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Molnar v. Conseco Medical Insurance Co.6/9/2005
in the reply brief, in oral argument, or on petition for rehearing")), and we dismiss Molnar's cross-appeal for want of prosecution as requested by Conseco in its reply brief to its appeal (see In re Marriage of Nienhouse, 355 Ill. App. 3d 146, 155-56, 821 N.E.2d 1228, 1238 (2004) (dismissing cross-appeal for want of prosecution)).
ANALYSIS
On appeal, Conseco contends that the circuit court erred in finding that the exception endorsement was ambiguous and that it did not bar coverage for the expenses Molnar incurred from the operations to his left hip in 2001. Conseco maintains that the exception endorsement is broad and bars coverage for any expense incurred for the treatment of Molnar's left hip. Conseco also argues that, even if the exclusion is inapplicable where the injury to his hip was caused by external factors, Molnar failed to provide sufficient admissible evidence to support the circuit court's finding that the cause of his 2001 hip replacement operations was the external factor of a tooth infection.
Molnar, on the other hand, contends that the exception endorsement is ambiguous because the word "cause" contained in that endorsement could encompass either (1) the direct cause of the expense, i.e., expenses incurred from a left hip operation regardless of the cause of the injury to the left hip that necessitated the operation (expenses not covered) or (2) an indirect expense cause by an "external and precipitating accident, trauma[,] or condition," i.e., expenses incurred after being hit by a bus or suffering a tooth infection which causes injury to the hip which necessitates a hip operation (expenses covered). Because this ambiguity exists, Molnar argues, the circuit court properly construed the exception endorsement in his favor to find that coverage existed. Molnar also argues that there was sufficient evidence, submitted by Conseco itself, to support the circuit court's finding that his tooth infection was the external cause of his 2001 hip operations.
An insurance policy is a contract, to which the general rules governing the interpretation of other types of contracts apply. See Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). When construing an insurance policy, the primary function of the court is to ascertain and enforce the intentions of the parties as expressed in the agreement. Central Illinois Light Co. v. Home Insurance Co., 342 Ill. App. 3d 940, 950-51 (2003). A court must construe the policy as a whole and take into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997).
If the words of a policy are clear and unambiguous, they must be afforded their plain, ordinary and popular meaning. Traveler's Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292-93 (2001), quoting Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108 (1992). "Whether an ambiguity exists turns on whether the policy language is subject to more than one reasonable interpretation. Although 'creative possibilities' may be suggested, only reasonable interpretations will be considered." Hobbs, 214 Ill. 2d at 17, quoting Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 193 (1993). Simply put, we will not strain to find an ambiguity where none exists. Hobbs, 214 Ill. 2d at 17, citing McKinney v. Allstate Insurance Co., 188 Ill. 2d 493, 497 (1999). Thus, if the policy language is unambiguous, the policy will be applied as written, unless it contravenes public policy. Hobbs, 214 Ill. 2d at 17.
Though it is well settled that ambiguous or equivocal expressions in an
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