2014 I LApp (3d) 120937 Opinion filed J anuar

y 22, 2014
I N THE APPEL L ATE COURT OF I L L I NOI S THI RD DI STRI CT A.D., 2014 DAVI D HUIZ ENGA a

nd BREND A HUIZ ENGA, Plaintiffs-Appellants,
v. AUTO- OWNERS I

NSURANCE, a Corporation, Def endant- Appellee
. ) ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of the 14th Judi cial Circuit, Whit eside County , I llinois , Appea l No 3-12-0937 Circuit No. 11-L -26
Honora ble J ohn L . Hauptman, J udg e, Presiding
. J USTI CE HOL DRI DGE de livered the judgme nt of the cour t, with opinion. J ustices McDa de and Ca

rter c oncurr ing in the judg ment and opinion.

OP INION ¶ 1 The plaintiffs, Da vid and B renda

Huizenga , appea l from the trial c ourt' s ruling in favor of

the def endant, Auto- Owner s Insuranc e (Auto-Owne rs), a nd ag ainst the plaintiffs (the insure ds) on their re spective motions for summary judgme nt. On appea l, the insureds conte nd that the trial cour t erre d in finding that an endor sement in their umbre lla policy with Auto-Owne rs did not provide excess uninsured motorist cove rag e for their per sonal injuries. We affir m the order

of the trial c ourt. ¶ 2 FACTS¶ 3 On April 6, 2010, the insure ds incurre d injuries in a motor vehicle acc ident with an

uninsured drive r. Their

injuries exceede d $500,000 in damag es. ¶ 4 At the time of the a ccide nt, the insureds owne d an under lying a utomobile insurance policy with cover ag e for : (1) bodily injury ($500,000 per

person a nd per oc curr ence ); (2) proper ty damag e ($100,000 pe r occ urre nce) ; (3) uninsured a nd underinsure d motorist ($500,000 per pe rson and pe r occ urre nce) ; and (4) me dical pay ments ($5,000 per

person)
. ¶ 5 In addition, at the time of the a ccide nt the insureds owne d an " Ex ecutive Umbrella Insuranc e Policy " that provided $1,000,000 in excess cove rag e for the insureds for

"Per sonal L iability ." Per sonal liability under the policy

was de scribed a s "the ultimate net loss in ex cess of the re tained limit which the insured bec omes leg ally obligated to pay

as dama g es bec ause of persona l injury

or prope rty

damag e." ¶ 6 The umbre lla policy also included a

n endorse ment with the followinglanguag e: "E XCLUSI ON OF PERS ONAL I NJ URY TO I

NSUREDS FOL L OWI

NG F ORM We do not cover pe rsonal injury to y ou or a r elative. We will cover such injury

to the extent that insurance is provide d by an under lying policy

listed in S chedule A." Schedule A listed " Under lying I nsuranc e Require ments" a nd the " Minimum Primary L imits " require d as follows:

"A ) COMPREHENSI VE PERSONALL I AB I L I TY Single L imit $300,000 ea oc c B) AUTOMOB I L E L I AB I L I TY Bodily Injury L iability $500,000 ea pe rson $500,000 ea oc c and Proper

ty Damag e $100,000 ea oc c"

2¶ 7 The insure ds broug ht a dec laratory judgme nt action ag ainst Auto-Owne rs for e x cess
cover ag e under

the umbrella policy

for their persona l injuries (first-pa rty claims) that we re incurre d in the April 6, 2010, motor vehicle a ccide nt with the uninsured driver . Auto-Owne rs filed a c ounterc laim for a de clar atory judgme nt that the umbrella policy did not provide excess uninsured motorist cover ag e for the insureds' persona l injuries. Each pa rty filed a motion for summary judgme nt. ¶ 8 In ruling on the par ties' motions for summary judgme nt, the trial court de fined the issue as whe ther the la

ng uag e within the endor sement entitled " Ex clusion of Personal Injury to Insureds F ollowing F orm" aff orded the insureds excess uninsured motorist cove rag e. The trial court noted, " no I llinois court of r eview ha s rende red a n opinion interpretingthis langua g e and its eff ect." Citi ng W

adzinski v. Auto-Owners Insuranc e Co. , 342 Wis . 2d 311 (2012), the tr ial court indicated that the Supre me Court of Wisconsin int erpr eted identica l lang uag e in an umbre lla policy ' s endorse ment as not aff ordingfirst-par

ty uninsured motorist cover ag e. The trial court found the a

naly sis of the Supreme Court of Wisconsin in W adzinskito be consistent with I llinois law. The trial court grante d Auto-Owne rs' motion for summary judgme nt and denied the insureds' motion for partial summary judgme nt. The insureds a ppeale d. ¶ 9 ANALYSI S ¶ 10 On appe al, the insureds a rgue that summary

judgme nt should have bee n g rante d in their favor . Specifica lly , they

arg ue that the e ndorsement e ntitled "Exclusion of Personal Injury to Insureds" was ambiguous a nd should have be en re ad in their fa vor. ¶ 11 Summary

judgme nt should be g rante d only wher e the plea dings, de positions, admis sions and af fidavits on file, whe n viewed in the lig ht most favorable to the nonmoving pa rty , show that
3there is no ge nuine issue of mate rial fa ct and that the moving party is clear ly entitled to judgment
as a matter of law . 735 I L CS 5/ 2-1005(c ) (West 2010). Summary judgme nt rulings a

re subjec t to a de novo revie w. Outboard Marine Corp. v. Liberty Mutual InsuranceCo. , 154 I ll. 2d 90 (1992). ¶ 12 When a cour

t interprets a

n insurance policy , there are only two source s upon which it may base its ana ly sis: (1) the plain languag e of the policy ; and (2) the plain languag e of the I llinois Insuranc e Code (I nsuranc e Code) a s it ex isted at the time the policy was wr itten. Harrington v. American F amily Mutual InsuranceCo. , 332 I ll. App. 3d 385 (2002). Only wher e an ambiguity

exis ts should the court look to other mater ials. Id. An ambiguity exis ts in an insurance contra ct if it is subject to more than one r easona ble interpre tation. Abram v. United Servic es Automobile Ass'n , 395 I ll. App. 3d 700 (2009). We will not strain to find an ambiguity wher e none e x ists. Id. Unambiguous languag e will be applied a s written unless it violates public policy
. Id. Policy

terms that limit an insurer' s liabilit y will be liberally

construed in f

avor of
cover ag e but only

wher e the policy

languag e is ambiguous. Id. ¶ 13 An insuranc e policy is a contra ct, to which the g ener al rules of contra ct construc tion apply
. Hobbs v. Hartford InsuranceCo. of the Midwest , 214 I ll. 2d 11 (2005). The primary objective is to asce rtain and g ive ef fec t to the intention of the parties, a s expressed in the languag e of the policy
. Id. The c ourt rea ds the insuranc e contr act a s a whole, g iving e ffe ct to
ever y provision and takinginto account the ty pe of insura

nce, the nature of the risks under taken, and the ove rall purpose of the policy
. Continental C asualty Co. v. Donald T. Bertucci, Ltd. , 399 I ll. App. 3d 775 (2010). Te rms are g iven their plain, ordina ry , and g ener ally

acc epted mea

ning, unless otherwise de fined in the c ontrac t. Id.
4¶ 14 I . Plain L anguag e of the Policy

¶ 15 In this case, the e x press ter ms of the umbrella policy indicated that c overa g e wa s for "Per sonal L iability ." " L iability " me ans liability for injuries or

other losses to per sons other than the insured. Abram , 395 I ll. App. 3d 700. There fore , the umbrella policy provided e x cess
cover ag e for

the insureds' liability

to third parties. The insure ds do not contend the g rant of
cover ag e for

third-par ty liability also cre ated c overa g e for their first-pa

rty persona l injuries. Instead, the insure ds arg

ue that the f

ollowing f

orm endorse ment entitled "E XCLUSI ON OF PERS ONAL

I NJ URY TO I

NSUREDS" wa s ambig uous and should have be en re ad in their fa vor as providingexcess uninsured motorist cover ag e. ¶ 16 In examining the ter ms of the endor sement, there is no question that the first sentence of the endor sement spec ifically excludes cover ag e for

the insureds' persona l injuries, as the sentenc e provides, " We do not cover pe rsonal injury to y ou or a r elative." I t is in t he sec ond sentenc e that the insureds a

rgue an a mbiguity exis ts. The sec ond sentenc e indicate s, "w e will cover such injury to the extent that ins uranc e is provided by an under lying policy

listed in S chedule A." Schedule A r efe rre d to the "bodily injury liability " a

nd "pr operty

damag e" portions of the insureds' underlying a

utomobile liabili ty

policy . Schedule A makes no re fer ence to uninsured motorist covera g e. The ref ore, the plain languag e of the endorse ment unambig uously excluded
excess cover ag e for

the insureds' first-par

ty persona l injuries. ¶ 17 Additionally , we note that Schedule A listed the " Under lying I nsuranc e Require ments" and esta blished "Minimum Primary L imits " f or the insure ds to carr

y befor e excess cove rag e would be provide d by

the $1,000,000 umbrella policy . Schedule A indicates that the insureds
wer e re quired to ca

rry $500,000 of under lying bodily injury liability cover ag e in their a

utomobile
5liability

policy but makes no re fer ence to and re quires no minimum li mit for the under lying uninsured motorist cover ag e. B y operation of law, the insure ds would have be en re quired to have uninsure d motorist covera g e of at least $20,000 per pe rson and $40,000 pe r occ urre nce. See 215 I L CS 5/ 143a-2( 1) (West 2010) (a llowing a n insured to re

ject limits of uninsured motorist covera g e that excee d the re quired statutory minimum of $20,000 per person a nd $40,000 per oc curr ence ). It is unli kely the par ties intended to limitexcess cover ag e for the insureds' bodily

injury liability to claims over $500,000 while pote ntially providing excess uninsured motorist cover ag e for any claims over $20,000 pe r per son or $40,000 per occur renc e if the insureds e lected to have the a mount of minim um uninsured motorist covera g e. We find the fac t that the no "Underlying I nsuranc e Require ments" w ere established in Schedule Afor uninsured motorist cover ag e indicate s that excess uninsured motorist covera g e wa s not contemplated by

the umbrella policy
. ¶ 18 The insure ds argue that bec ause the provision at issue was a n endorse ment, its langua g e may modify the g rant of c overa g e to include e x cess uninsure d motorist claims. However , it is clea r the e ndorsement wa s not intended to modify the g rant of c overa g e but intended to modify the exclusion section of the policy to add the exclusion for the insure ds' first-par ty persona l injuries. As an e x clusion, the languag e in the endor sement could not cr eate insurance cover ag e. See Landmark Americ an InsuranceCo. v. NIP Group, Inc

. , 2011 I LApp (1st) 101155 (ne ither a policy exclusion nor an exception to a policy exclusion can cre ate insura nce c overa g e whe re
cover ag e did not otherwise e x ist). There fore , we f ind that the umbrella policy unambiguously excludes excess cover ag e for the insureds' first-par

ty injuries. ¶ 19 I I . I llinois Insuranc e Code
6¶ 20 Interpre ting the te rms of the umbre lla policy as excluding f

irst-party cover ag e is consistent with I llinois law. With som e exceptions, all motor vehicles ope rate d or re g istered in this state must be covere d by a liability

insurance policy

with bodily

injury limit s of at lea st the minimum amount specifie d by the Fina ncial Responsibility

L aw ( curr ently

$20,000 per pe rson and $40,000 per

occur renc e). 625 I L CS 5/ 7-601(a ) (West 2010); 625 I L CS 5/ 7-203 (West 2010). Section 143a of the Insuranc e Code re quires eve ry motor vehicle liability

policy to include uninsured motorist cover ag e with at lea st the same minimum specified by the Fina ncial Responsibili ty

L aw ( curr ently

$20,000 per pe rson and $40,000 pe r occ urre nce) . 215 I L CS 5/143a (West 2010); 625 I L CS 5/ 7-203 (West 2010). The purpose of requiringuninsured motorist covera g e in an a mount not less than the limi ts of the Fina ncial Responsibility

L aw is to place the policy

holder in the substantially the same position he would occ upy , so far as his being injured or killed, as if the wrong ful driver had the r equire d minimum amount of liability insurance
. Phoenix I

nsurance Co. v. Rose n , 242 I ll. 2d 48 (2011). ¶ 21 Uninsured motorist insurance provides cove rag e whe re, r eg ardle ss of the insured' s liability , the insured is protec ted from f inancial losses for

his or her own injuries cause d by an uninsured motorist. Harrington , 332 I ll. App. 3d 385. There fore , uninsured motorist cover ag e inures to the fina

ncial bene fit of the insured. Id. On the other hand, liability

insurance protec ts the policy holder fr om financia l losses due to claims broug ht by third parties that a

re le g ally
rec overa ble ag ainst the insured. Cincinnati Insurance Co. v. Miller , 190 I ll. App. 3d 240 (1989). An umbrella policy

provides cove rag e in excess of the a mount provided by

the under lying liability policy in order to pr otect the insure d from an e x cess judg ment from a third pa rty . Id. (citing Hartbarger v. Country Mutual InsuranceCo. , 107 I ll. App. 3d 391 (1982)).
7Consequently , the monetar y benef it of an umbrella policy

falls upon the injured individual, not the insured. Harrington , 332 I ll. App. 3d 385 (citing Hartbarger, 107 I ll. App. 3d 391). ¶ 22 Insurer s are permitted to issue umbrella policies tha t exclude uninsured motorist
cover ag e. 215 I L CS 5/ 143a-2( 5) (West 2010). L imiti ngan umbre lla policy ' s cover ag e to excess third-par ty liability and excluding e x cess uninsure d motorist covera g e is consistent with I llinois law and public policy
. Abram , 395 I ll. App. 3d 700. There fore , interpre ting the umbr ella policy to exclude excess uninsured motorist claim is consistent with I llinois law. ¶ 23 I I I . Case L aw ¶ 24 In support of their a rgument that the endor sement at issue provide s excess uninsured motorist covera g e, the insure ds cite to the Virg inia circ uit court ca se of Auto-Owners Insurance Co. v. Morris , 81 Va. Cir. 337 (2010) . In Morris , the circ uit court deter mined that an endorse ment in an umbrella policy identical to the one at issue in this case provided c overa g e for first-par ty claims. The c ourt rea soned that the languag e wa s included in a " following form" endorse ment which may

provide e x cess c overa g e identica l to the cover ag e in under lying policy
. As a re sult, the Morris court found that beca use the unde rlying policy provided uninsure d motorist covera g e, the umbre lla policy did as well. ¶ 25 In W

adzinski , the Supreme Court of Wisconsin ruled the opposite wa y . There , the cour

t deter mined that uninsured motorist benef its were e x cluded f

rom an umbre lla policy

with an endorse ment identical to the one at issue in this case . W adzinski , 342 Wis . 2d 311. The W adzinskicourt c oncluded that the e ndorsement e x cluded f irst-party cover ag e. The W

adzinski court a lso determined that the se cond sente nce of the endor sement wa s intended to clar ify that the exclusion for the insureds' persona l injuries in the umbrella policy was not intended to
8interfe re w ith first-party cover ag e in under lying policie s. ¶ 26 Her e, the Auto- Owner s' umbrella policy in this case provide d excess third-par ty liability
cover ag e and una

mbiguously

excluded excess cover ag e for the insureds' persona l injuries. The policy ' s g rant of c overa g e wa s for e x cess third-pa rty liability claims. The f

ollowing f

orm endorse ment at issue unambiguously excluded excess cover ag e for the insureds' persona l injuries. The sec ond sentenc e of the endorse ment did not create excess cove rag e for the insureds' uninsured motorist claims and wa s not ambiguous a s to whether it did so. The se cond sente nce indicated that Auto- Owner s would provide cove rag e for the insureds' persona l injuries "to the extent that ins uranc e is provided by an underlying policy

listed in S chedule A." Schedule A did not refe r to the uninsured motorist cove rag e in the under lying policy and, instead, r efe rre d only to "bodily injury liability " a

nd "pr operty

damag e." Thus, even if

the endor sement wa s intended to
cre ate e x cess c overa g e to " follow form" of the insura nce c overa g e listed in Schedule A, a s sug g ested in Morris , excess uninsured motorist cover ag e would not have been inc luded. ¶ 27 Acc ording ly , we a ffirm the tria l court' s summary judgme nt rulings. ¶ 28 CONCLUSI ON ¶ 29 The judg ment of the c ircuit court of Whit eside County

g rantingthe Auto-Owners' motion for summary

judgme nt and deny

ing the insureds' partial motion for summary judgme nt is aff irmed. ¶ 30 Affir

med.

9