THIRD DIVISION

									November 21, 2001

No. 1-01-1143

TERRENCE and MARIE DOMIN,		)	Appeal from the 

							)	Circuit Court of

	Plaintiffs-Appellees,		)	Cook County.

							)

							)

		v.					)	

							)

							)

SHELBY INSURANCE COMPANY, 	  	)

a foreign corporation, 			)	The Honorable 

							)	Lester D. Foreman,

	Defendant-Appellant.		)	Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

	The question before us is whether uninsured motorist

coverage under a particular insurance policy could be "stacked"

or aggregated.  The answer seems to come down to how many times

the policy's limits of liability appear on its Declarations page. 

The trial court entered summary judgment for the insureds.  We

reverse the trial court's decision and remand this cause with

directions to enter summary judgment for the insurance company.

FACTS

	Terrence and Marie Domin (the Domins) insured two cars under

an automobile policy issued by Shelby Insurance Company (Shelby). 

The policy provided uninsured/underinsured motorists coverage to

the Domins.  On January 21, 1998, Terrence Domin was driving one

of the insured vehicles when he was injured in a collision with

an oncoming car. 

	Terrence later filed a lawsuit in the Circuit Court of Cook

County against the owner, driver, and passenger of the other car

(the "underlying suit").  That lawsuit was based on negligence. 

Marie Domin, who was neither involved nor injured in the

accident, joined her husband's lawsuit.  She asserted claims for 

loss of society due to his injuries.1

	The defendants in the underlying suit were uninsured, so the

Domins turned to Shelby.  The Domins requested Shelby provide

uninsured motorist coverage under their insurance policy No. IA

8537640.  That policy provided, in part:

	"PART C - UNINSURED MOTORISTS COVERAGE

	 INSURING	    A.  We will pay compensatory damages which an           insured is legally entitled to recover     

        from the owner or operator of an uninsured 

        motor vehicle because of bodily injury:

				   1.  Sustained by an insured; and

				   2.  Caused by an accident."

	The policy defined "bodily injury" as "bodily harm, sickness

or disease, including death that results."

	The uninsured motorist coverage provision was subject to

another provision titled "Limit of Liability."  It provided:

"SPLIT								SCHEDULE

 UNINSURED	Uninsured Motorists Coverage 	   $ See Declarations each person

 MOTORISTS							   $ See Declarations each accident

 LIMITS		The first paragraph of the Limit provision in Part C is replaced by the following:

			LIMIT OF LIABILITY

			The limit of liability shown in the Schedule or in the

Declarations for each person for Uninsured Motorists Coverage 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

Schedule or in the Declarations for each accident for Uninsured

Motorists Coverage 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."

	With respect to uninsured motorist coverage, The policy's

Declarations page showed the following "Limits of Liability:"

"INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE

 COVERAGE				    LIMITS OF LIABILITY 				PREMIUMS

								    			   AUTO   1		2

***

 UNINSURED/UNDERINSURED		 	$100,000 EACH PERSON 	 18.00	 17.00

	MOTORISTS - BODILY INJURY	$300,000 EACH ACCIDENT	 

 OTHER THAN COLLISION			 	$250 DEDUCTIBLE	 23.00	 19.00

 COLLISION					 	$250 DEDUCTIBLE	 66.00	 49.00"

	In response to the Domins' request, Shelby offered to pay

them $100,000 -- the per person bodily injury limit of the

policy's uninsured motorist coverage.  The Domins rejected

Shelby's $100,000 offer. 

	The Domins do not question the clarity of the "LIMIT OF

LIABILITY" provision.  There is no ambiguity to it.  It clearly means what it says -- the limit of liability shown in the

Schedule or in the Declarations for each insured who receives

bodily injury is the most the company will pay, no matter how

many claims or vehicles are covered.  But, they say, ambiguity

arises when the "LIMIT OF LIABILITY" provision is read with the

Declarations page.  That is, the policy can reasonably be

interpreted to allow liability limits of the two covered vehicles

to be "stacked" or aggregated, providing a total maximum coverage

of $200,000.  The Domins contend they must be the beneficiaries

of ambiguity in the policy language.

	Of course, Shelby denies the policy is ambiguous.  It says

the "LIMITS OF LIABILITY" provision clearly prohibits stacking. 

That is, says Shelby, the policy limit for one bodily injury is

$100,000, regardless of the number of vehicles insured by the

Domins, and here there is only one bodily injury.

	The Domins filed a complaint for declaratory judgment in the

Circuit Court of Cook County.  

	On plaintiffs' motion for summary judgment, the trial court

entered judgment for the Domins.  The court ruled that under

Yates v. Farmer's Automobile Insurance Ass'n, 311 Ill. App. 3d 797, 724 N.E.2d 1042 (2000), the Domins were entitled to "stack"

the "$100,000 each person" limits of uninsured motorist coverage

under the automobile policy they purchased from Shelby because the Domins paid premiums for two vehicles.

	This appeal followed.

DECISION

	The trial judge felt obligated to follow Yates v. Farmer's Automobile Insurance Ass'n, 311 Ill. App. 3d 797, 724 N.E.2d 1042 (2000).  We, however, do not.

STANDARD OF REVIEW

	Summary judgment is proper when the pleadings, depositions,

and admissions on file, together with the affidavits, if any,

reveal there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.  See 735 ILCS

5/2-1005(c) (West 1998); American Family Mutual Insurance Co. v. Hinde, 302 Ill. App. 3d 227, 231, 705 N.E.2d 956 (1999).  We review de novo a trial court's order granting summary judgment.  Pekin Insurance Co. v. Estate of Ritter, 322 Ill. App. 3d 1004, 1004-05, 750 N.E.2d 1285 (2001).

STACKING

	Anti-stacking provisions in insurance policies are

unenforceable when the language employed is unclear or 

ambiguous.  Grzeszczak v. Illinois Farmers Insurance Co., 168 Ill. 2d 216, 220, 659 N.E.2d 952 (1995).  If an anti-stacking

clause is unambiguous and does not violate public policy, there

is no need for construction; it must be enforced according to its terms.  Grzeszczak, 168 Ill. 2d at 223.

	"The touchstone when determining whether an ambiguity exists

regarding an insurance policy is whether the relevant portion is

subject to more than one reasonable interpretation, not whether

creative possibilities can be suggested.  'Reasonableness is the

key.' "  Pekin Insurance Co. v. Estate of Goben, 303 Ill. App. 3d 639, 646, 707 N.E.2d 1259 (1999), quoting Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 193, 620 N.E.2d 355 (1993).

	We review de novo a trial court's construction of an insurance policy.  Ritter, 322 Ill. App. 3d at 1004-05.  The construction of an insurance policy is a question of law. 

Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108, 607 N.E.2d 1204 (1992). 

	Shelby does not dispute the Domins are entitled to benefits

under the policy's uninsured motorist coverage provision.  The

vehicle owned and operated by the defendants in the underlying

suit was uninsured.  The Domins are entitled to the "each person"

limit of uninsured motorists coverage shown on the policy's

Declarations page.  This is true regardless of whether the limit

is $100,000 or $200,000.  But only the insured who incurs "bodily

injury" -- here, Terence -- is covered.

	The parties dispute whether the Domins are entitled to "stack" the "$100,000 each person" liability limits for each of

their two vehicles insured under the policy, for a total

available benefit of $200,000. 

	First, we must determine whether the policy clearly and

unambiguously prohibits the Domins from stacking their liability

limits.  If the policy is unambiguous, summary judgment is

appropriate for Shelby.  But, if the policy is ambiguous, it must

be interpreted in favor of the insured and the trial court's

grant of summary judgment for the Domins will be affirmed.  See

Ritter, 322 Ill. App. 3d at 1004-05.

	The Domins do not and cannot assert that simply because they

paid separate premiums for the two cars they should be able to

stack coverage.  See American Family Mutual Insurance Co. v. Martin, 312 Ill. App. 3d 829, 833, 728 N.E.2d 115 (2000).  Nor can they say an anti-stacking clause is per se violative of public policy.  See Pahn v. State Farm Mutual Auto Insurance Co., 291 Ill. App. 3d 343, 345, 683 N.E.2d 972 (1997).

	The Illinois Supreme Court has addressed the question of

whether uninsured motorists coverage for multiple vehicles

covered in a single insurance policy can be stacked or aggregated

to provide additional coverage.  Bruder, 156 Ill. 2d at 189-94.  

	In Bruder, the plaintiffs insured two pickup trucks under the same insurance policy.  156 Ill. 2d 189-90.  The policy contained an anti-stacking provision that referred the insured to

the Declarations page for the limit of liability.  Bruder, 156 Ill. 2d at 189-91.  On the Declarations page of the policy, the

two vehicles were listed separately and there was only one

liability limit listed for both vehicles.  Bruder, 156 Ill. 2d at 191.  

	Since the liability limit was listed only once on the

Declarations page, the court held the anti-stacking clause was

unambiguous.  The court did not allow the plaintiff to stack the

uninsured motorists coverage.  Bruder, 156 Ill. 2d at 193.  

	The court then went beyond the precise issue in the case. 

In dicta, it noted that if there were a liability limit listed for each vehicle on the Declarations page, the policy would

likely be ambiguous and stacking would be allowed.  Bruder, 156 Ill. 2d at 192.  The court reasoned that if there were a separate

liability limit listed for each vehicle listed on the

Declarations page, there would be little to suggest the parties

intended to limit coverage to the amount provided for only one of

the two vehicles.  Bruder, 156 Ill. 2d at 192.  In that case, the court said, "It would be more reasonable to assume that the

parties intended that, in return for the two premiums, two

$100,000 coverage amounts were afforded."  Bruder, 156 Ill. 2d at 189.

	Here, as in Bruder, stacking is prohibited.  The policy's anti-stacking provision is clear and unambiguous.  The policy's

"Limit of Liability" provision says that regardless of the number

of vehicles or premiums shown on the Declarations page, Shelby

only agreed to pay up to the limit of insurance shown for

uninsured motorists coverage for bodily injury, which is

"$100,000 each person."  Only Terrence Domin suffered bodily

injury.

	The Domins' two vehicles were listed separately on the

Declarations page of the policy and there was only one liability

limit listed for both vehicles.  Since, as in Bruder, the liability limit was listed only once on the Declarations page, we

hold the anti-stacking clause is unambiguous and the Domins

cannot stack their uninsured motorists coverage.  Bruder, 156 Ill. 2d at 193.  

	The Domins contend we should find Shelby's policy ambiguous

on whether stacking is permitted.  They suggest this case is

controlled by the Seventh Circuit's decision in Allen v. Transamerica Ins. Co., 128 F.3d 462 (7th Cir. 1997), and by the Fifth District's decision in Yates v. Farmer's Automobile Insurance Ass'n, 311 Ill. App. 3d 797, 724 N.E.2d 1042 (2000).  

	Specifically, the Domins contend Allen -- which has been adopted by the Fifth District (see, e.g., Janes v. Western States Insurance Co., No. 5--99--0763, slip op. at 5-6 (August 31, 2001)) -- and Yates have resolved the issue before us.  That is, we should find, under Allen and Yates, the anti-stacking provision in Shelby's policy is ambiguous.  The Domins conclude

the policy should be interpreted to allow stacking and provide a

liability limit of $200,000 per person because all ambiguities

must be interpreted in favor of the insured.

	The Domins are incorrect.  This case is not controlled by

Allen and Yates.  We need not conduct a frontal assault on the Allen and Yates decisions in order to reach a contrary conclusion.  Those cases involve construction of different

insurance policy language.  Not much different, but different

enough.

	In Allen, the Seventh Circuit, relying on the dicta in Bruder, allowed an insured to stack underinsured motorist coverage due to ambiguity in her policy.  Allen, 128 F.3d 462.  Allen had insured two vehicles under the same policy.  Each

vehicle had an underinsured motorist liability limit of $50,000

per person and $100,000 per incident.  Allen, 128 F.3d 464.  

	Allen's policy contained a limit of liability provision that

said:

	"The limit of liability shown in the Schedule or in the

Declarations for each person for Underinsured Motorists

Coverage 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 Schedule or in the

Declarations for each accident for Underinsured Motorists

Coverage 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."  Allen, 128 F.3d 464.

	The court held there was no ambiguity in the anti-stacking language of the limit of liability provision of the policy,

Allen, 128 F.3d 464, but the court found an ambiguity when it tried to determine the "limit of liability" referred to in the

anti-stacking provision.  

	The limit of liability provision directed the insured to

either the "Schedule" or the "Declarations" to determine the

amount of the limit.  The limit of liability sections on the

Schedules were left blank.  The only place to look to determine

the limits was the Declarations page.  There, two limits of

liability were listed -- one for each vehicle.  Allen, 128 F.3d 464.  After looking at the Declarations page, the court looked to

Bruder for guidance in construing the anti-stacking provision in conjunction with the Declarations page.  Allen, 128 F.3d at 465- 66.

	After analyzing Bruder, the court noted the Declarations page in Bruder listed the amount of coverage only once, not twice, as did the Declarations page in Allen's policy.  The court

explained the significance of this distinction by relying on

Bruder's dicta.  Allen, 128 F. 3d at 465.

	" 'That is, there is no column for which the limit of

liability for bodily injury is to be listed like a premium

amount so that the $100,000 limit for each person would

appear in both sentence-like lines for the pickup truck.

 		It would not be difficult to find an ambiguity created by such a listing of the bodily injury liability limit for

each person insured.  It could easily be interpreted that an

insured enjoyed a total limit of $200,000 in coverage

because a figure of $100,000 would be shown for each pickup

truck.  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 pickup trucks.  It would

be more reasonable to assume that the parties intended that,

in return for the two premiums, two $100,000 coverage

amounts were afforded.' " (Emphasis omitted.)  Allen, 128 F.3d at 465, quoting Bruder, 156 Ill. 2d at 192.  

	The court held "the Bruder dicta predicts that the Illinois Supreme Court would find the anti-stacking clause ambiguous when

viewed in conjunction with the columnar arrangement of the

declarations page, and would therefore rule in favor of

coverage."  Allen, 128 F.3d at 467.  In short, the court found the anti-stacking provision in the plaintiff's policy had been

rendered ambiguous under Illinois law and it stacked the

underinsured motorist coverage.  Allen, 128 F.3d at 467.

	In Yates, the plaintiff insured two vehicles under a single insurance policy that provided underinsured motorist coverage. 

Yates, 311 Ill. App. 3d at 798-99.  The policy had an anti- stacking provision that referred to the Declarations page for the

limit of liability amounts.  

	The policy's Declarations page included a statement directly

above the policy limits that said: "COVERAGE IS PROVIDED WHERE A

PREMIUM AND A LIMIT OF LIABILITY OR THE WORD 'INCLUDED' ARE SHOWN

FOR COVERAGE."  (Emphasis in original.)  Yates, 311 Ill. App. 3d at 800.  

	On the declarations page, the row corresponding to

uninsured/underinsured motorist coverage showed limits of "50/100" and a premium of $5 under both "auto one" and "auto two"

-- in other words, two vehicles were listed separately and a

$50,000 per person liability limit was listed under each.  Yates, 311 Ill. App. 3d at 800.

	The court found the plaintiff's policy contained provisions

that were ambiguous and contradictory because "in one part of the

insurance policy, there is a provision claimed to be an anti-

stacking provision," and "on the declarations page, the policy

states that coverage is provided where a premium and a limit of

liability are shown."  Yates, 311 Ill. App. 3d at 800.

	The court said that where "on the declarations page, the

policy shows limits of '50/100' and a premium under each of the

two vehicles," it must construe the policy in a manner that is

most favorable to the insured.  It held the trial court's

decision granting the plaintiff $100,000 in underinsured motorist

coverage, a figure calculated by aggregating the $50,000 limit

for underinsured motorist coverage on each of the two vehicles in

the plaintiff's insurance policy, was correct.  Yates, 311 Ill. App. 3d at 800.

	In Allen, and again in Yates, it was the Declaration page of the policy that turned a clear anti-stacking provision into

ambiguity.  That is, the Declarations page in each policy listed

the amount of maximum liability coverage separately for each vehicle.  The Declarations page of the Domins' policy does not. 

Nor did the Declarations page in Bruder.  There, as here, the Declarations page contained only one limit of liability for

bodily injury suffered by each person on the page.

	While the Fifth District has held to the course staked out

in Yates, see Janes v. Western States Insurance Co., No. 5--99-- 0763, slip op. at 5-8 (August 31, 2001); Skidmore v. Safeco Insurance Co., 323 Ill. App. 3d 417, 423-25, 751 N.E.2d 637 (2001); Pekin Insurance Co. v. Estate of Goben, 303 Ill. App. 3d 639, 647-49, 707 N.E.2d 1259 (1999), agreement has not been

universal, even where Declarations page wording is similar.

	In Pekin Insurance Co. v. Estate of Ritter, 322 Ill. App. 3d 1004, 1005, 750 N.E.2d 1285 (2001), the Fourth District said it

was "equally unpersuaded by the analysis" in Yates.  In Ritter, as in Yates, the Declarations page in the policy (an underinsured motorists policy) contained separate columns for each vehicle and

showed separate coverage limits for each column.  The court said

the separate coverage limits do not allow for aggregation of

coverage.  Ritter makes no mention of the Bruder dicta.  Instead, it relies in part on the First District case of Frigo v. Motors Insurance Corp., 271 Ill. App. 3d at 50, 62-65, 648 N.E.2d 180 (1995).  In Frigo, the court held an unambiguous anti-stacking clause was not made ambiguous by the presence of separate premiums paid for medical payments coverage of separate vehicles,

even though the Declarations page expressed a maximum liability

limit for each injured person.

	Here, the Declarations page carefully and unambiguously

identifies the types and amounts of coverage for each vehicle --

there is no confusing columnar arrangement.  Because the

arrangement of the policy's anti-stacking provisions and

Declarations page are different than in Allen and Yates, and identical to that in Bruder, Bruder is controlling precedent.  We find Shelby's policy is unambiguous -- no stacking allowed.

	We admit to some discomfort deciding a case on the basis of

how many times the "Limits of Liability" figure appears on a

piece of paper -- here, the Declarations page.  But that is where

the cases, especially the Bruder dicta, take us.  That is where we shall remain until instructed otherwise.

	We hold the trial court erred in not finding the Shelby

policy's Limit of Liability provision enforceable to preclude the

Domins from stacking the uninsured motorist coverage amounts for

their two vehicles, and in not finding the uninsured motorist

coverage was limited to $100,000 for Terrence Domin's injuries.  

	We hold summary judgment should be granted in favor of

Shelby.  Shelby is entitled to a declaratory judgment that only

"$100,000 each person" in uninsured motorist coverage is available to the Domins under the policy's anti-stacking

provisions, and Terrence is that person.

CONCLUSION

	We reverse the summary judgment entered by the trial court

in favor of the Domins and remand the cause with directions to

enter summary judgment in favor of Shelby.

	Reversed and remanded, with directions.

	CERDA, and SOUTH, JJ., concur.