## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Pryor v. U

nited Equ itable Insu rance Co. , 2011 IL App (1st) 110544

Appellate Court Caption KE VI N PRYOR, Plaintiff-Appellant, v. UNI TED EQUI TABL E I NSURANCE COMPANY, Defe ndant-Appe llee.

District & N o. First District, Six th Division Docke t No. 1-11-0544

Filed Dec ember 16, 2011

Held (Note : T

his syl lab us

con st it ute s no p a rt of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff’s action to confirm an uninsured motorist arbitration awa rd to judgme nt and alleg ing bad faith on the part of d ef endant insurer under section 155 of the I llinois Insuranc e Code was proper ly dismiss ed on the g rounds that defe ndant’s pay ment of the awa

rd in a timely fa s h ion rende red the action moot and def endant wa s not guilty

of bad f aith, and in the absenc e of any bad faith on plaintiff’s part, defe ndant’s motion for sanctions under

Supreme Court Rule 375 was de nied.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-CH-8715; the Hon. L eroy

Martin, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Arthur H. L evinson, of Arthu r H. L evinson & Associates, P.C., of Chicag o, for a

ppellant.

Assata N. Peterson and Samuel A. Shelist, both of Shelist L aw Firm, L L C, of Chicag o, for a

ppellee.

Panel PR E SID I N G JUSTI CE R. GORDON delivere d the judgme nt of the c o u r t, with opinion.
J ustices Gar cia a

nd L ampkin concur

red in the judg ment and opinion.

OP INION

¶ 1 Plaintiff Kevin Pryor filed suit in the circ uit court o f C o o k County ag ainst defe ndant United Equitable Insuranc e Company to confirm an uninsured motorist arbitration awa rd to judgme nt a

nd alleg ed bad faith under section 155 of the I llinois Insuranc e Code (Insuranc e Code) (215 I L CS 5 /1 5 5 ( We s t 2008)). Subsequent to being serve d with the complaint, United paid the arbitra

tion awa rd of $9,775.46. United brought a motion to dismiss counts I and I I and soug ht sanctions ag ainst Pryor’s counsel, Arthur H. L evinson. The tri al court g rante d United’s motion to dism iss count I Iwith prejudice reg ardingbad faith, grante d the motion to dismiss count I confirming the arbitration awa rd as moot and d en i ed the motion for sanctions. On appea l, Pryor seeks reve rsal of the order dismiss ing count I I of the complaint reg arding bad faith, arguing that dismiss al was imp r o p e r beca use pay ment had not been made on the ar bitration awa

rd prior to filingthe complaint. We aff irm.

¶ 2 BA CKGROUND ¶ 3 On J an u ar y 21, 2009, Pryor was injured in an automobile collision with an uninsured motorist. Pryor made an uninsured motorist claim, an d o n J anuar y 21, 2010, the parties arbitrated the matter, resulting in an awa rd of $9,775.46. In a letter dated J anuar y 27, 2010, Pryor provided United with an executed rele ase an d trust agree ment. In a letter also dated J anuar y 27, 2010, United reque sted Pryor t o provide a rele ase of phy sician’s lien and indicated that the awa

rd would be paid. On Fe bruar y 5, 2010, Pryor faxed United an executed rele ase of phy sician’s lien a

nd reque sted pay

ment. ¶ 4 Pryor brought this action on Marc h 2, 2010 seeking
, in count I
, to confirm the uninsured motorist arbitration awa

rd to judgment, and, in c ount I I
, seeking damag es for United’ s bad faith. Subsequent to being serve d with the complaint, United paid the awa rd of $9,775.46 on Marc h 12, 2010. On September 29, 2010, United brought a motion to dismiss count I I with prejudice and count I as moot, along with a motion for I llinois Supreme Court Rule 137 (ef f. Fe b. 1, 1 9 9 4 ) sanctions ag ainst Arthur H. L evinson, counsel for Pryor. The motions wer e fully briefe d and a hear ing was held on January 21, 2011. Pursuant to section 2-619 of t he

-2-I llinois Code o f Ci vil Procedur e (Code) (735 I L CS 5/2-619(a) (9) (West 2010)), the trial court

g rante d United’s motion to dismiss count I I with pr ejudice reg arding the alleg ations of bad faith, g rante d the motion to dismiss count I as moot and denied the motion for sanctions. On J uly 5, 2011, Pryor appea led the trial court’s judgme nt, s ee k i n g reve rsal of its order dismiss ing c ount I Iof the c omplaint reg ardingthe alleg ations of bad f aith.

¶ 5 ANALYSI S ¶ 6 On appea l, Pryor claims that the trial court err ed in dismiss ing count I I of the complaint pursuant to section 2-619 of the Code wher e “no judgme nt had previously been enter ed, nor pay ment made on the arbitration awa rd.” See 735 I L CS 5/2-619(a) (9) (West 2010). W hen there is a challeng e to an order of dismiss al under section 2-619 of the Code, the standard for the revie wing court is de novo

. Daniels v. Union Pacific R.R. Co.
, 388 I ll. App. 3d 850, 855 (2009). Pryor’s claims wer e made purs u an t t o section 919.50 of title 50 of the I llinois Administrative Code (50 I ll. Adm. Code 919.50 (2010)) and section 155 of the I llinois Insuranc e Code (215 I L CS 5/ 155 (West 2008)). ¶ 7 In his complaint, Pryor all ege s t h at “U n i ted has acte d vexatiousl y and in bad faith by

unrea sonably

delay ing the pay

ment of the [Arbitration Awa rd]” in severa l way s, including “[r]e fu s i n g to pay the Arbitration Awar d in derog ation of 919.50 of the I llinois Insuranc e Regulations.” Section 919.50(a) of title 50 of the Administrative Code requi re s that “the [i nsuranc e] comp an y shall aff irm or deny liability on claims within a rea sonable time and shall offe r pay

ment within 30 day s afte r af firmation of liability , if the amount of the claim is deter mined and not in dispute.” 50 I ll. Adm. Code 919.50(a) (2010). Section 919.50 also require s that “[ o ] n fi rst party claims if a settlement of a claim is less than the amount claimed, or if the claim is denied, the com p an y shall provide to the insured a rea sonable written explanation of the basis of the lower offe r o r d enial within 30 day s afte r the investigation and determination of l iability is co m p l eted.” 50 I ll. Adm. Code 919.50(a) (1) (2010). ¶ 8 Pryor’s co m p l aint has not set forth sufficie nt fac ts to indicate that United violated the Administrative Code. Fur thermore
, the I llinois Supreme Court ha s held that a private rig ht of action is not nece ssarily available based on a violation of the Administrative Code rules. Vine Street Clini c v. HealthLink, Inc.
, 222 I ll. 2d 276, 301 (2006). Plaintiffs in Vine claimed that defe ndants v i o l ated the Administrative Code by collecting unauthorized fee s from healthca re providers. The court held that “[p] laintiffs are without standing to seek the return of administrative fee s under the Code beca use such a private rig ht of action is not available .” Vine
, 2 2 2 I ll. 2d at 301. The court cited W eis v. Stat e Farm Mutual Automobile Insurance Co.
, 333 I ll. App. 3d 402 (2002), which explained that enf o rc em ent of the i nsuranc e rules was de leg ated to the De partment of I nsuranc e, so a pla intiff cannot pursue a private a ction based on a

n insurer’ s violation of the rules. W eis , 333 I ll. App. 3d at 406. ¶ 9 In his complaint, Pryor claims that “[b] ased upon *** contra ct or ‘policy ’ brea ches that United direc tly inflicted upon Pryor here in, Pryor alleg es an entitlement to rec over additional damag es under 215 I L CS 5/155 (a)
, (b) and/or (c) .” Although a private rig ht of action does not exi st based solely

on an Administrative Code violation, se ction 155 does allow a court

-3-to awa rd attorney fee s and other costs in c erta in situations. This c ourt explained in Neiman v. Ec onomy Pre

ferred Insurance Co. , 357 I ll. App. 3d 786 (2005), that section 155 is only applicable in insurance case s wher e one of three issues rema ins unde cided: “the liability of

a company on an insurance policy or the amount of loss to b e p ai d u nder a policy or an
unrea sonable delay in ‘ settling a claim.’ ” (Emphasis omitted.) Neiman
, 357 I ll. App. 3d at 794. As in Neiman
, the case at bar cannot fall under either of the first two cate g ories beca use the liability o f the insurer and the amount owed under the policy wer e deter mined during arbitration. Theref

ore, w e must evaluate whethe r any delay in pa ying the arbitration awar d

was unreasona

ble. To deter

mine whether an ins u re r has been vexatious and unreasonable
, a court must consider “the ins urer ’s atti tude, whethe r t h e i nsured was forc ed to file sui t to

rec over, a nd whether

the insured wa s deprived of the use of its prope rty .” Mobil Oil Corp.

v. Maryland Casualty Co.
, 288 I ll. App. 3d 743, 752 (1997). We find that United’s conduct was not vexatious and unrea sonable unde r sec tion 155. ¶ 10 Pryor argues that Neiman is inapposite beca use “the court [i n Neiman ] enter ed J udg ment on the under lying a ction and De fenda nt made full pay

ment upon the claim bef

ore Plaintiff [filed] suit for Section 155 damag es, which was the sole basis for the suit.” Instead, plaintiff claims that Estate of Price v. Universal Casualty Co.
, 322 I ll. App

. 3 d 514 (2001), is instructive. We find the ca se at ba r fa ctually

distinguishable f

rom Price

. ¶ 11 In Price
, plaintiff’s d ec ed en t wa s i n v o l ved in a hit-and-r un acc ident and def

endant insurance company denied her uninsured motorist claim. The claim was schedule d for arbitration a

nd defe ndant moved to stay the arbitration pr ocee ding, which was denied. The arbitrator found in favor of plaintiff for $20,000, the full amount of her policy

. Plaintiff then filed an action to confirm the arbitration awa rd t o j u d gm ent. The trial court confirmed the

awa rd and order ed defe ndant to pay the awa rd plus interest. Def

endant then offe red to settle for $15,000, threatening plaintiff’s counsel that if plaintiff did not acc ept, defe ndant would appea l. Def

endant then paid part of the awa rd but ref used to pay interest. This court held that “under the totality of circ umstances, plaintiff’s documentar y evidenc e established sufficie nt

unrea sonable delay and vexatious conduct to support a claim under section 155.” Price
, 322 I ll. App. 3d at 518. This court noted that “ defe ndant’s attitude was to delay settlement and pay ment of this claim.” Price , 322 I ll. App. 3d at 518. ¶ 12 This is distinguishable from the case at bar wher e Pryor has not shown vexatious conduct

or unrea sonable delay

. United did not ref use to participa

te in arbitration or ref

use to pay the arbitration awa

rd. Alt houg h United di d no t p ay the award as fast as Pryor had anticipated, Pryor has alleg ed no fac ts which indicate that United had an attitude sug g estive of vexatiousl y

delay ing pa y ment. ¶ 13 Fur

thermore
, under the I llinois Uniform Arbitration Act, United had 90 day s fro m t he date of the arbitration awa rd to move to vacate or modify the awa rd. 710 I L CS 5/12 throug h 13 (West 2010). Be cause this suit was filed within the time period allo t t ed t o Uni ted to appea l, P ry o r was not forc ed to file suit to rec over or deprive d of the use of his proper ty

. There fore
, since the instant action under section 155 was filed within the 90 day s that United had, as a matter of rig ht, to appea l, we cannot find that United vexatiousl y delayed pay ment of the arbitration awa

rd. In addition, the arbitra

tion awa rd was paid 35 day s afte r Pryor faxed United an executed rele ase of phy sician’s lien and reque sted pay ment. Fr om the time of the

-4-fax to the filing of this suit, 25 day s had expired, and this tim e p er i o d b y itself cannot

demonstrate ve x atious delay of pay ment. ¶ 14 We also deny United’s reque st for sancti o ns ag ainst Pryor’s counsel, Arthur H. L evinson, pursuant to I llinois Supreme Court Rule 375 (ef f. Fe b. 1, 1994). United asser ts that Pry or’s appea l is frivolous beca

use it is based on well-e stablished law. We find that Pryor’s appea l is based on “a good- faith ar gu m ent for the ex tension, modification, or reversa l of ex isting law” and is t h er ef

o re not frivolous. I ll. S. Ct. R. 137 (ef f. Fe b. 1, 1994). Acc ording ly
, United’s re quest for sa

nctions is denied.

¶ 15 CONCLUSI ON ¶ 16 For

the af oreme ntioned rea sons, the dismiss al of the a ction is affirme d.

¶ 17 Affir

med.

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