Smith v. Allstate Insurance

726 N.E.2d 1, 312 Ill. App. 3d 246, 244 Ill. Dec. 405, 2000 Ill. App. LEXIS 163
CourtAppellate Court of Illinois
DecidedMarch 17, 2000
Docket1 — 99 — 0884
StatusPublished
Cited by25 cases

This text of 726 N.E.2d 1 (Smith v. Allstate Insurance) 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
Smith v. Allstate Insurance, 726 N.E.2d 1, 312 Ill. App. 3d 246, 244 Ill. Dec. 405, 2000 Ill. App. LEXIS 163 (Ill. Ct. App. 2000).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Larry Smith appeals an order of the circuit court of Cook County granting summary judgment in favor of defendant Allstate Insurance Company (Allstate) in a declaratory judgment action. The record on appeal indicates that this appeal is related to this court’s prior decision in Smith v. Allstate Insurance Co., 292 Ill. App. 3d 432, 686 N.E.2d 74 (1997). Although many of the facts relevant to this appeal appear therein, a brief restatement of the case follows, along with additional facts relevant to this appeal.

On July 8, 1994, plaintiff filed a complaint for declaratory judgment against defendant. The complaint alleged that on January 21, 1993, plaintiff was driving a car east on Golf Road, near the intersection with Narragansett Street, in Morton Grove. Michael Garrity was driving west on Golf Road; Brian Barry and Brendan Mahoney were passengers in the car Garrity was driving. According to the complaint, Garrity negligently caused a collision between the car he was driving and Smith’s car. Plaintiffs complaint further alleges that the collision caused him to suffer severe and permanent injuries, including spinal injuries, incomplete paraplegia, prosthetic hypertrophy and sexual dysfunction.

Plaintiff, plaintiffs wife, Phyllis, Mahoney, the estate of Barry and three Barrys individually (the Barrys), all filed suit against Michael Garrity and John Garrity, the owner of the car operated by Michael Garrity. The record in this case contains a copy of the first amended complaint Larry and Phyllis Smith filed against the Garritys. Count I, sounding in negligence, was brought by Larry Smith. Count II, brought by Phyllis Smith, sought damages for loss of consortium, alleging that as a result of negligently caused injury to Larry, she had “been deprived, and is reasonably certain to be deprived in the future, of the society, companionship and conjugal relationship with her husband.”

On January 21, 1993, Michael Garrity was an insured driver under a policy issued by State Farm Insurance Company (State Farm) to John Garrity, the owner of the car operated by Michael Garrity. The single limit liability coverage under the State Farm policy was $100,000 per person/$300,000 per occurrence. Michael Garrity also had $2 million in umbrella coverage from State Farm at the time of the collision. Thus, the maximum coverage available to satisfy the aforementioned claims was $2,300,000.

During the pretrial proceedings in the Garrity matter, State Farm agreed to tender the policy limits on behalf of the Garritys, provided that the matter was settled as to all four claimants. On March 16, 1994, the trial court entered an order granting the Garritys’ motion for a good-faith settlement order. The order dismissed the claims against the Garritys with prejudice and without costs, with the following amounts being paid in settlement: (1) Larry Smith — $600,000; (2) Phyllis Smith — $350,000; (3) the Barrys — $950,000; and (4) Mahoney— $400,000.

Plaintiff attached copies of releases purportedly signed by Larry and Phyllis Smith in the Garrity case to his appellate brief, though he does not note where they appear in the record on appeal. The identically worded documents purport to release the Garritys

“from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 21st day of January, 1993, at or near Golf Rd. & Narragansett, Chicago, Cook County, Illinois.”

A claim brought by the Barrys against Larry Smith was also dismissed with prejudice, without costs or any amount being paid in settlement.

Plaintiff’s complaint for declaratory judgment in this matter alleged that on January 21, 1993, plaintiffs car was insured by defendant Allstate. The record shows that Larry and Phyllis were named insureds on an Allstate Policy which provided in part as follows:

“Part V — Uninsured Motorists Coverage — Coverage SS We will pay damages for bodily injury or property damage which a person insured is legally entitled to recover from the owner or operator of an uninsured auto.”

The policy also defines an uninsured auto not only as a motor vehicle for which no insurance was in effect at the time of the accident, but also as an underinsured auto, which is a motor vehicle that has insurance below the limits of liability shown on the declarations page of the insureds’ Allstate policy.

Furthermore, the policy at issue provided in part as follows:

“Limits of Liability
(1) The coverage limits on the declarations page for:
(a) ‘each person’ is the total limit for all damages arising out of bodily injury to one person in any one motor vehicle accident.
(b) ‘each accident’ is the total limit for all damages arising out of bodily injury to two or more persons in any one motor vehicle accident.
The uninsured motorists limits apply to each insured auto as stated on the declarations page. This means the insuring of more than one person or auto under this or other auto policies will not increase our uninsured motorists limit of liability beyond the amount shown for any one auto, even though a separate premium is charged for each auto.
In addition, the limits for Coverage SS will be reduced by all amounts paid by or on behalf of the owner or operator of the underinsured motor vehicle.”

Plaintiff had uninsured/underinsured motorist (UIM) coverage of $1 million per person, $1 million per occurrence under the Allstate policy.

Plaintiff demanded that Allstate tender a $400,000 draft, representing the difference between the limit of the Allstate policy and the amount plaintiff received in settlement of his claim against the Garritys. Allstate refused on the ground that the limits of the Garritys’ policies exceeded the limit of the Allstate UIM coverage.

On October 17, 1994, defendant Allstate filed a motion for judgment on the pleadings, pursuant to section 2 — 615(e) of the Illinois Code of Civil Procedure (735 ILCS 5/2 — 615(e) (West 1994)), arguing that the Garrity car was not underinsured because the Garritys had $2.3 million in coverage — more than the limit of the Allstate policy. On March 31, 1995, following a hearing on the matter, the trial court granted defendant’s motion. Plaintiff appealed to this court, which reversed and remanded, holding that the Garrity car was an underinsured motor vehicle under section 143a — 2(4) of the Illinois Insurance Code (Code) (215 ILCS 5/143a — 2(4) (West 1992)). Smith v. Allstate Insurance Co., 292 Ill. App.

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Cite This Page — Counsel Stack

Bluebook (online)
726 N.E.2d 1, 312 Ill. App. 3d 246, 244 Ill. Dec. 405, 2000 Ill. App. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-allstate-insurance-illappct-2000.