2015 IL App (3d) 130809

Opinion filed April 27, 2015 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015 

CINCINNATI INSURANCE COMPANY, )

 ) 

Plaintiff-Appellant, ) 

 ) 

 v. ) 

 ) 

 ) 

ROBERT PRITCHETT, ) 

 ) 

 Defendant-Appellee. ) 

 ) 

 ) 

Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois, 

Appeal No. 3-13-0809 

Circuit No. 09-MR-663 

Honorable 

Barbara Petrungaro, 

Judge, Presiding. 

_______________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. 

Justices Carter and O'Brien concurred in the judgment and opinion. 

_____________________________________________________________________________

OPINION

¶ 1 The plaintiff, Cincinnati Insurance Co. (Cincinnati), filed this interlocutory appeal in 

connection with a declaratory judgment action it brought against the defendant, Robert Pritchett 

(Pritchett). Pritchett was covered under an automobile liability insurance policy issued by 

Cincinnati. Cincinnati filed suit in the circuit court of Will County seeking a declaration that it 

has no obligation to arbitrate Pritchett's claim for bodily injury and other claims arising from a 
2 

single-car vehicle accident on October 10, 2007. Cincinnati and Pritchett filed cross-motions for 

summary judgment.

¶ 2 Relying on our appellate court's decision in Groshans v. Dairyland Insurance Co., 311 

Ill. App. 3d 876 (2000), the trial court found that the language of the Cincinnati policy at issue is 

ambiguous as to whether automobile accidents like Pritchett's, which did not involve physical 

contact between the insured's car and a hit-and-run vehicle, are covered under the policy. 

Accordingly, the trial court denied both parties' motions for summary judgment. Cincinnati filed 

a motion for reconsideration and clarification which the trial court denied.

¶ 3 Cincinnati then filed a motion to certify questions for interlocutory appeal under Illinois 

Supreme Court Rule 308(a) (eff. February 26, 2010). The trial court granted Cincinnati 's 

motion and certified the following two questions for interlocutory appeal: 

 "1. Is the policy language ambiguous in that it does not clearly require 

physical contact between an insured vehicle and another vehicle, either directly or 

through a continuous chain of events, for coverage to exist?; 

 2. Is the policy language ambiguous with respect to the necessity of physical 

contact between an insured vehicle and either a hit and run vehicle or an object 

caused by a hit and run vehicle to make contact with the insured vehicle through a 

continuous sequence of events?" 

¶ 4 Although we initially declined to accept Cincinnati's petition seeking our review of these 

questions, our supreme court has by supervisory order directed us to accept the appeal and 

answer the certified questions. Cincinnati Insurance Co. v. Pritchett, No. 117102 (March 26, 

2014). We conclude that, like the policy language at issue in Groshans, the policy at issue in this 

case is ambiguous as to whether coverage extends to hit-and-run automobile accidents that 
3 

involve no physical contact between the insured vehicle and either a hit-and-run vehicle or an 

object that a hit-and-run vehicle causes to make contact with the insured vehicle. Accordingly, 

we answer both certified questions in the affirmative and remand the case for further 

proceedings. 

¶ 5 FACTS

¶ 6 On October 10, 2007, Pritchett was driving a 2000 Mack semitrailer owned by his 

employer, Carl A. Anderson & Sons, Inc. (Anderson), when he was involved in a single-car 

accident. Pritchett was traveling westbound on Diehl Road toward the intersection of Diehl 

Road and Old Diehl Road. When Diehl Road approaches that intersection, the right westbound 

lane becomes a turn lane and curves to the right onto Old Diehl Road. Pritchett testified that he 

was traveling in the far right lane at approximately 40 miles per hour and intended to turn right 

onto Old Diehl Road. Pritchett claimed that, when he was approximately 50 to 100 feet from the 

right turn lane, a light green sedan passed his truck and cut in front of him, approximately one 

foot from his bumper. Pritchett claimed that, in response to this, Pritchett slammed on his brakes 

and turned the wheel to the right. His vehicle then hit the curb on the right side of the road and 

Pritchett turned the wheel to the left. As a result, the load in the truck shifted, causing the truck 

to flip over. Pritchett stated that the green sedan did not stop and continued westbound on Diehl 

Road. Pritchett stated that the green sedan never made contact with his vehicle.

¶ 7 There were two eyewitnesses to the accident, Janie Tomasek and Thomas Modzelewski. 

Both testified that there were no other vehicles in the vicinity of Pritchett's truck at the time of 

the accident. Tomasek was stopped at a stop sign at the intersection of Old Diehl Road and 

Diehl Road when she first saw Pritchett's truck. She testified that Pritchett was traveling in 

excess of the speed limit at approximately 45 miles per hour. She stated that Pritchett's truck 
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made contact with the curb, bounced back, and "popped" up on the curb a second time, causing 

the truck to flip over. Tomasek testified that she saw a sedan traveling in the left lane of Diehl 

Road approximately four to six car lengths in front of Pritchett's truck but did not pass Pritchett's 

truck or swerve into Pritchett's lane of travel. According to Tomasek, the sedan was never any 

closer than four to six car lengths from Pritchett's truck.

¶ 8 Modzelewski was standing on the porch of the employer's building when he first saw 

Pritchett's truck. He testified that Pritchett was traveling "awkwardly fast for that corner" when 

it approached the turn. Modzelewski stated that, after Pritchett's truck hit the curb, it "hopped the 

curb" and "it seemed like the driver overcompensated maybe and jackknifed and went over on its 

side." Modzelewski did not witness any other vehicles in the vicinity of Pritchett's truck at the 

time of the accident. 

¶ 9 Cincinnati had issued a policy of automobile liability insurance to Anderson which was 

in effect at the time of Pritchett's accident. With respect to Uninsured Motorist Coverage, the 

policy stated:

 "A. Coverage 

1. We will pay all sums the 'insured' is legally entitled to recover 

as compensatory damages from the owner or operator of an 'uninsured 

motor vehicle.' The damages must result from 'bodily injury' sustained by 

the 'insured' caused by an 'accident.' The owner's or operator's liability for 

these damages must result from the ownership, maintenance or use of the 

'uninsured motor vehicle.' 

 * * * 

 F. Additional Definitions
5 

 As used in this endorsement: 

 * * * 

 4. 'Uninsured motor vehicle' means a 'motor vehicle': 

 * * * 

 c. That is a hit-and-run vehicle and neither the 

driver nor owner can be identified. The vehicle must hit, or 

cause an object to hit, an 'insured,' a covered 'auto' or a 

vehicle an 'insured' is 'occupying.' If there is no physical 

contact with the hit-and-run vehicle, the facts of the 'accident' 

must be proved." (Emphasis added.) 

¶ 10 The policy required arbitration if the parties do not agree whether a claimant "is legally 

entitled to recover damages from a party responsible for the 'accident.' " 

¶ 11 Pritchett made a claim under the uninsured motorist coverage in the Cincinnati policy. 

Cincinnati denied coverage and filed this declaratory judgment action, arguing that, for coverage 

to apply, "the [hit-and-run] vehicle must hit, or cause an object to hit, an 'insured,' a covered 

'auto' or a vehicle an 'insured' is 'occupying.' " By Pritchett's own admission, that did not occur 

here. The parties filed cross-motions for summary judgment. 

¶ 12 The trial court denied both motions. In so ruling, the trial court relied principally on our 

appellate court's decision in Groshans. In Groshans, our appellate court held that the uninsured 

motorist provision of the automobile insurance policy at issue in that case was ambiguous as to 

whether coverage extended to automobile accidents that did not involve physical contact 

between the insured's car and a hit-and-run vehicle. The trial court ruled that the relevant 

language of the Cincinnati policy at issue in the instant case "appears to be identical to that in 
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Groshans" and that, "[a]lthough Plaintiff contends that there is additional language, the policies 

appear to be very similar." Accordingly, the trial court ruled that, like the policy in Groshans, 

the Cincinnati policy is ambiguous. The trial court also ruled that, because there was no physical 

contact, Pritchett must prove the facts of the accident so that the court could ascertain whether 

coverage applies before the court would send the matter to arbitration.

¶ 13 Cincinnati subsequently filed a motion for reconsideration and clarification which the 

trial court denied. In its order denying reconsideration, the trial court again applied Groshans

and reaffirmed the reasoning in its prior order. The trial court explained that the "first and 

second sentences of the [uninsured motorist liability] section appear to require actual physical 

contact, while the third sentence, like the policy in Groshans, requires the facts of the accident to 

be proved when there is no physical contact with the hit and run vehicle." Thus, the trial court 

reasoned that, as in Groshans, the Cincinnati policy was ambiguous. 

¶ 14 Cincinnati then filed a motion to certify questions for interlocutory appeal under Illinois 

Supreme Court Rule 308(a). The trial court granted Cincinnati 's motion, finding that the court's 

order dismissing the parties' cross-motions for summary judgment "involves a question of law as 

to which there is substantial ground for difference of opinion and the immediate appeal from the 

Order may materially advance the ultimate termination of the litigation." After receiving 

proposed certified questions from the parties, the trial court issued an order certifying the 

questions as specified above. 

¶ 15 Our appellate court initially denied Cincinnati's application for leave to appeal under 

Supreme Court Rule 308, but later vacated its prior order and entered an order allowing 

Cincinnati 's application for leave to appeal after our supreme court issued a supervisory order 
7 

directing our appellate court to vacate its prior order and to answer the questions certified by the 

trial court.

¶ 16 ANALYSIS 

¶ 17 Our analysis in this case is limited to answering the questions of law certified for 

interlocutory review, which is governed by a de novo standard of review. Thompson v. Gordon, 

356 Ill. App. 3d 447, 451 (2005). 

¶ 18 The certified questions ask us to determine whether the Cincinnati policy unambiguously 

limited coverage for hit-and-run accidents to situations involving some type of physical contact 

between the insured's vehicle and the hit-and-run vehicle or between the insured's vehicle and an 

object that the hit-and-run vehicle caused to come in contact with the insured's vehicle. Before 

answering these questions, we must first address Cincinnati's argument the Illinois Insurance 

Code (Code) (215 ILCS 5/1 et seq. (West 2006)) requires such "physical contact" coverage 

limitations as a matter of law. We hold that the Code imposes no such requirement. 

¶ 19 Section 143a(1) of the Code requires automobile liability insurance policies to include 

"protection of persons insured thereunder who are legally entitled to recover damages from 

owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of 

bodily injury, sickness or disease, including death, resulting therefrom." 215 ILCS 5/143a(1) 

(West 2006). The statute does not expressly limit such coverage to accidents involving physical 

contact. Our supreme court and our appellate court have ruled that the Code does not bar 

insurers from including such a limitation in a policy, have repeatedly upheld physical-contact

limitations as "valid," and have found such limitations consistent with the statute's policy of 

preventing fraudulent claims. See, e.g., Ferega v. State Farm Mutual Automobile Insurance Co., 

58 Ill. 2d 109, 111 (1974) ("[W]e see no inconsistency between the policy provisions [limiting 
8 

coverage to accidents involving physical contact] and the requirements of the statute. Indeed, 

both seem to be entirely consistent and to be aimed to be entirely consistent and to be aimed at 

the avoidance of fraudulent claims."); Kannel v. State Farm Mutual Automobile Insurance Co., 

222 Ill. App. 3d 1013 (1991). However, as we ruled in Groshans, the Code does not require

insurers to limit coverage for hit-and-run accidents to situations involving direct or indirect 

physical contact. Groshans, 311 Ill. App. 3d at 878-79; see also id. at 879 ("Illinois law does not 

require actual physical contact [for hit-and-run coverage] but merely permits an insurance policy 

to require such contact" (emphases added)). 

¶ 20 We acknowledge that some older decisions of our appellate court have held or implied 

that section 143a(1) requires insurers to limit coverage to accidents involving physical contact. 

See Swan v. Country Mutual Insurance Co., 306 Ill. App. 3d 958 (1999); Illinois National 

Insurance Co. v. Palmer, 116 Ill. App. 3d 1067 (1983). However, in Groshans, our appellate 

court ruled to the contrary and declined to follow those decisions. Groshans, 311 Ill. App. 3d at 

878-79. Although the legislature has amended section 143a of the Code twice since Groshans

was issued, it has not invalidated Groshans or amended the statute to clarify that coverage 

applies only in cases of physical contact. This suggests that the legislature does not disapprove 

of Groshans' interpretation of the statute. See Ferega, 58 Ill. 2d at 111-12; see also Bruso v. 

Alexian Brothers Hospital, 178 Ill. 2d 445, 458 (1997) ("in amending a statute, the legislature is 

presumed to have been aware of judicial decisions interpreting the statute and to have acted with 

this knowledge"). 

¶ 21 Accordingly, we proceed to the certified questions, which ask us to determine whether 

the Cincinnati policy is ambiguous as to whether coverage extends only to accidents involving 

physical contact. The policy provides coverage for "all sums the 'insured' is legally entitled to 
9 

recover as compensatory damages from the owner or operator of an 'uninsured motor vehicle.' " 

In section F(4)(c), the policy defines an "uninsured motor vehicle" to include, inter alia: 

"a hit-and-run vehicle and neither the driver nor owner can be identified. 

The vehicle must hit, or cause an object to hit, an 'insured,' a covered 'auto' 

or a vehicle an 'insured' is 'occupying.' If there is no physical contact with 

the hit-and-run vehicle, the facts of the 'accident' must be proved." 

¶ 22 As Cincinnati notes, the second sentence of the above definition states that coverage 

applies only when the hit-and-run vehicle "hit[s], or causes an object to hit," the insured vehicle. 

When read in isolation, that sentence suggests a physical-contact requirement. However, the 

third sentence of the above definition states that coverage applies even when "there is no 

physical contact with the hit-and-run vehicle," so long as the facts of the accident are proved. 

When these two sentences are read together, the extent of the policy's physical-contact 

requirement (if any) becomes unclear and the policy becomes susceptible of two equally 

reasonable interpretations. On the one hand, the policy may be read as covering accidents in 

which the hit-and-run vehicle "hits" or "causes an object to hit" the insured's vehicle, but as

requiring the facts to be proven in the latter scenario (i.e., when the alleged "contact" is with an 

"object" rather than with the hit-and-run vehicle itself). On this reading (which is urged by 

Cincinnati), the third sentence does not contradict or eliminate the physical-contact requirement 

imposed by the previous sentence; it merely explains how a certain type of physical contact must 

be proven. On the other hand, however, the policy might be read as covering certain accidents 

which involve no physical contact of any kind. The third sentence provides for coverage where 

there is no "physical contact with the hit-and-run vehicle," so long as the facts of the accident are 

proved. The phrase "physical contact with the hit-and-run vehicle" may reasonably be 
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interpreted as including both direct physical contact with the hit-and-run vehicle and indirect 

contact with that vehicle by means of contact with an object that the hit-and-run vehicle causes to 

hit the insured's vehicle. On this reading, where the facts of the accident are proved, the policy 

covers all hit-and-run accidents, even those that do not involve any such physical contact. We 

find both of these conflicting interpretations of the Cincinnati policy to be reasonable. 

Therefore, the policy is ambiguous. 

¶ 23 In further support of our holding, we note that the relevant language of the Cincinnati 

policy is materially indistinguishable from the policy language at issue in Groshans, which our 

appellate court found to be ambiguous. That policy language provided: 

" ' We promise to pay damages, excluding punitive or exemplary damages, 

the owner or operator of an uninsured motor vehicle is legally obligated to pay 

because of bodily injury you suffer in a car accident while occupying a car, or as a 

pedestrian, as a result of having been struck by an uninsured motor vehicle. 

 * * * 

A hit-and-run motor vehicle, if the driver or owner cannot be identified 

and which strikes, or causes another vehicle to strike, you or a motor vehicle you 

are occupying is an uninsured motor vehicle. If there is no physical contact with 

the hit-and-run vehicle the facts of the accident must be proved.' " (Emphases 

omitted.) Groshans, 311 Ill. App. 3d at 877. 

The accident in Groshans, like the accident here, did not involve any physical contact between 

the insured's vehicle and the hit-and-run vehicle. (The insured in Groshans claimed that he 

swerved to avoid an alleged hit-and-run driver which caused his car to leave the roadway and roll 

over in a ditch. Groshans, 311 Ill. App. 3d at 877.) At issue was whether the insured's 
11 

automobile insurance policy covered such an accident. The insurer argued that the policy 

provisions quoted above unambiguously restricted coverage to accidents involving physical 

contact with the hit-and-run vehicle. Rejecting this argument, our appellate court held that the 

policy provision requiring the facts of an accident to be proved when there is no physical contact 

with the hit-and-run vehicle was "susceptible to more than one reasonable interpretation," and 

therefore ambiguous. Id. at 879-80. 

¶ 24 Cincinnati argues that the policy at issue in Groshans is distinguishable from the policy 

in this case for two reasons. First, Cincinnati maintains that the Groshans policy "does not 

define what an uninsured motor vehicle is." Second, Cincinnati contends that the Groshans

policy sets forth only a single "coverage scenario," i.e., it provides coverage "only when a hitand-run vehicle makes physical contact with an insured vehicle," whereas the Cincinnati policy 

provides coverage both in that scenario and when the hit-and-run vehicle causes an object to hit 

the insured vehicle. Cincinnati asserts that the "lack of a second coverage scenario creates 

ambiguity in the Groshans policy" because the Groshans policy later states that "[i]f there is no 

physical contact with the hit and run vehicle the facts of the accident must be proved." According 

to Cincinnati, its own policy, with its "two distinct coverage scenarios," "does not suffer from the 

same flaw." 

¶ 25 We do not find these arguments persuasive. First, contrary to Cincinnati's argument, the 

Groshans policy defined what qualified as an "uninsured motor vehicle" under the policy. 

Specifically, the Groshans policy stated that " '[a] hit-and-run motor vehicle, if the driver or 

owner cannot be identified and which strikes, or causes another vehicle to strike, you or a motor 

vehicle you are occupying is an uninsured motor vehicle.' " (Emphases added, omitted, and in 

original.) Groshans, 311 Ill. App. 3d at 877. In addition, the Groshans policy did not set forth 
12 

only a single "coverage scenario"; rather, like the Cincinnati policy, it provided coverage in two 

distinct circumstances. Specifically, it provided coverage when a hit-and-run motor vehicle " 

'strikes, or causes another vehicle to strike' " the insured's vehicle. (Emphasis added.) Id. 

Nevertheless, our appellate court held that a separate policy provision stating that " '[i]f there is 

no physical contact with the hit-and-run vehicle the facts of the accident must be proved' " 

rendered the Groshans policy ambiguous as to whether coverage was limited to accidents 

involving physical contact. Id. at 879. We find the Cincinnati policy ambiguous in the same 

respect. 

¶ 26 For the foregoing reasons, we answer both certified questions in the affirmative. 

¶ 27 CONCLUSION

¶ 28 Certified questions answered; cause remanded.