Illinois Emcasco Insurance Company v. Tufano

2016 IL App (1st) 151196

FOURTH DIVISION
September 8, 2016

No. 1-15-1196

ILLINOIS EMCASCO INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 14 CH 4901
)
ERIN TUFANO, EARLE TUFANO, and )
MARY S. TUFANO, ) Honorable
) LeRoy K. Martin
Defendants-Appellants. ) Judge Presiding.

JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Defendant Erin Tufano (Tufano) was a passenger in a car that collided with another car.

As a result, she suffered significant, permanent injuries that she valued in the millions of dollars.

She sued both drivers. One driver had a $100,000 insurance policy that was tendered in full to

Tufano. The other driver had a $300,000 insurance policy that likewise was tendered (resulting

in a payment of $295,000). Tufano also had underinsured-motorist coverage of her own in the

amount of $500,000 with plaintiff Illinois Emcasco Insurance Company (Emcasco).

¶2 In this declaratory-judgment action, Emcasco says that it is only required to cover the

difference between what Tufano received from the two drivers collectively ($395,000) and what

she contracted for with Emcasco ($500,000), so that Emcasco only owes her $105,000 in

underinsurance coverage. Tufano, on the other hand, says that she should be able to apply the

$500,000 underinsurance coverage as to each driver separately, such that she would receive

$400,000 in underinsurance coverage for the first driver (who was only insured for $100,000)
No. 1-15-1196

and $205,000 in underinsurance coverage from the second driver (who paid $295,000), for a

total of $605,000 from Emcasco.

¶3 Emcasco moved for judgment on the pleadings, and Tufano moved for summary

judgment. The circuit court agreed with Emcasco and entered judgment in its favor.

¶4 Based on long-settled case law, we disagree with the ruling of the circuit court, which

adopted Emcasco’s position. Emcasco may not collectively offset the sum total paid by the two

drivers ($395,000) from its $500,000 underinsured-motorist policy and claim that it only owes

Tufano $105,000. Rather, we agree with Tufano that each instance of underinsurance must be

considered individually. Viewed in that way, Tufano would ordinarily be entitled to receive

$400,000 in underinsurance coverage for the first driver (who was only insured for $100,000)

and $205,000 in underinsurance coverage for the second driver (who paid $295,000), for a total

of $605,000. But Tufano’s underinsurance policy with Emscasco was only for $500,000, and she

cannot receive more than the $500,000 for which she contracted, and on which the policy

premiums were based. Thus, we disagree with Tufano that she is entitled to $605,000; at most,

she could receive $500,000 from Emcasco for the underinsurance of the two drivers.

¶5 We vacate the trial court’s ruling and remand for further proceedings. On remand, the

court shall enter summary judgment in favor of Tufano on the question of liability. On the

question of damages, Tufano is entitled to no more than $500,000 from Emcasco. But because

Tufano’s actual damages from the car accident have not been determined as a matter of fact or

stipulation, and to prevent Tufano from obtaining a double recovery, the trial court must conduct

a hearing to determine the extent of Tufano’s damages and whether they exceed what the two

drivers have already paid her, and to the extent they do, she will be entitled to recovery from

Emcasco up to $500,000.

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¶6 I. BACKGROUND

¶7 The relevant facts are not in dispute. On July 2, 2013, two vehicles were involved in a

collision in McHenry Township. One vehicle was being driven by Margaret Zienkiewicz and the

other by Nicole M. Mann. Erin Tufano, a passenger in the vehicle being driven by Zienkiewicz,

sustained serious injuries including an intracranial subarachnoid hemorrhage, lacerations of

internal organs, cognitive deficits and numerous fractures. Her claimed damages from the

collision are in the millions of dollars.

¶8 At the time, Tufano was covered under an auto insurance policy that had been issued by

plaintiff, Emcasco, to Earle Tufano and Mary S. Tufano. The Emcasco policy provided

underinsured-motorist coverage with a combined single limit of $500,000 per accident.

¶9 Zienkiewicz’s vehicle was insured by State Farm Insurance Company (State Farm) with

bodily injury limits of $300,000 per person and $300,000 per each accident. State Farm paid

$295,000 to Tufano. Mann’s vehicle was insured with Allstate Insurance Company (Allstate)

with bodily injury limits of $100,000 per person and $300,000 per each accident. Allstate paid

$100,000 to Tufano. Because the policy limits on each of these policies were less than the

underinsured-motorist insurance policy limit held by Tufano, both Zienkiewicz’s and Mann’s

vehicles were, by definition, “underinsured.” See 215 ILCS 5/143a-2(4) (West 2012)

(“underinsured motor vehicle” means a motor vehicle involved in a bodily injury or death where

the coverage on that vehicle is less than the insured’s underinsurance coverage limit).

¶ 10 Tufano’s underinsured-motorist coverage with Emcasco provided as follows:

“Underinsured Motorists Coverage”

***

LIMIT OF LIABILITY

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The limit of liability shown in the Schedule or in the Declarations for

Underinsured Motorist Coverage is our maximum limit of liability for damages

because of ‘bodily injury’ 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.”

The Emcasco policy also contained the following “set off” provision:

“Except in the event of a ‘settlement agreement,’ the limit of liability for this

coverage shall be reduced by all sums paid because of the ‘bodily injury’ by or on

behalf of persons or organizations who may be legally responsible.”

¶ 11 After recovering payment from Zienkiewicz’s and Mann’s insurers for the combined total

of $395,000, Tufano made a claim under the Emcasco policy for underinsured-motorist

coverage. Pursuant to the above policy provisions, Emcasco provided Tufano with $105,000 in

underinsured-motorist coverage for her injuries ($500,000 minus $395,000). Tufano accepted the

payment but with a reservation of rights, maintaining that she was entitled to additional payment,

specifically that Emcasco was obligated to provide $500,000 of underinsured-motorist coverage

for each underinsured tortfeasor involved in the collision.

¶ 12 Emcasco filed a complaint for declaratory judgment against defendants seeking a

determination that it was not obligated to provide any additional coverage to Tufano. Emcasco

then moved for judgment on the pleadings, claiming that it owed Tufano nothing more than the

$105,000 it already paid.

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¶ 13 Tufano moved for summary judgment, claiming that the policy provisions on which

Emcasco relied violated the public policy of placing an insured in the same position she would

have been in had the two drivers been insured to the extent of her underinsured-motorist

coverage, $500,000. Had each of these drivers had $500,000 in coverage, she argued, she would

have received $1 million from them collectively, but instead she only received $395,000 due to

the limits of their insurance coverage. Thus, in her view, Emcasco owed her the difference

between what she did receive and what she should have received, or $605,000. 1

¶ 14 After hearing arguments on the cross-motions, the trial court granted judgment on the

pleadings in favor of Emcasco and denied Tufano’s motion for summary judgment. This appeal

followed.

¶ 15 II. ANALYSIS

¶ 16 A. Emcasco’s Liability to Tufano

¶ 17 We review de novo a circuit court’s rulings on both a motion for summary judgment and

a motion for judgment on the pleadings. State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL

113836, ¶ 65. Summary judgment is proper only where the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

1
Both parties here refer to the Emcasco policy’s limit of liability provision as the “anti-
stacking provision.” Generally, “[a]n insurance provision that limits the total liability from all
policies to that of the single policy providing the highest limit is referred to as an ‘antistacking
provision.’ ” State Farm Mutual Automobile Insurance Co. v. McFadden, 2012 IL App (2d)
120272, ¶ 14. “The legislature has specifically allowed application of antistacking clauses to
[underinsured-motorist] coverage in section 143a-2(5) of the Illinois Insurance Code ***.
[Citation.]” Hall v. Burger, 277 Ill. App. 3d 757, 762 (1996). This case does not involve the
typical scenario of an insured with multiple policies. Instead, it involves the insureds’ single
policy and its single limit of liability of $500,000. Neither party disputes that the limit at issue is
$500,000; instead, they dispute whether it may be applied to each tortfeasor, essentially resulting
in a $1 million limit, before any offsets are applied. Because this issue is distinguishable from the
issue of interpreting an antistacking provision in the context of an insured who has multiple
policies, we choose to refer to the provision as the “limit of liability provision.”

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No. 1-15-1196

any material fact and that the moving party is entitled to a judgment as a matter of law. Id.

Similarly, a judgment on the pleadings is properly granted if the pleadings alone disclose no

genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Gillen v.

State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005). Where parties file

“cross-motions” for judgment on the pleadings and summary judgment, they agree that only a

question of law is involved and invite the court to decide the issues based on the record. Allstate

Property & Casualty Insurance Co. v. Trujillo, 2014 IL App (1st) 123419, ¶ 15. We agree with

the parties that this case involves only a question of law, the interpretation of the Emcasco

policy.

¶ 18 An insurance policy is a contract subject to the same rules of interpretation that govern

the interpretation of contracts. Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 433 (2010).

The interpretation of a contract is also a question of law. Avery v. State Farm Mutual Automobile

Insurance Co., 216 Ill. 2d 100, 129 (2005). Our primary goals are to determine the parties’ intent

in agreeing to the terms of the policy and to give effect to that intent, as expressed through the

language of the policy. Bartkowiak v. Underwriters at Lloyd’s, London, 2015 IL App (1st)

133549, ¶ 28.

¶ 19 We apply the clear and unambiguous provisions in an insurance policy as written unless

such application violates public policy. Nicor, Inc. v. Associated Electric & Gas Insurance

Services Ltd., 223 Ill. 2d 407, 416-17 (2006); State Farm Mutual Automobile Insurance Co. v.

Villicana, 181 Ill. 2d 436, 442 (1998). Whether an agreement is contrary to public policy

depends on the particular facts and circumstances of the case. Progressive Universal Insurance

Co. of Illinois v. Liberty Mutual Fire Insurance Co., 215 Ill. 2d 121, 130 (2005).

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¶ 20 Insurance policy provisions are considered ambiguous if they are subject to more than

one reasonable construction. Dungey v. Haines & Britton, Ltd., 155 Ill. 2d 329, 336 (1993). Even

if the language in an insurance policy is clear and intelligible and suggests but a single meaning,

a “latent ambiguity” may arise where “some extrinsic fact or extraneous evidence creates a

necessity for interpretation or a choice between two or more possible meanings. [Citation.]”

(Internal quotation marks omitted.) Hoglund v. State Farm Mutual Automobile Insurance Co.,

148 Ill. 2d. 272, 279 (1992). When a provision in an insurance policy is ambiguous or is

susceptible of at least two reasonable interpretations, it should be construed in favor of the

insured. Hall v. Burger, 277 Ill. App. 3d 757, 761 (1996).

¶ 21 We begin by acknowledging that Emcasco’s position is supported by the plain language

of the insurance policy. As previously detailed, the policy contains a set-off provision that says

Emcasco’s $500,000 underinsured-motorist coverage “shall be reduced by all sums paid because

of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally

responsible.” (Emphasis added.) On its face, that language could not be any clearer; it allows

Emcasco to add up all of the money received by Tufano from all tortfeasors and deduct that sum

from any underinsurance coverage Emcasco owes her. Thus, were we to follow the plain

language of the policy, Emcasco would be correct that it could offset all of the $395,000 Tufano

received from the two drivers and thus would owe Tufano only $105,000.

¶ 22 But the case law has made it clear that, in the context before us, where multiple

tortfeasors are involved and the insurer wishes to offset the collective payments made by all

tortfeasors against the underinsurance coverage, the plain language of the policy is not the end of

the inquiry. The court must also consider whether application of the policy language violates the

public policy behind the underinsured-motorist statute. See King v. Allstate Insurance Co., 269

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Ill. App. 3d 190, 193 (1994); Hall, 277 Ill. App. 3d at 763-64; see also Hoglund, 148 Ill. 2d at

279 (concerning uninsured-motorist coverage). We will thus turn to a discussion of that public

policy.

¶ 23 In Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 558 (1992), the court

concluded that the legislature’s purpose in enacting underinsured-motorist coverage was to place

the insured in the same position he would have occupied if injured by a motorist who carried

liability insurance in the same amount as the policyholder. See also State Farm Mutual

Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436, 442-46 (1998) (reiterating same public

policy underlying underinsured-motorist coverage). The court in Sulser additionally observed

that underinsured-motorist coverage was “designed to offer insurance to ‘fill the gap’ between

the claim and the tortfeasor’s insurance” and, as such, it “was obviously not intended to allow the

insured to recover amounts from the insurer over and above the coverage provided by the

underinsured motorist policy.” Sulser, 147 Ill. 2d at 556.

¶ 24 In Phoenix Insurance Co. v. Rosen, 242 Ill. 2d 48 (2011), the court discussed the

relationship between all statutorily required insurance–liability, uninsured-motorist, and

underinsured-motorist coverage. Id. at 69. The court explained that, similar to the situation where

an insured is injured by an uninsured motorist, if the at-fault driver is underinsured, the insured’s

underinsured-motorist coverage ensures that the insured will still be compensated for his

damages “up to the limits of” and “to the extent bargained for under” his own insurance policy.

Id.; see also Sulser, 147 Ill. 2d at 556.

¶ 25 Generally speaking, three separate principles emerge from this case law: (1)

underinsured-motorist coverage should place the insured in the same position he or she would

have occupied if the tortfeasor had carried insurance in the same amount as the insured; (2)

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underinsured-motorist coverage exists to fill the gap between the amount received from the

tortfeasor’s insurance and the amount of the insured’s underinsured-motorist policy limit; and (3)

underinsured-motorist coverage is not intended to allow the insured to recover amounts from the

insurer over and above the insured’s underinsured-motorist policy limit.

¶ 26 In a scenario involving a single claimant and a single tortfeasor, there is no reason why

these principles should conflict. For example, suppose that Claimant carries underinsured-

motorist insurance of $500,000. She suffers injuries in a car accident, with damages exceeding

$500,000. She sues Tortfeasor for personal injuries she incurred in the collision. If Tortfeasor

only has $300,000 in liability insurance and tenders the full amount to Claimant, Claimant can

invoke the underinsured-motorist coverage for the remaining $200,000. That gives Claimant

$500,000 total, which puts her in the same position as if Tortfeasor had carried the same amount

of insurance as she. It would also “fill the gap” between the amount received from Tortfeasor

and Claimant’s underinsured-motorist coverage. And it would not force the insurer to cover

Claimant over and above her underinsured-motorist policy limit, because she was insured for

$500,000, and the insurer only had to give her $200,000.

¶ 27 But the situation becomes more complicated when, as here, there are multiple tortfeasors.

For example, in the present case, to satisfy the second principle–to merely “fill the gap” between

what Tufano received from the two drivers and the limit of her underinsured-motorist policy–

Emcasco would only owe the difference between $500,000 and the $395,000 she collectively

received from the two drivers, or $105,000. But that would not satisfy the first principle, to place

Tufano in the same position as if both at-fault drivers had $500,000 in insurance coverage, which

would entitle Tufano to $1 million overall ($395,000 from the drivers, with Emcasco making up

the remainder of $605,000). And if we exalted the first principle over the second principle and

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permitted Tufano to collect $605,000 from Emcasco to get her to a full million dollars, we would

be violating the third principle–that the insurer not be forced to pay more than the underinsured-

motorist policy limit. We would be forcing Emcasco to pay Tufano $605,000 when it only

promised to cover her up to $500,000, and she only paid for $500,000 in coverage through her

premiums.

¶ 28 Fortunately, the case law has reconciled these apparent tensions. See Hoglund, 148 Ill. 2d

at 279; King, 269 Ill. App. 3d at 193; Hall, 277 Ill. App. 3d at 763-64. We will consider these

decisions below.

¶ 29 In Hoglund, 148 Ill. 2d at 274, the plaintiff, Hoglund, was a passenger in a car that

collided with a motorcycle. She sued the drivers of both the car and of the motorcycle, claiming

damages in excess of $200,000. Id. The driver of the car had liability insurance in the amount of

$100,000 and paid it to the plaintiff. Id. at 278. The motorcycle driver was uninsured. Id. The

plaintiff attempted to collect on her $100,000 uninsured-motorist coverage with State Farm, but

State Farm argued that it was contractually entitled to set off the $100,000 that the plaintiff

received from the car driver, and thus State Farm owed nothing in uninsured-motorist coverage.

Id. at 276. 2

¶ 30 The supreme court agreed that the plain language of the policy supported State Farm’s

claim of a setoff. Id. at 278. The court wrote that, “[w]ere our analysis to stop there, we would

have to conclude that the position of State Farm is correct, and Miss Hoglund would get nothing

under her father’s policy. Our analysis, however, does not stop there.” Id.

2
Hoglund was actually a consolidated case with two plaintiffs in substantially the same
situation. Hoglund, 148 Ill. 2d at 274. While the court applied the same reasoning and issued the
same ruling as to each plaintiff, it focused more in its discussion on the facts of plaintiff
Hoglund’s case, and thus we focus our discussion primarily on that portion of the case.

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¶ 31 The court reasoned that the setoff provision, no matter how unambiguous it might appear,

had to be read in conjunction with the policyholder’s reasonable expectations and in accordance

with the public policy behind the uninsured-motorist statute. Id. at 279. The court found a “latent

ambiguity” in the setoff provision because it did not account for a situation involving multiple

tortfeasors, whose payments could be stacked together to deprive a claimant of some or all of the

uninsured-motorist insurance she purchased and reasonably expected to cover her. Id. The court

explained that the purpose of the uninsured-motorist statute is to place the injured party in

substantially the same position she would be in if the uninsured driver had been insured, but that:

“If the position of State Farm were to be adopted *** this purpose would be

frustrated. If, for instance, the uninsured motorcycle driver had been insured for

$100,000, Miss Hoglund could have collected that sum in full from that driver’s

insurer, along with the $100,000 she collected from the other insured driver. The

separate collections of $100,000 from each of the two culpable drivers would

have fully compensated her for her $200,000 in damages. State Farm’s position,

however, is to insist that it receive a full setoff for the payment made on behalf of

the insured driver. Such a result would violate the public policy behind the

uninsured motorist statute that the injured party be placed in the same position as

if the uninsured driver had been insured.” Id. at 280.

¶ 32 Thus, in light of this public policy and the existence of multiple at-fault drivers in that

case, the setoff provision was latently ambiguous, and the ambiguity was construed, as always in

an insurance policy, in favor of the insured, Hoglund. Id. The court ruled that State Farm could

not set off the $100,000 paid by the insured driver against its uninsured-motorist coverage for the

uninsured-motorcycle driver. Id. at 280-81

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¶ 33 It is true that Hoglund involved uninsured-motorist coverage, whereas this case involves

underinsured-motorist insurance. But the public policies behind each are the same, to place the

policyholder in the same position as if the uninsured or underinsured motorist were insured to the

same extent as the policyholder. See Sulser, 147 Ill. 2d at 558 (“In enacting both [the uninsured-

and underinsured-motorist statutes], the legislature intended to place the insured in the same

position he would have occupied if injured by a motorist who carried liability insurance in the

same amount as the policyholder.”); see also Schultz v. Illinois Farmers Insurance Co., 237 Ill.

2d 391, 405 (2010) (“our court has specifically held that [uninsured-motorist] and [underinsured-

motorist] coverage were mandated by the legislature for the same reason, namely, to place an

insured in the same position he or she would have occupied had the tortfeasor carried adequate

insurance”).

¶ 34 And subsequent decisions have applied Hoglund to the facts similar to the ones before us,

involving underinsured-motorist coverage in the context of multiple at-fault drivers.

¶ 35 In King, 269 Ill. App. 3d 190, this court extended the holding in Hoglund to a factual

situation involving one fully insured tortfeasor and a second tortfeasor who was underinsured,

instead of uninsured. The plaintiff, while riding a bicycle, was injured in a two-car accident. Id.

One of the drivers had liability insurance of $100,000, and the other driver had $20,000 in

liability insurance. Id. Each driver paid the plaintiff the limits of insurance, giving him $120,000.

Id. The plaintiff himself had an underinsured-motorist policy of $50,000 that had a setoff

provision similar to that in this case, which unambiguously permitted the insurer to set off

amounts paid by all tortfeasors against the underinsurance coverage. Id. at 191. Based on that

setoff provision, the insurer claimed that it could deduct the $120,000 received from both drivers

against its $50,000 underinsured policy, leaving the insurer with nothing to pay. Id. at 194.

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¶ 36 The insurer argued that Hoglund was not applicable because that case involved an

uninsured-motorist, not an underinsured-motorist, policy. The insurer further argued that the

decision in Sulser, 147 Ill. 2d at 556, where the supreme court stated that the purpose of

underinsurance is to “ ‘fill the gap’ ” between what the policyholder received from tortfeasors

and the limit of the underinsurance coverage, required the court to enforce the setoff provision.

King, 269 Ill. App. 3d at 194. Based on the reasoning in Sulser, the insurer argued, there was no

gap to fill, because the $120,000 the plaintiff received from the drivers far exceeded the $50,000

in coverage under the underinsured-motorist policy.

¶ 37 This court rejected these arguments. Noting that “the public policy considerations behind

both uninsured-motorist coverage and underinsured-motorist coverage are similar rather than

distinct,” the court found Hoglund applicable to the facts of the case. Id. at 194. The court

reasoned that “to allow the total $120,000 setoff claimed by the [insurer] would effectively

negate the plaintiff’s $50,000 underinsured-motorist coverage. Relying on the analogous holding

in Hoglund, this would violate the public policy behind underinsured motorist coverage.” Id. The

court thus held that the plaintiff could be entitled to up to $30,000 in underinsured-motorist

coverage to make up for the difference between the second, underinsured driver’s $20,000 policy

and the plaintiff’s $50,000 underinsured-motorist coverage. Id. at 195.

¶ 38 In Hall, 277 Ill. App. 3d at 759, the plaintiff's decedent was hit and killed by a car. There

were two tortfeasors—the driver and the vehicle's owner—both of whom were underinsured. The

driver was insured for $50,000, the owner for $25,000, and each of them paid the policy limits to

plaintiff. Id. The plaintiff had $100,000 in underinsured-motorist coverage. Id. at 763. The

underinsured-motorist policy contained an offset provision that, like the one in this case,

permitted the insurer to set off all sums received from all tortfeasors against its underinsured-

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motorist limit. Id. Using the same reasoning employed by Emcasco in this case, the insurer

argued that it was only liable for $25,000 in underinsured-motorist coverage after deducting the

amounts already paid by the two tortfeasors collectively ($75,000) from its $100,000

underinsurance policy limit.

¶ 39 This court grappled with whether the setoff provision was unambiguous but held that,

even if it was, the provision "would be against public policy, and the clause could not be given

effect as written." Id. This court relied on Hoglund and King to hold that the insurer's double-

offset was impermissible. The court, noting that "[t]he purpose of [underinsured-motorist]

coverage is to put the insured in the same position as if injured by a motorist with insurance in

the same amount of as the [underinsured-motorist] policy," reasoned that this purpose would be

frustrated if plaintiff's recovery were limited to the sum of $100,000 ($75,000 from the two

drivers plus $25,000 from the underinsurance carrier) because that result would not properly

account for the fact that there were two tortfeasors instead of one. Id. at 765. To put the plaintiff

in the same position as if each tortfeasor were insured as fully as the plaintiff, the plaintiff would

be entitled to $200,000 in underinsurance coverage, less the amount already paid by the two

tortfeasors ($75,000), for a total of $125,000.

¶ 40 But the court also recognized that it was not possible to put the plaintiff in precisely the

same position as if both tortfeasors had been insured as fully as the plaintiff—which would give

her $125,000—because the plaintiff's underinsured-motorist policy had a limit of $100,000. Id.

Thus, given the limits of the underinsured-motorist policy, the plaintiff was entitled to the full

$100,000 of the underinsured-motorist policy, but no more. Id.

¶ 41 The lesson from these cases is straightforward. Where multiple tortfeasors are involved in

an accident in which an underinsured-motorist policyholder is injured, the policyholder must be

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placed in the same position as if each tortfeasor carried the same amount of insurance as the

policyholder. One tortfeasor’s payment cannot be used to offset the underinsurance gap of

another tortfeasor; each instance of underinsurance must be viewed distinctly. See Hoglund, 148

Ill. 2d at 279; King, 269 Ill. App. 3d at 193; Hall, 277 Ill. App. 3d at 763-64. But the amount of

coverage the policyholder can receive from the underinsured-motorist carrier is capped by the

overall limit of the underinsured-motorist policy, because the insurer should not be required to

pay a policyholder more than it promised, or more than the amount for which the policyholder

paid in premiums. Sulser, 147 Ill. 2d at 556; Rosen, 242 Ill. 2d at 69; Hall, 277 Ill. App. 3d at

765.

¶ 42 Based on this precedent, the outcome of this case is clear. Emcasco may not collectively

offset the sum total paid by the two drivers ($395,000) from its $500,000 underinsured-motorist

policy and claim that it only owes Tufano $105,000. Tufano is entitled to a separate

consideration of each underinsured driver’s payment. She would theoretically be entitled, then,

to receive $400,000 in underinsurance coverage for the first driver (who was only insured for

$100,000) and $205,000 in underinsurance coverage for the second driver (who paid $295,000),

for a total of $605,000. However, because her underinsured-motorist policy limit was $500,000,

she cannot receive more than that limit. Tufano is thus entitled, at most, to the full limit of her

underinsured-motorist policy, $500,000. 3

¶ 43 We reject Emcasco’s reliance on case law involving single-tortfeasor situations. The

decisions in Erie Insurance Exchange v. Triana, 398 Ill. App. 3d 365, 367 (2010), Wehrle v.

Cincinnati Insurance Co., 719 F.3d 840, 842 (7th Cir. 2013), Marroquin v. Auto-Owners

3
As we previously noted, Emcasco already paid Tufano $105,000, which Tufano
accepted under a reservation of right. As Tufano concedes, any amount owed by Emcasco
following the trial court’s evidentiary hearing will contain a credit for this amount.

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Insurance Co., 245 Ill. App. 3d 406, 408 (1993), and Obenland v. Economy Fire & Casualty Co.,

234 Ill. App. 3d 99, 110-11 (1992), all involved multiple insureds injured by a single tortfeasor,

not a single insured injured by multiple tortfeasors.

¶ 44 That distinction is critical. As we have explained, cases involving multiple tortfeasors

uniquely implicate the public policy of the state and render the traditional setoff provisions in

underinsured-motorist provisions latently ambiguous. See Hoglund, 148 Ill. 2d at 279-80. The

concern of double offset of multiple tortfeasors’ payments obviously cannot be present when

there is only one tortfeasor. See King, 269 Ill. App. 3d at 194 (“Several cases which the parties

rely on and discuss [including Obenland] are factually distinguishable because although they

involved underinsured motorist coverage, there was only one at-fault driver”); Hall, 277 Ill. App.

3d at 765 (distinguishing cases involving only one tortfeasor).

¶ 45 This court has repeatedly explained that “Hoglund does not apply in situations involving

a single tortfeasor.” Zdeb v. Allstate Insurance Co., 404 Ill. App. 3d 113, 121 (2010); see also

State Farm Mutual Automobile Insurance Co. v. Coe, 367 Ill. App. 3d 604, 615 (2006) (“reliance

on Hoglund is misplaced. ***. In the present case, there is only one tortfeasor.”); Banes

v.Western States Insurance Co., 247 Ill. App. 3d 480, 484-85 (1993) (“Since there is only one

tort-feasor here, there is no latent ambiguity in the policy.”); Darwish v. Nationwide Mutual

Insurance Co., 246 Ill. App. 3d 903, 907-08 (1993) (same). Indeed, two of Emcasco’s cited cases

specifically noted the distinction between the single-tortfeasor situation in those cases and

Hoglund’s multiple-tortfeasor scenario. See Marroquin, 245 Ill. App. 3d at 408; Obenland, 234

Ill. App. 3d at 110-11.

¶ 46 Likewise, Emcasco’s reliance on Sulser does not advance its position. It is true that

Sulser referred to an underinsured-motorist policy as a “gap-filler” to ensure the policyholder “of

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receiving that portion of the [underinsured-motorist coverage] which is not recovered from third

parties.” Sulser, 147 Ill. 2d at 556. The use of the plural might suggest that the supreme court

was supporting the position advanced here by Emcasco, that it may stack up all recoveries from

all tortfeasors, collectively, and offset them against its $500,000 of coverage. But we reject that

interpretation for several reasons. First, the supreme court was not considering the unique

instance of multiple tortfeasors, as it was in Hoglund. See Trujillo, 2014 IL App (1st) 123419,

¶ 42 (distinguishing Sulser on this basis); Hall, 277 Ill. App. 3d at 767 (distinguishing Sulser on

this basis). Second, the supreme court in Sulser also noted the public policy behind underinsured-

motorist coverage as placing the policyholder in the same position as if the underinsured

tortfeasor carried the same amount of insurance as the policyholder. Sulser, 147 Ill. 2d at 558.

The supreme court would have had no occasion to reconcile any apparent conflict between these

two principles in Sulser, because it was not presented with a multiple-tortfeasor scenario.

¶ 47 Some courts have recognized this perceived “tension” between Sulser’s reference to

underinsured-motorist protection as a “gap-filler” and Hoglund’s emphasis on placing the

policyholder in the same position as if the tortfeasors had carried the same amount of insurance

as the policyholder. See Trujillo, 2014 IL App (1st) 123419, ¶ 42; Hall, 277 Ill. App. 3d at 767.

In each of those cases, involving multiple tortfeasors, the courts applied Hoglund and reached the

result that we have in this case. Trujillo, 2014 IL App (1st) 123419, ¶ 42; Hall, 277 Ill. App. 3d

at 767.

¶ 48 In our view, there is no need to go even that far. We find no tension between these two

purposes, provided that one considers that, in the multiple-tortfeasor context, the gap-filling is

performed as to each tortfeasor individually, instead of collectively. Here, for example, our

holding that Tufano should be entitled to $605,000–though capped at the $500,000 policy limit–

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is really just another way of saying that she should be entitled to fill the gap between the first

driver’s insurance ($100,000) and her policy limit, and then to fill the gap between the second

driver’s insurance ($295,000) and her policy limit, thus adding $400,000 and $205,000 for a total

of $605,000. We think the gap-filling purpose as enunciated in Sulser is perfectly consistent with

the purpose of placing the policyholder in the same position as if both drivers had been similarly

insured, as emphasized in Hoglund.

¶ 49 Tension or not, we apply Hoglund to this case. Tufano would ordinarily be entitled to

$605,000 in underinsured-motorist coverage in this case, but because that amount exceeds the

limit of her policy, she may receive no more than that limit–$500,000–and with credit for

amounts Emcasco already paid Tufano.

¶ 50 B. Tufano’s Damages in This Case

¶ 51 We have thus far discussed the question of underinsured-motorist coverage on the

assumption that Tufano’s damages from the car accident are sufficient to require the full

payment of underinsured-motorist coverage. She claims damages in the millions, and the

description of her injuries suggest they are significant, but we are in no position to evaluate her

damages at this stage. The court ruled on a motion for judgment on the pleadings without hearing

any evidence. Nor is there any stipulation or concession before us regarding Tufano’s injuries.

¶ 52 This is important because even if a policyholder, theoretically, is entitled to underinsured-

motorist coverage, it is always possible that the policyholder’s actual damages in a given case are

no greater (or less than) what she already received from the tortfeasors, in which case collecting

anything from the underinsured-motorist carrier would constitute a double recovery. See

Hoglund, 148 Ill. 2d at 280; King, 269 Ill. App. 3d at 195; see also Trujillo, 2014 IL App (1st)

123419, ¶ 44.

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¶ 53 Tufano has already received $395,000 from the two drivers. It is within the realm of

possibility that this amount has already covered all the damages she actually suffered in this case.

If so, the question of underinsured-motorist coverage is academic. She is obviously not entitled

to a double recovery. The question of Emcasco’s liability to Tufano is thus dependent, first and

foremost, on a determination that she suffered damages greater than the $395,000 she already

received from the two drivers.

¶ 54 It is not uncommon in cases like this for the liability question to be determined by the

trial court on a dispositive motion at trial, before the factual question of damages is resolved.

Hoglund, a consolidated case, is a good example of both ways this can work. As to one of the

plaintiffs in that case, Hoglund, the insurance company stipulated that her damages were so high

that they clearly exceeded all insurance coverage, negating any possibility of a windfall by

Hoglund. Hoglund, 148 Ill. 2d at 276-77. But the actual damages suffered by the other plaintiff,

Greenawalt, had not been fixed. Id. at 277. As to the Greenawalt plaintiff, the supreme court

affirmed the appellate court’s remand of the matter to the circuit court for a determination of

Greenawalt’s damages to ensure that she actually suffered damages from her accident that

exceeded what the tortfeasors had already paid her–that is, to “prevent a double recovery” by

Greenawalt. Id. at 280-81.

¶ 55 Likewise, the court in King recognized that, due to the posture of that case, the total

extent of the plaintiff’s damages were not currently known. King, 269 Ill. App. 3d at 195. The

plaintiff had already received $120,000 from the two at-fault drivers, and by the court’s ruling

was entitled to up to $30,000 more in underinsured-motorist coverage, but the court could not

say as a matter of law that the plaintiff’s total damages were as high as $150,000, or even one

dollar more than $120,000. The court thus remanded the case for a determination of plaintiff’s

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damages to ensure that its ruling did not permit the plaintiff to obtain a double recovery. Id.; see

also Trujillo, 2014 IL App (1st) 123419, ¶ 44 (remanding for determination of damages to ensure

policyholder did not obtain double recovery).

¶ 56 A remand is thus necessary in this case for a factual determination of Tufano’s actual

damages from the car accident. If her actual damages are less than or equal to the $395,000 she

has already received from the two drivers, she is entitled to nothing further from Emcasco. If her

damages exceed $395,000, she is entitled to underinsured-motorist coverage to the extent

necessary to make her whole, but capped at an additional payment of $500,000 from Emcasco

and crediting the amount that Emcasco has already paid her.

¶ 57 III. CONCLUSION

¶ 58 The circuit court’s order, entering judgment on the pleadings in favor of Emcasco and

denying Tufano’s motion for summary judgment, is vacated. The cause is remanded with

instructions to enter summary judgment in favor of Tufano on the question of liability. On the

question of damages, the trial court shall conduct a hearing as described herein to determine the

overall extent of damages suffered by Tufano in the car accident. The court must award damages

in favor of Tufano and against Emcasco only to the extent necessary to avoid a double recovery,

capped at a total payment by Emcasco of $500,000, and with credit for amounts already paid by

Emcasco.

¶ 59 Vacated and remanded with instructions.

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