Motion 14-Defendant's Motion to Strike in Car Accident Case

Download PDF Version


Motion to Strike Amended Complaint

State Farm Mutual Automobile Insurance Company, By: Frank C. Stevens, One of Its Attorneys, Taylor Miller LLC, Attorney No. 43282, 33 North LaSalle Street, Suite 2222, Chicago, Illinois 60602, (312) 782-6070.

NOW COMES the defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (STATE FARM), incorrectly sued herein as STATE FARM INSURANCE COMPANY, by TAYLOR MILLER LLC, its attorneys, and per 735 ILCS 5/2- 615 moves to strike the Amended Complaint at Law of plaintiff MANUEL K. DICKERSON for the reason that it is substantially insufficient at law.

In support of this motion, defendant states:

1. Plaintiff MANUEL K. DICKERSON has filed a two count Amended Complaint against defendant STATE FARM.

COUNT I,

2. Count I is entitled BREACH OF CONTRACT. It alleges:

a. that plaintiff purchased a policy of automobile insurance from STATE FARM, identified as Policy No. 04 2663-F15-25C;

b. that plaintiff was involved in a motor vehicle accident with an uninsured motorist on January 20, 2006;

c. that plaintiff suffered a left rotator cuff necessitating surgery as a result of the January 20, 2006 accident and incurred medical expenses;

d. that plaintiff demanded the $100,000 policy limits and STATE FARM offered only $11,000; and

e. STATE FARM breached the commitments it made on the STATE FARM policy.

3. 735 ILCS 5/2- 606 provides:

If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.

4. Policy No. 04 2663-F15-25C is not attached to the amended complaint and plaintiff does not set forth the language of the policy upon which plaintiff's claim is allegedly based. The amended complaint should be stricken on this basis.

5. A certified copy of Policy No. 04 2663-F 13-25C is attached as Exhibit “A.”. The policy was issued by the Missouri Division of State Farm to MANUEL K. DICKERSON in St. Louis, Missouri.

6. The Uninsured Motor Vehicle Coverage Section, Section III provides:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle.

7. The policy was issued in accordance with Missouri law. The Missouri Uninsured Motorist Statute, §379.203 R.S. Mo (2006) provides in pertinent part:

1. No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, or in the case of any commercial motor vehicle, as defined in section 301.010, RSMo, any employer having a fleet of five or more passenger vehicles, such coverage is offered therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. Such legal entitlement exists although the identity of the owner or operator of the motor vehicle cannot be established because such owner or operator and the motor vehicle departed the scene of the occurrence occasioning such bodily injury, sickness or disease, including death, before identification. It also exists whether or not physical contact was made between the uninsured motor vehicle and the insured or the insured's motor vehicle. Provisions affording such insurance protection against uninsured motorists issued in this state prior to October 13, 1967, shall, when afforded by any authorized insurer, be deemed, subject to the limits prescribed in this section, to satisfy the requirements of this section.

2. For the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified herein because of insolvency.

3. An insurer's insolvency protection shall be applicable only to accidents occurring during a policy period in which its insured's uninsured motorist coverage is in effect where the liability insurer of the tort-feasor becomes insolvent within two years after such an accident. Nothing herein contained shall be construed to prevent any insurer from affording insolvency protection under terms and conditions more favorable to its insureds than is provided hereunder.

4. In the event of payment to any person under the coverage required by this section, and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer; provided, however, with respect to payments made by reason of the coverage described in subsections 2 and 3 above, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tort-feasor.

5. In any action on a policy of automobile liability insurance coverage providing for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, the fact that the owner or operator of such uninsured motor vehicle whether known or unknown failed to file the report required by section 303.040, RSMo, shall be prima facie evidence of uninsured status, and such failure to file may be established by a statement of the absence of such a report on file with the office of the director of revenue, certified by the director, which statement shall be received in evidence in any of the courts of this state. In any such action, the report required by section 303.040, RSMo, when filed by the owner or operator of an uninsured motor vehicle, shall be prima facie evidence of lack of insurance coverage and the report, or a copy thereof, certified by the director of revenue, may be introduced into evidence in accordance with section 303.310, RSMo.

8. Unlike the Illinois Uninsured Motorist Statute, 215 ILCS 5/143a, there is no requirement under the Missouri statute for arbitration of the uninsured motorist claim when the parties are unable to reach an agreement on the amount owed. Instead, under Missouri law, the insured making claims under the Uninsured Motorist Coverage of the policy may file a direct action lawsuit against the insurer for uninsured motor vehicle coverage. Hill v. Seaboard Fire & Marine Insurance Company, 374 S.W.2d 606 (1963).

9. The plaintiff-insured is a lawsuit against the insurer for uninsured motorist coverage has the burden of proving:

(1) the other motorist in the accident was uninsured;

(2) that the other motorist is legally liable to the insured; and

(3) the amount of such liability.

Hill v. Seaboard Fire & Marine Insurance Company, 374 S.W.2d 606 (1963) ; Byrn v. American Universal Insurance Company, 548 S.W.2d 186,188 (Ct App Mo 1977)

10. In Bryn, the court stated at page 188:

Hill v. Seaboard Fire & Marine Ins. Co., 374 S. W.2d 606. 609 (Mo.App.1963). Through stipulation, the parties have agreed that the first and third requirements have been met. We are therefore concerned only with the second whether Anderson would be legally liable to Judy Bryn. As noted, the policy provides that “the company will pay sums which the insured or legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile.” (emphasis added). [ FN1] While it is not necessary for the insured or his legal representative to obtain a judgment from the uninsured motorist prior to enforcing his rights against his own insurance company, Hill v. Seaboard Fire & Marine Ins., supra, the plaintiff must show that the uninsured motorist would have been liable to the insured. See Crenshaw v. Great Central Ins. Co., 527 S. W.2d 1 (Mo.App.1975), where the court said: “In order to prevail in this contract action ... plaintiffs must establish that at the time this litigation against the insurer was commenced they were legally entitled to recover damages from the owner or operator of the uninsured highway vehicle. In other words, as an essential element of plaintiffs' cause of action in contract plaintiffs must be able to demonstrate their right to recover for the wrongful death of their son.” Id., at 4. This requirement is consistent with the underlying purpose of the uninsured motorist statute, s 379.203 RSMo Supp. 1975, which is to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy. Brake v. MFA Ins. Co., 525 S. W.2d 109, 112 (Mo.App. 1975) ; Webb v. State Farm Mutual Automobile Ins. Co., 479 S. W.2d 148, 151 (Mo.App. 1972). If the injured party is not legally entitled to recover from the uninsured motorist, then the injured party's insurance company is not liable under the uninsured motorist provisions of the contract.

11. Here, plaintiff has failed to plead that the uninsured motorist is liable to plaintiff or, in what way, the uninsured motorist is so liable.

12. Plaintiff has also failed to plead how STATE FARM allegedly breached any term of the policy. Because plaintiff and STATE FARM cannot agree on the amount owed to plaintiff under the uninsured motorist coverage, plaintiff's remedy is to proceed by lawsuit against STATE FARM in essentially the same manner as plaintiff would proceed against the alleged tortfeasor.

13. Illinois and Missouri have different statutory and judicial schemes for resolving uninsured motorist claims. In Illinois, insurance policies and the statute, 215 ILCS 5/143a, require uninsured motorist claims must be arbitrated when the insured and the insurer and cannot agree upon the liability of the uninsured motorist and the amount of damages incurred by the insured/claimant. State Farm v. Yapejan, 152 Ill.2d 533 (1992). In Missouri, Missouri policies require the uninsured motorist claim to be resolved by a lawsuit, as the above discussion demonstrates. It is entirely unclear what plaintiff believes his recourse is when the defendant does not agree with him on the liability and damage issues. Count I is nonsensical and is an attempt to avoid a proper determination of the liability and damage issues.

14. For all of the above reasons, Count I of plaintiff's Amended Complaint at Law is insufficient as a matter of law and should be stricken.

Count II,

15. Count II of the Amended Complaint at Law is identical to Count I except that Count II adds a paragraph 16 which states “plaintiff...is filing this action pursuant to 215 ILCS 5/155.”

16. For the same reasons that Count I should be stricken, Count II should be stricken, as well.

17. In addition, Count II should be stricken for the reason that it is premature at best. Before it can be determined that an insurer's actions were vexatious or unreasonable in not settling a claim, the plaintiff must necessarily need to prevail with his claim against the insurer. Marcheschi v. Illinois Farmers Insurance Co., 298 Ill.App.3d 306 (1st Dist. 1998). An insurer is not to be liable for relief for failure to pay a claim value where benefits are not owed. Martin v. Illinois Farmers Insurance, 318 Ill.App.3d 751 (1st Dist. 2000). Furthermore, an insurer does not violate Section 155 merely by insisting on a trial it loses. Buais v. Safeway Insurance Company, 275 Ill.App.3d 587 (1st Dist. 1995).

18. Under Missouri law and the Missouri policy of auto insurance issued by STATE FARM to plaintiff, plaintiff has the right to bring an action against STATE FARM to recover damages for the negligence, if any, of the uninsured motorist. As discussed above, plaintiff must plead and prove the legal liability of the uninsured motorist and the amount of damages to which the plaintiff is entitled. STATE FARM has, conversely, the right to contest these issues. Plaintiff's Amended Complaint is substantially insufficient in law in complying with these requirements.

WHEREFORE defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, incorrectly sued herein as STATE FARM INSURANCE COMPANY, moves this court to strike the plaintiff's Amended Complaint at Law.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

<<signature>>

By: Frank C. Stevens, One of Its Attorneys

Client Reviews
Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld.
★★★★★
Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own. Ethan Armstrong, Google User
★★★★★
This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you. Daniel Kaim, Avvo User
★★★★★
Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan! Giulia, Avvo User
★★★★★
Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa, Avvo User
★★★★★
Contact Us for a Free Consultation (888) 424-5757
Chicago Office Map