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SIXTH DIVISION
JUNE 13, 2003

1-01-0735, 1-01-2805, 1-02-1025 &1-02-1197 Cons.

JUSTICE TULLY delivered the opinion of the court:

In December 1997 a vehicle driven by Noel Ramos collided with a vehicle driven by SheritaBurton. The insurance company that provided Ramos' automobile liability policy was subsequentlydeclared insolvent. The collision and subsequent insolvency prompted three separate actions in thecircuit court and the four consolidated appeals before us now.

Burton filed a complaint sounding in negligence against Ramos. The complaint proceededto mandatory arbitration. Ramos did not participate in the arbitration and the arbitrators awardedBurton $6,000. The Illinois Insurance Guaranty Fund (the Fund) subsequently undertook Ramos'defense on behalf of the insolvent insurer that had provided his automobile liability policy. Ramosfiled a rejection of the arbitration award and Burton filed a motion to bar rejection of the award. Thetrial court granted Burton's motion and entered judgment on the arbitrator's award. Ramossubsequently filed a postjudgment motion to declare the judgment satisfied arguing that he wasentitled to a set-off equal to the amount of Burton's uninsured motorist coverage, $20,000. The trialcourt denied Ramos' motion. In no. 1-01-0735, Ramos appeals the trial court's order denying hispostjudgment motion.

While the tort action was pending, Ramos and the Fund filed a declaratory judgment actionseeking a declaration that Burton's insurance carrier, American Service Insurance Co. (American),was obligated to provide uninsured motorist coverage to Burton. American moved to dismiss theaction and the trial court granted the motion. In no. 1-01-2805, Ramos and the Fund appeal thedismissal of their declaratory judgment action.

In the final action, American filed a declaratory judgment action against Burton seeking adeclaration that it was not required to provide Burton with uninsured motorist coverage. Americanargued that Burton's claim for uninsured motorist protection was untimely filed. Ramos and theFund were subsequently granted leave to intervene. American filed for summary judgment and thetrial court granted the motion. The trial court held that American was not required to provideuninsured motorist coverage because Burton's claim was untimely. In no. 1-02-1025, Ramos andthe Fund appeal the trial court's order granting summary judgment. In no. 1-02-1197, Burton appealsthe trial court's order granting summary judgment.

On the parties' motions, we consolidated these four cases for appeal.

In this appeal, Ramos appeals contending that under section 546(a) of the Illinois InsuranceCode (the Code) (215 ILCS 5/546(a) (West 1996)) he is entitled to a set-off against the judgmententered against him equal to the limits of liability of Burton's uninsured motorist policy. The Fund,although not technically a party to this appeal, has filed a joint brief with Ramos that address eachof the consolidated appeals. In its appellee's brief, American argues that it has no interest in whetherthe Fund or Ramos is liable for the judgment entered in Burton's favor and presents no argument onthis issue. Burton has not filed a brief. Accordingly, we are effectively without an appellee's briefaddressing this appeal. However, we find that the issues and record are relatively simple and we willaddress the merits of the appeal in accordance with the standards of First Capitol Mortgage Corp.v. Talandis Construction Corp., 63 Ill. 2d 128 (1976).

Our disposition of this case is governed by the application of section 546(a) of the Code. Section 546(a) provides:

"An insured or claimant shall be required first to exhaust all coverage provided byany other insurance policy, regardless of whether or not such other insurance policy waswritten by a member company, if the claim under such other policy arises from the samefacts, injury, or loss that gave rise to the covered claim against the Fund. The Fund'sobligation under Section 537.2 shall be reduced by the amount recovered or recoverable,whichever is greater, under such other insurance policy. Where such other insurance policyprovides uninsured or underinsured motorist coverage, the amount recoverable shall bedeemed to be the full applicable limits of such coverage. To the extent that the Fund'sobligation under Section 537.2 is reduced by application of this Section, the liability of theperson insured by the insolvent insurer's policy for the claim shall be reduced in the sameamount." 215 ILCS 5/546(a)(West 1996).

The plain language of this statutory provision appears to grant Ramos and the Fund a set-off againstthe judgment equal to the limits of Burton's uninsured motorist coverage without regard to whethershe actually received a payment from her insurer or even filed an uninsured motorist claim. Thisinterpretation is supported by the case of Urban v. Loham, 227 Ill. App. 3d 772 (1992) whichinterpreted an earlier version of section 546(a).

In Urban, the reviewing court held that a plaintiff who failed to file a timely uninsuredmotorist claim with his insurer could proceed against the fund. Urban, 227 Ill. App. 3d at 777-78. However, the reviewing court held that any recovery from the Fund would be offset by the maximumamount that the plaintiff could have recovered if he had timely sought uninsured motorist coveragefrom his own insurer. Urban, 227 Ill. App. 3d 777-78. The Urban court made the followingcomments regarding the policy considerations that guided its ruling:

"The legislative policy behind section 546(a) requires a plaintiff to collect as muchas he can under his uninsured motorist coverage. A plaintiff who knowingly fails to do soshall be assumed to have received the policy limits of his uninsured motorist coverage. Thisassumption implements the legislative intent that the Fund be a source of last resort, and thatthe Fund's liability be offset by any recovery to which a plaintiff is contractually entitledunder his own insurance policy." Urban, 227 Ill. App. 3d at 777.

We find that this legislative policy is even clearer in the current version of the statute that expresslyholds that the amount recoverable is deemed to be the applicable policy limit. More recently oursupreme court reaffirmed the rationale of Urban and held that a plaintiff who settles with hisuninsured motorist carrier for less than the policy limits will still be deemed to have received anamount equal to the policy limits and the Fund will be entitled to setoff in that amount. Hasemanv. White, 177 Ill. 2d 414, 421 (1997).

In the case before us, Burton had uninsured motorist coverage with a limit of liability of$20,000. However, because she failed to file a timely claim, American refused to pay the claim. American subsequently obtained a declaratory judgment that it was not obligated to pay the untimelyclaim. But for Burton's failure to properly preserve her right to recover from American, insurancesufficient to satisfy her claim against Ramos would have been available. The legislative policybehind section 546(a) as expressed by the Urban court, requires that under these circumstances it isBurton and not the Fund that must bear the loss. Accordingly, we conclude that the trial court erredwhen it denied Ramos' motion to declare the judgment satisfied. The judgment of the circuit courtis reversed and we hold that the judgment is satisfied and neither Ramos nor the Fund has anyobligation toward Burton.

We note that the trial court's comments regarding its ruling on Ramos' postjudgment motionsuggest that it ruled against Ramos based on an estoppel or waiver theory. However, the basis forsuch a theory is not immediately apparent from the trial court's comments. Further because no onehas filed a brief in response to the brief filed on behalf of Ramos and the Fund, we have not beenpresented with any arguments regarding whether Ramos' set-off claim was otherwise procedurallybarred. Although we are not required to affirm merely because Burton failed to file a brief in thismatter, neither are we required to assume the role of an advocate and search the record for alternativebases to affirm the trial court's decision. See Orava v. Plunkett Furniture Co., 297 Ill. App. 3d 635,636 (1998). Accordingly, we need not address whether an alternative basis exists for affirming thedecision of the trial court.

In its brief the Fund does not present any argument challenging the trial court's ruling in thiscase. Accordingly, we dismiss the appeal.

The Fund appeals contending that the trial court erred when it granted summary judgmentin favor of American and against Burton. The Fund argues that the limitation period contained inAmerican's insurance policy should not be construed to begin until an insured discovers that theinsurance company that insures the driver at fault is insolvent. American addresses the substanceof this argument in its brief but also suggests that it is "curious" that the Fund would raise argumentson Burton's behalf and questions whether the Fund should be "in the business of filing amicus curiaebriefs." We find the sarcastic tone of American's comments on this issue inappropriate and contraryto its obligation to present this court with coherent legal arguments supported by citation toappropriate authority. However, we find, nonetheless, that American's comments raise a valid issue,and we have elected to construe them as a motion to dismiss the Fund's appeal for lack of standing.

The doctrine of standing designed to insure that the courts are accessible to parties to resolveactual controversies between them and not " 'address abstract questions, moot issues, or casesbrought on behalf of others who may not desire judicial aid.' " Owner-Operator Independent DriversAssociation v. Bower, 325 Ill. App. 3d 1045, 1050 (2001), quoting Jenner v. Wissore, 164 Ill. App.3d 259, 267 (1988). In order to have standing to appeal, a party must assert its own rights andinterests and may not base its allegations of error on the rights of third parties. Commercial CreditLoans, Inc. v. Espinoza, 293 Ill. App. 3d 923, 929 (1997).

At the trial level, the Fund and Ramos argued that they were interested in the declaratoryjudgment action between American and Burton because they would be entitled to set off the amountof any uninsured motorist claim Burton received from American against the judgment Burton hadobtained against Ramos. However, we need not consider whether the Fund or Ramos had standingin the trial court to assert Burton's rights, because our disposition of appeal no. 1-01-0735 haseliminated any interest they might have had in the dispute between American and Burton. As weheld above, Ramos and the Fund are allowed to set off an amount equal to the limits of Burton'suninsured motorist coverage with American regardless of whether Burton is ultimately able toprevail in her claim against American. Accordingly, the liability of Ramos and the Fund to Burtonwould be the same no matter the outcome of American's declaratory judgment action. We determinethat, in light of our disposition of appeal no 1-01-0735, the Fund's interest in its appeal of thejudgment entered against Burton is purely theoretical. Therefore, we dismiss appeal no. 1-02-1025.

In appeal no. 1-02-1197, Burton appeals the trial court's order granting summary judgmentin favor of American. However, Burton has neither filed a brief presenting legal arguments forreversing the trial court's order nor has she indicated that she wishes to adopt the arguments the Fundpresented on this issue. Accordingly, we dismiss appeal no. 1-02-1197

For the foregoing reasons, we reverse the judgment of the trial court in appeal no. 1-01-0735and hold that Ramos and the Fund are entitled to set off the judgment by an amount equal to thelimits of Burton's uninsured motorist policy with American. We dismiss the appeals in nos. 1-01-2805, 1-02-1025 and 1-02-1197.

No. 1-01-0735--Reversed.

No. 1-01-2805--Appeal dismissed.

No. 1-02-1025--Appeal dismissed.

No. 1-02-1197--Appeal dismissed.

GALLAGHER, and O'MARA FROSSARD, JJ., concurring.