THIRD DI VISI ON February 3, 2010 Nos. 1-08-3319 & 1-08-3628 (cons.) ERIE I NSURANCE EXCHANGE, ) Appeal from the ) Circuit Court of Plaintiff and Counterdefendant-Appellee, ) Co ok Co un ty. ) ) v. ) No. 07 CH 4925 ) CHRISTINE

TRIANA, CHRI STINE WAGNER, and ) MICHAEL

WAGNER, ) Honorab le ) Rita M. Novak, Defend ants and C ounterpl aintiffs -Appella nts. ) Judge Presi ding.

JUSTICE STEELE deliver

ed the opi nion of the

court: This appeal arises from an order of the c ircuit court of Cook County gr anting plaintiff Erie Insurance

Exchange’s (Erie) motion for summary judgment and deny

ing defendants Michael and Christine Wagner (the Wagners) a nd Christine Triana’s (Triana) cross-motion for summary judgmen t, finding that ther e was onl y $1 00,000 in total under insured motorist (U

IM) b enefits remaining for all defendants under the Erie policy. Erie

filed this declaratory

judgment action against the def

endants, seeking

a deter mination of

the rema ining pol icy

limits unde

r the Eri e policy when both Christine Wagne r (Wagner) and Triana ha d previously rec eived settlement pay ments of $ 100,000 e ach from State Fa rm Mutual A

utomobile I

nsuranc e Company

(State Farm) a s a resul

t of the a utomobile a

ccident . For the

following

reasons , we aff

irm. BACKGROUND On March 5, 2005, Triana was riding in a ve hicle driven by Wag

ner on Illinois Route 20 in Galena, Illinois, when they were involved in an automobile accident with William Weinen1-08-3319 & 1-08-3628 (cons.)

1 The trial court granted Erie’s motion to stay the arbitration. -2- (Weinen). Wagner and Triana both made c laims against Weinen for bodily injury and damag es allegedly sustained as a result of the accident, and their claims we re submitted to Weinen’s insurance carrier, State Far m. Weinen’s insurance policy provided coverage of $100,000 per person/$ 300,000 pe

r accid ent. State Farm sub sequentl

y ma de pay ment unde

r Weinen’ s policy

to Wagner in the amount of $100,000 and a separate payment to Triana

in the amount of $100,000. The Erie policy was issue d to the Wag

ners for a policy period of Februa ry 28, 2005, t

o February 28, 2006. The Erie policy pr ovided UIM coverage limits of $300,000 each person/$300,000 each accident, subject to the limitations and reductions set forth in the policy

. Wagner and Triana then made cla ims under the UIM covera ge available to the Wagners under the Erie policy , claiming that Weinen was an underinsured motorist. Erie tendere d the total sum of $100,000 to Wagner and Triana, which Erie contende d was the available limit under its policy after re duction of the policy limits for pay ments Wagner and Triana rece ived from State Farm. Wagner and Triana r ejected the $100,000 from Erie, contesting the amount of the remaining policy

limits, and made a demand for arbitration to the American Arbitra tion Association as to their claims made under the Erie policy . Erie then commenced the underly ing action, s eeking

a deter mination of

the rema ining pol icy

limits, and

additiona lly f iled a moti on to stay arbitration until such deter mination was made. 1 The Wagners filed a counterclaim, see king a declaration as to the amount available under the UI M coverage of the Erie policy , and alleged vexatious d

elay under se ction 155 o f the I llinois I nsuranc e Code (Co de) (215 IL CS 5/155 (We st 2006)). Erie filed a motion to dismiss the counterclaim; defendants filed cross-motions for1-08-3319 & 1-08-3628 (cons.)

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summary judgme

nt on the declaratory

judgment complaint. The tria l court e ntered a n order on Novembe

r 6, 2008, dismissing

the Wagners’ counter claim and granti ng Erie ’s motion f

or summar

y ju dgment, finding

that $100, 000 in remaining coverage

was available under the Erie policy for the claims made by

Wagner and Triana. While ack

nowledging that

the Erie policy was a spli

t-limits pol icy , the cour

t agre ed with Erie’s position that the $200,000 paid by State Fa rm to both Wagner and Triana must be set off in the aggrega

te against the $300,000 per-accident limit in the Erie policy , leaving only

$100,000 in UIM benefits remaining to both the Wagners and Triana to be apportioned during arbitration. Th e c ou rt re

je ct ed th e W ag ne rs ’ a rg um en t t ha t b ec au se th e E ri e p ol ic y wa s a sp li t- li mi ts po li cy, the setoff provisions required that only the $100,000 received by Wagner should be set off aga in st her in di vi dua l $ 300 ,00 0 pe r-p ers on l im it in det erm in in g th e am oun t o f he r av ail abl e UIM coverage, rely

ing on Obenland v. Economy F ire & Casualty Co. , 234 Ill. App. 3d 99 (1992). This timely appeal followed. DISCUSSION The Wagners and Triana have r aised the following issues on appeal: (1) whether the trial court erroneously

granted summary

judgment in favor of Erie because the maximum amount of UIM c overag e availa

ble in the split-limits

Erie poli cy

after a pply ing the $ 100,000 se

toff ag ainst the per-person limit of $300,000 for both the Wagners and Triana was $200,000; (2) whether the trial court erred in not finding the setoff provisions of the Erie policy to be ambig

uous, and (3) whether the trial court impr

operly dismissed t

he Wagners’ co

untercl aim. In an appeal fr

om the granting of summary judgment, we conduct a de novo review.1-08-3319 & 1-08-3628 (cons.)

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Pekin Insurance Co. v. Estate of Gobe n , 303 I ll. App. 3d

639, 642 ( 1999). Al

though it is recog nized that s

ummary judgmen t is a drastic means

of disposi

ng of lit igation , it is appr

opriate in cases where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Pekin Insurance , 303 Ill. App. 3d at 642. I n reviewing a grant of summary judgme

nt, this court considers anew the facts and the applicable la w and determines whether the circuit court was corre ct in its ruling. Frigo v. Motors Insura nce Corp. , 271 Ill. App. 3d 50, 57 (1995). The cons truction o f an insur ance po licy

is a quest ion of law

and can be appro priately disposed of by summary

judgment. Pekin Insurance , 303 Ill. App. 3d at 642. An insurance policy is a contrac

t and, as such, is subject to the same rules of interpretation that gove rn the interpretation of contracts. Jones v. Country Mutual I nsurance Co. , 371 Ill. App. 3d 1096, 1098 (2007). Accordingly, when construing the languag e of an insurance policy , the court’s primary objective is to determine and effectuate the pa rties’ intentions as expressed in their written agreement. Pekin Insurance , 303 Ill. App. 3d at 642. I f the terms in the policy ar e “clear and unambiguous,” they

must be given their plain and ordinary meaning. Pekin Insurance , 303 I ll. App. 3d at 642. If the terms are ambiguous, meaning that they are susceptible to more than one reasonable interpretation, they will be construed strictly against the insurer. Pekin Insurance , 303 Ill. App. 3d at 642. The court will interpret the policy as a whole, considering the ty pe of insurance purchased, the nature of the risks involved, and the purpose of the contract. Pekin Insurance , 303 I ll. App. 3d at 642-43 . Limit

ing prov isions in the

policy are con strued lib erally

in favor of the insured and against the insure r. Pekin Insurance , 303 Ill. App. 3d at 642. When dete

rmining whether an ambig uity betwee n the ter ms of an in surance

policy exists,1-08-3319 & 1-08-3628 (cons.)

2 The Milwaukee policy

had split-limit UIM coverage of $300,000 per person and $300,000 per accident, while the Economy policy had single -limit UIM coverag e of $300,000 per accide nt. -5- the provisions should be read together and not separa tely. Johnson v. Da

vis , 377 Ill. App. 3d 602, 607 ( 2007). The inquiry is whethe

r the provision is sub

ject to mor

e than one

reasona ble interpretation, not whether other possibilities can be sugg ested. Johnson , 377 Ill. App. 3d at 607. The Wa gners an d Tria na fir st con tend t hat th e max imum amoun t of UIM co verage available in the split-limits Erie policy after applying the

$100,000 setoff against the per-person limit of $300,000 for both the Wagners and Triana was $200,000 and that the setof f provisions of the Erie policy a

re ambiguous. Additionally , they arg ue that the trial court’s reliance on Obenland was misplaced. We disagree and find that the issue presented in the instant ca se is factually similar to the one before the court in Obenland . In th at ca se , t he pl ai nt if fs we re in ju re d a s p ed es tr ia ns by a motorist whose insurance company tendered its policy limits of $100,000 per per son. Obenland , 234 Ill. App. 3d at 103. Plaintiffs, who had UI M coverage with Milwaukee Guar dian Insurance Company on three ve

hicles and Economy F ire & Casualty Company on another ve

hicle, sought to combine

the UI M covera ge for all of the ir policie s. 2 Obenland , 234 Ill. App. 3d at 102-03. Both policies contained wording similar to that at issue in the case at ba r. One of the issues raised by the Obenland

plaintiffs was that the trial court erred in interpreting the Economy policy as providing for $300,000 in coverage , reduced by $200,000 from the underinsured motorist’s insurer and paid proportionately with Milwaukee for a total coverage of $50,000. Obenland , 2341-08-3319 & 1-08-3628 (cons.)

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Ill. App. 3d at 112. Plaintiffs sought a ruling tha t the $300,000 UIM coverag e limit under the Economy policy

should be interpreted as meaning that Economy would pay until each pla intiff had received a total of $300,000 from Economy and the tortfeasor or until Economy itself had paid out $300,000. Obenland , 234 Ill. App. 3d at 112. The Obenland court ci ted to our supreme court’s holding in Sulser v. Country Mutual I nsurance Co. , 147 Ill. 2d 548, 556 (1992), which explained the natur e of unde rinsure d motorist c overag e, namel y, t hat “unde rinsure d motorist coverage was intended to fill the g ap between the claim and the tortfeasor’s insura nce and was not intended to allow the insured to recover more than the amount of cove rage provided under his policy’s underinsured motorist cove rage.” Obenland , 234 Ill. App. 3d at 113. The Obenland court concluded that the Economy policy clear

ly and unambig

uously provided policy

limits of $300,000 per accident, reduced by the amounts paid on behalf of the tortfeasor. Obenland , 234 Ill. App. 3d at 113. Turning to the case at bar, we re ach the same conclusion. As indicated previously, the Erie policy provided U

IM coverag e in the split amounts of $300,000 per person/$300,000 per accident. The uninsured/underinsured motorist bodily injury endorsement c ontained the fo ll ow in g l im it at io ns on Er ie ’s du ty t o p ay:

“If covera ge is purchased on a ‘Split L imits’ basis, ‘ your ’

‘ Declar ations ’ will show a PER PERSON and PER ACCIDENT limit for Uninsured/Underinsured Motorist Bodily I njury. The PER PERSON limit for Bodily Injury for one ‘ auto ’ is the mos t

‘ we ’ will pay

for dama ges ar ising out of bodily injury or death to one person in any

one accident. The PER ACCIDENT f or one1-08-3319 & 1-08-3628 (cons.)

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lting fr om any one acc ident, subject to the PER PERSO

N limit. * * *

‘ We ’ will pay no more than the Uninsured/Underinsured Motorist Coverage limits shown on the ‘ Declar ations ’ for any

‘ auto ,’ reg ardless

of the num

ber of pe rsons ‘ we ’ protect, ‘ autos we insure ,’ premiums paid, claims made or ‘ autos ’ involved in the accident.” In addition, the policy

also contained the following provision related to reductions of the limits of protection available under the Uninsured/Underinsured Motorist Coverag e:

“The Limits of Pro tection a vailable under thi s Un in su re d/ Un de ri ns ur ed Mo to ri st Co ve ra ge wi ll be re du ce d b y: 1. the amounts paid by or for those liable for bodily injury to anyone we protect .” The Erie policy de fines “any one we protect” as: “any

person or organization we specific ally state is protected under the coverag e being described.” Acc ording to the UIM cove rage section of the policy, the policy

protects “any

one [who] occup[ies] any owned auto it insures.” The Erie policy c learly and una mbiguously states that the per -person limit is to be applied to bodily injury

or death of one person in an accident, while the pe r-accident limit is the most that will be ap plied to a ll person s involved

in any one acc ident, re gardle ss of the n umber of people involved. Here, two persons were injured in the ac cident, Triana and Wagner. There fore, the1-08-3319 & 1-08-3628 (cons.)

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$300,000 p er-ac cident po licy limit applie s, and tha

t amount is t

he most tha

t Erie contracte d to pay for injuries a

rising from any

one accident. Additionally , the Erie policy c learly and unambig uously provides that the p olicy

limits would

be reduc ed by

the amoun

ts paid on b ehalf of the tortfeasor. In this ca se, $200,000 has already been paid to the injured parties, Triana and Wagner, by

State Farm on behalf of the other driver. Thus, only$100,000 of the $300,000 peraccident policy

limit remains for Triana and Wagner to recove r under the Erie policy

. Accordingly , we find that the trial court did not err in concluding that the setoff provisions of the Erie policy we

re unambiguous and in granting summar y judgment in fa

vor of Erie. The disposition of this issue makes it unnecessary to a ddress the Wagners’ other issue, namely, that the trial cour t improperly dismissed their counterc laim, which sought a declaration as to the amount available under the UI M coverage of the Erie policy and also alleged vexatious delay under

section 155 of the Code (215 ILCS 5/155 (West 2006)). For the foregoing r

easons, the judgment of the circuit court of Cook County is affirmed. Affirmed. COLEM AN, J., concurs. PRES IDING JUST ICE MURP HY, sp ecial ly concurr ing: I concur in the aff

irmance of the trial court’s grant of plaintiff’s motion for summary judgment and denial of defendants’ cross- motion for summary judgme nt. While Obenland is principally about the pra

ctice of stacking coverag e, I agr ee with the majority that the c ontract language and fac

ts of this case are in line with the ultimate conclusion in that case. Therefor e, I concur that we must apply the ruling from the learned Justice Jiganti in that case to the clear a nd unambiguous terms of the policy

.1-08-3319 & 1-08-3628 (cons.)

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However, I wr

ite separately

to express concern raised by an unanswered question presented at oral argument that, with a strong er record, could raise ambiguities in that lang uage. The unanswered question of plaintiff was exactly what benefit the Wagners rece ived for the additiona l premium t

hat they paid. I t was arg ued that t he extra premium wa s for the split-limit coverage. I

must admit that I read the policy several times over before clear ly understanding

the import of the language. I not only empathize with defendants, but ca n envision a case where additional facts might render this languag e ambiguous, but, since I did not find evide nce of record to overcome the fact the lang uage of the policy

is in line with established law, I concur.1-08-3319 & 1-08-3628 (cons.)

-10- REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) ERIE I NSURANCE EXCHANGE, Plaintiff and Counterdefendant-Appellee, v. CHRISTINE

TRIANA, CHRI STINE WAGNER, and MICHA EL WAG NER, Defend ants and C ounterpl aintiffs -Appella nts. Nos. 1-08-3319 & 1-08-3628 (consolidated)

Appella te Cour t of I llinois First District, THIR

D Division February 3, 20 10 (Give month, day

and yea r)

JUSTIC E STEELE deliv ered the opinio n of the

court: Coleman, J., concurs Murphy, P.J., specially concurs Lower Court and Trial Judg e(s) in form indicated in the margin: Coun

ty Department, Chancery D ivision The Honorable Rita M. Novak , Judge Pr esidi ng. Indicate if attorney

represents APPELL

ANTS or APPELLEES and include attorneys of counsel. Indicate the word NONE if n ot represented. Attorne ys for Defenda nts and

Count erplain tiffs-Appe llants : (for Christine and Michael Wa gner) : Beer man, S werd love LLP, o f Chi cago , IL (Alvin R. Be cker a

nd Kathe rine A. Grosh, of Cou

nsel) Levi n, Ri back Law Gr oup, P.C., of Ch ica go, IL (Richar d I. Levin and Am y R. Perlman, of Counse l) (for Christine T riana): Law Offices of Craig L. Manchik &

Associates, P.C., of Chic ago, IL (Craig L. Manchik a

nd Chri stian D . Elenb aas, of Couns el) Attorne ys for Plaintiff and Counte rdefenda nt-App ellee: Best , Van derl aan & Harr ingt on, o f Chi cago , IL (Lori A . Vander

laan and Adam

F. Ha usserm ann, of Couns el) McK nigh t, K itzi nger , McC art y & Pra vdic , LLC, of Ch ica go, IL (Stanle y A. Kitzing er, of C ounsel) Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Chancery Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add attorney s for third-party appellants or appellees.1-08-3319 & 1-08-3628 (cons.)

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