No. 2--96--1395
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
GARY M. KOPIER, SR., Special ) Appeal from the Circuit Court
Adm'r of the Estate of Gary ) of Lake County.
M. Kopier, Jr., Deceased, )
) No. 95--L--1640
Plaintiff-Appellant, )
)
v. )
MARK E. HARLOW, RONALD HARLOW, )
and SANDRA HARLOW, )
Defendants )
(American Family Insurance )
Group, Intervening Plaintiff- )
Appellee, v. Gary M. Kopier, )
Sr., Special Adm'r of the )
Estate of Gary M. Kopier, Jr., )
Deceased, Mark E. Harlow, ) Honorable
Ronald Harlow and Sandra Harlow, ) Jack Hoogasian,
Defendants). ) Judge, Presiding.
__________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, Gary M. Kopier, Sr., administrator of the estate of
Gary M. Kopier, Jr. (decedent), appeals a judgment declaring
defendants' (Mark E. Harlow's, Ronald Harlow's, and Sandra
Harlow's) rights under three automobile insurance policies issued
by intervening plaintiff American Family Insurance Group (American
Family). The trial court ruled that the applicable liability
limits were those in the policy on the car that was involved in the
accident, not those for another car that defendants own. Plaintiff
appeals, arguing that the highest liability limit among the
policies should apply. We affirm.
Decedent was killed in an automobile accident when the car he
was driving was struck by a vehicle being driven by defendant Mark
Harlow. Harlow was covered under three liability policies that
American Family issued to his parents. At the time of the
accident, Harlow was driving a 1987 Chevrolet Blazer that had
bodily injury liability limits of $25,000 for each person and
$50,000 for each occurrence. Harlow's parents had two other
vehicles insured under separate American Family policies, a 1995
Chevrolet Blazer with bodily injury liability limits of $100,000
per person and $300,000 per occurrence, and a 1988 Chevrolet
Beretta with $25,000 and $50,000 limits.
The parties agreed to settle for the policy limits, but
disagreed over which limit applied. The parties agreed that
American Family would pay the undisputed $25,000 and then file a
declaratory judgment action. The trial court approved the
settlement.
American Family then filed its complaint for declaratory
judgment, seeking a determination by the trial court that the
maximum coverage owed was the $25,000 policy limit on the vehicle
involved in the accident. Plaintiff and American Family both moved
for summary judgment. Following a hearing, the court granted
American Family's motion. The court ruled that the relevant policy
terms were unambiguous and that plaintiff had cited no authority
for the proposition that liability coverage inures to the insured
rather than to the covered vehicle.
On appeal, plaintiff argues that the court erred in finding
that Harlow could not access the $100,000 liability policy limit of
the 1995 Chevrolet Blazer.
When the parties file cross-motions for summary judgment, they
invite the court to decide the issues presented as a question of
law. Giannetti v. Angiuli, 263 Ill. App. 3d 305, 312 (1994).
Further, the construction of an insurance policy is a question of
law that this court determines de novo, with the purpose of
ascertaining and effectuating the intention of the parties. Vanek
v. Illinois Farmers Insurance Co., 268 Ill. App. 3d 731, 735
(1994). In determining if a policy provision is ambiguous, we
consider the policy in its entirety. Shefner v. Illinois Farmers
Insurance Co., 243 Ill. App. 3d 683, 686 (1993). Where policy
language is unambiguous, we must discern the parties' intent
directly from that language, without resorting to rules of
construction, unless to do so would violate public policy. Vanek,
268 Ill. App. 3d at 735. A provision is ambiguous if it can
reasonably be read to have more than one meaning. Shefner, 243
Ill. App. 3d at 686.
The following provisions of the policies at issue are relevant
to the issue plaintiff raises. Each policy provided, inter alia:
"AGREEMENT
We agree with you, in return for your premium payment, to
insure you subject to all the terms of this policy. We will
insure you for the coverages and the limits of liability as
shown in the declarations of this policy.
* * *
PART 1 - LIABILITY COVERAGE
***
We will pay compensatory damages an insured person is legally
liable for because of bodily injury and property damage due
to the use of a car or utility trailer.
EXCLUSIONS
This coverage does not apply to:
9. Bodily injury or property damage arising out of the use of
any vehicle, other than your insured car, which is owned by or
furnished or available for regular use by you or any resident
of your household.
PART VI - GENERAL PROVISIONS
3. Two or More Cars Insured. The total limit of our liability
under all policies issued to you by us shall not exceed the
highest limit of liability under any one policy."
In the context of uninsured and underinsured motorist
coverage, we have already rejected the same argument that plaintiff
raises here. See Shefner, 243 Ill. App. 3d 683; Vanek, 268 Ill.
App. 3d 731. However, because those decisions involved uninsured
and underinsured motorist coverage respectively, the results were
based partly on policy language that is not involved in this case.
Here, plaintiff focuses on the "Two or More Cars Insured"
clause and argues that its plain meaning is that the insured has
the right to access the highest liability limit, no matter which
insured car is involved in the accident. The parties agree that
the above clause is an "anti-stacking clause," which would prevent
the insured from recovering under all the policies. Nevertheless,
plaintiff contends that he can choose the highest limit because
"liability coverage follows the named insured wherever he goes,
regardless of what vehicle he is driving." Plaintiff's theory is
incorrect.
"The insurer's undertaking in an automobile liability
policy to pay on behalf of the insured all sums which the
insured shall become legally obligated to pay as damages
because of injury 'arising out of the ownership, maintenance
or use of the owned automobile' is directly related to and
required the involvement of one of the vehicles specifically
mentioned in the policy or a replacement or temporary
substitute therefor for which a specific premium was charged;
coverage provided by such undertaking is automobile-based and
not person-based and is insurance on the vehicle and not in
the nature of a personal accident policy." 6B J. Appleman & J.
Appleman, Insurance Law & Practice §4291 (Supp. 1997).
For this reason, courts, whether or not they allow the
stacking of uninsured motorist coverage or medical payment
coverage, do not allow the stacking of liability coverage. See,
e.g., Oarr v. Government Employees Insurance Co., 39 Md. App. 122,
383 A.2d 1112 (1978); Hilden v. Iowa National Mutual Insurance Co.,
365 N.W.2d 765 (Minn. 1985); Hendrickson v. Cumpton, 654 S.W.2d 332
(Mo. 1983) (collecting cases); Rando v. California State Automobile
Ass'n, 684 P.2d 501 (Nev. 1984). Although plaintiff here does not
argue that the coverages should be stacked, the rationale behind
not allowing stacking of liability coverage--that liability
policies insure particular cars--is contrary to plaintiff's
position. Because the insurance attaches to a particular car,
plaintiff is incorrect that he should be allowed to access the
liability limit for another insured vehicle not involved in the
accident.
Nevertheless, we must still examine the policy language
because each case turns on the particular language used. If there
is an ambiguity, we must resolve it against the insurer. After
carefully reviewing the entire policy that provides the $100,000
liability limit for the 1995 Chevrolet Blazer, we do not find it
ambiguous.
We find the most pertinent provision to be exclusion No. 9.
Plaintiff argues that we cannot consider this provision because the
trial court denied American Family's motion to amend its complaint
to argue exclusion No. 9's applicability. We disagree. As
previously stated, our review is de novo. Further, we must
construe the policy as a whole to determine if it is ambiguous.
Shefner, 243 Ill. App. 3d at 686. Moreover, we can affirm the
trial court's decision on any basis that appears in the record.
Shramuk v. Snyder, 278 Ill. App. 3d 745, 748 (1996).
Exclusion No. 9 is clear: the liability coverage provided by
the policy does not apply to the use of any vehicle, other than the
insured car, that is owned by or furnished or available for regular
use by the insured or a resident of the insured's household.
Clearly, the 1987 Blazer was owned by Harlow's parents and was
available for the regular use by the residents of the household.
Thus, Harlow could only access the higher liability limit if the
1987 Blazer could qualify as an "insured car" under the policy on
the 1995 Blazer.
The policy on the 1995 Blazer defines an insured car as
follows:
"Your Insured Car means:
a. Any car described in the declarations and any private
passenger car or utility car you replace it with. You
must tell us within 30 days of its acquisition.
b. Any additional private passenger car or utility car of
which you acquire ownership during the policy period,
provided:
1) If it is a private passenger car, we insure all of
your other private passenger cars; or
2) If it is a utility car, we insure all of your other
private passenger cars and utility cars.
You must tell us within 30 days of its acquisition that
you want us to insure the additional car.
c. Any utility trailer you own.
d. Any car or utility trailer not owned by you being
temporarily used as a substitute for any other vehicle
described in this definition, because of its withdrawal
from normal use due to breakdown, repair, servicing,
loss, or destruction."
The only car listed in the declarations is the 1995 Blazer, and
plaintiff has not argued that the 1987 Blazer was a replacement
vehicle or a temporary substitute. Therefore, exclusion No. 9 in
the policy on the 1995 Blazer clearly excludes coverage for the
1987 Blazer.
Plaintiff argues that exclusion No. 9 refers only to cars
insured by other companies. We fail to see how plaintiff reached
that conclusion; there is no such limiting provision in the
exclusion. In Mercantile Bank & Trust Co. v. Western Casualty &
Surety Co., 415 F.2d 606 (8th Cir. 1969), the insured had a policy
that covered three automobiles, one of which, a Ford Thunderbird,
had only comprehensive coverage. The insured was killed in an
accident while driving the Thunderbird. The court concluded that
an exclusion similar to exclusion No. 9 made the liability
insurance on the other two vehicles inapplicable to the
Thunderbird:
"We agree with the district court's holding that under
the facts here the exclusion of cars owned by the insured or
his spouse from coverage under the 'Use of Other Automobiles'
clause made the liability and other coverage on the Buick and
Mustang inapplicable to the Thunderbird. This is a more or
less standard provision of automobile liability insurance
policies, its purpose being to prevent the owner of several
cars from paying for liability coverage on only one car and
obtaining coverage when driving his other vehicles under the
'Use of Other Automobiles' clause." Mercantile Bank, 415 F.2d
at 609.
Although here plaintiff did pay for liability coverage on the 1987
Blazer, he only paid a premium for $25,000 per person and $50,000
for each occurrence. Just as the purpose of the exclusion is to
prevent someone from paying for liability insurance on only one
vehicle, it also prevents someone from paying a high premium on
only one vehicle and expecting to access that coverage for other
vehicles for which lower premiums were paid. See also Dudley v.
State Farm Mutual Automobile Insurance Co., 255 So. 2d 462 (La.
App. 1971) (insured had separate policies for three cars with
insurer; court interprets similar exclusion as not allowing insured
to access coverages for cars not involved in accident); 7 Am. Jur.
2d Automobile Insurance §238 (1980); Annotation, Exclusion from
"Drive Other Cars" Provision of Automobile Liability Insurance
Policy of Other Automobile Owned, Hired, or Regularly Used by
Insured or Member of His Household, 86 A.L.R.2d 937 (1962).
Accordingly, we reject plaintiff's contention that the exclusion
refers to cars insured by other companies. The policy on the 1995
Blazer clearly and unambiguously excludes coverage for other
vehicles owned by the insured or furnished or available for regular
use by the insured or members of the insured's household.
We find that the trial court did not err in finding that the
only applicable insurance policy was the one for the vehicle
involved in the accident. Therefore, we affirm the summary
judgment for American Family.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
McLAREN and BOWMAN, JJ., concur.