Johnson v. Davis

NO. 5-06-0266
NOTICE

Decision filed 11/19/07. The text of
IN THE
this decision may be changed or

corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e

disposition of the same.
FIFTH DISTRICT
________________________________________________________________________

KENNETH RANDALL JOHNSON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Saline County.
)
and )
)
DALLAS DEAN HALE, )
)
Plaintiff, )
)
v. ) No. 99-L-49
)
MARTHA L. DAVIS, )
)
Defendant, )
)
and )
)
ADDISON INSURANCE COMPANY, ) Honorable
) Bruce D. Stewart,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________

JUSTICE GOLDENHERSH delivered the opinion of the court:

Defendant Addison Insurance Company (Addison) appeals from a declaratory

judgment of the circuit court of Saline County allowing the underinsured-motorists coverage

provided by Addison to plaintiff Kenneth Randall Johnson (Johnson) to be stacked. The

policy in question provided underinsured-motorists coverage on four vehicles with limits of

$50,000 per person and $100,000 per accident. The circuit court found the insurance policy

ambiguous and determined that the underinsured-motorists-coverage limit of liability of

$50,000 per vehicle can be stacked, making a total of $200,000 in underinsured-motorists

coverage available to Johnson. Because the underinsured-motorists coverage provided by

1
Addison to Johnson is all that is involved in the instant matter, plaintiff Dallas Dean Hale

(Hale) and defendant Martha L. Davis (Davis) take no part in this appeal. The issue we are

asked to address is whether the underinsured-motorists coverage on the four vehicles insured

by Addison's policy may be stacked. We affirm.

BACKGROUND

On November 12, 1998, Johnson and Hale were riding in Johnson's 1995 Dodge van,

when they were involved in an automobile accident with a vehicle driven by Davis. Johnson

and Hale filed suit against Davis for injuries they sustained in the accident. Davis was

insured, and her carrier settled the claim with Johnson for the policy limits of $50,000. At

the time of the accident, Johnson was insured under a policy issued by Addison. The policy

covered the 1995 Dodge van that Johnson was driving at the time of the accident and four

additional vehicles–a 1996 Plymouth Neon, a 1991 GMC Sonoma, a 1977 Ford F-250, and

a 1981 travel trailer. The policy charged five separate premiums. The first four vehicles

under the policy carried underinsured-motorists coverage of $50,000 per person and

$100,000 per accident. The travel trailer did not carry underinsured-motorists coverage.

The limits of liability are listed separately for each vehicle on the declarations page

of the insurance policy, which encompasses the first three pages of the policy:

"V eh icle # 1

R A TIN G TO TA L P R EM I U M $ 201

YEAR M AK E M O DEL VE H ICL E ID N O . S YM B O L CLASS R A TED D R IV ER U S A GE TE R R

1996 PLYM OU NE ON HIGHLI 1P3ES 42C7TD 517047 13 885120 OPR. AGE 50-64 Ple asure 34

LINDA JOHNSON

COVER AGES: LIABILITY (000S) M ED PAY (000S) UM (000S) UIM (000S) PDUM (000S) O TC ( 1 ) C O LLI SION ( 1 ) TO W IN G PH E

LIMIT 50/100BI 50PD 5 50/100 50/100 50

DE DU CTIBLE 50 500

P R E M IU M 42 25 6 16 I N CL 60 52 5

A DD ITION AL F OR MS FO R THIS VEHICLE: P R E M IU M D I SC O U N TS F OR THIS V EH IC LE :

PP0303 0486 TOWIN G AND LABOR C OSTS COV ERAGE PA SS RE ST RA IN 2 S ID E $ -2

PP0401 0 48 6 S P LI T U N I N SU R E D M O T O R IS T S LI M I T S AN TI LO CK BR AK ES $ -3

PP0402 0486 S P LI T U N D E R I N SU R E D M O T O R IS T S LI M I T S

2
PP0447 0897 I LL IN O I S- U N D E R IN S U R E D M O T O R IS T S

IL7032 0796 LOSS PAYABLE/LESSOR CLAUSE

C H R YSLER FINAN. CORP

PO BO X 207002

STO CKT ON, CA 95267

V eh icle # 2

R A TIN G TO TA L P R EM I U M $ 161

YEAR M AK E M O DEL VE H ICL E ID N O . S YM B O L CLASS R A TED D R IV ER U S A GE TE R R

1995 D O D G E RAM VAN B25 2B7HB 21Y7SK 558104 06 885120 OPR. AGE 50-64 Pleasure 34

COVER AGES: LIABILITY (000S) M ED PAY (000S) UM (000S) UIM (000S) PDUM (000S) O TC ( 1 ) C O LLI SION ( 1 ) TO W IN G PH E

LIMIT 50/100BI 50PD 5 50/100 50/100 50

DE DU CTIBLE 50 500

P R E M IU M 42 25 6 16 I N CL 34 37 5

A DD ITION AL F OR MS FO R THIS VEHICLE: P R E M IU M D I SC O U N TS F OR THIS V EH IC LE :

PP0303 0486 TOWIN G AND LABOR C OSTS COV ERAGE PA SS RE ST RA IN 1 S ID E $ -1

PP0401 0 48 6 S P LI T U N I N SU R E D M O T O R IS T S LI M I T S AN TI LO CK BR AK ES $ -3

PP0402 0486 S P LI T U N D E R I N SU R E D M O T O R IS T S LI M I T S

PP0447 0897 I LL IN O I S- U N D E R IN S U R E D M O T O R IS T S

IL7032 0796 LOSS PAYABLE/LESSOR CLAUSE

C H R YSLER CREDI T CORP

PO BO X 207002

STO CKT ON, CA 95267

V eh icle # 3

R A TIN G TO TA L P R EM I U M $ 157

YEAR M AK E M O DEL VE H ICL E ID N O . S YM B O L CLASS R A TED D R IV ER U S A GE TE R R

1991 G MC S ON OM A 1GTC S19Z9M 2500778 07 885120 OPR. AGE 50-64 Pleasure 34

KENN ETH JOHNSON

COVER AGES: LIABILITY (000S) M ED PAY (000S) UM (000S) UIM (000S) PDUM (000S) O TC ( 1 ) C O LLI SION ( 1 ) TO W IN G PH E

LIMIT 50/100BI 50PD 5 50/100 50/100 50

DE DU CTIBLE 50 500

P R E M IU M 42 25 6 16 I N CL 31 32 5

A DD ITION AL F OR MS FO R THIS VEHICLE: P R E M IU M

PP0303 0486 TOWIN G AND LABOR C OSTS COV ERAGE

PP0401 0 48 6 S P LI T U N I N SU R E D M O T O R IS T S LI M I T S

PP0402 0486 S P LI T U N D E R I N SU R E D M O T O R IS T S LI M I T S

PP0447 0897 I LL IN O I S- U N D E R IN S U R E D M O T O R IS T S

3
V eh icle # 4

R A TIN G TO TA L P R EM I U M $ 87

YEAR M AK E M O DEL VE H ICL E ID N O . S YM B O L CLASS R A TED D R IV ER U S A GE TE R R

1977 FORD F250 F25SCZ 81449 07 885920 OPR. AGE 50-64 Farm 34

COVER AGES: LIABILITY (000S) M ED PAY (000S) UM (000S) UIM (000S) PDUM (000S) O TC ( 1 ) C O LLI SION ( 1 ) TO W IN G PH E

LIMIT 50/100BI 50PD 5 50/100 50/100 15

DE DU CTIBLE 250

P R E M IU M 35 21 5 16 I N CL 10

A DD ITION AL F OR MS FO R THIS VEHICLE: P R E M IU M

PP0401 0 48 6 S P LI T U N I N SU R E D M O T O R IS T S LI M I T S

PP0402 0486 S P LI T U N D E R I N SU R E D M O T O R IS T S LI M I T S

PP0447 0897 I LL IN O I S- U N D E R IN S U R E D M O T O R IS T S

PP0486 0694 I LL IN O IS -P R OP E R TY D A M A GE U M

V eh icle # 5

R A TIN G TO TA L P R EM I U M $ 0

YEAR M AK E M O DEL VE H ICL E ID N O . S YM B O L CLASS R A TED D R IV ER U S A GE TE R R

1981 B U C AN E 3 2' T R A V E L 1M 7BRO 2R1B132064 11 944200 C A M P E R T R AI LE R Ple asure 34

COVER AGES: LIABILITY (000S) M ED PAY (000S) UM (000S) UIM (000S) PDUM (000S) O TC ( 1 ) C O LLI SION ( 1 ) TO W IN G PH E

LIMIT

DE DU CTIBLE 50 500

P RE M IU M "

After the declarations page, the policy contains a "Definitions" section. The policy

is then divided into various sections, including liability coverage, medical-payments

coverage, uninsured-motorists coverage, coverage for damage to autos, duties after an

accident or loss, and general provisions. The general-provisions portion of the policy

contains the following paragraph concerning coverage by two or more policies:

"TWO OR MORE AUTO POLICIES

If this policy and any other auto insurance policy issued to you by us apply to

the same accident, the maximum limit of our liability under all the policies shall not

exceed the highest applicable limit of liability under any one policy."

The policy also contains an underinsured-motorists endorsement, which states, "[T]he

provisions of the policy apply unless modified by the endorsement."

The underinsured-motorists endorsement directs the reader to "SEE DECLARATION

4
FOR LIMIT OF LIABILITY AND PREMIUM." The endorsement further provides in

pertinent part:

"INSURING AGREEMENT

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

recover from the owner or operator of an 'underinsured motor vehicle' because of

'bodily injury:'

1. Sustained by an 'insured;' and

2. Caused by an accident.

The owner's or operator's liability for these damages must arise out of the

ownership, maintenance[,] or use of the 'underinsured motor vehicle.'

We will pay under this coverage only after the limits of liability under any

applicable bodily injury liability bonds or policies have been exhausted by payment

of judgments or settlements ***."

The limit-of-liability clause contained in the underinsured-motorists endorsement states as

follows:

"A. The limit of liability shown in the Schedule or in the Declarations for this

coverage is our maximum limit of liability for all damages 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."

A dispute arose between the parties regarding the amount of underinsured-motorists coverage

available to Johnson under the policy.

Johnson filed an amended motion for a declaratory summary judgment in which he

5
sought a declaration that the insurance policy issued to him by Addison provides

underinsured-motorists coverage in the sum of $200,000. Addison filed a response in which

it argued that there was no underinsured-motorists coverage available to Johnson due to the

antistacking language in the policy and Davis's carrier's previous payment of $50,000. On

May 5, 2006, the circuit court entered an order in which it found that the insurance policy

issued by Addison to Johnson was ambiguous and determined that the underinsured-

motorists-coverage limit of liability of $50,000 per vehicle could be stacked, thereby

providing Johnson with $200,000 of underinsured-motorists coverage. Addison filed a

timely notice of appeal.

ANALYSIS

The issue in the instant case is whether the underinsured-motorists coverage on the

four vehicles insured by Addison's insurance policy may be stacked. Addison contends that

the limit of liability for underinsured-motorists coverage under the policy in issue is $50,000

per person and $100,000 per accident and that the coverages may not be stacked because the

limit-of-liability clause contained in the policy is an unambiguous antistacking provision that

must be enforced. Addison further contends that since the $50,000 policy limits have been

paid by the tortfeasor's carrier, the $50,000 of underinsured-motorists coverage afforded by

the policy in issue is not available as a matter of law. Addison insists that the circuit court's

order should be reversed and a judgment should be entered in favor of Addison. We

disagree.

This appeal was taken from the circuit court's grant of a summary judgment in favor

of Johnson and against Addison. In an appeal from the grant of a summary judgment, we

conduct a de novo review. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156

Ill. 2d 384, 390, 620 N.E.2d 1073, 1077 (1993). The construction of an insurance policy is

a question of law (American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479-80, 687

6
N.E.2d 72, 75 (1997)) and is an appropriate subject for disposition by way of a summary

judgment. Crum & Forster Managers Corp., 156 Ill. 2d at 390-91, 620 N.E.2d at 1077.

When a court construes an insurance policy, the agreement is to be enforced as written

so long as it is unambiguous and only to the extent that it does not contravene public policy.

Menke v. Country Mutual Insurance Co., 78 Ill. 2d 420, 401 N.E.2d 539 (1980). In general,

antistacking clauses do not contravene public policy. Grzeszczak v. Illinois Farmers

Insurance Co., 168 Ill. 2d 216, 229, 659 N.E.2d 952, 959 (1995). The Illinois Insurance

Code expressly authorizes the use of antistacking provisions in motor vehicle insurance

policies. 215 ILCS 5/143a-2(5) (West 2002). However, if any provision of the policy is

ambiguous, that ambiguity must be construed in favor of the insured. Squire v. Economy

Fire & Casualty Co., 69 Ill. 2d 167, 180, 370 N.E.2d 1044, 1049 (1977).

In determining whether an ambiguity exists, all the provisions in an insurance contract

should be read together and not in isolation. Glidden v. Farmers Automobile Insurance

Ass'n, 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250 (1974); Chester v. State Farm Mutual

Automobile Insurance Co., 227 Ill. App. 3d 320, 325, 591 N.E.2d 488, 492 (1992). Policy

provisions are deemed ambiguous if they are subject to more than one reasonable

interpretation. State Farm Mutual Automobile Insurance Co. v. Reinhardt, 253 Ill. App. 3d

823, 824, 625 N.E.2d 842, 843 (1993). Reasonableness is the key, and the touchstone is

whether the provision is subject to more than one reasonable interpretation, not whether

creative possibilities can be suggested. Bruder v. Country Mutual Insurance Co., 156 Ill. 2d

179, 193, 620 N.E.2d 355, 362 (1993).

In Bruder, the Illinois Supreme Court considered whether a plaintiff should be

allowed to stack underinsured-motorists coverage on two vehicles set forth on a single

business automobile policy. Bruder held that when the antistacking clause was read in

conjunction with the declarations page, no ambiguity arose because the limit of the

7
underinsured-motorists coverage was set forth only one time on the declarations page,

instead of two times. The Bruder court discussed what would happen if the underinsured-

motorists coverage was set forth two times on the declarations page, once 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." (Emphasis added.) Bruder, 156 Ill. 2d at 192, 620

N.E.2d at 362.

Other courts have followed this rationale.

For example, Pekin Insurance Co. v. Estate of Goben, 303 Ill. App. 3d 639, 707

N.E.2d 1259 (1999), adopted the reasoning in Bruder and held that the antistacking clause

in issue was ambiguous because the declarations page to which the clause referred listed two

vehicles with separate coverages and separate premiums. The two underinsured-motorists

coverages in the amount of $500,000 were allowed to be stacked, making $1 million in

underinsured-motorists coverage available. Likewise, Allen v. Transamerica Insurance Co.,

128 F.3d 462 (7th Cir. 1997), relied upon by the Estate of Goben court, held that the

antistacking clause there in issue was ambiguous because the declarations page to which the

clause referred listed two vehicles with separate coverages and separate premiums listed for

each vehicle. Yates v. Farmers Automobile Insurance Ass'n, 311 Ill. App. 3d 797, 724

N.E.2d 1042 (2000), decided by this court, also permitted stacking.

In Yates, the policy covered two vehicles and contained antistacking language similar

to the instant case in that the underinsured-motorists coverage was said to be limited to the

8
liability shown in the declarations page. The declarations page identified two vehicles that

were covered. In the row corresponding to underinsured-motorists coverage, the policy

limits were listed under "auto one" and "auto two," and a premium was listed for each

vehicle. The declarations page also contained a statement that provided, " 'COVERAGE IS

PROVIDED WHERE A PREMIUM AND A LIMIT OF LIABILITY OR THE WORD

"INCLUDED" ARE SHOWN FOR COVERAGE.' " Yates, 311 Ill. App. 3d at 800, 724

N.E.2d at 1045. Yates held that the declarations page was inconsistent with and

contradictory to the antistacking provision. Therefore, the policy was construed in favor of

the insured and the underinsured-motorists coverage was stacked. Yates, 311 Ill. App. 3d at

800, 724 N.E.2d at 1045.

Here, Addison promises that it "will pay compensatory damages which an 'insured'

is legally entitled to recover from the owner or operator of an 'underinsured motor vehicle'

because of 'bodily injury.' " Under this language, Addison agrees to pay all the damages that

Johnson is entitled to recover. However, this language cannot be read in isolation. The

underinsured-motorists endorsement also contains a limit-of-liability section, which directs

the reader to either the schedule or the declarations page. The schedule is blank, but the

declarations page actually comprises three pages. These pages list five vehicles, only four

of which have underinsured-motorists coverage. Underinsured-motorists coverage in the

sum of $50,000 appears four separate times, once for each of the four vehicles carrying

underinsured-motorists coverage.

The declarations pages here and in Yates are arranged similarly in that each lists the

limit of liability more than once. The distinction between listing the limits of liability once

and listing them more than once was crucial to our supreme court's determination in Hobbs

v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 823 N.E.2d 561 (2005). In Hobbs,

the Hartford policy in question listed the limits of underinsured-motorists coverage only once

9
on the declarations page. Hobbs noted the apparent similarities between the Hartford

insurance policy and the policy in Bruder. Hobbs, 214 Ill. 2d at 21, 823 N.E.2d at 566. The

antistacking provision in the Hartford policy tied the limit of underinsured-motorists

coverage to the limit shown on the declarations page. The declarations page listed the

premiums for the two vehicles separately but listed the relevant limit of liability only once.

The supreme court read the antistacking provision in conjunction with the declarations page

and determined that the policy was unambiguous and that the coverages did not stack.

Hobbs, 214 Ill. 2d at 21, 823 N.E.2d at 566. Hobbs did not overrule Bruder but, rather, used

the Bruder analysis in determining that coverage did not stack.

We are mindful that there is no per se rule that listing the numerical limits more than

once on the declarations page creates an ambiguity which results in allowing the policies to

be stacked. See Hobbs, 214 Ill. 2d at 26 n.1, 823 N.E.2d at 569 n.1. Hobbs stated: "The

declarations page of an insurance policy is but one piece of the insuring agreement.

[Citation.] Although it contains important information specific to the policyholder, the

declarations page cannot address every conceivable coverage issue." Hobbs, 214 Ill. 2d at

23, 823 N.E.2d at 567. Nevertheless, after applying the case-by-case review advocated by

our supreme court (Hobbs, 214 Ill. 2d at 26 n.1, 823 N.E.2d at 569 n.1), the policy language

in the instant case proves to be ambiguous.

As previously stated, the Addison policy here in question and the policy in Yates are

similar. In contrast to Bruder and Hobbs, the policy in Yates lists the underinsured-motorists

coverage limits twice, once for each of the two covered vehicles. See Hobbs, 214 Ill. 2d at

25, 823 N.E.2d at 568-69. Here, the limits of underinsured-motorists coverage are listed four

separate times, once for each vehicle covered. Four separate premiums for underinsured-

motorists coverage also appear on the declarations page. Such a factual distinction is

material to a determination regarding whether there is an ambiguity in an insurance policy.

10
Hobbs, 214 Ill. 2d at 25, 823 N.E.2d at 568. This is not a case in which one has to be

creative to find an ambiguity. After reading the policy, a reasonable person could believe

that the policy provides $50,000 of underinsured-motorists coverage for each of the four

vehicles carrying underinsured-motorists coverage, for a total of $200,000 in underinsured-

motorists coverage.

The underinsured-motorists endorsement states, "[T]he provisions of the policy apply

unless modified by the endorsement." The antistacking clause found under the "General

Provisions" section of the policy, therefore, does not even come into play, because the

underinsured-motorists endorsement directs the reader to "SEE DECLARATION FOR

LIMIT OF LIABILITY AND PREMIUM." Even assuming the antistacking clause is

applicable, the Addison policy contains inconsistent provisions, which we are to construe in

favor of the insured.

The Addison policy contains a general antistacking provision. However, the limit-of-

liability clause contained in the underinsured-motorists endorsement states that the limit of

liability shown in the declarations page is the maximum limit of liability. The declarations

page shows limits of $50,000 per person, and those limits are listed four separate times and

show that four separate premiums were charged. Relying on Bruder, Allen, Estate of Goben,

and Yates, we find that the antistacking clauses contained in the Addison policy create an

ambiguity. Accordingly, we find that the circuit court's decision granting Johnson $200,000

in underinsured-motorists coverage, a figure arrived at by aggregating the $50,000 limit for

underinsured-motorists coverage on each of the four vehicles carrying that coverage in

Johnson's insurance policy, was correct.

CONCLUSION

For the foregoing reasons, we affirm the circuit court's grant of a summary judgment

in favor of Johnson.

11
Affirmed.

WELCH, P.J., and CHAPMAN, J., concur.

12
 NO. 5-06-0266

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
___________________________________________________________________________________

KENNETH RANDALL JOHNSON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Saline County.
)
and )
)
DALLAS DEAN HALE, )
)
Plaintiff, )
)
v. ) No. 99-L-49
)
MARTHA L. DAVIS, )
)
Defendant, )
)
and )
)
ADDISON INSURANCE COMPANY, ) Honorable
) Bruce D. Stewart,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed: November 19, 2007
___________________________________________________________________________________

Justices: Honorable Richard P. Goldenhersh, J.

Honorable Thomas M. Welch, P.J., and
Honorable Melissa A. Chapman, J.,
Concur
___________________________________________________________________________________

Attorney Shane M. Carnine, Campbell, Black, Carnine, Hedin, Ballard & McDonald, P.C.,
for P.O. Drawer C, Mt. Vernon, IL 62864
Appellant
___________________________________________________________________________________

Attorney Robert H. Howerton, Howerton, Dorris & Stone, 300 West Main, Marion, IL
for 62959
Appellee
___________________________________________________________________________________