FIFTH DIVISION
March 2, 2007
No. 1-05-1417
JERRY W. JONES, Individually and as Independent, ) Appeal from the
Administrator of the Estate of Jerry Jones, Jr., a Deceased ) Circuit Court of
Minor; LADONNA S. JONES, an Individual; DANTE ) Cook County
JONES, a Minor, by his Guardians Jerry W. Jones and )
LaDonna S. Jones; DONOVAN JONES, a Minor, by his )
Guardians, Jerry W. Jones and LaDonna S. Jones, )
)
Plaintiffs-Appellees, )
)
v. ) No. 98 CH 11186
)
COUNTRY MUTUAL INSURANCE COMPANY, an ) Honorable
Insurance Company Licensed to Write Insurance in Illinois, ) Lee Preston,
) Judge Presiding.
Defendant-Appellant. )
JUSTICE GALLAGHER delivered the opinion of the court:
Defendant, Country Mutual Insurance Company, appeals from an order of the trial court
denying its summary judgment motion and granting summary judgment in the amount of
$100,000 each to plaintiffs, the estate of Jerry Jones, Jr., and Dante Jones. The trial court
concluded that two separate insurance policies issued by Country Mutual to two different parties
could be stacked for the purposes of underinsured motorist coverage. For the reasons that follow,
we reverse and remand for further proceedings consistent with this order.
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BACKGROUND
In August 1996, a vehicle driven by LaDonna Jones was involved in an accident with a
vehicle driven by Maria Salcedo. The vehicle driven by LaDonna Jones contained several
passengers, including her sons, Jerry Jones, Jr., Dante Jones and Donovan Jones. Jerry Jones, Jr.
died as a result of the accident, and Dante Jones suffered severe injuries. Those are the only two
claims relevant to this appeal. Plaintiffs, Jerry W. Jones, as independent administrator of the
estate of Jerry Jones, Jr., and Dante Jones, a minor, by his guardians Jerry W. Jones and LaDonna
Jones, each received the $100,000 maximum per-person limit from Salcedo’s insurance policy.
At the time of the accident, the vehicle driven by LaDonna Jones was leased by Isaiah
Harrison. Harrison carried underinsured motorist coverage for the vehicle issued by Country
Mutual in the amount of $100,000 per person and $300,000 per occurrence (Harrison Policy).
Jerry W. Jones and LaDonna Jones also carried an insurance policy issued by Country Mutual
which provided for underinsured motorist coverage in the amount of $100,000 per person and
$300,000 per occurrence (the Jones Policy). Both the Harrison Policy and Jones Policy contain
the same relevant terms and conditions.
Plaintiffs contend that each policy’s $100,000 underinsured motorist coverage limits may
be stacked resulting in a total of $200,000 in underinsured motorist coverage for each plaintiff.
Defendant asserts that the policies may not be stacked and that each policy’s $100,000 limit is
offset by the $100,000 payment received from the underinsured motorist’s insurer, leaving $0 left
in underinsured motorist coverage on each policy.
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After a long history, the trial court granted plaintiffs’ motion for summary judgment in
the amount of $100,000 to each plaintiff, concluding that the Jones Policy and the Harrison
Policy could be stacked for the purposes of underinsured motorist coverage. Specifically, the
trial court stated that the antistacking language in the respective policies only applied to the
insured and relatives of the insured. Therefore, the court reasoned, since the policies originated
from two separate households, where the insureds were unrelated to one another by blood or
marriage, the policies do not expressly prohibit stacking. Thus, the trial court decided that
plaintiffs were entitled to $200,000 per person in underinsured motorist coverage. Since each
plaintiff had already received $100,000 from Salcedo’s insurer, the trial court entered a judgment
on behalf of each plaintiff for $100,000 ($200,000 in underinsured motorist coverage offset by
the $100,000 payment already received from Salcedo’s insurer). Defendant, Country Mutual
Insurance Company, now appeals from the order of the trial court denying its summary judgment
motion and granting summary judgment in the amount of $100,000 to each plaintiff.
ANALYSIS
The construction of an insurance policy provision is a question of law that can be
properly decided on a motion for summary judgment. We review a grant of summary judgment
de novo. State Farm Mutual Automobile Insurance Co. v. Coe, 367 Ill. App. 3d 604, 607, 855
N.E.2d 173, 176 (2006).
An insurance policy is a contract and, as such, is subject to the same rules of
interpretation that govern the interpretation of contracts. Hobbs v. Hartford Insurance Co. of the
Midwest, 214 Ill. 2d 11, 17, 823 N.E.2d 561, 564 (2005). Consequently, our primary objective is
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to determine and give effect to the intent of the parties, as expressed in the policy language.
Hobbs v. Hartford Insurance Co., 214 Ill. 2d at 17. If the policy language is unambiguous, the
policy will be applied as written unless it conflicts with public policy. Hobbs v. Hartford
Insurance Co., 214 Ill. 2d at 17. Where ambiguous, and therefore subject to more than one
reasonable interpretation, policy terms that limit an insurer’s liability will be construed in favor
of the insured. Hobbs v. Hartford Insurance Co., 214 Ill. 2d at 17.
The trial court’s conclusion that the Harrison and Jones policies may be stacked is based
on the following language in the identical policies:
“General Policy Conditions
8. Other Vehicle Insurance with Us. 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 limit of our liability under all the policies will not
exceed the highest applicable limit of liability under any one policy.” (Emphasis
added.).
The respective policyholders are unrelated according to the definition of “relative” in both
insurance policies. The trial court therefore concluded that not only does this antistacking
provision not apply to the Jones and Harrison policies, but that the policies therefore provide for
stacking. We disagree.
The fact that the respective policies were issued to unrelated individuals renders the
above policy provision inapplicable to the present case. We, therefore, must look to other
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language in the policies for guidance. The relevant language as to the underinsured motorist
coverage in both the Harrison and Jones policies provides as follows:
2. “Limits of Liability. The Uninsured - Underinsured motorists limits of
liability shown on the declarations page apply as follows:
e. 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 the 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.”
The “each person” limit for underinsured motorist coverage under both the Harrison and
Jones policies as shown on the declarations page is $100,000. Each plaintiff received $100,000
from Salcedo’s insurer, an amount equal to the per-person limit for bodily injury coverage on
Salcedo’s insurance policy. Thus, under (1) above, the difference between the “each person”
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limit of this coverage and the amount paid to each plaintiff is $0 ($100,000 minus $100,000).
Accordingly, plaintiffs effectively have no underinsured motorist coverage since the most that
Country Mutual is obligated to pay under either policy is $0.
Despite the above policy language, plaintiffs, nevertheless, assert that the $100,000
underinsured motorist coverage limits should be stacked for total coverage of $200,000 before
being offset by the $100,000 payment received from Salcedo’s insurer. However, assuming,
arguendo, that the $100,000 underinsured motorist coverage limits should be stacked, Country
Mutual would still be allowed to offset each $100,000 policy limit by the $100,000 payment
from Salcedo’s insurer before the amounts are stacked. Kapinus v. State Farm Mutual
Automobile Insurance Co., 317 Ill. App. 3d 185, 188, 738 N.E.2d 1003 (2000). As a result, each
policy, containing $0 in underinsured motorist coverage, would be stacked for a total of $0 in
coverage.
In Kapinus, plaintiff was in an automobile accident and received $50,000 from the
underinsured motorist’s insurance company. Kapinus v. State Farm Mutual Automobile
Insurance Co., 317 Ill. App. 3d at 186. Plaintiff was allowed to stack her two underinsured
motorist coverage policies issued by the same insurer with $100,000 per-person limits. Kapinus
v. State Farm Mutual Automobile Insurance Co., 317 Ill. App. 3d at 186. Plaintiff sought to limit
the aggregate setoff under the underinsured motorist clauses of the two policies to $50,000.
Kapinus v. State Farm Mutual Automobile Insurance Co., 317 Ill. App. 3d at 186. There, the
court interpreted a portion of section 143a-2(4) of the Illinois Insurance Code which states:
“For the purpose of this Code the term 'underinsured motor vehicle' means
a motor vehicle whose ownership, maintenance or use has resulted in bodily
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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 policies *** is less
than the limits for underinsured coverage provided the insured as defined in the
policy at the time of the accident.” (Emphasis added.). 215 ILCS 5/143a-2(4)
(West 1998).
The Kapinus court reasoned that section 143a-2(4) defines the limits of liability on a per-
policy, not a per-insurer, basis. Kapinus v. State Farm Mutual Automobile Insurance Co., 317
Ill. App. 3d at 188. Thus, the court concluded that the insurer may offset each $100,000
underinsured motorist coverage policy limit by the $50,000 received from the underinsured
driver’s insurer. Kapinus v. State Farm Mutual Automobile Insurance Co., 317 Ill. App. 3d at
188. Accordingly, the insured is allowed to stack the amount remaining on each policy after the
amount recovered from the underinsured motorist’s insurer is subtracted from the underinsured
motorist coverage liability limit. Kapinus v. State Farm Mutual Automobile Insurance Co., 317
Ill. App. 3d at 188. Therefore, in Kapinus, the insurer’s total liability for underinsured motorist
coverage was $100,000, not $150,000. Kapinus v. State Farm Mutual Automobile Insurance
Co., 317 Ill. App. 3d at 188.
Likewise, in the present case, even if stacking is allowed, the amount of underinsured
motorist coverage would be determined on a per policy basis before the policies are stacked.
Here, each policy’s $100,000 underinsured motorist coverage limit would be offset by the
$100,000 payment received from Salcedo’s insurer, resulting in $0 in underinsured motorist
coverage. Consequently, stacking the policies would also result in total underinsured motorist
coverage of $0.
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Plaintiff argues erroneously that Kapinus is inapposite to the present case because, there,
the court interpreted an amended version of section 143a-2(4), not the previous version
applicable to the present case.1 However, the amendment to section 143a-2(4) is irrelevant to the
Kapinus holding and has no bearing on the present case, because in both Kapinus and the instant
case, the amount recovered from the underinsured motorist’s insurer by plaintiff(s) was equal to
the amount of the underinsured motorist’s bodily injury liability insurance limit. Kapinus is
therefore applicable to this case despite the fact that it was decided under the amended version of
section 143a-2(4).
Nevertheless, plaintiff asserts that the trial court correctly relied on Cummins v. Country
Mutual Insurance Co., 178 Ill. 2d 474, 687 N.E.2d 1021 (1997), in which the Illinois Supreme
Court interpreted the earlier version of section 143a-2(4). In Cummins, the plaintiff, who had
underinsured motorist coverage in the amount of $50,000, suffered injuries in excess of $50,000.
Cummins v. Country Mutual Insurance Co., 178 Ill. 2d at 476. The underinsured motorist’s
1
Both versions of the statute provide that “[t]he 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 undersinsured motor vehicle.” 215 ILCS 5/143a-2(4)(1998), Ill. Rev. Stat.
1987; ch. 73, par. 755a-2(3). The only difference between the two versions of the statute is that
the 1997 amendment added the following sentence: “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.” 215 ILCS 5/143a-2(4) (West 1998).
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bodily injury liability limit was also $50,000. Cummins v. Country Mutual Insurance Co., 178
Ill. 2d at 477. However, plaintiff only recovered $35,000 from the underinsured motorist’s
insurer. Cummins v. Country Mutual Insurance Co., 178 Ill. 2d at 477. There, the court held that
plaintiff was entitled to recover $15,000 in underinsured motorist benefits to “fill the gap.”
(Emphasis added.) Cummins v. Country Mutual Insurance Co., 178 Ill. 2d at 486.
Here, there is no gap between the underinsured motorist coverage limit and the amount
actually recovered from the underinsured motorist. Though not explicitly stated, the trial court
apparently decided that, under Cummins, each plaintiff was entitled to fill the gap between the
stacked coverage limit of $200,000 and the $100,000 received from the underinsured motorist’s
insurer. However, as discussed earlier, after the $100,000 payment was recovered from the
underinsured motorist’s insurer, the underinsured motorist coverage liability limit under both the
Harrison policy and the Jones policy was actually $0. Furthermore, even if the $100,000 limits
were allowed to be stacked, according to Kapinus, defendant could offset each $100,000 policy
limit by the $100,000 already received by each plaintiff, resulting in $0.
Both plaintiffs and the trial court relied on Pekin Insurance Co. v. Estate of Robin Goben,
303 Ill. App. 3d 639, 707 N.E.2d 1259 (1999), as support for allowing stacking of the policies.
Pekin, however, is inapplicable to the present case. There, as in Cummins, the amount recovered
by plaintiff was less than the underinsured motorist coverage policy limit. Pekin Insurance Co. v.
Estate of Robin Goben, 303 Ill. App. 3d at 641. There was a gap. Furthermore, the facts in
Pekin are even more remote, since the court’s decision to allow stacking turned on the fact that
the underinsured motorist limit was set forth two times, once for each vehicle, on the declarations
page, and was therefore ambiguous. Pekin Ins. Co. v. Estate of Robin Goben, 303 Ill. App. 3d at
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648. No similar facts exist in the present case, nor is there any such ambiguity in the policies at
issue here.
Finally, we find meritless plaintiff’s argument that pursuant to Supreme Court Rule
341(g) (188 Ill. 2d R. 341(g)), we should disregard certain arguments set forth by Country
Mutual in its reply brief. Plaintiff asserts that Country Mutual waived certain arguments by
failing to make them in its opening brief. Plaintiff misunderstands Rule 341(g), and the purpose
of the reply brief. Rule 341(g) states, “The reply brief, if any, shall be confined strictly to
replying to arguments presented in the brief of the appellee and need only contain Argument.”
188 Ill. 2d R. 341(g). Therefore, Country Mutual is allowed to reply to plaintiff appellee’s
arguments regardless of whether those arguments were raised in Country Mutual’s opening brief.
For the reasons stated, we reverse the trial court's judgment and remand for further
proceedings consistent with this order.
Reversed and remanded.
TULLY and O'MARA FROSSARD, JJ., concur.
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