Kreisman Law Offices Professional Corporation
The Illinois Appellate Court has reversed a Circuit Court judge’s order dismissing a lawsuit related to insurance coverage. John Smolinski was in a car accident on March 3, 2012. At the time, Smolinski was driving a rented car. Mr. Smolinski had previously entered into a “personal auto policy” with Allmerica Financial Alliance Insurance Co.
On September 27, 2012, Smolinski filed a lawsuit pro se against Allmerica claiming that it had violated the terms of the insurance contract by refusing to pay for damages to Smolinski’s car.
Allmerica filed its appearance and a hearing was set for December 17. Smolinski was not present at the December 17 court hearing and the matter was dismissed for want of prosecution.
On December 24, 2012, Smolinski filed his motion to vacate the dismissal order and on February 24, 2013, the court granted the motion and set another hearing for March 5. On March 5, Smolinski again chose not to appear in court. The case was dismissed. On March 28, 2013, an attorney entered the case on behalf of Smolinski and was granted leave to file an appearance.
On March 17, 2013 Allmerica moved to dismiss the lawsuit alleging that Smolinski had failed to cooperate with a request for an examination under oath. Allmerica alleged that nearly a year ago on May 4, 2012, Smolinski was advised that there would be an examination under oath, but Smolinski refused to attend.
On May 8, 2012, Allmerica sent Smolinski a letter by certified mail and another by regular mail requesting examination and setting the time and date for May 17, 2012. Smolinski did not appear or contact Allmerica to schedule another examination. Smolinski claimed that he never received either a letter and was never made aware of the May 17, 2012 examination date.
Smolinski produced a certified mail receipt that showed that the May 8 letter was not delivered until June 1, 2012 and that when it was delivered, it was to a Chicago address. Smolinski lived in Wood Dale, Illinois.
Allmerica claimed that the “mailbox rule” applied. The claim was that this allowed the court to presume a properly mailed letter was received by the addressee. Allmerica’s certified letter was returned to sender. Even so, Allmerica contended that Smolinski’s failure to cooperate with the examination under the terms of the insurance contract freed Allmerica from liability. The trial court granted Allmerica’s motion to dismiss.
The appellate court found that the trial court had improperly dismissed Smolinski’s claims. The panel found that there remained a genuine issue of material fact to be determined, that is whether Smolinski had in fact received a May 8letter requesting the examination under oath. The appellate court considering the evidence in the light most favorable to the plaintiff, found there was sufficient evidence that Smolinski had not received the letter.
Because there were still unresolved issues of material fact, the appellate court reversed the trial court’s dismissal and the case was sent back to the trial court for further disposition.
John Smolinski v. Allmerica Financial Alliance Insurance Co., No. 2014 IL App (1st) 132029-U.
Kreisman Law Offices has been handling automobile accident cases, commercial litigation cases and truck accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Buffalo Grove, Morton Grove, Vernon Hills, Highwood, Homewood, Flossmoor, Rolling Meadows, Round Lake Beach, Rosemont and Lincolnwood, Illinois.