Rule 23 order filed 2016 IL App (5th) 150083 October 4, 2016; Motion to publish granted NO. 5-15-0083 November 21, 2016 IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
APRYL SHERROD, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 13-MR-411 ) ESURANCE INSURANCE SERVICES, INC., ) Honorable ) Richard A. Aguirre, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE SCHWARM delivered the judgment of the court, with opinion. Justice Welch concurred in the judgment and opinion. Justice Goldenhersh dissented, with opinion.
OPINION
¶1 The defendant, Esurance Insurance Services, Inc. (Esurance), appeals from an
order of the circuit court of St. Clair County entering summary judgment in favor of the
plaintiff, Apryl Sherrod, after the parties filed cross-motions for summary judgment. The
trial court determined that the plaintiff and the estate of the plaintiff's deceased daughter
were entitled to the underinsured motorist limits under the plaintiff's Esurance policy in
excess to the bodily injury liability limits the plaintiff and the estate of the plaintiff's
deceased daughter recovered under the at-fault driver's separate automobile insurance
1 policy, despite the fact that the at-fault driver's bodily injury liability limits exceeded the
plaintiff's underinsured motorist coverage limits. Specifically, the trial court found an
ambiguity in the Esurance policy's "Other Insurance" clause, which it held must be
construed in favor of coverage. We reverse and remand.
¶2 BACKGROUND
¶3 On April 15, 2011, the plaintiff and her daughter, Amari Clark, were involved in
an automobile accident after their vehicle was struck by a drunk driver, Andrew
Fraticelli. Amari Clark died as a result of the accident, and the plaintiff herself sustained
severe injuries. At the time of the accident, Fraticelli was covered under an insurance
policy with liability limits of $100,000 per person and $300,000 per occurrence.
Pursuant to this policy, Fraticelli's insurance company paid $100,000 to the plaintiff and
$100,000 to the estate of Amari Clark.
¶4 Also at the time of the accident, the plaintiff was covered under a personal
automobile policy issued by Esurance with underinsured motorist liability limits of
$50,000 per person and $100,000 per occurrence. The relevant provisions of plaintiff's
Esurance policy are as follows:
"PART III: UNINSURED AND UNDERINSURED MOTORIST COVERAGE
***
INSURING AGREEMENT: UNDERINSURED MOTORIST BODILY INJURY
COVERAGE
In return for payment of the premium for this coverage when due, and subject to
the limits of liability, 'we' agree with 'you' as follows: 2 1. 'We' will pay compensatory damages that an 'insured' is legally entitled to
recover from the 'owner' or operator of an 'underinsured motor vehicle' because
of 'bodily injury':
A. Sustained by an 'insured'; and
B. Caused by an 'accident'.
The liability of that 'owner' or operator for these damages must arise out of the
ownership, maintenance, or use of the 'underinsured motor vehicle'. Any
judgment for damages arising out of a lawsuit brought without 'our' written
consent is not binding on 'us'.
ADDITIONAL DEFINITIONS FOR PART III: UNINSURED AND
UNDERINSURED MOTORIST COVERAGE
'Underinsured motor vehicle' means a land motor vehicle of any type to which a
bodily injury liability bond, policy or other security required to be maintained
under Illinois law applies at the time of the 'accident' but the sum of the limits of
liability for 'bodily injury' under that bond, policy or other security to an
'insured' is less than the Underinsured Motorist Bodily Injury Coverage limit of
liability under this policy."
3 ¶5 There is also a "Limit of Liability" section provided under the uninsured and
underinsured motorist coverage portion of plaintiff's policy. This section states in
relevant part:
"LIMIT OF LIABILITY
1. The limit of liability shown in the Declarations page for each person for
Uninsured Motorist Coverage or Underinsured Motorist Coverage is 'our'
maximum limit of liability for all damages, including, but not limited to,
damages for:
A. Loss of society;
B. Loss of companionship;
C. Loss of services;
D. Loss of consortium; or
E. Wrongful death;
arising out of 'bodily injury' sustained in any one 'accident'. Subject to this
limit for each person, the limit of liability shown on the Declarations page for
each accident for Uninsured/Underinsured Motorist Coverage is 'our'
maximum limit of liability for all damages for 'bodily injury' resulting from
any one 'accident'. The limit of liability shown in the Declarations page for
'property damage' is 'our' maximum limit of liability for all damages for
'property damage' resulting from any one 'accident'.
This is the most 'we' will pay regardless of the number of:
4 A. 'Insureds';
B. Claims made;
C. Vehicles or premiums shown in the Declarations page; or
D. Vehicles involved in the 'accident'.
There will be no stacking or combining of coverage afforded to more than one
'auto' under this policy. If more than one policy of uninsured or underinsured
motorist coverage applies to an 'accident', the maximum the 'insured' may recover
from all of the applicable coverage is the highest limit available under one policy
for one 'auto'.
2. No one will be entitled to receive duplicate payments for the same elements of
damages under this coverage and:
A. Part I: Liability Coverage;
B. Part II Medical and Funeral Services Payments Coverage of this policy; or
C. Any other source.
3. 'We' will not make a duplicate payment under this coverage for any element of
damages for which payment has been made by or on behalf of persons or
organizations who may be legally responsible.
5. The limit of liability shown in the Declarations page for 'bodily injury' under
Part III shall be reduced by all sums:
5 A. Paid because of 'bodily injury' by or on behalf of any persons or
organizations that may be legally responsible, including, but not limited to, all
sums paid under Part I;
7. The maximum amount payable pursuant to any underinsured motor vehicle
insurance settlement agreement shall not exceed the amount by which the limits of
the underinsured motorist coverage exceed the limits of the 'bodily injury' liability
insurance of the 'owner' or operator of the 'underinsured motor vehicle'."
¶6 In addition to the "Limit of Liability" section above, the policy further includes an
"Other Insurance" clause. Specifically, the "Other Insurance" clause states in relevant
part:
"OTHER INSURANCE
If there is other applicable insurance available under one or more policies or
provisions of coverage that is similar to the Uninsured Motorist Coverage or
Underinsured Motorist Coverage provided in this section, 'we' will only pay 'our'
share of the damages. 'Our' share is the proportion that 'our' limit of liability
provided in this Part III bears to the total of all applicable limits on either a
primary or excess basis. However:
1. Any recovery for damages under all policies or provisions of coverage may
equal, but not exceed, the highest applicable limit for any one vehicle under
any one insurance policy providing coverage on either a primary or excess
basis. 6 2. Any insurance 'we' provide with respect to a vehicle 'you' do not 'own',
including any temporary substitute, shall be excess over any collectible
insurance providing such coverage on a primary basis."
¶7 After the plaintiff agreed to settle with Fraticelli's insurance company for the limits
under Fraticelli's policy, the plaintiff submitted a claim to Esurance seeking to recover
$50,000 for her personal damages and $50,000 for the estate of Amari Clark. Esurance
denied the plaintiff's claim. Esurance advised the plaintiff that pursuant to the terms of
her policy, underinsured motorist coverage was not available because the amount the
plaintiff and the estate of Amari Clark each received under Fraticelli's policy ($100,000)
exceeded the plaintiff's own policy coverage limits ($50,000).
¶8 The plaintiff subsequently filed a petition for declaratory judgment, seeking a
determination of the amount of underinsured motorist coverage she was entitled to under
her Esurance policy. The plaintiff and Esurance then filed cross-motions for summary
judgment. The trial court returned a judgment in favor of the plaintiff and against
Esurance after finding an ambiguity in the policy's "Other Insurance" clause. Because
Illinois law requires ambiguities in insurance policies to be construed in favor of the
insured, the trial court determined that the plaintiff and the estate of Amari Clark were
each entitled to $50,000 under the plaintiff's Esurance policy in addition to the $100,000
each recovered under Fraticelli's policy. After the trial court denied Esurance's motion
for reconsideration, Esurance timely filed its notice of appeal.
7 ¶9 ANALYSIS
¶ 10 This appeal is taken from the trial court's grant of a summary judgment in favor of
the plaintiff and against Esurance. Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of
law. Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 360
(2006). When parties file cross-motions for summary judgment, they agree that only a
question of law is involved and the court should decide the issue based on the record.
Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 309 (2010). A trial
court's entry of a summary judgment is subject to de novo review, and the construction of
an insurance policy, which presents a question of law, is similarly reviewed de novo.
Valley Forge Insurance Co., 223 Ill. 2d at 360.
¶ 11 An insurance policy is a contract, and the general rules governing the
interpretation of contracts also govern the interpretation of insurance policies. Hobbs v.
Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). Accordingly, when a
court construes an insurance policy, the agreement is to be enforced as written provided
that it is unambiguous and only to the extent it does not contravene public policy.
Johnson v. Davis, 377 Ill. App. 3d 602, 606-07 (2007). Any ambiguity in the policy must
be construed in favor of the insured. Id. at 607.
¶ 12 When determining whether an ambiguity exists, the court must read the provisions
of an insurance contract together and not in isolation. Id. Policy provisions are
considered ambiguous if they are subject to more than one reasonable interpretation. Id.
Reasonableness is essential, and the key is whether the provision is subject to more than 8 one reasonable interpretation, not whether creative possibilities may be suggested. Id.
As such, we will not strain to find an ambiguity where none exists. Hobbs, 214 Ill. 2d at
17.
¶ 13 In the instant case, the issue for our consideration is whether the trial court erred
when it determined that the plaintiff and the estate of Amari Clark were entitled to the
underinsured motorist limits under the plaintiff's Esurance policy, in addition to the
amount recovered under Fraticelli's policy, where the amount recovered under Fraticelli's
policy exceeded the plaintiff's own policy limits. The trial court found that when all the
provisions of the plaintiff's policy were considered, there existed an ambiguity in the
"Other Insurance" clause that must be construed in favor of coverage for the plaintiff and
the estate of Amari Clark and against Esurance.
¶ 14 On appeal, Esurance argues that the statutory and policy definitions of an
"underinsured motor vehicle" demonstrate that Fraticelli's vehicle was not an
underinsured vehicle, and therefore, underinsured motorist coverage was not triggered
under the plaintiff's policy.
¶ 15 The burden is on the insured to prove that its claim falls within the coverage of an
insurance policy. Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453-54 (2009). Once
the insured has demonstrated coverage, the burden shifts to the insurer to prove that a
limitation or exclusion applies. Id. The issue of ambiguity regarding the extent of
underinsured motorist coverage, as opposed to the existence of underinsured motorist
coverage, only arises when the existence of coverage is established. See Hobbs, 214 Ill.
9 2d at 23; see also Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 187 (1993)
(issue of whether coverages can be stacked arises only because it is a given that coverage
exists under the policies).
¶ 16 In the present case, the underinsured motorist coverage portion of the policy
provides that Esurance will pay compensatory damages that an insured "is legally entitled
to recover from the 'owner' or operator of an 'underinsured motor vehicle' because of
'bodily injury' " sustained by the insured and caused by the accident. The Illinois
Insurance Code defines an underinsured motor vehicle as follows:
"For the purpose of this Code the term 'underinsured motor vehicle' means a motor
vehicle whose ownership, maintenance or use has resulted in bodily injury or
death of the insured, as defined in the policy, and for which the sum of the limits
of liability under all bodily injury liability insurance policies or under bonds or
other security required to be maintained under Illinois law 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. The limits of liability
for an insurer providing underinsured motorist coverage shall be the limits of such
coverage, less those amounts actually recovered under the applicable bodily injury
insurance policies, bonds or other security maintained on the underinsured motor
vehicle." 215 ILCS 5/143a-2(4) (West 2008).
¶ 17 Section 143a-2(4) of the Insurance Code clearly reveals the General Assembly's
intent to limit underinsured motorist carriers from having to provide benefits where the 10 limits of the bodily injury liability insurance applicable to an at-fault driver's vehicle
exceed the limits of the relevant underinsured motorist coverage. 215 ILCS 5/143a-2(4)
(West 2008); Thurman v. Grinnell Mutual Reinsurance Co., 327 Ill. App. 3d 920, 927-28
(2002) (statute mandated no amount payable by underinsured motorist insurer because
coverage limits of underinsured motorist policy were less than the liability limits of the
at-fault driver's policy); see also Roberts v. Northland Insurance Co., 185 Ill. 2d 262, 269
(1998) (General Assembly intended that underinsured motorist coverage place insured in
same position he would have occupied if injured by a tortfeasor who carried liability
insurance in the same amount as the insured).
¶ 18 Consistent with the statutory definition above, the policy at issue defines an
underinsured motor vehicle as follows:
" 'Underinsured motor vehicle' means a land motor vehicle of any type to which a
bodily injury liability bond, policy or other security required to be maintained
under Illinois law applies at the time of the 'accident' but the sum of the limits of
liability for 'bodily injury' under that bond, policy or other security to an 'insured'
is less than the Underinsured Motorist Bodily Injury Coverage limit of liability
under this policy."
¶ 19 Notably, the plaintiff concedes that the definition of an underinsured motor vehicle
is not ambiguous. Thus, the contract between Esurance and the plaintiff clearly states
that an underinsured motor vehicle is a vehicle whose limits for bodily injury liability are
"less than the Underinsured Motorist Bodily Injury Coverage limit of liability under this
policy." Since Fraticelli's coverage was not less than the limit of liability under the 11 plaintiff's policy, Fraticelli's vehicle did not constitute an "underinsured motor vehicle"
under either the plaintiff's policy or the Illinois Insurance Code, and there is no basis for
underinsured motorist coverage.
¶ 20 Moreover, a plain reading of the "Limit of Liability" section of the policy is also
consistent with the statutory language of the Insurance Code and further supports the
conclusion that Esurance is not obligated to pay underinsured motorist coverage to its
insured. See Thurman, 327 Ill. App. 3d at 929 (section 143a-2(4) makes it "clear that
where the limits of the underinsured-motorist coverage do not exceed the limits of the
bodily injury liability insurance of the owner or operator of the underinsured motor
vehicle, there is no amount payable by the underinsured-motorist-coverage carrier"
(emphasis in original)). In the "Limit of Liability" portion of the plaintiff's insurance
policy, the contract provides that "[t]he limit of liability shown in the Declarations page
for 'bodily injury' under Part III shall be reduced by all sums *** [p]aid because of
'bodily injury' by or on behalf of any persons *** that may be legally responsible."
¶ 21 The effect of this provision is to set off the $100,000 paid by Fraticelli's insurer
against the $50,000 coverage provided by the defendant. The underinsured motorist
coverage, therefore, is not excess coverage as the plaintiff argues. Instead, that coverage
provides a total amount of protection to be paid to the plaintiff if other persons legally
responsible for the plaintiff and her daughter's injuries have less liability limits than those
provided under the plaintiff's underinsured motorist coverage. Indeed, the plaintiff
concedes that Esurance's policy's setoff provisions are also unambiguous and clearly limit
Esurance's coverage. Thus, this section bolsters our conclusion that Esurance is not 12 obligated to pay the plaintiff underinsured motorist coverage because the plaintiff and the
estate of Amari Clark each received coverage under Fraticelli's policy ($100,000) that is a
greater amount than the limits of the plaintiff's own policy ($50,000).
¶ 22 The plaintiff argues that all of the provisions—including the definition of an
underinsured motor vehicle, the policy's setoff provisions, and the policy's "Other
Insurance" clause—when read together, create an ambiguity in the policy as a whole and
require coverage in her and the estate's favor.
¶ 23 As noted above, in part III of the policy relating to uninsured and underinsured
motorist coverage, it states the following under the heading "OTHER INSURANCE":
"If there is other applicable insurance available under one or more policies or
provisions of coverage that is similar to the Uninsured Motorist Coverage or
Underinsured Motorist Coverage provided in this section, 'we' will only pay
'our' share of the damages. 'Our' share is the proportion that 'our' limit of
liability provided in this Part III bears to the total of all applicable limits on either
a primary or excess basis. However:
Any insurance 'we' provide with respect to a vehicle 'you' do not 'own', including
any temporary substitute, shall be excess over any collectible insurance providing
such coverage on a primary basis."
¶ 24 The plaintiff contends that this paragraph creates an ambiguity because this
language "can reasonably be interpreted by an average lay person to mean that the
[underinsured motorist] coverage is available in excess to the amounts recovered from the 13 tortfeasor." The plaintiff argues that "[b]ecause the Esurance's policy specifically states
that [underinsured motorist] coverage is provided by Esurance with respect to a vehicle
not owned by [the plaintiff], it 'shall be excess over any collectible insurance providing
such coverage on a primary basis' " thereby triggering Esurance's duty to pay its
proportion of the total policy limits.
¶ 25 Esurance argues that the "other insurance" provisions in the policy are limiting
provisions and do not in themselves create coverage. Esurance further argues that when
the "excess over any collectible insurance" paragraph is read in conjunction with the
introductory paragraph, it is clear that the other "collectible insurance providing such
coverage on a primary basis" refers to uninsured motorist, underinsured motorist, or
similar coverage.
¶ 26 "Only when a policy is triggered and the insurer becomes obligated to pay ***
does the 'other insurance' clause come into play" to allow liability to be apportioned
among insurers. Zurich Insurance Co. v. Raymark Industries, Inc., 145 Ill. App. 3d 175,
200 (1986); see also Farmers Automobile Insurance Ass'n v. Rowland, 379 Ill. App. 3d
696, 698 (2008) (before the "other insurance" clause comes into play, there must be
insurance under the policy in the first place). " 'Other,' as relevant here, means
'additional.' Merriam-Webster's Collegiate Dictionary 821 (10th ed. 2001)." Farmers
Automobile Insurance Ass'n, 379 Ill. App. 3d at 698. Because there is no insurance under
the policy, there can be no "other" insurance with which Esurance can share the loss. Id.
"Put another way, because [the] policy unambiguously denies [underinsured motorist]
coverage here, its proportional share of the total coverage would be zero." Id. 14 ¶ 27 The plaintiff cites Hartford Underwriters Insurance Co. v. Ledbetter, 353 S.W.3d
645 (Mo. Ct. App. 2011), a Missouri Court of Appeals case, which interpreted an
underinsured motorist provision that is similar to the one in this case. The plaintiff's
reliance on Ledbetter, however, is misplaced. Ledbetter is a Missouri case, applying
Missouri law, and is therefore not binding precedent in Illinois. See Fosse v. Pensabene,
362 Ill. App. 3d 172, 186 (2005) ("this court is not bound to follow decisions from other
states"). Moreover, the policy here contained a choice-of-law provision, explicitly stating
that any dispute "as to the coverage provided or the provisions of the Policy shall be
governed by the laws of Illinois."
¶ 28 In sum, pursuant to the Illinois Insurance Code and the express terms of the policy,
the plaintiff and the estate of Amari Clark cannot recover the policy limits under
plaintiff's Esurance policy, since each recovered an amount under Fraticelli's policy
($100,000) that is greater than plaintiff's policy limits ($50,000). The foregoing
definitions of an underinsured motor vehicle provide that Fraticelli's vehicle was not
underinsured because Fraticelli's policy limits ($100,000) exceed plaintiff's policy limits
($50,000). "[A]n 'other insurance' provision does not create an ambiguity where an
unambiguous provision otherwise bars coverage." Farmers Automobile Insurance Ass'n,
379 Ill. App. 3d at 698. Accordingly, the plaintiff's attempt to rely on the "other
insurance" provision to create an ambiguity fails.
15 ¶ 29 CONCLUSION
¶ 30 For the reasons stated herein, we reverse the judgment of the circuit court of St.
Clair County granting summary judgment in favor of the plaintiff. We remand the cause
to the circuit court to enter judgment in Esurance's favor.
¶ 31 Reversed and remanded.
¶ 32 JUSTICE GOLDENHERSH, dissenting.
¶ 33 I respectfully dissent. A plain reading of the "Limit of Liability" section quoted in
the majority opinion, when read in isolation, would suggest Esurance is not obligated to
pay underinsured motorist coverage to its insured when its insured has received coverage
under a separate policy that exceeds the insured's own policy limits. Thus, as it relates to
the instant case, this section alone suggests Esurance is not obligated to pay plaintiff's
underinsured motorist coverage because plaintiff and the estate of Amari Clark each
received coverage under Fraticelli's policy ($100,000) that is a greater amount than the
limits of plaintiff's own policy ($50,000). However, when interpreting an insurance
contract, courts must read the policy provisions together and not in isolation. Johnson,
377 Ill. App. 3d at 607.
¶ 34 In addition to the "Limit of Liability" section, the policy further provides an
"Other Insurance" clause which contains ambiguity which must be construed in favor of
16 plaintiff and the estate of Amari Clark. Specifically, the "Other Insurance" clause states
in relevant part:
If there is other applicable insurance available under one or more policies or
provisions of coverage that is similar to the Uninsured Motorist Coverage or
Underinsured Motorist Coverage provided in this section, 'we' will only pay 'our'
share of the damages. 'Our' share is the proportion that 'our' limit of liability
provided in this Part III bears to the total of all applicable limits on either a
1. Any recovery for damages under all policies or provisions of coverage may
equal, but not exceed, the highest applicable limit for any one vehicle under
any one insurance policy providing coverage on either a primary or excess
basis.
2. Any insurance 'we' provide with respect to a vehicle 'you' do not 'own',
including any temporary substitute, shall be excess over any collectible
¶ 35 The plain language of the "Other Insurance" clause indicates Esurance has
contemplated situations in which an insured may recover underinsured motorist coverage
in excess to amounts already recovered under the tortfeasor's separate insurance policy.
The "Other Insurance" clause expressly states that Esurance will provide underinsured
motorist coverage to a vehicle not owned by the insured, and this coverage "shall be
17 excess over any collectible insurance providing such coverage on a primary basis."
Accordingly, I find plaintiff's Esurance policy containing underinsured motorist coverage
limits of $50,000 per person and $100,000 per occurrence which may be obtained in
excess of what was recovered under Fraticelli's insurance policy.
¶ 36 Esurance's primary argument on appeal concerns whether plaintiff's underinsured
motorist coverage was triggered. Esurance argues the statutory and policy definitions of
an underinsured motor vehicle demonstrate that Fraticelli's vehicle was not an
underinsured vehicle, and, therefore, underinsured motorist coverage was not triggered
under plaintiff's policy. Esurance contends underinsured motorist coverage cannot be
owed to plaintiff and the estate of Amari Clark, since plaintiff was not involved in an
accident with an underinsured motor vehicle.
¶ 37 The Insurance Code defines an underinsured motor vehicle as follows:
"For the purpose of this Code the term 'underinsured motor vehicle' means a motor
vehicle whose ownership, maintenance or use has resulted in bodily injury or
death of the insured, as defined in the policy, and for which the sum of the limits
of liability under all bodily injury liability insurance policies or under bonds or
other security required to be maintained under Illinois law 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. The limits of liability
for an insurer providing underinsured motorist coverage shall be the limits of such
18 coverage, less those amounts actually recovered under the applicable bodily injury
insurance policies, bonds or other security maintained on the underinsured motor
¶ 38 Consistent with the statutory definition above, the policy at issue defines an
" 'Underinsured motor vehicle' means a land motor vehicle of any type to which a
bodily injury liability bond, policy or other security required to be maintained
under Illinois law applies at the time of the 'accident' but the sum of the limits of
liability for 'bodily injury' under that bond, policy or other security to an 'insured'
is less than the Underinsured Motorist Bodily Injury Coverage limit of liability
¶ 39 As indicated above, the insuring agreement provided under the underinsured
motorist coverage portion of the Esurance policy incorporates the above definition of an
underinsured motor vehicle, and states in relevant part:
"INSURING AGREEMENT: UNDERINSURED MOTORIST BODILY INJURY
In return for payment of the premium for this coverage when due, and subject to
the limits of liability, 'we' agree with 'you' as follows:
1. 'We' will pay compensatory damages that an 'insured' is legally entitled to
recover from the 'owner' or operator of an 'underinsured motor vehicle' because
19 A. Sustained by an 'insured'; and
B. Caused by an 'accident'."
¶ 40 I disagree with Esurance's assertion that plaintiff and the estate of Amari Clark
cannot recover the policy limits under plaintiff's Esurance policy. While the foregoing
definitions of an underinsured motor vehicle suggest Fraticelli's vehicle was not
underinsured because Fraticelli's policy limits ($100,000) exceed plaintiff's policy limits
($50,000), this does not preclude plaintiff and the estate of Amari Clark from recovery
under plaintiff's Esurance policy.
¶ 41 The instant case closely resembles Hartford Underwriters Insurance Co. v.
Ledbetter, 353 S.W.3d 645 (Mo. Ct. App. 2011), a Missouri Court of Appeals case that
interpreted a nearly identical underinsured motorist provision. Although this court is not
bound to follow a Missouri appeals court decision, such decision can provide guidance
and serve as persuasive authority.
¶ 42 The litigation in Ledbetter arose from an automobile accident in which the insured
was injured after her vehicle was struck by a vehicle operated by Danny Harris (Harris).
The insured brought suit against Harris for injuries sustained in the accident. At the time
of the accident, Harris was covered by an insurance policy with limits of $50,000 for
injuries sustained by a single person in an automobile accident. The insured's suit against
Harris was settled in exchange for the insured receiving Harris's policy limits of $50,000
and a dismissal of the lawsuit.
20 ¶ 43 Also at the time of the accident, the insured held an insurance policy with Hartford
Underwriters Insurance Company (Hartford), which provided $50,000 underinsured
motorist coverage on each of the insured's four covered vehicles. The insured claimed
entitlement to underinsured motorist coverage under the terms of the Hartford policy,
which Hartford denied. Hartford argued that the vehicle operated by Harris was not an
underinsured motor vehicle under the terms of the policy because Harris and Hartford
each contained the same liability limits of $50,000 and Harris had already paid the
insured $50,000. Since the Hartford policy defined an underinsured motor vehicle as one
with liability limits less than the limits of its policy, Hartford asserted Harris's vehicle
could not be considered as being underinsured.
¶ 44 In relevant part, the Hartford policy set out as follows:
" 'SECTION II—UNDERINSURED MOTORISTS COVERAGE
A. We will pay compensatory damages which an insured is legally entitled
to recover from the owner or operator of an underinsured motor vehicle because
of bodily injury ***
C. "Underinsured motor vehicle" means a land motor vehicle or trailer of
any type to which a bodily injury liability bond or policy applies at the time of the
accident but its limit for bodily injury liability is less than the limit of liability for
this coverage.
21 ***
LIMIT OF LIABILITY
A. The limit of liability shown in the Declarations for each person for
[underinsured motorist] is our maximum limit of liability for all damages,
including damages for care, loss of services or death, arising out of bodily
injury sustained by any one person in any one accident. Subject to this limit
for each person, the limit of liability shown in the Declarations for each
accident for [underinsured motorist] is our maximum limit of liability for all
damages for bodily injury resulting from any one accident.
This is the most we will pay regardless of the number of:
1. Insureds;
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident
OTHER INSURANCE
If there is other applicable insurance available under one or more policies or
provisions of coverage that is similar to the insurance provided by this Part:
1. Any recovery for damages under all policies or provisions of coverage may
equal but not exceed the highest applicable limit for any one vehicle under
any insurance providing coverage on either a primary or excess basis.
22 2. Any insurance we provide with respect to a vehicle you do not own shall be
excess over any collectible insurance providing such coverage on a
primary basis.' " (Emphasis in original.) Ledbetter, 353 S.W.3d at 647-48.
¶ 45 The trial court entered summary judgment for Hartford, and the insured appealed.
The court of appeals reversed the trial court after finding the "other insurance" provision
of the policy created an ambiguity that must be construed in favor of the insured. As
indicated above, the "other insurance" clause at issue provided:
" 'Any insurance we provide with respect to a vehicle you do not own shall be
excess over any collectible insurance providing such coverage on a primary
basis.' " Ledbetter, 353 S.W.3d at 648.
¶ 46 After reviewing the "other insurance" clause, the court determined:
"[A]n objective examination of the 'excess' language of the Other Insurance clause
suggests not just that this language might reasonably be interpreted by an average
lay person to mean underinsured coverage was excess to amounts recovered from
the tortfeasor ***, it could also be interpreted to mean that this language prevailed
over the preceding and apparently conflicting language contained in the [P]olicy's
definition of underinsured and Limits of Liability sections. [Citation.] This
created an ambiguity which must be resolved in favor of Insured and in favor of
[underinsured motorist] coverage under the terms of the Policy." (Internal
quotation marks omitted.) Ledbetter, 353 S.W.3d at 652.
23 ¶ 47 Similar to Ledbetter, plaintiff here is seeking to recover underinsured motorist
limits ($50,000) in excess to an amount recovered under a separate policy ($100,000),
despite the amount already recovered being equal to or greater than plaintiff's
underinsured motorist limits. As in Ledbetter, this court is being asked to examine the
excess language in the "Other Insurance" clause of plaintiff's Esurance policy. Notably,
the policy provisions in Ledbetter and the instant case contain nearly identical "Limit of
Liability" and "Other Insurance" clauses. Both policy provisions also contain
corresponding definitions of what constitutes an underinsured motor vehicle.
¶ 48 Given the plain language of the "Other Insurance" clause, "[a]ny insurance we
provide with respect to a vehicle you do not own shall be excess over any collectible
insurance providing such coverage on a primary basis," along with the court's reasoning
in Ledbetter, which is persuasive authority, I find there is an ambiguity in plaintiff's
policy which must be construed in favor of the insured. This is not a case where one
must be creative to find an ambiguity. As in Ledbetter, the excess language of the "Other
Insurance" clause can reasonably be interpreted to denote underinsured coverage in
excess to amounts recovered from the tortfeasor. Further, the "Other Insurance" clause
can also reasonably be interpreted to denote that the excess language prevails over the
conflicting language contained in the policy's definitions regarding the underinsured and
limit of liability provisions.
¶ 49 For these reasons, I conclude there is an ambiguity in plaintiff's Esurance policy
that must be construed in favor of the insured. Thus, plaintiff and the estate of Amari
Clark may obtain coverage under plaintiff's Esurance policy in excess to what was 24 received under Fraticelli's policy. Accordingly, the trial court did not err in awarding
$50,000 to plaintiff and $50,000 to the estate of Amari Clark under plaintiff's Esurance
policy in addition to the $100,000 each received under Fraticelli's policy.
¶ 50 Esurance cites to this court's decision in Thurman v. Grinnell Mutual Reinsurance
Co., 327 Ill. App. 3d 920 (2002), in support of its argument that underinsured motorist
coverage cannot properly be found to be owed to plaintiff. At issue in Thurman was
whether the plaintiff was entitled to underinsured motorist coverage under her policy
where the limits of her coverage were less than the limits of the bodily injury liability
insurance of the at-fault driver from which the plaintiff recovered the maximum amount.
The dispositive question presented to this court was whether section 143a-2(4) of the
Insurance Code prohibited plaintiff from recovering the underinsured motorist coverage
benefits under her policy.
¶ 51 The version of section 143a-2(4) in effect at the time of the accident included the
following provision:
" '[T]he maximum amount payable by the underinsured[-]motorist[-]coverage
carrier shall not exceed the amount by which the limits of the
underinsured[-]motorist coverage exceeds [sic] the limits of the bodily[-]injury
liability insurance of the owner or operator of the underinsured motor vehicle.'
(Emphasis added.) 215 ILCS 5/143a-2(4) (West 1998)." Thurman, 327 Ill. App.
3d at 928.
25 ¶ 52 After reviewing the above provision, this court found no ambiguity. Specifically,
this court stated that section 143a-2(4) makes it "clear that where the limits of the
underinsured-motorist coverage do not exceed the limits of the bodily injury liability
insurance of the owner or operator of the underinsured motor vehicle, there is no amount
payable by the underinsured-motorist-coverage carrier." (Emphasis in original.)
Thurman, 327 Ill. App. 3d at 929.
¶ 53 Thurman is distinguishable from the instant case; there is no evidence that the
policy at issue in Thurman contained language similar to the "Other Insurance" provision
of plaintiff's Esurance policy. For the reasons stated above, the "Other Insurance" clause
creates an ambiguity when interpreting the policy as a whole which must be construed in
favor of coverage for the insured.
¶ 54 Citing to section 143a-2(4) of the Insurance Code in its current version, Esurance
further alleges the trial court improperly interpreted or ignored the policy and Insurance
Code's setoff provisions. Esurance asserts the policy's setoff provisions unambiguously
establish its right to set off the amount plaintiff received under Fraticelli's policy.
¶ 55 Section 143a-2(4) of the Insurance Code provides, in relevant part:
"The limits of liability for an insurer providing underinsured motorist coverage
shall be the limits of such coverage, less those amounts actually recovered under
the applicable bodily injury insurance policies, bonds or other security maintained
on the underinsured motor vehicle." 215 ILCS 5/143a-2(4) (West 2008).
26 ¶ 56 Esurance's argument is misplaced. Here, plaintiff does not argue the policy's
setoff provisions are ambiguous. Rather, plaintiff concedes the policy's setoff provisions
are unambiguous when read in isolation from the rest of the policy, as those provisions
clearly limit Esurance's coverage. However, insurance policies are not to be read in
isolation, but as a whole. After carefully considering the setoff provisions along with all
other portions of the policy, particularly the "Other Insurance" clause, I find an ambiguity
which must be construed in favor of the insured.
¶ 57 Esurance also argues plaintiff's claim should be barred by the anti-stacking
language provided in the policy. In support of its argument, Esurance cites to the
following three cases: Willison v. Economy Fire & Casualty Co., 294 Ill. App. 3d 793
(1998); McElmeel v. Safeco Insurance Co. of America, 365 Ill. App. 3d 736 (2006);
Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11 (2005).
¶ 58 Each of the above-referenced cases involved a plaintiff seeking to stack the
insurance benefits of either multiple policies issued by the same insurer or the coverage
benefits for multiple vehicles covered under the same policy. These courts held that the
anti-stacking clauses provided in the policies unambiguously prohibited the plaintiff from
stacking uninsured motorist benefits.
¶ 59 The instant case is distinguishable from the three cases cited above. Here, plaintiff
is not seeking to stack coverage. Rather, plaintiff is requesting the underinsured motorist
limits provided in the declarations page of her personal automobile policy for the single
vehicle she owned in excess to the bodily injury limits recovered under Fraticelli's
27 separate policy. Unlike the three cases Esurance cites above, plaintiff is not attempting to
stack similar coverage limits.
¶ 60 Lastly, Esurance asserts the introductory language in the "Other Insurance" section
of the policy demonstrates that the "Other Insurance" section is only implicated in
situations where the insured attempts to stack multiple underinsured motorist limits or
coverage that is similar to the insured's underinsured motorist coverage, which Esurance
alleges is not the case here. The introductory language Esurance references provides:
"If there is other applicable insurance available under one or more policies or
provisions of coverage that is similar to the Uninsured Motorist Coverage or
Underinsured Motorist Coverage provided in this section, 'we' will only pay 'our'
share of the damages."
¶ 61 Esurance argues that even if plaintiff's underinsured motorist coverage were to be
triggered, the policy's "Other Insurance" provisions are not implicated because plaintiff is
not attempting to obtain underinsured motorist coverage under different policies. I
disagree with Esurance's proposition.
¶ 62 Here, plaintiff is seeking the uninsured motorist limits under her personal
automobile policy in excess to the bodily injury limits recovered under Fraticelli's policy
for injuries sustained in the same accident. Importantly, both Fraticelli's bodily injury
liability coverage and plaintiff's underinsured motorist coverage protect similar risks in
this case, as both concern the damages sustained by plaintiff and Amari Clark in the
accident. I cannot say these two coverages are so dissimilar such that the "Other
28 Insurance" clause does not apply. Accordingly, I would reject Esurance's argument
concerning the introductory language of the "Other Insurance" clause.
¶ 63 For the reasons stated herein, the judgment of the circuit court of St. Clair County
granting summary judgment in favor of plaintiff and against Esurance should be
affirmed.
29 2016 IL App (5th) 150083
NO. 5-15-0083
IN THE
FIFTH DISTRICT ______________________________________________________________________________
APRYL SHERROD, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 13-MR-411 ) ESURANCE INSURANCE SERVICES, INC., ) Honorable ) Richard A. Aguirre, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
Rule 23 Order Filed: October 4, 2016 Motion to Publish Granted: November 21, 2016 Opinion Filed: November 21, 2016 ______________________________________________________________________________
Justices: Honorable S. Gene Schwarm, P.J.
Honorable Thomas M. Welch, J., Concurred Honorable Richard P. Goldenhersh, J., Dissented ______________________________________________________________________________
Attorney Elizabeth M. Bartolucci, O'Hagan, LLC, One East Wacker Drive, Suite for 3400, Chicago, IL 60601 Appellant ______________________________________________________________________________
Attorney Jeremy A. Gogel, The Gogel Law Firm, 4542 West Pine Boulevard, for St. Louis, MO 63108 Appellee ______________________________________________________________________________