IL 1st Dist. / Noticeshoke2013
Report to Police 11 Days after Accident is “as Soon as Practicable”
The Illinois Appellate Court for the First District, in an opinion written by Justice Lampkin with Justice Burke concurring and Justice Gordon concurring in part and dissenting in part, applying Illinois law, reversed the Circuit Court’s ruling and held that the relevant insurance policy only required an insured to report an incident to the police “as soon as practicable.” Given the circumstances, the Appellate Court determined that the insured complied with the policy provision by reporting a hit-and-run accident to the police within 11 days of its occurrence.
Mark Lathrop (“Lathrop”) was hit by a truck while riding his bike in the direction of traffic in a residential area of Illinois. The truck that hit Lathrop did not stop after it struck him. Lathrop was in shock after the collision, and despite having a cellphone, Lathrop did not call the police to report the incident because he did not have any identifying information about the truck driver and there were no eyewitnesses. Eleven days passed after the hit-and-run before Lathrop went to the Evanston police station to report the accident.
Lathrop then filed an arbitration demand against Safeco Insurance Company (“Safeco”) requesting coverage under the uninsured/underinsured motorist coverage and medical payments provisions of the applicable auto policy. After Lathrop and Safeco exchanged written discovery, Safeco denied Lathrop’s request for coverage claiming that Lathrop’s failure to report the incident “within 24 hours or as soon as practicable” precluded coverage. In response to Safeco’s denial, Lathrop filed a declaratory action asking the court to find that Safeco had a duty to defend and that he complied with the notice provision.
The relevant uninsured/underinsured policy provision requires an insured report the accident to the police “within twenty-four (24) hours or as soon as practicable if a hit and run driver is involved.” Lathrop argued that the issue of whether he reported the accident to the police within a reasonable time should be analyzed under the same five factors Illinois courts may use to determine whether an insured gave the insurer reasonable notice of an occurrence or lawsuit that falls within the coverage of the policy. Despite finding that the five-factor analysis did not govern the interpretation of the police report policy provision at issue, the Circuit Court conducted the analysis and found that Lathrop’s police report 11 days after the accident was not made within a reasonable time. The Circuit Court granted Safeco’s motion for summary judgment and found that the relevant policy provision clearly and unambiguously required Lathrop to notify the police within 24 hours “absent extenuating circumstances (i.e., incapacitation).” Therefore, because there were no extenuating circumstances present, Lathrop’s failure to report the accident with 24 hours precluded coverage. Lathrop appealed.
The Appellate Court agreed with the Circuit Court that the police report provision was unambiguous and also agreed that the five-factor analysis did not govern the determination of whether Lathrop reported the accident to the policy within a reasonable time. However, the Appellate Court rejected the Circuit Court’s addition of “extenuating circumstances” into the provision and found the policy only required Lathrop “to report the accident involving the hit-and-run driver to the police within 24 hours or as soon as practicable.” Further, the Appellate Court explained that “as soon as practicable” means “within a reasonable time, and what is reasonable depends on the facts and circumstances of the case.”
With those guideposts in mind, the Appellate Court determined that Lathrop satisfied the policy requirement by reporting the accident to the police within 11 days given the facts and circumstances of the accident. Therefore, the Appellate Court determined that the Circuit Court erred when it denied Lathrop’s motion for summary judgment and granted Safeco’s motion for summary judgment and reversed and remanded the case accordingly.
Justice Gordon concurred in part and dissented in part with the majority opinion. According to Justice Gordon, Illinois has a five-factor test to determine whether notice has been given within a reasonable time. The factors include: “(1) the specific language of the policy’s notice provision; (2) the insured’s sophistication in commerce and insurance matters; (3) the insured’s awareness of an event that may trigger insurance coverage; (4) the insured’s diligence in ascertaining whether policy coverage is available; and (5) prejudice to the insurer.” Justice Gordon explained that the Appellate Court failed to apply those factors in its analysis of Lathrop’s case and thus, recommended that the court should deny each motion for summary judgment and instruct the trial to utilize the five-factor analysis set forth by the Illinois Supreme Court on remand. Lathrop v. Safeco Insurance Company, 2020 IL App (1st) 190741 (July 23, 2020).