Illinois Official Reports

Appellate Court

Lathrop v. Safeco Insurance Co., 2020 IL App (1st) 190741

Appellate Court 

Caption

MARK LATHROP, Plaintiff-Appellant, v. SAFECO INSURANCE 

COMPANY, Defendant-Appellee.

District & No. First District, Fourth Division 

No. 1-19-0741

Filed July 23, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 18-CH-7280; the 

Hon. Moshe Jacobius, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

George G. Argionis and Evan Finneke, of Argionis & Associates, 

LLC, of Chicago, for appellant.

Matthew O. Sitzer and Matthew C. Wolfe, of Shook, Hardy & Bacon 

L.L.P., of Chicago, for appellee.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with 

opinion.

Justice Burke concurred in the judgment and opinion. 

Presiding Justice Gordon concurred in part and dissented in part, with 

opinion.
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OPINION

¶ 1 Plaintiff, Mark Lathrop, was injured while riding his bicycle and made a claim on his 

mother’s auto insurance policy to defendant, Safeco Insurance Company (Safeco), for 

uninsured motorists coverage based on his collision with a hit-and-run driver. Safeco denied 

Lathrop’s claim, concluding that he failed to comply with the policy provision to report the 

accident involving a hit-and-run driver to the police within 24 hours or “as soon as practicable” 

because he filed the police report 11 days after the accident.

¶ 2 Lathrop filed a complaint in the circuit court for declaratory relief against Safeco, and the 

parties subsequently filed cross-motions for summary judgment. The circuit court granted 

summary judgment in favor of Safeco and against Lathrop. 

¶ 3 On appeal, Lathrop argues that he complied with the policy provision to report the hit-andrun accident to the police within a reasonable time because he could not identify the offending 

driver or vehicle and no one else witnessed the incident; he was in shock after the collision and 

did not realize the seriousness of his injury until the pain increased days afterward and he 

sought medical treatment; he was not aware that a bicycle collision would trigger coverage 

under his mother’s auto insurance policy; he had to travel to the police station to report the 

incident in person while he was suffering severe pain and wearing a neck brace; he timely 

made the police report after he realized he had suffered a severe neck fracture and determined 

that he wanted to bring a claim; and the passage of 11 days did not affect the ability of the 

police or Safeco to investigate the accident due to the lack of evidence in this case. Lathrop 

asks this court to reverse the ruling of the circuit court and order this matter to proceed to 

arbitration. 

¶ 4 For the reasons that follow, we reverse the judgment of the circuit court and remand the 

case for further proceedings.1

¶ 5 I. BACKGROUND

¶ 6 Based on the pleadings, affidavits, depositions, admissions, and exhibits on file, Lathrop, 

at the time of the incident in question, had worked as a laborer or handyman, had graduated 

from high school and taken some college-level courses on finance and commodity trading, and 

was 56 years old. On the afternoon of September 10, 2015, he was riding his bicycle south on 

Elmwood Street in Evanston, Illinois, in the direction of traffic. This was a residential area 

without a lot of traffic. He had passed a police station and was approaching Greenleaf Street 

when he heard a horn from the vehicle behind him. Before he could turn his head to look back, 

his left shoulder was struck by the passenger-side mirror of a passing white truck. That contact 

pushed Lathrop toward the parked vehicles on his right and caused him to fall and hit his 

forehead on the back of a parked truck. When his forehead hit the truck, his head snapped 

backwards. He fell to the ground with his bicycle, landing on his back. 

¶ 7 Lathrop felt dazed but stood up after a minute. The offending truck driver did not stop. 

Lathrop did not observe any witnesses to the incident and did not know what to do. He had his 

cellphone in his possession but did not call the police because he was in shock and could not 

1

In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this 

appeal has been resolved without oral argument upon the entry of a separate written order.
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identify the license plate number or any markings of the offender’s truck. Although Lathrop 

felt some neck and forehead pain immediately after the collision, he thought that the pain would 

subside and that medical treatment was unnecessary. His bicycle was damaged but still 

rideable. He decided to go home and rest, so he initially walked one-half block with his bicycle 

and then rode it about one mile to a bus stop. He took two buses to go home. 

¶ 8 At the time of the incident, Lathrop lived with his mother in Northbrook, Illinois. When he 

arrived home, he was upset about what had happened and watched television. When his mother 

came home, he told her that he was hit by a truck and his neck “kind of” hurt. Over the next 

few days, Lathrop had headaches and felt increased neck pain. On September 13, 2015, he 

went to a hospital emergency room and underwent computed tomography (CT) scans of his 

cervical spine and head. He was diagnosed with a cervical odontoid fracture, given pain 

medication, and referred to a spine specialist. When Lathrop saw the spine specialist on 

September 18, 2015, Lathrop stated that he injured his head and neck when a truck ran him off 

the road and pushed him into a parked car. Lathrop was in severe pain in the days following 

the collision and wore an immobilizing neck brace.

¶ 9 Lathrop’s mother had a Safeco automobile insurance policy at the time of the hit-and-run 

incident. Because Lathrop had a serious neck injury, his mother and doctors advised him to 

file a police report regarding the hit-and-run accident. Lathrop had to report the collision at an 

Evanston police station in person because the matter was now an off-scene or delayed hit-andrun report. On September 21, 2015, Lathrop went to an Evanston police station and reported 

the hit-and-run incident. 

¶ 10 Also in September 2015, counsel for Lathrop sent a demand for arbitration letter to Safeco 

concerning the personal injury Lathrop suffered in the collision. Lathrop, who was listed as a 

“rated driver” on his mother’s Safeco auto insurance policy, sought compensation under the 

uninsured/underinsured motorists coverage and medical payments provisions of the policy. 

Lathrop resided with his mother at the time of the collision and was a “family member” as 

defined in his mother’s Safeco policy. Lathrop provided a recorded statement to Safeco, and 

the parties exchanged written discovery. Lathrop also provided his medical records and 

deposition testimony about the collision under oath. 

¶ 11 Lathrop’s injury did not improve with conservative care, so he underwent a cervical fusion 

and wire stabilization of his odontoid fracture in January 2016.

¶ 12 In May 2018, Safeco informed Lathrop that he was not entitled to uninsured motorist bodily 

injury coverage under the policy due to his failure to report the hit-and-run accident to the 

police within 24 hours or as soon as practicable. 

¶ 13 Lathrop then filed a complaint for declaratory relief, which asked the circuit court to find 

and declare that (1) Safeco was obligated to provide uninsured motorist coverage to Lathrop, 

(2) Lathrop was in full compliance with the insurance policy provision to give notice as soon 

as practicable, and (3) Safeco was obligated to proceed with arbitration according to the terms 

of the policy.

¶ 14 In its answer, Safeco denied Lathrop’s allegation that he was an insured under the terms of 

his mother’s Safeco policy and argued that the interpretation of the policy in relation to 

Lathrop’s alleged facts was a legal matter for the court to decide and resolve. In its affirmative 

defenses, Safeco asserted that Lathrop failed to (1) cooperate in the investigation of this claim 

and (2) report the alleged hit-and-run incident to the police until 11 days after the occurrence, 

in violation of the policy provision that required a person to “report an accident to the police 
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or other civil authority within twenty-four (24) hours or as soon as practicable if a hit-and-run 

driver is involved.” Safeco argued that it had no duty to provide uninsured motorists coverage 

or other coverage to Lathrop. 

¶ 15 In response, Lathrop denied the allegations in Safeco’s affirmative defenses. 

¶ 16 Thereafter, the parties filed cross-motions for summary judgment. Safeco argued that it did 

not owe Lathrop any uninsured motorists coverage under his mother’s auto insurance policy 

because the policy terms were clear and exact and there was no dispute that Lathrop failed to 

comply with the condition precedent to report the alleged hit-and-run accident to the police 

within 24 hours or as soon as practicable. Specifically, Safeco argued that nothing impeded 

Lathrop from satisfying that condition precedent because he had his cellphone in his 

possession; had cycled past the Evanston police station shortly before the accident occurred; 

and was conscious, ambulatory, and not in need of immediate medical care after the accident. 

Safeco also argued that Lathrop failed to report the September 10 accident to the police after 

he received medical treatment from a hospital on September 13 and was seen by a spine 

specialist on September 18. According to Safeco, Lathrop’s prior personal injury lawsuits and 

involvement in collisions with vehicles as a bicyclist or pedestrian indicated that he was 

knowledgeable about seeking recovery for claimed injuries. 

¶ 17 Lathrop argued that, given all the surrounding circumstances, he complied with the policy 

provision to report the hit-and-run accident to the police as soon as practicable, i.e., within a 

reasonable time, when he went to an Evanston police station 11 days after the accident to file 

in person his off-scene report. Specifically, Lathrop argued that the Safeco policy requirement 

to report the hit-and-run accident to the police “as soon as practicable” was ambiguous because 

it was a subjective rather than a specific timeframe. Lathrop also argued that, despite the severe 

pain he was suffering, he was diligent in reporting the accident to the police when he learned 

about the seriousness of his injury, the potential coverage under his mother’s auto insurance 

policy, and the police department’s in-person reporting requirement. 

¶ 18 In April 2019, the circuit court granted summary judgment in favor of Safeco and against 

Lathrop, finding that Lathrop was not entitled to uninsured motorists coverage under the policy 

because he failed to comply with a condition precedent to coverage. Specifically, the court 

found that the clear and unambiguous policy provision required Lathrop to report the hit-andrun accident to the police within 24 hours, “absent extenuating circumstances (i.e., 

incapacitation)”; however, “[i]f extenuating circumstances were present, then [Lathrop] was 

required to report the accident to the police ‘as soon as practicable.’ ” The court concluded that 

“no factor, event, or condition imped[ed] or inhibit[ed Lathrop] from reporting his accident to 

the police within 24 hours because the record established that, shortly before the accident, 

Lathrop had cycled past an Evanston police station, which was about one-half mile away from 

the scene of the accident. Furthermore, Lathrop “was conscious, ambulatory, and not in need 

of immediate care after the accident.” Also, he was in possession of his cell phone, his bicycle 

was still rideable, and he was able to cycle to a bus stop and take two buses home. 

¶ 19 When considering Lathrop’s sophistication in matters of commerce and insurance, the 

court noted his education level and prior involvement “in multiple prior accidents” and two 

personal injury lawsuits. The court did not find credible Lathrop’s testimony that he did not 

know his mother’s automobile insurance policy would have provided coverage for his bicycle 

hit-and-run accident and required him to report the accident to the police. Finally, the court 

stated that a delay in reporting a hit-and-run accident hinders the ability of the police or the 
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insurer to successfully investigate and obtain evidence on the identity of the vehicle or driver 

who fled the accident scene. 

¶ 20 Lathrop appealed.

¶ 21 II. ANALYSIS

¶ 22 First, Lathrop argues that the circuit court erred by granting summary judgment in favor of 

Safeco because the ambiguous language of the disputed policy provision, which must be 

construed liberally in favor of coverage, must be interpreted to require a person seeking 

uninsured/underinsured motorists coverage to report the accident to the police within 24 hours 

but, if the matter involved a hit-and-run driver, as in the instant case, then the person seeking 

uninsured/underinsured motorists coverage must report the accident to the police as soon as 

practicable. Lathrop argues that the circuit court erroneously held him to a standard not stated 

in the policy when the court construed the “as soon as practicable” reporting requirement to 

apply only when extenuating circumstances, like incapacitation, impeded or inhibited a 

claimant from reporting the accident to the police within 24 hours. 

¶ 23 Second, Lathrop argues that he was entitled to summary judgment on his claim to declare 

Safeco obligated to provide uninsured motorists coverage to him and proceed to arbitration 

because the undisputed facts established that he reported the accident to the police as soon as 

practicable where he did not realize the severity of his injuries until he sought medical 

treatment, he did not know a bicycle accident would trigger coverage under his mother’s auto 

insurance policy, and Safeco was not prejudiced by his report to the police 11 days after the 

accident because that passage of time had no effect on the investigation of his claim since he 

could not identify the offending driver or truck and no one else witnessed the accident. 

¶ 24 Safeco argues that the circuit court correctly interpreted the policy provision to require 

Lathrop to report the hit-and-run accident to the police within 24 hours and not “as soon as 

practicable.” However, even if the “as soon as practicable” reporting requirement applied to 

Lathrop, Safeco argues that he failed to meet that requirement because the undisputed facts 

show that he was capable of reporting the accident sooner than 11 days after its occurrence. 

¶ 25 On appeal, we review a trial court’s entry of summary judgment de novo (Andrews v. 

Cramer, 256 Ill. App. 3d 766, 769 (1993)), which means our review is independent of the trial 

court’s reasoning and decision (Bank of America, N.A. v. Adeyiga, 2014 IL App (1st) 131252, 

¶ 56 (“De novo consideration means that the reviewing court performs the same analysis that 

a trial judge would perform.”)). 

¶ 26 Summary judgment is proper where the pleadings, affidavits, depositions, admissions, and 

exhibits on file, when viewed in the light most favorable to the nonmovant, reveal that there is 

no issue as to any material fact and that the movant is entitled to judgment as a matter of law.

735 ILCS 5/2-1005 (West 2016); Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004). The 

function of summary judgment is not to try cases but to isolate those cases that present only 

legal questions and thereby enable the court, as the trier of law, to summarily dispose of the 

legal questions involved. City of Chicago v. Dickey, 146 Ill. App. 3d 734, 737 (1986). 

Summary judgment “is to be encouraged as an aid in the expeditious disposition of a lawsuit.” 

Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). 

¶ 27 When the parties file cross-motions for summary judgment, they agree that there are no 

genuine issues of material fact and ask the court to decide the questions presented as a matter 
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of law and based on the record. Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶ 25; Steadfast 

Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 755 (2005). “However, the mere 

filing of cross-motions for summary judgment does not establish that there is no issue of 

material fact, nor does it obligate a court to render summary judgment.” Pielet v. Pielet, 2012 

IL 112064, ¶ 28. “[W]here there is a dispute as to a material fact, summary judgment should 

be denied and the issue decided by the trier of fact.” Id. ¶ 53.

¶ 28 “The construction of an insurance policy and a determination of the rights and obligations 

thereunder are questions of law for the court and appropriate subjects for disposition by 

summary judgment.” Konami (America), Inc. v. Hartford Insurance Co. of Illinois, 326 Ill. 

App. 3d 874, 877 (2002). In construing an insurance policy, the court follows the rules of 

contract interpretation to ascertain the intent of the parties to the contract. Id. at 878-79; 

Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 433 (2010). To ascertain the meaning of 

the policy’s words, the court must view the policy as a whole with due regard to the type of 

insurance purchased, the risk undertaken, and the overall purpose of the contract. AMCO 

Insurance Co. v. Erie Insurance Exchange, 2016 IL App (1st) 142660, ¶ 20. 

¶ 29 In Illinois, the general rule is that, when an insurer attempts to place limits on the uninsured 

motorist provisions of its insurance policy, the limitations must be construed in favor of the 

policyholder and strongly against the insurer. Hartford Accident & Indemnity Co. v. LeJeune,

114 Ill. 2d 54, 59 (1986). If the words in an insurance policy are unambiguous, a court must 

give the words their plain, ordinary, and popular meaning. Indiana Insurance Co. v. Liaskos, 

297 Ill. App. 3d 569, 573 (1998). But if the words are susceptible to more than one meaning, 

they are ambiguous and will be construed in favor of the insured and against the insurer that 

drafted the policy. Konami (America), Inc., 326 Ill. App. 3d at 879. However, a “policy 

provision is not rendered ambiguous simply because the parties disagree as to its meaning,” 

and courts “will not strain to find an ambiguity where none exists.” Founders Insurance Co.,

237 Ill. 2d at 433. “Although ‘creative possibilities’ may be suggested, only reasonable 

interpretations will be considered.” Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 

2d 11, 17 (2005).

¶ 30 Under his mother’s Safeco auto insurance policy, Lathrop was listed as an additional driver 

and also was covered as a family member, i.e., a person who was related to the insured by 

blood and a resident of the insured’s household. The insurance policy provision at issue 

provides, in relevant part:

“PART E—DUTIES AFTER AN ACCIDENT OR LOSS

We have no duty to provide coverage under this policy unless there has been full 

compliance with the following duties: 

A. We must be notified promptly of how, when and where the accident or loss 

happened. Notice should also include the names and addresses of any injured 

persons and of any witnesses. 

B. A person seeking any coverage must:

1. Cooperate with us in the investigation, settlement or defense of any claim 

or suit.

* * *

C. A person seeking Uninsured/Underinsured Motorists Coverage must also: 
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1. Report the accident to the police or other civil authority within twentyfour (24) hours or as soon as practicable if a hit and run driver is involved.” 

¶ 31 Based on the principles of contract interpretation, we find that the disputed policy provision 

required Lathrop, a person seeking uninsured motorists coverage, to report the accident 

involving the hit-and-run driver to the police within 24 hours or as soon as practicable. We 

reject the strained interpretation urged by Lathrop, which is not consistent with the rules of 

grammar and punctuation, that this provision created two separate accident reporting 

requirements: either as soon as practicable if a hit-and-run driver was involved or within 24 

hours if the accident did not involve a hit-and-run driver. We also reject the interpretation urged 

by Safeco, which adds terms and conditions not expressed in the language of the policy to 

conclude that Lathrop was required to report the accident to the police within 24 hours because 

no extenuating circumstances prevented him from making such a report and the “as soon as 

practicable” reporting requirement applied only in situations involving extenuating 

circumstances.

¶ 32 “Practicable” is defined as:

“that which may be done, practiced, or accomplished; that which is performable, 

feasible, possible ***. Within liability policy providing that when accident occurred, 

written notice should be given by or on behalf of insured to insurer *** as soon as 

practicable, ‘practicable’ was held to mean feasible in the circumstances. Frey v. 

Security Ins. Co. of Hartford, D.C.Pa., 331 F.Supp. 140, 143.” Black’s Law Dictionary 

1172 (6th ed. 1990). 

In the context of a policy covering liability for personal injury and property damage, Illinois 

courts have construed the phrase “as soon as practicable” to mean within a reasonable time, 

and what is reasonable depends on the facts and circumstances of the case. Country Mutual 

Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311-12 (2006) (citing Barrington 

Consolidated High School v. American Insurance Co., 58 Ill. 2d 278, 281-82 (1974)). 

¶ 33 Lathrop argues that the issue of whether he reported the hit-and-run accident to the police 

within a reasonable time should be analyzed under the same 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, i.e., (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. See West 

American Insurance Co. v. Yorkville National Bank, 238 Ill. 2d 177, 185-86 (2010); Country 

Mutual Insurance Co., 222 Ill. 2d at 313. Lathrop made this same argument to the circuit court, 

which stated that the five-factor analysis did not govern the interpretation of the police report 

policy provision at issue here. Nevertheless, the circuit court conducted the five-factor analysis 

and concluded that Lathrop’s police report 11 days after the accident was not made within a 

reasonable time under the circumstances. 

¶ 34 We agree with the circuit court that the five-factor analysis used to determine the timeliness 

of an insured’s notice to its insurer is not entirely relevant to and thus does not govern the 

determination of whether Lathrop reported the accident to the police within a reasonable time. 

Generally, the question of what constitutes a reasonable time is a question of fact to be decided 

by the jury, but if—as here—there is no controversy as to the facts, the question of 

reasonableness is for the judge to decide. Jones v. Universal Casualty Co., 257 Ill. App. 3d 
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842, 853 (1994). “Ordinarily, we will not reverse a trial court’s findings of fact unless they are 

against the manifest weight of the evidence.” Danada Square, LLC v. KFC National 

Management Co., 392 Ill. App. 3d 598, 608 (2009). Here, however, we review de novo the 

circuit court’s judgment that Lathrop’s 11-day wait to report the accident to the police was 

unreasonable because the only evidence presented to the circuit court was documentary and 

the circuit court did not have the benefit of viewing and hearing Lathrop testify when the court 

determined his credibility. See The Travelers Indemnity Co. v. Rogers Cartage Co., 2017 IL 

App (1st) 160780, ¶ 12; see also Danada Square, LLC, 392 Ill. App. 3d at 608 (where the 

question is the legal conclusion to be drawn from a given set of facts, our review is de novo); 

Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001) (“If the facts are uncontroverted and the issue is 

the trial court’s application of the law to the facts, a court of review may determine the 

correctness of the ruling independently of the trial court’s judgment.”).

¶ 35 A determination on whether an insured performed a required action within a reasonable 

time involves a flexible analysis that may vary depending on the nature, purpose, and 

circumstances of such action. Requiring an insured to report an accident involving a hit-andrun driver to the police within a reasonable time advances the interests of extending coverage 

for legitimate claims and protecting the insurer from fraudulent claims. Considering the 

undisputed facts and circumstances here, we judge that Lathrop satisfied the policy 

requirement to report the accident to the police within a reasonable time when he made that 

report 11 days after the accident. Although Lathrop had his cell phone at the time of the 

accident and had cycled past a police station that was about a one-half mile from the scene of 

the accident, he did not call the police because he was in shock, did not know what to do, and 

had no information to give the police about the identity of the offending driver or truck and no 

one else witnessed the accident on that residential street with little traffic. 

¶ 36 Furthermore, Lathrop mistakenly thought that he was not seriously injured and the pain 

would subside after he went home and rested. Instead of cycling back to the police station, 

which was in the opposite direction of his route home, Lathrop walked a short distance and 

then rode his bicycle to a nearby bus stop so he could take two buses to go home. After two 

days, he went to a hospital emergency room because his head and neck pain became more 

severe. He was diagnosed with a cervical odontoid fracture and referred to a spine specialist. 

Three days later, he went to his appointment with that specialist.

¶ 37 In his deposition, Lathrop testified that his dyslexia adversely affected his reading 

comprehension and he was not aware that his bicycle accident could trigger coverage under 

his mother’s auto insurance policy, which he did not purchase and had never read. Although 

Lathrop’s assertion about his inexperience in insurance matters was not credible based on his 

prior litigation of personal injury claims as a bicyclist or pedestrian against drivers, no evidence 

showed that the prior litigation involved uninsured motorists coverage under his mother’s or 

another person’s auto insurance policy. 

¶ 38 After Lathrop realized the severity of his injuries, he followed the advice of the medical 

staff and his mother to file a police report, which he learned had to be done in person at an 

Evanston police station because the matter was now an off-scene or delayed hit-and-run report. 

Despite being on medication for his severe head and neck pain, he went to the Evanston police 

station 11 days after the accident and reported the matter. Under the circumstances of this case, 

the elapsed time of 11 days was not outside the ambit of what a fair-minded person could 

conclude to be reasonable. See Strom International, Ltd. v. Spar Warehouse & Distributors, 
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Inc., 69 Ill. App. 3d 696, 701 (1979) (discussing decisions from other jurisdictions that 

determined as a matter of law the question of what constituted a reasonable time to perform an 

action required by a contractual provision).

¶ 39 III. CONCLUSION

¶ 40 We conclude that Lathrop, under the undisputed facts of this case, complied with the 

unambiguous policy provision to report the hit-and-run accident to the police as soon as 

practicable. Thus, the circuit court erred in denying Lathrop’s motion for summary judgment 

and in allowing Safeco’s cross-motion.

¶ 41 For the foregoing reasons, we reverse the judgment of the circuit court that granted 

summary judgment in favor of Safeco and against Lathrop. We remand this cause for further 

proceedings.

¶ 42 Reversed and remanded.

¶ 43 PRESIDING JUSTICE GORDON, concurring in part and dissenting in part:

¶ 44 I must respectfully dissent from the majority’s reversal of the trial court’s denial of 

plaintiff’s motion for summary judgment, and I concur with the majority’s reversal of the 

summary judgment in favor of defendant, but for different reasons, and as a result, I must write 

separately.

¶ 45 Our Illinois Supreme Court has found that summary judgment “is a drastic means of 

disposing of litigation, and this court has a duty to construe the record strictly against the 

movant and liberally in favor of the nonmoving party.” Murray v. Chicago Youth Center, 224 

Ill. 2d 213, 245-46 (2007). “Summary judgment should not be allowed unless the moving 

party’s right to judgment is clear from doubt, because plaintiffs are not required to prove their 

cases at the summary judgment stage.” Murray, 224 Ill. 2d at 246. As a result, summary 

judgment is not appropriate (1) if “there is a dispute as to a material fact” (Jackson v. TLC 

Associates, Inc., 185 Ill. 2d 418, 424 (1998)), (2) if “reasonable persons could draw divergent 

inferences from the undisputed material facts” (Jackson, 185 Ill. 2d at 424), or (3) if 

“reasonable persons could differ on the weight to be given the relevant factors” of a legal 

standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 269 (2007)).

¶ 46 The issue in this case is whether plaintiff complied with the unambiguous policy provision 

of defendant’s insurance policy to report the hit-and-run incident to the police as soon as 

practicable when plaintiff first filled out a police report 11 days after the incident.

¶ 47 Whether reasonable notice has been given depends on the facts and circumstances of each 

case. Illinois courts apply the following factors when determining whether notice has been 

given within a reasonable time: “(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.” West 

American Insurance Co. v. Yorkville National Bank, 238 Ill. 2d 177, 185-86 (2010) (citing 

Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 313 (2006)).

¶ 48 In reversing the trial court, the majority states that, “[c]onsidering the undisputed facts and 

circumstances here, we judge that Lathrop satisfied the policy requirement to report the 
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accident to the police within a reasonable time when he made that report 11 days after the 

accident” (supra ¶ 35) without applying the factors needed to make that determination. When 

I apply the factors, I find that there are factual issues that must be decided. The trial court 

applied the five factors and made factual determinations on a motion for summary judgment 

when factual issues should be decided by the trier of fact. Plaintiff claimed he was “an 

unsophisticated insured.” The trial court pointed out that he attended college-level courses, 

where he studied finance for over a year, as well as commodity trading, and had been in 

multiple prior accidents. However, the trial court made a factual determination that any 

reasonable driver would recognize that an accident might trigger insurance coverage regardless 

of whether it was a hit-and-run. 

¶ 49 There are issues concerning factors two, three, and four as to plaintiff’s sophistication in 

being aware that his incident triggered uninsured motorist coverage in his mother’s insurance 

policy and whether he was diligent. Uninsured motorist coverage is a specific coverage that 

most nonlawyers may not be aware of. The fact that he had other incidents on his bicycle where 

he made insurance claims does not mean he was aware of the fact that this incident on a bicycle 

triggered the uninsured motorist coverage in his mother’s insurance policy. In addition, his 

medical physician’s records disclose that he told his physician that he was run off the road, not 

struck by the mirror of the truck. If it is later proven that there was no contact, it is possible 

there would be no liability for the alleged hit-and-run driver and that would be prejudicial to 

defendant without a trial on the merits. Most importantly, there is a factual issue as to whether 

defendant was prejudiced by the plaintiff’s 11-day notice. Although I find that ordinarily an 

11-day notice would be reasonable, a court must follow the factors set forth by the supreme 

court in making that determination. Since the trial court did not utilize these factors, I would 

reverse the summary judgment in favor of defendant and affirm the denial of plaintiff’s motion 

for summary judgment and instruct the trial court to follow the five factors our supreme court 

set forth in a trial on the merits.