Busch v. Country Financial Insurance Company , 2018 IL App (5th) 140621 ( 2018 )


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    Appellate Court                           Date: 2018.04.16
    09:47:55 -05'00'
    Busch v. Country Financial Insurance Co., 
    2018 IL App (5th) 140621
    Appellate Court         GEORGIE BUSCH, Individually and as Special Administrator of the
    Caption                 Estate of Amber Wood, Deceased, Plaintiff-Appellee, v. COUNTRY
    FINANCIAL INSURANCE COMPANY, Defendant-Appellant.
    District & No.          Fifth District
    Docket No. 5-14-0621
    Rule 23 order filed     January 17, 2018
    Motion to publish
    allowed                 February 22, 2018
    Opinion filed           February 22, 2018
    Decision Under          Appeal from the Circuit Court of Madison County, No. 14-MR-100;
    Review                  the Hon. Donald M. Flack, Judge, presiding.
    Judgment                Reversed and remanded with directions.
    Counsel on              Keith G. Carlson, of Carlson Law Offices, of Chicago, and David T.
    Appeal                  Butsch, of Butsch, Roberts & Associates, LLC, of Clayton, Missouri,
    for appellant.
    Lanny Darr, of Schrempf, Kelly, Napp & Darr, Ltd., of Alton, for
    appellee.
    Panel                     JUSTICE MOORE delivered the judgment of the court, with opinion.
    Justice Cates concurred in the judgment and opinion.
    Justice Goldenhersh dissented, with opinion.
    OPINION
    ¶1         This appeal is taken from the Madison County circuit court’s order granting summary
    judgment in favor of the plaintiff, Georgie Busch, and against the defendant, Country Financial
    Insurance Company (Country Mutual). 1 The circuit court found that the antistacking
    provisions in Country Mutual’s insurance policies were ambiguous and should be construed
    against Country Mutual. On April 13, 2017, this court issued a decision in this cause, which
    affirmed the order of the circuit court. On May 5, 2017, Country Mutual filed a petition for
    rehearing, which this court granted on May 26, 2017. After full briefing on the petition for
    rehearing pursuant to Illinois Supreme Court Rule 367 (eff. Aug. 15, 2016), we reverse and
    remand with directions that a summary judgment be entered in favor of Country Mutual.
    ¶2                                                FACTS
    ¶3         The following facts are not in dispute. The plaintiff is the mother of Amber Wood. On
    April 27, 2012, at approximately 1:49 a.m., 23-year-old Amber was killed by a speeding
    hit-and-run driver as she attempted to cross South Broadway in St. Louis, Missouri. At the time
    of the accident, the plaintiff and Amber were insured under the following two insurance
    policies issued by Country Mutual:
    “a. Policy no. A12A8077880
    Uninsured limits: $100,000
    Named insureds: Georgie Busch and Amber Wood
    Insured vehicle: 2001 Ford Focus (primary driver Amber Wood)
    b. Policy no. A12A3258332
    Uninsured limits: $250,000
    Named insured: Georgie Busch
    Insured vehicle: 2003 Infiniti (primary driver Georgie Busch)”
    ¶4         Following Amber’s accident, the plaintiff, individually and as special administrator of the
    estate of Amber Wood, deceased, sought uninsured motorist coverage pursuant to the two
    policies. The parties stipulated there was no question of liability and that the total amount of
    damages for wrongful death met or exceeded $350,000, which is the total combined uninsured
    limits of the two policies. On or about July 24, 2014, Country Mutual paid the $250,000
    uninsured limits under the policy listing the plaintiff as the sole named insured. The parties do
    not dispute that Country Mutual has no further obligation to the plaintiff concerning the
    uninsured motorist benefits under this policy. However, Country Mutual denied the plaintiff,
    1
    The circuit court entered an order on May 30, 2014, correcting the misnomer of Country Financial
    and ordering that the defendant shall be designated as Country Mutual in all subsequent pleadings.
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    as the special administrator of Amber’s estate, coverage under the policy listing the plaintiff
    and Amber as the named insureds with uninsured motorist limits of $100,000.
    ¶5         The parties subsequently filed cross-motions for summary judgment. Country Mutual
    asserted that the $250,000 it had already paid the plaintiff was the maximum amount it was
    obligated to pay in relation to Amber’s accident under both policies, pursuant to the
    antistacking provisions in each policy. The plaintiff argued she was entitled to $100,000 as the
    special administrator of Amber’s estate in addition to the $250,000 she had received
    individually under her own policy since Amber paid a separate premium on a separate policy
    and it was stipulated that the total amount of damages met or exceeded $350,000.
    ¶6         On November 20, 2014, after briefing by the parties on their cross-motions for summary
    judgment, the circuit court granted the plaintiff’s motion and denied Country Mutual’s motion
    after finding an ambiguity in the provisions of Country Mutual’s policies. The court
    determined this ambiguity must be resolved in favor of the plaintiff, and its order provided that
    the plaintiff was entitled to $100,000 under the subject policy in addition to the $250,000 the
    plaintiff had received under her individual policy. On December 19, 2014, Country Mutual
    timely filed its notice of appeal.
    ¶7         On April 13, 2017, this court issued a decision in this cause, which affirmed the order of the
    circuit court. On May 5, 2017, Country Mutual filed a petition for rehearing, which this court
    granted on May 26, 2017.
    ¶8                                               ANALYSIS
    ¶9          Summary judgment is appropriate only where “the pleadings, depositions, and admissions
    on file, together with the affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS
    5/2-1005(c) (West 2012). 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). We
    apply de novo review to both the court’s summary judgment ruling and to the extent we
    construct the terms of the insurance policies. Pekin Insurance Co. v. Wilson, 
    237 Ill. 2d 446
    ,
    455 (2010).
    ¶ 10        In construing the language of an insurance policy, our primary objective is “to ascertain
    and give effect to the intentions of the parties as expressed by the words of the policy.” Central
    Illinois Light Co. v. Home Insurance Co., 
    213 Ill. 2d 141
    , 153 (2004). We construe the policy
    as a whole, giving effect to every provision. 
    Id. Where the
    words used in the policy are clear
    and unambiguous, we afford them their plain, ordinary, and popular meaning. 
    Id. Ambiguous policy
    terms that limit an insurer’s liability will be liberally construed in favor of coverage.
    Hobbs v. Hartford Insurance Co. of the Midwest, 
    214 Ill. 2d 11
    , 17 (2005). Ambiguity exists in
    an insurance contract if the language is subject to more than one reasonable interpretation, but
    we will not strain to find an ambiguity where none exists. 
    Id. ¶ 11
           Here, the plaintiff and Amber purchased two insurance policies from Country Mutual. The
    first policy, policy No. A12A8077880, lists the plaintiff and Amber as the named insureds and
    includes uninsured motorist limits of $100,000. The second policy, policy No. A12A3258332,
    lists only the plaintiff as the named insured and includes uninsured motorist limits of $250,000.
    Each policy contains, in relevant part, the following language:
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    “General Policy Conditions
    8. Other Vehicle Insurance with Us. If this policy and any other vehicle insurance
    policy issued to you or a relative by one of our companies apply to the same accident,
    the maximum limit of our liability under all the policies will not exceed the highest
    applicable limit of liability under any one policy.” (Emphases in original.)
    ¶ 12       Our supreme court has held that an antistacking provision nearly identical to the one at
    issue was unambiguous and did not violate public policy. Grzeszczak v. Illinois Farmers
    Insurance Co., 
    168 Ill. 2d 216
    (1995). The policy at issue unambiguously states that the
    General Policy Conditions are applicable to uninsured/underinsured motorist coverage.
    Nevertheless, the circuit court refused to apply the provision because it found that it conflicted
    with paragraph 4 of the conditions stated in the uninsured/underinsured coverage section of the
    policy, thus creating an ambiguity to be construed against Country Mutual. Paragraph 4 states
    as follows:
    “4. Other Insurance. If there is other applicable uninsured-underinsured motorists
    insurance that covers a loss, we will pay our proportionate share of that loss. Our share
    is the proportion our limits of liability bear to the total of all applicable limits.
    However, in the case of motor vehicles you do not own, this policy will be excess and
    will apply only in the amount our limit of liability exceeds the sum of the applicable
    limits of liability of all other applicable insurance. We will pay only after all other
    applicable liability limits have been paid.”
    ¶ 13       The circuit court found that because this “Other Insurance” provision does not clearly limit
    itself to insurance issued by other companies, an ambiguity exists as to which provision to
    apply in the case at bar. We disagree and adopt the reasoning of our colleagues in the Second
    District in American Family Mutual Insurance Co. v. Martin, 
    312 Ill. App. 3d 829
    , 833 (2000).
    Reading both provisions together, we find that it is clear that the “Other Vehicle Insurance with
    Us” provision applies where two or more vehicles belonging to the same insured are covered
    by policies issued by Country Mutual, and the “Other Insurance” provision refers only to a
    situation where a different policy issued by a different company applies. See 
    id. If the
    “Other
    Insurance” provision were intended to refer to other policies issued by Country Mutual, there
    would be no need to refer to a proportionate share; Country Mutual’s proportionate share of
    liability would always be 100%. See 
    id. “Moreover, reading
    the [‘O]ther [I]nsurance[’] clause
    in this fashion would render the antistacking provision meaningless.” 
    Id. Accordingly, we
    find
    that each clause applies to a different situation, and the antistacking clause is simply not
    ambiguous.
    ¶ 14       Our supreme court’s decision in Bruder v. Country Mutual Insurance Co., 
    156 Ill. 2d 179
           (1993), provides further support for our decision. While in Bruder the antistacking provision
    was applied to prevent stacking uninsured motorist coverage on two vehicles set forth on a
    single automobile policy (id. at 189-94), we find this to be a distinction without a difference.
    Although the two vehicles were covered under the same policy, two separate premiums were
    paid, as in the case at bar. 
    Id. at 191.
    With regard to the “premium rule,” the Illinois Supreme
    Court held that antistacking provisions do not per se violate this rule, whether it be for
    coverage afforded under separate vehicles under one policy or separate policies. 
    Id. at 184.
           Instead, Bruder affirmed that it is the law in Illinois that an insurer is entitled to the
    enforcement of unambiguous antistacking provisions to the extent that such provisions
    represent terms to which the parties have agreed to be bound. 
    Id. at 185-86.
    As explained
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    above, we find these conditions are met in the case at bar. For these reasons, the circuit court
    erred in granting a summary judgment in favor of the plaintiff and in denying Country
    Mutual’s motion for a summary judgment.
    ¶ 15                                        CONCLUSION
    ¶ 16       For the foregoing reasons, we reverse the circuit court’s summary judgment in favor of the
    plaintiff and remand with directions that a summary judgment be entered in favor of Country
    Mutual.
    ¶ 17      Reversed and remanded with directions.
    ¶ 18       JUSTICE GOLDENHERSH, dissenting:
    ¶ 19       I respectfully dissent from the majority opinion and would affirm the trial court’s order
    granting summary judgment in favor of plaintiff and against Country Mutual. After careful
    review of the insurance policies at issue, I find there is a conflict creating an ambiguity when
    the “Other Insurance” clause is compared to the “Other Vehicle Insurance with Us” clause.
    While the “Other Vehicle Insurance with Us” clause attempts to limit Country Mutual’s
    liability to the highest limit of a single policy, the “Other Insurance” clause directly states that
    Country Mutual will pay its proportionate share of a loss if there is applicable uninsured
    motorist insurance covering that loss.
    ¶ 20       Provisions of an insurance contract must be read together and not in isolation. Johnson v.
    Davis, 
    377 Ill. App. 3d 602
    , 607 (2007). I reiterate the majority that where such a provision is
    ambiguous, it will be construed liberally in favor of coverage. Founders Insurance Co. v.
    Munoz, 
    237 Ill. 2d 424
    , 433 (2010). As the majority further notes, policy provisions are
    considered ambiguous if they are subject to more than one reasonable interpretation. 
    Johnson, 377 Ill. App. 3d at 607
    . Moreover, a policy provision purporting to exclude or limit coverage is
    to be read narrowly and applies only where its terms are clear, definite, and specific. Gillen v.
    State Farm Mutual Automobile Insurance Co., 
    215 Ill. 2d 381
    , 393 (2005).
    ¶ 21       In the instant case, Country Mutual issued two separate policies to plaintiff and Amber.
    One policy lists only plaintiff as the named insured, while the other policy lists plaintiff and
    Amber as the named insureds. Importantly, it has been stipulated that the damages of plaintiff
    and Amber’s estate exceed all applicable policy limits.
    ¶ 22       After careful review, I do not find this is a case where one must be creative to find an
    ambiguity. While both policies contain antistacking language in their respective “Other
    Vehicle Insurance with Us” clauses, each policy also contains an “Other Insurance” clause. My
    plain reading of the “Other Insurance” clause indicates that Country Mutual has contemplated
    situations where more than one of its insurance policies may apply to a single occurrence.
    Specifically, the “Other Insurance” clause provides that Country Mutual will pay its
    proportionate share of a loss where there is other applicable uninsured-underinsured motorist
    insurance covering that loss.
    ¶ 23       Even assuming the antistacking clause is applicable, Country Mutual’s policies contain
    inconsistent provisions, which should be construed in favor of the insured. Accordingly, given
    that the damages of plaintiff and Amber’s estate exceed all applicable policy limits and that
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    multiple Country Mutual policies may apply to a single occurrence, I would find plaintiff is
    entitled to the policy limits at issue as the administrator of Amber’s estate.
    ¶ 24       Further, I find it relevant to note that plaintiff is not seeking additional uninsured motorist
    coverage in her individual capacity, but as the special administrator of Amber’s estate on a
    separate policy which lists Amber as a named insured. Here, Country Mutual sold two separate
    insurance policies to plaintiff and Amber, as evidenced by the two separate declaration sheets
    containing differing limits of uninsured motorist coverage, differently assigned policy
    numbers, and different premium amounts.
    ¶ 25       With this in mind, I find plaintiff is merely seeking coverage for the “each person” limit
    under section 2 of the policies. The $250,000 that plaintiff claimed in her individual capacity
    under her individual policy should not prevent Amber’s estate from claiming the $100,000
    policy limits under the separate policy listing Amber as a named insured. It is of no
    consequence that plaintiff is the individual making the $100,000 claim under Amber’s policy,
    as plaintiff is making the claim as the special administrator of Amber’s estate rather than in her
    individual capacity.
    ¶ 26       The majority cites our supreme court’s decision in Bruder in support of its decision. In
    Bruder, our supreme court considered whether a plaintiff should be allowed to stack uninsured
    motorist coverage on two vehicles set forth on a single automobile policy issued by Country
    Mutual. Bruder held there was no ambiguity when the antistacking clause was read in
    conjunction with the declarations page because the limit of the uninsured motorist coverage
    was set forth only one time on the declarations page instead of two times. However, the Bruder
    court further discussed what would happen if the uninsured motorist coverage was set forth
    two times on the declarations page, one adjacent to each insured vehicle, stating:
    “It would not be difficult to find an ambiguity created by such a listing of the bodily
    injury liability limit for each person insured. *** There would be little to suggest in
    such a listing that the parties intended that coverage was to be limited to that provided
    for only one of the two pickup trucks. It would be more reasonable to assume that the
    parties intended that, in return for the two premiums, two *** coverage amounts were
    afforded.” 
    Bruder, 156 Ill. 2d at 192
    .
    ¶ 27       In contrast to Bruder, the two policies in the instant case set forth separate uninsured
    motorist coverage limits, once for plaintiff’s individual policy and once for the policy issued to
    plaintiff and Amber. Unlike Bruder where the single policy was covered by a single
    declaration page, here there are two separate policies with two separate declarations sheets
    containing different policy numbers and different premium amounts. This is not a case that
    involves the stacking of liability limits under a single policy. Plaintiff, acting in the capacity of
    the special administrator to Amber’s estate, is seeking the benefit of what was purchased under
    the policy issued to plaintiff and Amber, to which Amber paid a premium.
    ¶ 28       Since Bruder was decided, Country Mutual has changed its clause to include policies held
    by “relatives.” It is clear that Amber fits the policy definition of “relative.” However, after
    careful review of the policy language, I find this antistacking clause only prevents Amber’s
    estate from making a duplicate claim under plaintiff’s individual policy from which plaintiff
    has received $250,000. Considering it is stipulated that the damages meet or exceed $350,000,
    I find no reason why the antistacking clause would prevent Amber’s estate from making a
    claim against Amber’s separate policy for $100,000. Country Mutual’s payment of $250,000
    to plaintiff under plaintiff’s individual policy should not prevent Amber’s estate from making a
    -6-
    separate claim for $100,000 under Amber’s separate policy to which Amber paid a separate
    premium. As the trial court noted, to do so would permit Country Mutual to collect premiums
    for multiple policies from multiple related household members but be liable only under the
    single largest policy, resulting in a windfall for Country Mutual and an unjust result for its
    insureds.
    ¶ 29       Finally, I find no reason to focus on the “Other Vehicle Insurance with Us” clause
    contained outside the uninsured motorist section of the policy and ignore the “Other
    Insurance” clause expressly contained within the uninsured motorist section. It is a well-settled
    principle of contract construction that when a contract contains both general and specific
    provisions concerning the same subject, the specific provision controls. Skidmore v.
    Throgmorton, 
    323 Ill. App. 3d 417
    , 426 (2001).
    ¶ 30       Here, the “Other Insurance” provision is specifically provided under section 2 concerning
    uninsured motorist coverage, whereas the “Other Vehicle Insurance with Us” provision is
    stated under the “General Policy Conditions” portion of the policies. While section 2 makes
    reference to the general policy conditions, the antistacking clause lending support to Country
    Mutual’s position is expressly stated outside the uninsured motorist section of the policy.
    Therefore, since both provisions concern uninsured motorist coverage, I would find the
    specific provision “Other Insurance” controls over the general provision “Other Vehicle
    Insurance with Us.” As I previously noted, the “Other Insurance” clause directly states that
    Country Mutual will pay its proportionate share of a loss if there is applicable uninsured
    motorist insurance covering that loss. Accordingly, I believe plaintiff is entitled to the
    coverage limits at issue on behalf of Amber’s estate.
    ¶ 31       I would find plaintiff is entitled to receive the uninsured policy limits at issue as the
    administrator of Amber’s estate pursuant to the plain language of the “Other Insurance” clause
    in section 2 of the policies. When the “Other Insurance” clause and the “Other Vehicle
    Insurance with Us” clause are read together, the latter, on which Country Mutual relies to deny
    coverage, creates an ambiguity, which should be resolved in favor of the insured. Here, Amber
    paid a premium on a policy that covers the loss at issue, namely uninsured motorist insurance.
    Accordingly, I would find Amber’s estate is entitled to receive the uninsured limits of
    $100,000 under the policy that lists Amber as a named insured. For these reasons, I would
    affirm.
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