Notice Provision is Condition Precedent to Triggering Insurer’s Contractual Duties, Rather than an Exclusionary Provision

In United National Insurance Company v. Kemper, Donna Kemper (“Kemper”) was a police officer employed by the Village of Romeoville. Kemper and her partner were responding to a robbery call when Emilia Rolfe pulled out in front of the cop call and caused an accident. As a result, Kemper was injured and underwent multiple back surgeries. United National Insurance Company (“United”) provided the Village of Romeoville with worker’s compensation coverage, underinsured motorist coverage, and other coverage in a custom package. Kemper filed suit in Circuit Court of Will County against the tortfeasor for her injuries. Kemper ended up settling the lawsuit with the tortfeasor and released the tortfeasor; the tortfeasor’s insurance, Cincinnati Insurance Company; as well as “all other persons, firms, corporations, who may be responsible or liable therefore, of and from any and all actions, liens, causes of action, claims [or] demands.” Six months after the settlement agreement, Kemper provided first notice to United of her intent to seek UIM coverage under the Village’s policy. This was also Kemper’s first notice of the settlement agreement with the tortfeasor. United filed a declaratory judgment action seeking determination from the circuit court regarding the availability of UIM coverage to Kemper.

Kemper alleges that United attempted to avoid coverage by invoking an exclusion, the notice provision of the policy, such that the burden of proof would fall to the insurance carrier to show that the claim falls within the exclusion. She further argues that notice of her workers’ compensation claim was sufficient to alert United of the possibility that she might wish to seek UIM benefits at some point.

Notice provision is a condition precedent to the triggering of the insurer’s contractual duties, rather than an exclusionary provision.

The court reviewed whether there was a lack of timeliness of notification.

Under Illinois law, notice provisions are a condition precedent to the triggering of the insurer’s contractual duties, rather than an exclusionary provision. The court determined that United could not have known whether the tortfeasor was underinsured, and Kemper intended to pursue UIM coverage from the filing of a workers’ compensation claim against the Village.

United Nat’l Ins. Co. v. Kemper, 2014 IL App (1st) 122877.

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances under Rule 23(e)(1).