Illinois Farmers Insurance v. Tabor

642 N.E.2d 159, 267 Ill. App. 3d 245, 204 Ill. Dec. 697, 1994 Ill. App. LEXIS 1359
CourtAppellate Court of Illinois
DecidedOctober 26, 1994
Docket2-93-0772
StatusPublished
Cited by14 cases

This text of 642 N.E.2d 159 (Illinois Farmers Insurance v. Tabor) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Illinois Farmers Insurance v. Tabor, 642 N.E.2d 159, 267 Ill. App. 3d 245, 204 Ill. Dec. 697, 1994 Ill. App. LEXIS 1359 (Ill. Ct. App. 1994).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

Defendant George Tabor, special administrator of the estate of Katrina Tabor, appeals from summary judgment for plaintiff, Illinois Farmers Insurance Company, in a declaratory judgment action. We affirm.

On the night of November 4, 1989, Katrina Tabor (Katrina), the daughter of George Tabor (Tabor), was killed in a train-car accident in De Kalb. Katrina and her friend, Jamie Tucker, were passengers in a car driven by John Denton. Denton attempted to race across a railroad crossing ahead of an oncoming train. The train struck the car, killing both Jamie and Katrina. John Denton survived.

At the time of the accident, there were two insurance policies applicable to the Denton car. John Denton himself was insured by United States Fidelity and Guaranty (USF&G) on a single-limit, $100,000-per-accident liability policy. The car, owned by Denton’s father, was separately insured by USF&G on a single limit, $300,000-per-accident liability policy. The total coverage applicable to the car was, therefore, $400,000.

Following the accident, the estates of Katrina and Jamie each filed wrongful death claims against Denton. USF&G settled these claims on Denton’s behalf with payments of $200,000 to each estate, exhausting the policy limits on both of Denton’s liability policies. Denton’s liability for the deaths of Jamie and Katrina was not an issue in the trial court.

At the time of the accident, Tabor had an automobile insurance policy with Illinois Farmers Insurance Company (Farmers) which included uninsured / underinsured motorist coverage. The payment limits on this policy were $250,000 per person and $500,000 per occurrence. Tabor filed an underinsured motor vehicle (UIM) claim with Farmers based on Katrina’s death, claiming that she was an insured under the policy. He sought payment of $50,000, the difference between the $200,000 he recovered from Denton and the $250,000-per-person limit on his UIM policy with Farmers. Farmers denied the claim on the basis that the Denton automobile was not an underinsured motor vehicle as defined by either the Farmers policy or the Illinois Insurance Code (Insurance Code) (Ill. Rev. Stat. 1991, ch. 73, par. 755a — 2 (now 215 ILCS 5/143a — 2 (West 1992)), and on the basis that Katrina was not an insured as defined in the policy.

Subsequently, Farmers filed the instant declaratory judgment action seeking a declaration that, under the terms of the policy, it could reject Tabor’s UIM claim. After a hearing, the trial court granted summary judgment to Farmers, ruling that because the Den-ton vehicle carried $400,000 in total liability insurance, and Tabor’s UIM policy had a limit of $250,000, Denton’s vehicle was not an underinsured motor vehicle under the UIM provision of the Insurance Code. Because it granted summary judgment based on the UIM provision of the Insurance Code, the trial court did not reach the issue of Katrina’s status under the policy, and that issue is not before this court.

Tabor makes three principal contentions on appeal. First, he argues that the definition of an underinsured motor vehicle should be determined by comparing the amount actually received by the insured from the tort-feasor with the limit of the insured’s UIM policy. Second, he argues in the alternative that an acceptable method for defining an underinsured motor vehicle is to compare the maximum-per-occurrence limits of the insured’s UIM policy with the maximum-per-occurrence limits of the tort-feasor’s liability policy. Finally, he contends that the Farmers policy in the present case is ambiguous.

The use of summary judgment is appropriate where, as here, there are no questions of fact and judgment can be entered as a matter of law. (735 ILCS 5/2 — 1005(c) (West 1992); Banes v. Western States Insurance Co. (1993), 247 Ill. App. 3d 480,482.) The construction of the terms of an insurance policy and the effect of the statutory UIM requirements are questions of law appropriate for summary judgment disposition. (Banes, 247 Ill. App. 3d at 482.) We review the entry of summary judgment de nova. Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102.

I

The Illinois Insurance Code defines an underinsured motor vehicle as one

"whose ownership, maintenance or use has resulted in bodily injury or death of the insured *** and for which the sum of the limits of liability under all bodily injury liability insurance policies *** applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident.” (215 ILCS 5/143a — 2(4).)

The statute also provides for the following set-off procedure:

"The limits of liability for an insurer providing underinsured motorist coverage shall he the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies *** maintained on the underinsured motor vehicle.” 215 ILCS 5/143a — 2(4).

Tabor concedes that under the above definition the Denton car was not an underinsured motor vehicle because the "sum of the limits of liability” applicable to it exceeds Tabor’s per-person UIM coverage. However, Tabor argues that the above definition, while complete on its face, was not intended to cover, and does not contemplate, a situation where multiple claimants against the tort-feasor’s liability policies have exhausted all or part of the payment limits. According to Tabor, in this "multiple claimant” situation, an under-insured motor vehicle is better defined by comparing the amounts actually received by the UIM policyholder from the tort-feasor to the limits of the UIM policy.

The application of Tabor’s definition to the present case would require a comparison of the $200,000 Tabor actually received from Denton with the $250,000-per-person limit of Tabor’s UIM policy, rendering the Denton car underinsured and permitting Tabor to recover $50,000 from Farmers under the set-off clause of the statute. This result, according to Tabor, is more in keeping with the spirit and purpose of the Illinois UIM statute than the result achieved by strict application of the statutory definition to a multiple claimant situation. In support of his argument, Tabor notes that nothing in the language of the UIM statute or its legislative history affirmatively indicates that it was intended to apply to multiple claimant situations. Further, Tabor points to the "amounts actually recovered” language in the second clause of the quoted statute and suggests this shows a legislative intent that UIM coverage should apply whenever the actual amount recovered from the tort-feasor is less than the limits of the UIM policy.

A situation very similar to the instant case was confronted by the court in Moriconi v. Sentry Insurance of Illinois, Inc. (1990), 193 Ill. App. 3d 904.

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Bluebook (online)
642 N.E.2d 159, 267 Ill. App. 3d 245, 204 Ill. Dec. 697, 1994 Ill. App. LEXIS 1359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-farmers-insurance-v-tabor-illappct-1994.