Hess v. The Estate of Klamm

2019 IL App (5th) 180220
NOTICE
Decision filed 02/11/19. The
text of this decision may be NO. 5-18-0220
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

LORETTA HESS, as Guardian of the Estate of ) Appeal from the
Meadow Hess, a Minor Child; CHAD HESS, ) Circuit Court of
Individually and as Independent Administrator of the
) Franklin County.
Estate of Sierra Hess, Deceased; and )
PAULINE KISELEWSKI, as Independent Adminis- )
trator of the Estate of Richard Kiselewski, )
Deceased, )
)
Plaintiffs-Appellees, )
)
v. ) No. 16-L-25
)
THE ESTATE OF TJAY KLAMM and )
STATE AUTO INSURANCE COMPANIES, d/b/a )
Meridian Security Insurance Company, )
)
Defendants )
)
(State Auto Insurance Companies, d/b/a ) Honorable
Meridian Security Insurance Company, ) Eric J. Dirnbeck,
Defendant-Appellant). ) Judge, presiding.
______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion.
Justices Welch and Chapman concurred in the judgment and opinion.

OPINION

¶1 The defendant, State Auto Insurance Companies d/b/a Meridian Security Insurance

Company (Meridian), appeals from the March 14, 2018, order of the circuit court of Franklin

County, which granted the cross-motion for summary judgment filed by the plaintiffs, Loretta

Hess, as guardian of the estate of Meadow Hess, a minor child; Chad Hess, individually and as

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independent administrator of the estate of Sierra Hess, deceased; and Pauline Kiselewski, as

independent administrator of the estate of Richard Kiselewski, deceased. In granting the

plaintiffs’ motion, the circuit court issued a declaratory judgment that Meridian, as an insurer of

the defendant, the estate of TJay Klamm, had the duty to stack the bodily injury liability limits of

a policy covering four automobiles as a result of an automobile collision in which Klamm was

involved when driving one of the four automobiles, resulting in coverage for the collision in the

amount of $400,000 per person and $1.2 million per accident. The March 14, 2018, order also

effectively denied Meridian’s motion for judgment on the pleadings. For the reasons that follow,

we modify the judgment, finding coverage in the amount of $200,000 per person and $600,000

per accident.

¶2 FACTS

¶3 The facts necessary to our disposition of this appeal follow. On April 18, 2017, the

plaintiffs filed their second amended complaint and jury demand (the complaint), which is the

pleading at issue in this appeal. Therein, of relevance to this appeal, the plaintiffs assert several

causes of action, sounding in tort, against Klamm, all resulting from an automobile accident that

(1) occurred on April 17, 2015, on Illinois Route 148 near the boundary between Franklin

County and Jefferson County; (2) resulted in the deaths of the plaintiffs, Richard Kiselewski and

Sierra Hess, as well as defendant Klamm, and in serious injuries to the plaintiff, Meadow Hess;

and (3) was alleged by the plaintiffs to have been proximately caused by the “careless and

negligent acts or omissions” of Klamm while driving a 2006 Chevrolet Cobalt.

¶4 Counts VII, VIII, and IX of the complaint contain requests for declaratory judgments in

favor of each of the plaintiffs and against Meridian regarding coverage for the accident on a

policy issued by Meridian on the 2006 Chevrolet Cobalt driven by Klamm at the time of the

accident. These requests for declaratory judgments allege that there is an ambiguity in the policy
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as to whether the liability limits on the Cobalt can be stacked with the liabilitiy limits for the

three other vehicles listed in the policy. Thus, the plaintiffs request that the circuit court declare

the ambiguity to be resolved against Meridian and that the $100,000 per person and $300,000 per

accident liability limit on each vehicle be stacked to provide coverage in the amount of $400,000

per person and $1.2 million per accident.

¶5 Exhibit D to the complaint is a certified copy of the Meridian policy at issue and effective

at the time of the accident. The certification states the policy fairly and accurately represents the

policy at issue “as it would have appeared on [the date of the accident].” The policy contains

three pages of declarations, which, for sake of clarity, are contained in an appendix to this

opinion. Each page of the declarations contains the same headings, with the insurance company

name, policy number, policy period, named insured and address, and agent at the top. Below

these headings, the first page of the declarations begins by listing the “VEHICLES COVERED”:

(1) 2002 Ford F-150, (2) 2006 Chevrolet Cobalt LT (the vehicle involved in the accident at

issue), and (3) 2000 Ford Mustang. Under this listing of vehicles, the first declarations page

states, “COVERAGE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE

COVERAGE.” Immediately below this statement, coverages, limits of liability, and premiums

are listed, in relevant part, as follows: 1

COVERAGE LIMITS OF LIABILITY PREMIUMS

AUTO 1 2 3

A LIABILITY-BODILY $100,000 EACH PERSON/ 90.00 98.00 90.00
INJURY $300,000
EACH ACCIDENT
A LIABILITY-PROPERTY $100,000 56.00 61.00 57.00
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The formatting on our examples is not exact. Please refer to the copy of the policy’s declarations
pages included in this opinion’s appendix for an exact replica.
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DAMAGE EACH ACCIDENT
B MEDICAL PAYMENTS $10,000 EACH PERSON 19.00 26.00 24.00
C UNINSURED (SEE BELOW)
MOTORISTS/UNDERINSURED
MOTORISTS
BODILY INJURY

¶6 Below the above-stated information, the first page of the declarations lists, in similar

fashion, the coverage, limits of liability, and premiums for comprehensive and collision damage,

along with deductibles, transportation expenses, and towing for autos one, two, and three, with

the “TOTAL BY AUTO” listed under the “PREMIUMS” column. Following this, the first page

of the declarations contains a statement of discounts that have been applied to the policy.

¶7 The second page of the declarations contains the same headings as the first and the same

format. Under the headings, it again lists “VEHICLES COVERED”: (4) 2014 KIA Sportage.

Under this, the second page again states “COVERAGE IS PROVIDED WHERE A PREMIUM

IS SHOWN FOR THE COVERAGE.” Immediately under this statement, coverages, limits of

liability, and premiums are listed, in relevant part, as follows:

COVERAGE LIMITS OF LIABILITY PREMIUMS
AUTO 4
A LIABILITY-BODILY $100,000 EACH PERSON/ 81.00
INJURY $300,000 EACH ACCIDENT
A LIABILITY-PROPERTY $100,000 EACH ACCIDENT 51.00
DAMAGE

B MEDICAL PAYMENTS $10,000 EACH PERSON 23.00
C UNINSURED
MOTORISTS/UNDERINSURED
MOTORISTS
BODILY INJURY (SEE BELOW)

¶8 As on the first page, below the above-stated information, the second page of the

declarations lists, in similar fashion, the coverage, limits of liability, and premiums for

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comprehensive and collision damage, along with deductibles, transportation expenses, and

towing, for Auto 4, with the “TOTAL BY AUTO” listed under the “PREMIUMS” column.

Under this information, the following is set forth:

“UNINSURED/UNDERINSURED MOTORISTS – TOTAL LIMIT FOR ALL

VEHICLES COVERED UNDER THIS POLICY

BODILY INJURY $100,000 EACH PERSON

$300,000 EACH ACCIDENT

PREMIUM: $88.00”

¶9 Directly below the box described above, the second page lists the “TOTAL TERM

PREMIUM,” which equals the sum of the amounts shown as “TOTAL BY AUTO,” for the three

vehicles listed on the first page of the declarations and the second page of the declarations, plus

the premium shown for uninsured/underinsured coverage. Below this, the second page of the

declarations sets forth, exactly as the first, the discounts that apply to the policy. Immediately

thereafter, there is other information regarding the insured driver of the vehicles and a list of

forms and the automobile to which they apply. On the third page of the declarations, there is a

list of lienholders for each vehicle. The bottom right corner of pages one and two of the

declarations states, “*****CONTINUED ON NEXT PAGE*******.” The bottom right corner

of page three of the declarations states, “*****************PAGE 3 (LAST PAGE).”

¶ 10 The policy contained in Exhibit D, as certified by Meridian, contains two other

declaration pages, entitled “amendments to the declarations.” The first of these amends the

policy effective April 18, 2015, and deletes auto two, which was involved in the accident at

issue. The second amends the policy effective June 23, 2015, and deletes auto three. Under a

section of the policy entitled, “PART A - LIABILITY COVERAGE,” there is a section entitled

“LIMIT OF LIABILITY,” which states as follows:
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“A. The limit of liability shown in the Declarations for each person for Bodily Injury

Liability is our maximum limit of liability for all damages, including damages for

care, loss of services[,] or death, arising out of ‘bodily injury’ sustained by any one

person in any one auto accident. Subject to this limit for each person, the limit of

liability shown in the Declarations for each accident for Bodily Injury Liability is our

maximum limit of liability for all damages for ‘bodily injury’ resulting from any one

auto 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 auto accident.”

¶ 11 On May 25, 2017, Meridian filed its answer to the complaint and counterclaim for

declaratory judgment. In its counterclaim, Meridian asked the court to declare that the policy is

unambiguous and prohibits stacking of the limits for bodily injury liability, making the

applicable limits for the accident $100,000 per person and $300,000 per accident. On June 22,

2017, Meridian filed a motion for a judgment on the pleadings pursuant to section 2-615(e) of

the Code of Civil Procedure. 735 ILCS 5/2-615(e) (West 2016). On July 25, 2017, the plaintiffs

filed a cross-motion for summary judgment as to the declaratory judgment counts of their

complaint. On August 28, 2017, the circuit court held a hearing on the cross-motions.

¶ 12 On March 14, 2018, the circuit court entered a judgment order finding coverage limits to

be stacked at $400,000 per person and $1.2 million per accident. On March 23, 2018, Meridian

filed a motion for a finding, pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016),
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that there is no just reason to delay an appeal from the judgment order, which the circuit court

granted on April 5, 2018. Meridian filed a timely notice of appeal on April 6, 2018.

¶ 13 ANALYSIS

¶ 14 “In an appeal from the grant of a summary judgment, we conduct a de novo review.”

Cherry v. Elephant Insurance Co., 2018 IL App (5th) 170072, ¶ 10 (citing Crum & Forster

Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993)). “The construction of an

insurance policy is a question of law and is an appropriate subject for disposition by way of a

summary judgment.” Id. “An insurance policy is a contract, and the general rules governing the

interpretation of other types of contracts also govern the interpretation of insurance policies.” Id.

¶ 11 (citing Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005)). “In

general, antistacking clauses do not contravene public policy.” Id. (citing Grzeszczak v. Illinois

Farmers Insurance Co., 168 Ill. 2d 216, 229 (1995)).

¶ 15 “Where the terms of a policy are clear and unambiguous, the language used will be given

its plain meaning; however, if a provision is subject to more than one reasonable interpretation, it

is ambiguous and should be construed against the insurer and in favor of the insured.” Id. ¶ 12.

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

should be read together.” Id. ¶ 13 (citing Glidden v. Farmers Automobile Insurance Ass’n, 57 Ill.

2d 330, 336 (1974)). “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.” Id. (citing Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 193 (1993)).

¶ 16 Our supreme court has twice considered antistacking clauses identical to the one set forth

in the policy at issue in light of the coverages listed on the policy’s declarations page. First, in

Bruder, “[t]he court held that there was no ambiguity when the antistacking clause was read in

conjunction with the declarations page because the limit of the bodily injury for ‘each person’
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*** was set forth only once on the declarations page, despite listing two vehicles.” Id. ¶ 15

(citing Bruder, 156 Ill. 2d at 193-94). However, in what has come to be called the “Bruder

dicta,” the court noted that multiple printings on a declarations page of policy limits for various

covered automobilies could create an ambiguity. Bruder, 156 Ill. 2d at 192.

¶ 17 In Hobbs, the court read the same antistacking provision in conjunction with a

declarations page that limited the premiums for two vehicles separately “but, importantly, list[ed]

the relevant limit of liability only once.” Hobbs, 214 Ill. 2d at 21. As this court set forth in

Cherry, the Hobbs court, making reference to the “Bruder dicta,” “noted that listing multiple

numerical limits on the policy’s declaration page does not per se result in aggregation, and

variances in policy language ‘frequently require case-by-case review.’ ” Cherry, 2018 IL App

(5th) 170072, ¶ 17 (quoting Hobbs, 214 Ill. 2d at 26 n.1). “However, the court reiterated its

statement in Bruder that ‘where the antistacking clause limits liability to the limit shown on the

declarations page, and the declarations page lists the limit of liabililty twice, it would not be

difficult to find an ambiguity.’ ” Id. (quoting Hobbs, 214 Ill. 2d at 25, citing Bruder, 156 Ill. 2d

at 192).

¶ 18 Since the supreme court’s decision in Hobbs, this court has had several occasions to

consider whether insurance policies containing similar to identical antistacking clauses were

ambiguous when compared to the declarations page of such policies. See Profitt v. OneBeacon

Insurance, 363 Ill. App. 3d 959 (2006); Johnson v. Davis, 377 Ill. App. 3d 602 (2007); Cherry,

2018 IL App (5th) 170072. 2 In Profitt, this court considered whether an insurance company’s

2
Because of antistacking clauses that are markedly different than those in the instant case, or
construction of antistacking language between multiple policies, rather than within a single policy as in
the instant case, we find little relevancy in the following cases that otherwise might appear relevant: In re
Estate of Striplin, 347 Ill. App. 3d 700 (2004); Hanson v. Lumley Trucking, LLC, 403 Ill. App. 3d 445
(2010); State Farm Mutual Automobile Insurance Co. v. McFadden, 2012 IL App (2d) 120272; Busch v.
Country Financial Insurance Co., 2018 IL App (5th) 140621; Barlow v. State Farm Mutual Automobile
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inclusion of two declarations pages in its certified copy of the policy, with the limits of liability

listed once per page, created an ambiguity. Profitt, 363 Ill. App. 3d at 962. We found that it did

not, as the first declarations page was issued with the policy, and the second page expressly

provided that it was a change endorsement resulting from the substitution of vehicles. Id. at 963.

Profitt was not a case where limits of liability were listed separately for each vehicle covered

under the policy and thus did not fit within the ambit of the “Bruder dicta.”

¶ 19 In Johnson, there was an antistacking clause virtually identical to the one in the instant

case, and the relevant limits of liability were listed four times, once for each vehicle on the

declarations pages of the policy, which encompassed the first three pages of the policy. Johnson,

377 Ill. App. 3d at 603. Based on the “Bruder dicta,” we found an ambiguity, construed that

ambiguity in favor of the insured, and stacked the coverages four times. Id. at 610. Most recently

in Cherry, we construed another identical antistacking clause in favor of the insured, stacking the

relevant coverage four times, where the declarations page listed the relevant coverage under four

different vehicles. Cherry, 2018 IL App (5th) 170072, ¶ 20.

¶ 20 In the instant case, we are again asked to construe an identical antistacking provision,

which limits liability to that shown on the declarations pages. The relevant limits of liability,

which are for bodily injury at $100,000 per person and $300,000 per accident, are listed twice on

the three pages of declarations. They are listed once on page one, under a listing of the first three

vehicles covered by the policy, including the vehicle involved in the accident at issue. They are

listed again on page two, under the fourth vehicle covered by the policy. While Meridian argues

that such formatting is necessitated by the number of covered vehicles on the policy, which

requires the fourth vehicle to be listed on a second declarations page, we are not persuaded,

Insurance Co., 2018 IL App (5th) 170484. In addition, we do not discuss our decision in Progressive
Premier Insurance Co. of Illinois v. Kocher, 402 Ill. App. 3d 756 (2010), as that case involved stacking of
coverage for two vehicles that were both involved in the same accident.
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based on our prior precedent set forth above, that this explanation serves to solve the ambiguity

recognized in the “Bruder dicta.” This is especially true when comparing the listing for

uninsured and underinsured limits on the declarations pages with the listing for the liability

limits. In the case of the uninsured and underinsured limits, the listing under the first three

covered vehicles directs the reader to “SEE BELOW,” and the listing on page two, after all

covered vehicles are listed, specifically indicates that $100,000 per person and $300,000 per

accident is the “TOTAL LIMIT FOR ALL VEHICLES COVERED UNDER THIS POLICY.”

For these reasons, we find that, because the relevant bodily injury liability limits of $100,000 per

person and $300,000 per accident are listed twice on the declarations pages, and the antistacking

clause refers the reader to the declarations for the applicable liability limits, such limits are to be

stacked twice, for total limits of $200,000 per person and $600,000 per accident.

¶ 21 Despite the foregoing, the circuit court entered a declaratory judgment finding the bodily

injury liability limits of $100,000 per person and $300,000 per accident are to be stacked four

times, for total limits of $400,000 per person and $1.2 million per accident. The circuit court’s

order includes no reasoning behind its finding. However, in their submissions to the circuit court

and on appeal, as well as in oral argument before the circuit court, the plaintiffs pointed to the

two other declaration pages included with the certified copy of the policy, entitled “amendments

to the declarations.” The first amends the policy effective April 18, 2015, and deletes auto two,

which was involved in the accident at issue. The second amends the policy effective June 23,

2015, and deletes auto three. The plaintiffs cite this court’s decision in American Service

Insurance v. Miller, 2014 IL App (5th) 130582, as authority for the proposition that these

declarations pages should be considered as part of the policy on the date of the accident because

they were certified as such. We reject this proposition. Our decision in Miller was completely

unrelated to the issue of stacking and wholly inapposite to the case at bar. While a part of the
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policy certified by Meridian to be in effect on the date of accident, these declarations are clearly

postaccident amendments to the policy. On the contrary, we find this scenario more analogous to

our decision in Profitt, where we found no ambiguity where extra declarations pages in the

certified copy of the policy were clearly inapplicable. Profitt, 363 Ill. App. 3d at 963. There is

nothing in our decision in Miller to warrant additional stacking of bodily injury limits based on

amendments to the declarations that were clearly made postaccident. For these reasons, we

modify the circuit court’s order that declared that the plaintiffs are entitled to total coverage of

$400,000 per person and $1.2 million per accident. The modified judgment declares that the

plaintiffs are entitled to a total coverage of $200,000 per person and $600,000 per accident.

¶ 22 CONCLUSION

¶ 23 For the foregoing reasons, we modify the judgment, finding coverage in the amount of

$200,000 per person and $600,000 per accident.

¶ 24 Affirmed as modified.

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¶ 25 APPENDIX

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2019 IL App (5th) 180220
NO. 5-18-0220
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT

Opinion Filed: February 11, 2019
______________________________________________________________________________

Justices: Honorable James R. Moore, J.

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

Attorneys Robert Marc Chemers, Jonathan L. Federman, Pretzel & Stouffer,
for Chartered, One South Wacker Drive, Suite 2500, Chicago, IL 60606
Appellant
______________________________________________________________________________

Attorney Paul J. Schafer, Winters, Brewster, Crosby & Schafer, 111 West Main
for Street, P.O. Box 700, Marion, IL 62959
Appellees
______________________________________________________________________________