
    DENNIS PARKER, Plaintiff-Appellee, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant-Appellant.
    Third District
    No. 3—97—0534
    Opinion filed July 20, 2000.
    HOLDRIDGE, J., dissenting.
    James E. Priestley (argued), of James M. Hoffman & Associates, of Schaumburg, for appellant.
    Anthony F. Mannina (argued), of Wheaton, for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The issue before the court is whether an insurance policy’s under-insured motorist arbitration provision is contrary to public policy if it permits a trial de novo only for awards in excess of the minimum liability set forth in the Illinois Safety and Family Financial Responsibility Law (625 ILCS 5/7- — 100 et seq. (West 1998)). The trial court concluded that such a structure is contrary to public policy and entered a judgment confirming an arbitration panel’s award in favor of the insured, Dennis Parker. Defendant American Family Insurance Company (American Family) appealed and we affirmed. American Family filed a petition for leave to appeal to the supreme court. The supreme court denied the petition but entered a supervisory order directing us to vacate our judgment and reconsider this case in light of Reed v. Farmers Insurance Group, 188 Ill. 2d 168, 720 N.E.2d 1052 (1999). Having done so, we again affirm and hold that the insurance policy provision at issue here violates public policy, as expressed in Fireman’s Fund Insurance Cos. v. Bugailiskis, 278 Ill. App. 3d 19, 662 N.E.2d 555 (1996).

FACTS

Parker was injured in a motor vehicle accident while he was a passenger in a car. The vehicle that struck the one in which Parker was riding had liability insurance limits in the amount of $20,000. Parker filed suit against the driver of that vehicle and settled the case for the $20,000 policy limit. He then filed for arbitration with his own insurance company, American Family, as permitted by the arbitration provisions for underinsured motorist coverage in his American Family policy. The pertinent provisions of the policy provided as follows:

“Arbitration
We or an insured person may demand arbitration if we do not agree:
1. That the person is legally entitled to recover damages from the owner or operator of an underinsured motor vehicle.
2. On the amount of payment under this part.
$ $ $
Any arbitration award not exceeding the minimum limit of the Illinois Safety Responsibility Law:
1. Will be binding; and
2. May be entered as a judgment in any court having jurisdiction.
% í¡: :jc
If any arbitration award exceeds the minimum limits of the Illinois Safety Responsibility Law, either party has a right to trial on all issues in any court having jurisdiction.”
An arbitration panel awarded Parker $75,000 minus the $20,000 received in the settlement. Parker filed a petition for judgment on the award in the circuit court. But, American Family moved to dismiss the petition and filed a counterclaim for a trial on all issues. Relying on Fireman’s Fund Insurance Cos. v. Bugailiskis, 278 Ill. App. 3d 19, 662 N.E.2d 555 (1996), the trial court found that the arbitration clause was one of adhesion which violated public policy. The court subsequently denied American Family’s petition and entered a judgment on Parker’s petition. We affirmed and now reanalyze this case in light of Reed v. Farmers Insurance Group, 188 Ill. 2d 168, 720 N.E.2d 1052 (1999).

ANALYSIS

The arbitration clause in dispute is common to insurance policies. A majority of courts have determined that these “escape hatch” clauses are unenforceable because they are contrary to public policy. See O’Neill v. Berkshire Mutual Insurance Co., 786 F. Supp. 397 (D. Vt. 1992); Field v. Liberty Mutual Insurance Co., 769 F. Supp. 1135 (D. Haw. 1991); Mendes v. Automobile Insurance Co., 212 Conn. 652, 563 A.2d 695 (1989); Worldwide Insurance Group v. Klopp, 603 A.2d 788 (Del. 1992); Schmidt v. Midwest Family Mutual Insurance Co., 426 N.W.2d 870 (Minn. 1988); Hanover Insurance Co. v. Losquadro, 157 Misc. 2d 1014, 600 N.Y.S.2d 419 (1993); Nationwide Mutual Insurance Co. v. Marsh, 15 Ohio St. 3d 107, 110, 472 N.E.2d 1061, 1063 (1984) (Sweeney, J., concurring); Pepin v. American Universal Insurance Co., 540 A.2d 21 (R.I. 1988).

In finding that the escape hatch clauses are contrary to public policy, the courts generally follow two lines of reasoning. In the first line, the courts invalidate the clauses because they conflict with state policies regarding arbitration. Several courts have determined that the clauses frustrate the state’s requirement of binding arbitration. E.g., Pepin, 540 A.2d at 22-23. In the second line, courts void the clauses on the basis that they unfairly favor the insurer. E.g., Bugailiskis, 278 Ill. App. 3d at 24, 662 N.E.2d at 558. Since our state encourages arbitration, whether it be binding or nonbinding (see Mayflower Insurance Co. v. Mahan, 180 Ill. App. 3d 213, 535 N.E.2d 924 (1988)), the policy considerations in the first line of reasoning are not relevant. We need address solely whether the clause is void because it unfairly favors the insurer. American Family asserts that the clause is proper and not against public policy because it promotes arbitration and does not unreasonably favor itself over the insured.

Comments from courts in our sister states have described the clause as creating a “manifest inequit[y].” Mendes, 212 Conn. at 660, 563 A.2d at 698. Although facially equal, such escape hatch clauses are not truly equal in their effect on the parties. Marsh, 15 Ohio St. 3d at 110, 472 N.E.2d at 1063 (Sweeney, J., concurring). This is true because both parties are bound by a low award, when an insurance company is unlikely to appeal, and not bound when there is a high award, when an insurance company is more likely to appeal. Klopp, 603 A.2d at 791; Schmidt, 426 N.W.2d at 873-75. Thus, the benefits of the clause truly only favor the insurer (Klopp, 603 A.2d at 791; Schmidt, 426 N.W.2d at 873-75), which can use the clause to escape the unwary claimant. Mendes, 212 Conn. at 659-60, 563 A.2d at 698. Policies with such clauses have been found to possess “earmarks of an adhesive contract.” Schmidt, 426 N.W.2d at 874. They are said to lack mutuality of remedy and to be the result of unequal bargaining positions in which the purchaser has little opportunity for arm’s-length negotiation. Schmidt, 426 N.W.2d at 874; see also Losquadro, 157 Misc. 2d at 1019, 600 N.Y.S.2d at 423 (“[T]he appearance of mutuality is an illusion”).

Courts in Florida and New Jersey reject these descriptions. They note that the insured also has a right to reject an award over the statutorily prescribed level and demand a jury trial. Roe v. Amica Mutual Insurance Co., 533 So. 2d 279 (Fla. 1988); Cohen v. Allstate Insurance Co., 231 N.J. Super. 97, 555 A.2d 21 (1989). Thus, they see no unconscionable result.

Recently, in Bugailiskis, the second district of this appellate court interpreted a clause similar to the one at issue here which also involved underinsured motorist coverage. After an analysis of the cases from various jurisdictions, the court concluded that the clause was simply an “escape hatch” for the insurance company and because of its unequal application, cost, delay and the fact that the contract possessed many “earmarks of a contract of adhesion,” it violated public policy and was unenforceable. Bugailiskis, 278 Ill. App. 3d at 23, 662 N.E.2d at 558. Accordingly, because of the oppressive nature of the agreement, the insurer had no right to a trial and the court held that the arbitration provision was enforceable except to the extent that it provided for a trial de novo. Bugailiskis, 278 Ill. App. 3d at 24, 662 N.E.2d at 558.

More recently, our supreme court addressed a similar clause concerning uninsured motorist coverage in Reed v. Farmers Insurance Group, 188 Ill. 2d 168, 720 N.E.2d 1052 (1999). In Reed, the court held that the clause did not violate public policy because the requirement of such a clause was codified with respect to uninsured motorist coverage in the Illinois Insurance Code (Insurance Code) (215 ILCS 5/1 et seq. (West 1998)). Section 143(a) of the Insurance Code provides that any decision made by arbitrators in an uninsured motorist case “shall be binding for the amount of damages not exceeding the limits for bodily injury or death set forth in Section 7 — 203 of the Illinois Vehicle Code.” 215 ILCS 5/143a (West 1998). In other words, when arbitrators issue awards of less than $20,000, those awards are binding upon the parties. Given that the legislature had declared the public policy of the state with regard to uninsured motorist coverage, the Reed court reasoned that “ ‘the judicial department must remain silent, and if a modification or change in such policy is desired the law-making department must be applied to, and not the judiciary, whose function is to declare the law but not to make it.’ ” Reed, 188 Ill. 2d at 175, 720 N.E.2d at 1057, quoting Collins v. Metropolitan Life Insurance Co., 232 Ill. 37, 44, 83 N.E. 542 (1907).

Unlike Reed, there is no such provision in the Insurance Code pertaining to underinsured motorist coverage. In fact, the court in Reed distinguished Bugailiskis on this basis alone, pointing out that the statute concerning underinsured motorist coverage at issue in Bugailiskis “does not require a similar arbitration provision.” Reed, 188 Ill. 2d at 174, 720 N.E.2d at 1057. The court found that “this distinction [was] dispositive of [the] issue.” Reed, 188 Ill. 2d at 174, 720 N.E.2d at 1057. Given that the legislature has not given us any guidance concerning underinsured motorist coverage, we must rely on the decisions of our courts. See People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, 197 N.E. 537 (1935) (when a state’s constitution and statutes are silent upon a subject, the public policy of the state concerning that subject is embodied in the decisions of its courts); see also City of Champaign v. Department of Revenue, 89 Ill. App. 3d 1066, 412 N.E.2d 211 (1980) (same). Thus, we agree with Bugailiskis and hold that the trial de novo clause is unconscionable and contrary to public policy. We further note that the supreme court has not addressed the issue presented by this case and decided by the appellate court in Bugailiskis. Nor has the legislature altered the Insurance Code in response to the Bugailiskis decision.

What remains to be determined is whether the entire arbitration scheme of the policy should be voided, or whether only the escape hatch provision should be stricken.

American Family contends that the proper remedy is to strike the entire arbitration section from the contract and remand the case to the circuit court for trial. The parties, however, entered into an arbitration agreement when they were not statutorily required to do so. See 215 ILCS 5/143a — 2 (West 1998). Therefore, in order to preserve the parties’ agreement to the greatest extent possible and because arbitration is an encouraged form of dispute resolution in Illinois, we hold that only the trial de novo clause is unenforceable and that the trial court properly entered a judgment confirming the arbitration panel’s decision. See Bugailiskis, 278 Ill. App. 3d at 24, 662 N.E.2d at 558; Klopp, 603 A.2d at 791-92; Schmidt, 426 N.W.2d at 875.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

SLATER, P.J., concurs.

JUSTICE HOLDRIDGE,

dissenting:

I respectfully dissent. In order for the majority to find that the trial de novo provision is unconscionable, and thus unenforceable, it has engaged in the unsupported assumption that only the insurance company would seek to avoid an arbitration award of more than $20,000. Such an assumption is nothing more than pure speculation.

Unlike appeals based upon the law, appeals to common sense often depend upon who is the appellant. Indeed, as long as we are engaging in pure speculation and appeals to common sense to support our holdings, I could speculate that a plaintiff expecting a $100,000 award from an arbitrator would invoke the de novo provision to avoid an arbitration award of $21,000, much to the chagrin of the insurance company that would have been happy to pay the arbitrator’s award.

I admit that, from among our sister states that have ruled on this identical issue, only the Florida Supreme Court (Roe v. Amica Mutual Insurance Co., 533 So. 2d 279 (Fla. 1988)), the New Jersey Appellate Court (Cohen v. Allstate Insurance Co., 231 N.J. Super. 97, 555 A.2d 21 (1989)), and the Arizona Appellate Court (Liberty Mutual Insurance Co. v. Mandile, 192 Ariz. 216, 963 P.2d 295 (App. 1997)) have rejected the temptation to speculate that an insured would never reject an arbitral award above the statutory financial responsibility limit. However, I find their analysis more persuasive.

I agree with the reasoning of the Arizona court in Mandile:

“When a plaintiff who thinks his case is worth $300,000 gets only $50,000 from the arbitrators, that plaintiff will want the option of an appeal (and may use that option as a leverage point in settlement discussions). Conversely, an insurance company that thinks a case is defensible, and is ordered to pay $14,999, may wish it could appeal but will lack the right to do so. The de novo appeal right, overall, is probably as important to plaintiffs as to defendants.” Mandile, 192 Ariz. at 221, 963 P.2d at 301.

Similarly, in rejecting the same unsupported speculation adopted by the majority in this matter, the Cohen court noted:

“A variety of situations can be hypothesized in which an insured would welcome the opportunity to reject an arbitration award and demand a trial. ***
In short, while we might speculate that the policy provision is unfairly tilted in favor of Allstate, that would be nothing more than guesswork. We cannot properly base a determination of unconscionability on unsubstantiated impressions and personal intuition. Evaluation and adjustment of the competing public and private interests are best left to the legislative and administrative process.” Cohen, 231 N.J. Super. at 102, 555 A.2d at 24.

For the reasons articulated above, I would reverse the trial court judgment for Parker and grant American Family’s counterclaim for a trial on all issues. I dissent on that basis.  