up for trial, the
parties agreed that, in lieu of live testimony, they would
stipulate to the following evidence:
     "1. Firemen's Fund Insurance Company ("FFIC") issued to
     RICARDA MULLER policy No. VZE 1071 65 47.
     2. Policy No. VZE 1071 65 47 was in full force and effect
     on March 19, 1986.
     3. A true, correct and complete copy of said policy is
     attached hereto as Exhibit 'A'.
     4. On March 19, 1986 plaintiff was involved in an
     accident while driving her 1984 Oldsmobile Toronado
     westbound on Palatine Road near Wolf Road in Prospect
     Heights, Cook County, Illinois.
     5. If plaintiff was called to testify in these
     proceedings, she would testify that she sustained
     injuries as a result of the aforesaid accident.
     6. At said time and place, the vehicle being operated by
     plaintiff was struck by vehicle(s) that no one can
     identify before plaintiff's vehicle came into contact
     with any other vehicle or object.
     7. Plaintiff is unable to identify what vehicle(s) came
     in contact with her vehicle in said accident, whether
     said vehicle(s) were insured or not or whether said
     vehicle(s) left the scene after the accident.
     8. No person is able to identify what vehicle(s) came in
     contact with plaintiff's vehicle in said accident,
     whether said vehicle(s) were insured or not or whether
     said vehicle(s) left the scene after the accident.
     9. FFIC is unable to identify what vehicle(s) came in
     contact with plaintiff's vehicle in said accident,
     whether said vehicle(s) were insured or not or whether
     said vehicle(s) left the scene after the accident.
     10. Plaintiff is unable to identify what vehicle(s) at
     the scene of said accident caused her alleged bodily
     injuries.
     11. No person is able to identify what vehicle(s) at the
     scene  of said accident caused plaintiff's alleged bodily
     injuries.
     12. FFIC is unable to identify what vehicle(s) at the
     scene of said accident caused plaintiff's alleged bodily
     injuries.
     13. Plaintiff is unable to identify what vehicle(s) which
     left the scene of the accident caused her alleged bodily
     injuries.
     14. No person is able to identify what vehicle(s) which
     left the scene of the accident caused plaintiff's alleged
     bodily injuries.
     15. FFIC is unable to identify what vehicle(s) which left
     the scene of the accident caused plaintiff's alleged
     bodily injuries.
     16. That the parties agree that the issues of proximate
     cause, injury and damages are not being raised in this
     trial proceeding and will be arbitrated between the
     parties, as necessary, depending on this Court's finding
     of uninsured motorist coverage."
          The stipulations and the Firemen's policy comprised the only
evidence submitted by the parties.  At the close of Muller's case-
in-chief, which basically consisted of Muller's counsel discussing
the complaint and the stipulations and answering questions from the
trial judge, Firemen's moved for a directed verdict on all counts. 
The trial court entered a directed verdict in Firemen's favor only
as to count II.  Muller does not appeal this ruling.  
     Immediately thereafter, counsel for Firemen's addressed the
court as follows:
     "Your honor, again, because this is a trial proceeding
     and the directed verdict was denied, we're asking the
     Court to now consider and weigh the evidence and
     determine if plaintiff has established by a preponderance
     of the evidence more probable than not that he was hit by
     a vehicle that fled the scene or ran *** away from the
     scene, because apparently that is--the sum focus in this
     case is on that aspect of our definition."
     After a lengthy discussion among counsel for both parties and the
trial judge regarding the meaning of the policy terms "hit and run"
and "cannot be identified," but with no further evidence submitted,
the trial judge found as follows:
     " *** I am now bound by what is contained in those
     stipulations and whatever reasonable inferences that I
     could draw from them.
     ***
          I'm going to enter judgment against the plaintiff in
     favor of the defendant because I do not find that the
     stipulated facts that have been agreed to here establish
     coverage.  They simply do not tell me really anything. 
     So I can't enter judgment in favor of the plaintiff."
     The trial court entered judgment in favor of Firemen's and against
Muller on count I.  The trial court further ruled that Firemen's
could not be compelled to arbitrate the claim as requested and
entered judgment in favor of Firemen's on count III.  Thereafter,
the trial court denied Muller's post-trial motion to vacate or,
alternatively, for a new trial.  Muller filed a timely appeal from
both the judgment and the denial of her post-trial motion.
     This case presents a rather unique situation since the parties
presented no evidence at trial other than their stipulations and
the insurance contract in issue.  Generally, we will not disturb
the judgment of a trial court unless that judgment is manifestly
against the weight of the evidence.  Schulenburg v. Signatrol,
Inc., 37 Ill. 2d 352, 356, 226 N.E.2d 624 (1967).  The reason for
such a deferential standard of review is a recognition that the
trial judge as the trier of fact has an opportunity to observe the
demeanor of the witnesses as they testify and, therefore, occupies
a far superior position to determine their credibility and the
weight to be given to their testimony.  Schulenburg, 37 Ill. 2d  at
356.  However, when, as in this case, the evidence before the trial
court consists solely of documentary evidence, the rationale
underlying a deferential standard of review is inapplicable, and a
reviewing court will make an independent decision on the facts.  In
re Estate of Hook, 207 Ill. App. 3d 1015, 1028, 566 N.E.2d 759
(1991).  
     Illinois courts have consistently held that the claimant under
an insurance policy has the burden of proving that she comes within
the terms of coverage.  Watkins v. American Service Insurance Co.,
260 Ill. App. 3d 1054, 1061, 631 N.E.2d 1349 (1994);  Gibson v.
State Farm Mutual Automobile Insurance Co., 125 Ill. App. 3d 142,
148, 465 N.E.2d 689 (1984).  Thus, Muller bore the burden of
establishing by a preponderance of the evidence that her car was
struck by a "hit and run vehicle whose operator or owner cannot be
identified."  
     Muller alleges that the stipulations negated any need for her
to present further evidence, and that the trial court was given
sufficient facts to determine that coverage existed in this case. 
She argues that the trial court's denial of Firemen's motion for a
directed finding as to counts I and III implicitly established that
she presented a prima facie case of coverage.  According to Muller,
the fact that Firemen's failed to present any evidence to rebut
this presumption of coverage meant that there was no contrary
evidence on which the trial court could conclude that judgment
should be entered against her.  Therefore, Muller contends that her
evidence became conclusive and she should have prevailed.
     Firemen's argues in its brief that Muller "could not (and
never can) satisfy her prima facie case by identifying the vehicle
which struck her, or the operator of that vehicle."  However, we
conclude that such a requirement is unnecessary and, moreover, is
contrary to the language of the Firemen's policy which defines an
uninsured motor vehicle as a "hit and run vehicle whose operator or
owner cannot be identified."  (Emphasis added.)
     Without question, the stipulations entered into between the
parties establish that Muller's vehicle was struck by another
vehicle, and that the owner and operator of that vehicle cannot be
identified.  The only factual question remaining is whether, under
the circumstances of this case, the vehicle which struck Muller can
be termed a "hit and run" vehicle.
     Section 143a of the Illinois Insurance Code requires that all
automobile insurance policies provide coverage for the protection
of persons insured thereunder who are entitled to recover damages
for bodily injury from the owners or operators of hit-and-run motor
vehicles.  215 ILCS 5/143a (West 1994).  Muller's policy with
Firemen's provides such coverage, the relevant portions of which
are quoted above.  Significantly, however, neither the statute nor
Firemen's policy define the phrase "hit and run."
     Absent statutory definition, the words and phrases used in a
statute will be given their plain and ordinary meanings.  Eagan v.
Chicago Transit Authority, 158 Ill. 2d 527, 531-32, 634 N.E.2d 1093
(1994).  The same rule of construction is applicable to undefined
terms in insurance policies.  Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 108, 607 N.E.2d 1204 (1992). 
In ascertaining the plain and ordinary meaning of words, courts
often consult dictionaries.  People ex rel. Daley v. Datacom
Systems Corp., 146 Ill. 2d 1, 15, 585 N.E.2d 51 (1992).
     Black's Law Dictionary defines "hit and run accident" as a
"[c]ollision generally between motor vehicle and pedestrian or with
another vehicle in which the operator of vehicle leaves scene
without identifying himself ***."  Black's Law Dictionary 730 (6th
ed. 1990).  Webster's Third New International Dictionary defines
"hit-and-run" as "leaving the scene of an accident without stopping
to render assistance or to comply with legal requirements." 
Webster's Third New International Dictionary 1074 (1981).  We
believe that the stipulations entered into between the parties to
this case bring Muller's accident within either of these commonly
accepted definitions of "hit and run."
     Section 11-403 of the Illinois Vehicle Code mandates that the
driver of any vehicle involved in a motor vehicle accident
resulting in injury, death, or property damage shall give his or
her name, address, registration number, and the name of the owner
of the vehicle to the person struck.  625 ILCS 5/11-312 (West
1994).  The purpose of this statute is to inform those who have
been injured or damaged by another driver of that driver's
identity.  People v. Kerger, 191 Ill. App. 3d 405, 409, 548 N.E.2d 36 (1989).  In this case, the parties have stipulated that neither
Muller, Firemen's, or any other person is able to identify the
vehicle that struck Muller.  Consequently, we can conceive of no
other reasonable inference to be drawn from such a stipulation
other than that the driver of the vehicle which struck Muller
failed to comply with the requirements of section 11-403 of the
Illinois Vehicle Code and, as such, the occurrence falls within the
commonly accepted definition of a "hit and run."
     Our reasoning is consistent with Walsh v. State Farm Mutual
Automobile Insurance Co., 91 Ill. App. 2d 156, 234 N.E.2d 394
(1968).  In Walsh, the plaintiff's insurance policy defined a "hit
and run" automobile as one where "there cannot be ascertained the
identity of either the operator or owner of such 'hit-and-run'
automobile."  The plaintiff was struck from behind by another
vehicle while she waited for a traffic light.  She became afraid to
exit her vehicle when she saw that the male driver was slumped over
the wheel and making faces at her.  The driver followed erratically
behind her for awhile and then swerved around her car and proceeded
on.  At that point, the plaintiff was able to identify the car as
a red Rambler Station Wagon.  The reviewing court affirmed the
trial court's finding of coverage, concluding that the phrase
"cannot be ascertained" in her policy included not only situations
where the driver had fled the scene, but also where the identity of
the driver cannot be discovered because the insured reasonably
feared a risk of her own physical safety.  Walsh, 91 Ill. App. 2d
at 163.
     Firemen's contends that the "key" distinguishing factor in
Walsh was that the plaintiff described the driver, specified the
type of vehicle that struck her, and determined that the vehicle
left the scene.  However, a close reading of the case reveals that
the court's holding was based on its determination that the term
"cannot be ascertained" included those situations in which the
behavior of the insured, i.e. her fear in exiting the vehicle, was
in part responsible for the lack of identification of the offending
vehicle.  Walsh, 91 Ill. App. 2d at 163.  Here, Muller was
allegedly rendered unconscious and was, therefore, unable to
specify which of the many vehicles involved in the accident had hit
her.  While it is true that the plaintiff in Walsh was able to
identify the make of the vehicle that hit her, we find this to be
a distinction without a difference.  We see no reason why an
insurance company would accept this fleeting identification as
sufficient to allow coverage for a "hit-and-run" driver and would
reject an insured's statement that she was hit by another car but
was rendered unconscious and incapable of providing any details of
the vehicle or vehicles that struck her. 
     For the reasons stated above, we believe that the stipulations
of the parties together with the terms of Muller's policy with
Firemen's establish that Muller was involved in an accident with a
"hit and run vehicle whose operator or owner cannot be identified,"
thus bringing her claim within the uninsured motorist coverage
afforded under her policy.  Consequently, we reverse the judgment
entered in favor of Firemen's on counts I and III of Muller's
complaint, and remand this case to the circuit court with
instructions to order the parties to arbitrate the claim in
accordance with the terms of the subject policy of insurance.
     Reversed and remanded with directions.
     HOURIHANE and SOUTH, JJ., concur.