FIFTH DIVISION

                                                December 29, 2000

No. 1-99-30930653

THERESA MARTIN,

		Plaintiff-Appellant,

	v.

ILLINOIS FARMERS INSURANCE, incorrectly

sued herein as FARMERS INSURANCE GROUP

OF COMPANIES, and COUNTRY MUTUAL

INSURANCE COMPANY,

		Defendants-Appellees.		

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Appeal from the

Circuit Court of

Cook County

Honorable

Aaron J. Jaffe,

Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court: 

	Plaintiff, Theresa Martin, brought a declaratory judgment action seeking to construe the limits of underinsured motorist

coverage contained in insurance policies issued by defendants

Illinois Farmers Insurance Company and Country Mutual Insurance

Company.  The trial court granted defendants' motions to dismiss

plaintiff's action for declaratory relief pursuant to sections 2-

615 and 2-619 of the Code of Civil Procedure.  735 ILCS 5/2-615

(West 1998); 735 ILCS 5/2-619 (West 1998).  On appeal, plaintiff

contends that the trial court erred in finding that: 1) the

antistacking provisions contained in defendants' respective

insurance policies were unambiguous;  2) her loss of society claim

is subject to the per person limit of the Illinois Farmers Insurance policy; and 3) she is not entitled to recover damages for

defendants' alleged "vexatious and unreasonable" delay in settling

her claim pursuant to section 155 of the Illinois Insurance Code

(210 ILCS 5/155 (West 1998)).  For the reasons which follow, we affirm.

	On March 7, 1997, plaintiff's husband, Richard Martin III was killed while riding as a passenger in a vehicle driven by his

father, Richard Martin Jr.  Richard Martin Jr. had liability

insurance with Illinois Farmers Insurance Company (Farmers) that

was in full force and effect at the time of the accident with

underinsured motorist coverage limits of $100,000 per

person/$300,000 per occurrence.  

	The Farmers policy contains two clauses that are particularly

significant to this appeal.  Farmer's policy first defines

"underinsured motor vehicle" as follows:

		"[A] motor vehicle for which the owner or

	operator is insured or bonded for bodily injury liability

at the time of the accident in an amount equal to or

greater than the amount specified by the financial

responsibility laws of Illinois, but less than the limits

of liability shown on the declaration page of this policy

for uninsured motorist coverage."  

The next clause of importance in the Farmers policy is the "limits

of liability" clause for uninsured and underinsured motorist

coverage that provides in pertinent part:

		"The limits of liability for underinsured

	motorist coverage are the same limits shown on the

declaration page of this policy for uninsured motorist

coverage.  The amount of underinsured motorist coverage

we will pay shall be the lesser of:

			(1) The limits of liability reduced

		by all amounts paid in damages to the insured

person by or for any person or organization

who may be legally liable for the bodily

injury;

			(2) The unrecovered amount of

		damages established by an agreement,

settlement, or judgment with or for the

persons or organizations legally liable for

the bodily injury."

We note that the section quoted above is cited by both Farmers and

plaintiff as being a part of the insurance policy.  However, a

thorough review of the record indicates that this section of the

insurance policy was not included in the record.  Farmers' motion

to dismiss, which is included in the record, is the only reference

the parties' provide as evidence of the existence of this section

of the policy.  As both parties have cited the same section of the

policy, we find that it is not in dispute and accept it as true. 

	Plaintiff had two insurance policies with Country Mutual

Insurance Company (Country Mutual).  The Country Mutual insurance policies provide a single underinsured motorist coverage limit of

$100,000 per person/$300,000 per occurrence.  Richard Martin III

was named as an additional insured under both of the policies with

Country Mutual.  

	Country Mutual policies define an "underinsured motor vehicle"

as:

 		"[A]ny type of motor vehicle or trailer for

	which the sum of all liability bonds or policies at the

time of an accident are less than the limit of this

insurance."		

	The Country Mutual policy also contains an "underinsured

motorist endorsement" which states in pertinent part:

		"The most we will pay under Underinsured

	Motorists Coverage, Coverage U, to any one person is the lesser of:

		(1) the difference between the 'each person'

	limit of this coverage as shown on the declarations page

for this coverage and the amount paid to the insured by or on behalf of persons or organizations who may be

legally responsible for the bodily injury caused by an

underinsured motor vehicle; or

		(2) the difference between the amount of the

	insured's damages and the amount paid to the insured by or on behalf of persons or organizations who may be

legally responsible for the bodily injury caused by an underinsured motor vehicle. 

		***[T]he maximum amount we will pay to all

	insureds is the difference between the 'each occurrence' limit of this coverage as shown on the declarations page

and the amount paid to the insured by or on behalf of persons or organizations who may be legally responsible

for the bodily injury caused by an underinsured motor vehicle."

	Country Mutual's limit of liability clause provides as

follows:

		"The Uninsured-Underinsured Motorists limits

	of liability shown on the declarations page apply as

follows:

		a.  The limit of liability for "each person"

	is the maximum amount we will pay for all damages arising out of bodily injury to any one person in any one

accident.  That maximum amount includes any claims of

other persons for damages arising out of that bodily

injury.

		The figure listed is the most we will pay for

	any one person in any one accident regardless of the

number of insureds, claims made, insured vehicles, premiums shown on the declarations page, or uninsured or underinsured motor vehicles involved in the accident***."

	Following the accident, plaintiff made an appropriate claim

and Farmers tendered to plaintiff $100,000, the limit of liability

under Richard Martin Jr.'s policy with Farmers.  

	On August 17, 1997, plaintiff executed a "Release in Full of

All Claims and Rights."  The release provided in pertinent part:

		"For and in consideration of the sum of ONE

	HUNDRED THOUSAND ($100,000) DOLLARS, receipt of which is

hereby acknowledged, I, THERESA MARTIN, Individually and

as Special Administrator of the Estate of Richard James,

Martin, III, Deceased, release and forever discharge

RICHARD MARTIN, JR., his principals, agents,

representatives and insurance carriers from any and all

rights, claims, demands, and damages of any kind, known

or unknown, existing or arising in the future, resulting

from or related to personal injuries, death or property

damage, arising from an accident that occurred on or

about March 7, 1997, ***."

	When Farmers and Country Mutual refused plaintiff's demand for

additional benefits, plaintiff filed a complaint for declaratory

judgment and asserted that Farmers was obligated to pay $100,000 in

underinsured motorist coverage and Country Mutual was obligated to

pay $200,000 in underinsured motorist coverage.  Plaintiff also

argued that both defendants unreasonably and vexatiously delayed

settlement in violation of section 155 of the Illinois Insurance

Code. 

	Country Mutual filed a motion to dismiss plaintiff's

declaratory judgment action pursuant to section 2-615 of the Code

of Civil Procedure.  Country Mutual argued that plaintiff's

complaint should be dismissed because it failed to allege: 1) that

the underlying occurrence was caused by an underinsured motorist;

2) the existence of and the amount of coverage of any liability

policy covering the alleged underinsured motorist; 3) that any

liability bonds or policies available to an alleged underinsured

motorist have been exhausted by judgments or payments as required

by the Country Mutual insurance policy; and 4) that Country Mutual

was guilty of "vexatious and unreasonable" delay.

	Farmers also filed a motion to dismiss plaintiff's complaint

pursuant to section 2-619 of the Code of Civil Procedure.  Farmers

argued that: 1) plaintiff is not entitled to underinsured motorist

benefits because the vehicle operated by the tortfeasor, Richard

Martin Jr., was not underinsured; 2) plaintiff's loss of society

claim is subject to per person limits of liability; 3) plaintiff

released Farmers from all liability and as special administrator of

her husband's estate, signed a release of all claims and rights she

may have had arising from the accident. 

	Plaintiff subsequently filed an amended complaint for

declaratory judgment to include the allegation that Richard Martin

III's death was caused by the negligence of his father, who was an

insured motorist with Farmer's and sought damages in the amount of

$100,000.    

	Plaintiff also submitted the affidavit of one her attorneys, who averred that at the time the settlement was entered into and

the release was executed, the parties were still negotiating

plaintiff's claim for additional benefits under the liability

provision of the policy Farmers issued to Robert Martin Jr.

Therefore, plaintiff did not intend to release her underinsured

motorist claim. 

	Brian Morris, a claims representative for Farmers, averred

that he handled plaintiff's bodily injury claim and the execution

of the release.  Morris stated that the payment of the $100,000 was

intended to resolve all disputes that existed between Farmers and

plaintiff.  Morris averred that at no time prior to settlement and

execution of the release was he negotiating on behalf of Farmers

for additional coverage under the underinsured motorist coverage

portion of the policy. 

	On March 23, 1999, the trial court granted defendants'

respective motions to dismiss plaintiff's action for declaratory

relief.  The court found that there was no gap between the amount

of Richard Martin Jr.'s liability coverage and plaintiff's

underinsured motorist coverage, therefore, plaintiff had no valid

underinsured motorist claim against Farmers.  The court also found

that there was no ambiguity in the underinsured motorist provisions

for either policy, therefore, stacking was prohibited.  The court

further determined that because there was a bona fide dispute over coverage, defendants were not liable for "vexatious and unreasonable" delay under section 155 of the Insurance Code. 

Plaintiff filed a motion for reconsideration which the trial court

denied.  Plaintiff now appeals.

	When ruling on a motion to dismiss under either section 2-615 or section 2-619 of the Code of Civil Procedure, the circuit court

must interpret all pleadings and supporting documents in the light

most favorable to the nonmoving party.  The court should grant the

motion only if the plaintiff can prove no set of facts that would

support a cause of action.  Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108 (1991).  Because this process does not require the court to weigh facts or determine

credibility, a reviewing court does not give a circuit court's judgment deference, but instead reviews the matter de novo.  Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50 (1993).

	We first address whether Richard Martin Jr.'s vehicle satisfies the definition of an underinsured motor vehicle.  In

examining whether the vehicle is underinsured, we must look to

Farmers' insurance policy and the underinsured motor vehicle

provision contained within the Illinois Insurance Code.

	Section 143a-2(4) of 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 polices 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 driver or to the person or organization

legally responsible for such vehicle and applicable to

the vehicle, is less than the limits for underinsured

motorist 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 vehicle.  However, the

maximum amount payable by the underinsured motorist

coverage carrier shall not exceed the amount by which the

limits of the underinsured motorist coverage exceeds the

limits of the bodily injury liability insurance of the

owner or operator of the underinsured motor vehicle." 

2105 ILCS 5/143(a)-2(4) (West 20001998).

The purpose of underinsured coverage is to furnish protection for

the difference between the insured's claim and the amounts

available from the underinsured driver.  Susler v. Country Mutual Insurance Co., 147 Ill. 2d 548, 556, 591 N.E.2d 427 (1992).  Thus, section 143(a)-2(4) must be construed to allow an insured to "fill

the gap" between the benefits paid by the tortfeasor's insurance

carrier and the limit of underinsurance coverage specified in the

insured's policy.  Koperski v. Amica Mutual Insurance Co., 287 Ill. App. 3d 494, 498, 678 N.E.2d 734 (1997).  

	Richard Martin Jr.'s policy with Farmers states that his

underinsured motorist coverage is limited to $100,000 per person. 

However, plaintiff asserts that she is not limited to this amount

of liability coverage.  Rather, plaintiff argues that coverage is

available for the margin between that amount received by plaintiff

from the underinsured motorist and the actual damages she is

entitled to recover.  In support of her contention, plaintiff

relies on McKinney v. American Standard Insurance Co., 296 Ill. App. 3d 97, 694 N.E.2d 200 (1998).  In McKinney, the policy limits of liability provision stated: 

		"[A]ny amounts payable will be reduced by:

			1. A payment made or amount payable

		by or on behalf of any person or organization

which may be legally liable, or under any

collectible auto liability insurance, for loss

caused by an accident with an underinsured

motor vehicle."  McKinney, 296 Ill. App. 3d at 99.  

The policy also defined an underinsured motor vehicle as one with "a liability *** policy *** which provides bodily injury liability

limits less than the damages an uninsured person is legally entitled to recover."  (Emphasis added.)   

	The issue before the court was whether the term "amounts

payable" referred to the total amount of damages legally due the

plaintiff or the plaintiff's underinsured policy limits of $50,000. 

The plaintiff contended that the policy language required the

defendant to pay the full amount of compensatory damages less the

amount paid by the tortfeasor and his insurer.  The defendant

asserted that the policy language did not require compensation for

the full amount of damages.  This court held that because the

language of the defendant's policy provided that it would pay all

compensable damages, the plaintiff's reasonable expectation would

be that "amounts payable" was equivalent to the total damages

incurred.  McKinney, 296 Ill. App. 3d at 101.  The court went on to hold that because the policy provisions were susceptible to more

than one reasonable interpretation, and the term "amounts payable"

was ambiguous, coverage for the underinsured motorist policy was

available for the margin between the amount the plaintiff received

from the underinsured and the actual damages the plaintiff was

entitled to recover.  McKinney, 296 Ill. App. 3d at 102-103. McKinney is clearly distinguishable from the case at bar.

	Here, unlike McKinney, the policy language is very similar to the language in section 143a-2(4) of the Illinois Insurance Code.

As such, there is no ambiguity in the policy.  An examination of the potential coverage establishes that the gap to be covered would

be between the amount of the underinsured motorist coverage

($100,000) and the amount of the tortfeasor's policy ($100,000). 

As plaintiff received $100,000 from Farmers, which was the stated

coverage amount in the Farmers policy and the amount of plaintiff's

coverage in the Country Mutual policy, we hold that there is no gap

in coverage and Richard Martin Jr.'s vehicle is not underinsured. 

	Plaintiff next argues that the trial court erred in

prohibiting her from stacking the underinsured motorist coverage

under the two policies issued to her by Country Mutual and Richard

Martin Jr.'s policy with Farmers.  

	Plaintiff first asserts that because she and Richard Martin

III maintained separate Country Mutual policies and paid separate

premiums, the reasonable expectation of these parties was that they

would secure payment of underinsured motorist benefits where

damages in excess of any liability coverage were sustained. 

Plaintiff argues that under this reasonable expectation, she can

"stack" the $100,000 limit of each of the two County Mutual

policies for a total underinsured motorist limit of $200,000.

	Regarding the Farmer's policy, plaintiff asserts that because

Richard Martin Jr. paid separate premiums for his underinsured

motorist coverage and his bodily injury coverage, Farmers is not

allowed to set off amounts paid under the bodily injury section

against the underinsured motorist section of the same policy.

	Antistacking 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 insurance clause is ambiguous, it

must be construed in favor of the insured.  Grzeszczak, 168 Ill. 2d at 223.  However, if a clause is unambiguous, there is no need for

construction, and it must be enforced according to its terms. 

Grzeszczak, 168 Ill. 2d at 223.

	Section 143a-2(5) of the Illinois Insurance Code governs

antistacking provisions in insurance policies and provides in

pertinent part:

		"Nothing herein shall prohibit an insurer from

	setting forth policy terms and conditions which provide

that if the insured has coverage available under this

Section under more than one policy or provision of

coverage, any recovery or benefits may be equal to, but

may not exceed, the higher of the applicable limits of

the respective coverage, and the limits of liability

under this Section shall not be increased because of

multiple motor vehicles covered under the same policy of

insurance.  215 ILCS 5/143a-2(5) (West 2000).

Country Mutual's policy contains the following antistacking

provision:

		"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 amount of our liability under all the policies will not

exceed the highest applicable limit of liability under

any one policy." 

Farmers policy also contains an antistacking provision:

		"The limits provided by this policy may not be

	stacked or combined with the limits provided by any other

policy issued to you or a family member or any member of

the Farmers Insurance Group of Companies." 

	Plaintiff argues that when Country Mutual's and Farmer's

antistacking provisions are read in conjunction with the insured's

reasonable expectations, a latent ambiguity exists which must be

resolved in the insured's favor.  Plaintiff relies on several cases

to support her contention that the antistacking provisions in each

of the respective insurance policies are ambiguous.   

	Plaintiff cites Glidden v. Farmers Automobile Insurance Association, 57 Ill. 2d 330, 312 N.E.2d 247 (1974) and Gibbs v. Madison Mutual Insurance Co., 242 Ill. App. 3d 147, 610 N.E.2d 143 (1993).  Both of these cases are factually distinguishable from the

case at bar.  Contrary to the instant case, which concerns an

underinsured motorist claim, Glidden involved an uninsured motorist claim.  Glidden, 57 Ill. 2d at 331.  Gibbs involved multiple plaintiffs.  The limit of liability clause at issue in Gibbs limited coverage to the highest of two or more policies issued by

the same company which created an ambiguity where two vehicles were

insured under the same policy.  Gibbs, 242 Ill. App. 3d at 152-153.    It is unclear from plaintiff's argument where she finds an

ambiguity in either Farmers' or Country Mutual's policy.  Plaintiff

argues that under the "premium rule", the reasonable expectation

when she purchased the underinsured motorist coverage from Country

Mutual and paid separate premiums was that she was securing

coverage to meet any discrepancy between the liability coverage of

the at fault driver and the total damages sustained.  

	It is well settled that the premium rule is a rule of

construction and should not be applied unless an ambiguity exists

in the amount of coverage intended.  Grzeszczak, 168 Ill. 2d at 229.  As we find no ambiguity in the Country Mutual clauses at

issue, application of the premium rule is unnecessary.  

	Regarding Farmers policy, as Farmers points out, plaintiff

fails to explain how Farmers policy is ambiguous. Plaintiff merely

argues that the following policy language, "we will pay all sums

which an insured person is legally entitled to recover as damages

from the owner or operator of an underinsured motor vehicle because

of bodily injury sustained by the insured person", read in

conjunction with the limit of liability clause stated above creates

an ambiguity with the result that coverage is treated as if no

limits of liability clause existed in the policy and the claimants

were permitted to stack coverage.  As plaintiff fails to allege any

particular ambiguity in the policy, we find the provisions to be

clear.  Absent any ambiguity in either Country Mutual's or Farmers'

policy, we hold that the antistacking provisions are enforceable

as written. 

	In light of our holdings that Richard Martin Jr.'s vehicle was not underinsured and that plaintiff is prohibited from stacking

underinsured coverage, it is unnecessary to address the effect of

the release plaintiff executed after receiving the $100,000

liability limit of Farmers insurance policy.  However, we choose to

address it and hold that the release was intended to include any

further claims, including plaintiff's underinsured motorist claim. 

	Farmers argues that plaintiff executed the written release

after accepting the $100,000 per person liability limit of Farmers

policy with Richard Martin Jr.  Farmers asserts that the release

indicates plaintiff's intent to release Richard Martin Jr. and

Farmers from any and all further claims.  Plaintiff responds that

the release she executed was not intended to include the

underinsured motorist claim.  

	The scope and effect of a release is controlled by the

intention of the parties.  Carlile v. Snap-on Tools, 271 Ill. App. 3d 833, 837, 648 N.E.2d 317 (1995).  This intent is "discerned from

the language used and the circumstances of the transaction." 

Carona v. Illinois Central Gulf R.R. Co., 203 Ill. App. 3d 947, 951, 561 N.E.2d 239 (1990).  A release cannot be construed to

include claims not within the contemplation of the parties. 

Carona, 203 Ill. App. 3d at 951.  Where there are only words of a general release, the release will be restricted to the thing or

things intended to be released and will not interpret generalities so as to defeat a valid claim not then in the minds of the parties. 

Beauvoir v. Rush-Presbyterian-St. Luke's Medical Center, 137 Ill. App. 3d 294, 304, 484 N.E.2d 841 (1985).   

	Here, we hold that the underinsured motorist claim was within

the scope of the language of the release.  The claims to be

released are described in comprehensive language as "any and all

rights, claims, demands, and damages of any kind, known or unknown,

existing or arising in the future, resulting from or related to

personal injuries, death or property damage arising from an

accident that occurred on or about March 7, 1997."  Plaintiff's

attorney averred that releasing the underinsured motorist claim was

not within the contemplation of the parties and urges us to rely on

the fact that the release did not expressly enumerate this claim. 

Regardless of what plaintiff's intent was, as evidenced by her

attorney's affidavit, whether the release encompassed the

underinsured motorist claim is determined by the language of the

release.

	Plaintiff next contends that her loss of society claim

constitutes a separately compensable injury subject to its own per

person limits of defendant Farmer's uninsured motorist policy. 

Farmer's policy states the following in pertinent part: 

		"The uninsured motorist bodily injury limit

	for each person is the maximum we will pay for all

damages resulting from bodily injury sustained by one

person in any one accident or occurrence.  Included in this limit, but not as a separate claim or claims, are

all the consequential damages sustained by other persons,

such as loss of services, loss of support, loss of

consortium, wrongful death, grief, sorrow and emotional

distress."   

In support of her contention, plaintiff specifically relies on

Stearns v. Millers Mutual Insurance Association of Illinois, 278 Ill. App. 3d 893, 663 N.E.2d 517 (1996).  Plaintiff urges us to

find that our decision in Stearns controls the outcome of this case because the provisions in the insurance policy at issue in Stearns were similar to the provisions in Farmers policy here.  Plaintiff

asserts that in Stearns, this court construed similar policy language and held that the higher per occurrence limit applied to

multiple wrongful death claims arising from the death of the

plaintiff's decedent.  In so holding, this court further determined

that the policy language was ambiguous.  Stearns, 278 Ill. App. 3d at 897.  The language provided that:

		"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."  Stearns, 278 Ill. App. 3d at 895.    

	We find that plaintiff's reliance on Stearns is misplaced.  First, Stearns involved uninsured motorist coverage applicable to three separate insureds.  This court found that the insurance

provisions in Stearns could reasonably be interpreted to mean that the insured's mother and sister were each entitled to receive their

own policy limit of $100,000 as "compensatory damages" for the loss

of consortium because of the "bodily injury" of the insured

daughter/sister who died in the accident.  Stearns, 278 Ill. App. 3d at 899.      

	As Farmers points out, Stearns was expressly overruled by McKinney v. Allstate Insurance Co., 188 Ill. 2d 493, 722 N.E.2d 1125 (1999).  McKinney held that Stearns' interpretation of the policy language at issue was reached only by editing the language

of the policy to remove all of the language surrounding the term

"each person."  McKinney, 188 Ill. 2d at 499.  McKinney further held the following: 

		"The policy at issue in Stearns clearly and

	unambiguously limited all damages arising out of bodily

injury to one person in one motor vehicle accident to a

single $100,000 limit of liability and expressly defined

'damages' as including 'damages for care and loss of

services or death.'  Because the Stearns court found an ambiguity where none existed, we hereby overrule that

decision."  McKinney, 188 Ill. 2d at 499-500.

	Here, we hold that the Farmer's policy language is clear and

unambiguous.  The policy clearly states that the per person limit of liability applies to "all damages."  "Included in this limit,

but not as a separate claim or claims are all the consequential damages sustained by other persons, such as *** loss of society." 

(Emphasis added).  This holding is consistent with previous

Illinois cases which hold that loss of consortium is a derivative

claim to the direct injury that causes it and as a result, is

generally included and subject to the policy limitations for bodily

injury to one person.  Schweigart v. Standard Mutual Insurance Co., 227 Ill. App. 3d 249, 591 N.E.2d 121 (1992); Berutti v. State Farm Mutual Auto Insurance Co., 288 Ill. App. 3d 997, 1001, 682 N.E.2d 216 (1997); Economy Preferred Insurance Co. v. Ingold, 302 Ill. App. 3d 360, 362-63, 707 N.E.2d 985 (1998).

	Plaintiff lastly contends that she should recover damages from

defendants for "vexatious and unreasonable" delay in settling her

claims pursuant to section 155 of the Illinois Insurance Code (210

ILCS 5/155 (West 1998)).  Plaintiff argues that such penalties may

not be determined as a matter of law because the relevant factors

cannot be determined on the pleadings.  Defendants respond that

since a legitimate coverage dispute is at issue, plaintiff has not

stated a claim for damages under section 155 of the Insurance Code.

	Section 155 of the Insurance Code provides in pertinent part:

		"*** (1) In any action by or against a company

	wherein there is in issue the liability of a company or

a policy or policies of insurance or the amount of the

loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such

action or delay is vexatious and unreasonable, the court

may allow as part of the taxable costs in the action

reasonable attorney fees, other costs, plus an amount not

to exceed any one of the following amounts:

			(a) 25% of the amount which the

		court or jury finds such party is entitled to

recover against the company, exclusive of all

costs;

			(b) $25,000;

			(c) the excess of the amount which

		the court or jury finds such party is entitled

to recover, exclusive of costs, over the

amount, if any, which the company offered to

pay in settlement of the claim prior to the

action."  215 ILCS 5/155 (West 1998).

Section 155 of the Illinois Insurance Code provides a remedy for an

insured who encounters unnecessary difficulties when an insurer

withholds policy benefits.  Bedoya v. Illinois Founders Insurance Co., 293 Ill. App. 3d 668, 679, 688 N.E.2d 757 (1997).  However, a defendant cannot be liable for section 155 relief where no benefits

are owed.  O'Rourke v. Access Health, Inc., 282 Ill. App. 3d 394, 406, 668 N.E.2d 214 (1996).  

	In the present case, plaintiff's amended complaint for

declaratory judgment contained no factual allegations other than that "defendants be ordered and directed to pay reasonable attorney

fees to plaintiff as a result of the conduct of the defendants in

failing to honor the claim of the plaintiff."  Plaintiff's

complaint never alleged that defendants could be liable for section

155 relief even if they were not liable under the policy.  As

defendants owed no further benefits to plaintiff under their

respective policies, defendants could not have committed the

vexatious and unreasonable conduct necessary for section 155

relief.

	Based upon the foregoing reasons, the judgment of the circuit court of Cook County granting defendants' motions to dismiss

plaintiff's amended complaint for declaratory relief is affirmed.

	Affirmed. 

	HARTMAN and THEIS, JJ., concur.