Berutti v. State Farm Mutual Automobile Insurance Co.

No. 2--96--1214

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

CLIFFORD P. BERUTTI and HELGA ) Appeal from the Circuit Court
H. BERUTTI, ) of Kane County.
)
Plaintiffs-Appellants, )
) No. 96--MR--35
v. )
)
STATE FARM MUTUAL AUTOMOBILE )
INSURANCE COMPANY, ) Honorable
) R. Peter Grometer,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________

JUSTICE McLAREN delivered the opinion of the court:
Plaintiffs, Clifford Berutti and Helga Berutti, appeal the
circuit court's order granting summary judgment for defendant,
State Farm Mutual Automobile Insurance Company (State Farm).
Plaintiffs sought a declaration that defendant was required to pay
benefits for Helga Berutti's loss of consortium claim under
plaintiffs' underinsured motorist coverage. Defendant argued that
it had tendered the one-person policy limit for Clifford Berutti's
injuries and Helga's claim for loss of consortium was not a
separate injury. The trial court granted defendant's motion for
summary judgment and denied plaintiffs' motion. On appeal,
plaintiffs contend that the court erred in holding that the policy
did not provide separate coverage for Helga's loss of consortium
claim and that, in any event, such an interpretation is contrary to
public policy.
On June 10, 1994, plaintiffs' van collided with a car driven
by Daniel Gallagher. Gallagher was insured by a policy with bodily
injury liability limits of $100,000 per person. Clifford Berutti
received the $100,000 per-person limit of Gallagher's policy to
cover his personal injuries.
Plaintiffs owned a State Farm policy providing underinsured
motorist coverage with limits of $100,000 per person and $300,000
per occurrence. They filed a claim under the policy, contending
that the amount received from Gallagher's insurer was insufficient
to compensate for Clifford Berutti's injuries and Helga Berutti's
loss of consortium. When defendant denied the claim, the present
action ensued.
As noted, the trial court granted defendant's summary judgment
motion and denied plaintiffs' motion. Plaintiffs filed a timely
notice of appeal.
On appeal, the central issue is whether Clifford's bodily
injuries and Helga's loss of consortium constitute a single injury
within the meaning of their underinsured motorist coverage or
whether Helga's loss of consortium claim constitutes a separate
injury for which a separate "per person" limit applies. Plaintiffs
argue that the policy is ambiguous and, as such, must be construed
most strongly against the insurance company, which drafted it.
Defendant responds that the policy unambiguously provides that
"one person" means "one person injured." Because only Clifford was
physically injured and Helga's claim is a direct consequence of
that injury, plaintiffs would be entitled only to the "per person"
liability limit, or $100,000. Because Clifford has already
received the $100,000 limit applicable to both policies from
Gallagher's insurer, no further amount is due from defendant.
Defendant's policy provides:
"Underinsured Motor Vehicle--means a land motor vehicle:
1. the ownership, maintenance or use of which:
a. is insured or bonded for bodily injury liability at
the time of the accident; and
b. has resulted in bodily injury of an insured.
* * *
Coverage W
1. The amount of coverage is shown on the declarations page
under 'Limits of Liability--W--Each Person, Each
Accident.' Under 'Each Person' is the amount of coverage
for all damages due to bodily injury to one person.
'Bodily injury to one person' includes all injury and
damages to others resulting from this bodily injury."
(Emphasis added.)
The policy further provides, "The limits of liability are not
increased because: *** more than one person is insured at the time
of the accident."
The parties to an insurance policy are bound to the agreement
they made. Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 495 (1985). An insurance contract is to be construed as
written if it is unambiguous and not contrary to public policy.
Menke v. Country Mutual Insurance Co., 78 Ill. 2d 420, 423-24
(1980). A clause in a policy is ambiguous if it is subject to more
than one reasonable interpretation. United States Fidelity &
Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 74 (1991).
Any doubts and ambiguities must be resolved in favor of the
insured. United States Fidelity & Guaranty Co., 144 Ill. 2d at 74.
Courts that have considered whether a loss of consortium claim
constitutes a separate injury under an underinsured motorist policy
have looked to the language of the policy. For example, in Creamer
v. State Farm Mutual Automobile Insurance Co., 161 Ill. App. 3d 223
(1987), the policy provided that each insured was covered " 'for
all damages due to bodily injury to one person' " and defined
bodily injury as " 'bodily injury to a person and sickness, disease
or death which results from it.' " Creamer, 161 Ill. App. 3d at
224. Creamer held that the policy term "one person" had been
consistently construed as "one person injured" and that that
construction had been applied to all damages, including loss of
consortium, sustained by all persons due to an injury to one
person. Creamer, 161 Ill. App. 3d at 224; see also Cross v.
Country Cos., 188 Ill. App. 3d 847, 850 (1989). Thus, the "per
person," rather than the "per occurrence," limit applied.
Conversely, in Stearns v. Millers Mutual Insurance Ass'n, 278
Ill. App. 3d 893 (1996), the relevant policy language provided:
" 'The limit of liability *** for each person *** 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 accident.' "
Stearns, 278 Ill. App. 3d at 896.
The court acknowledged that defendant's reading of this
language to provide that $100,000 was the maximum payable when any
one person suffers bodily injury in one accident was reasonable.
However, the court found an ambiguity in the policy based on the
definition of who was an "insured." The court noted that the
policy could also be read as providing that each person who was an
"insured" under the policy was entitled to a separate $100,000
liability limit. Stearns, 278 Ill. App. 3d at 897; see also
General Casualty Co. v. McCowan, 221 Ill. App. 3d 96 (1991).
Except for brief references to Stearns, plaintiffs do not
discuss these cases or compare the policy language under
consideration to that at issue in this case. They merely argue
that because the policy is written in "legalese" we must find it to
be ambiguous and, accordingly, construe it in their favor.
Contrary to plaintiffs' argument, we do not find the relevant
policy language to be ambiguous. It clearly provides that bodily
injury to one person "includes all injury and damages to others
resulting from this bodily injury." (Emphasis in original.)
Moreover, unlike the policy in Stearns, defendant's policy provides
that "[t]he limits of liability are not increased because *** more
than one person is insured at the time of the accident." (Emphasis
in original.) Because plaintiffs do not claim that anyone other
than Clifford Berutti was physically injured, these provisions
unambiguously limit defendant's liability to the per-person
limitation rather than the per-occurrence limitation.
Significantly, plaintiffs do not point to any specific portion
of the policy that they find to be ambiguous. They also do not
suggest a reasonable alternative reading for the passages quoted
above. The court did not err in holding that the policy
unambiguously excludes the coverage plaintiffs seek.
Plaintiffs also argue, however, that, in determining whether
a vehicle is underinsured, the comparison should not be made to the
liability limit of the tortfeasor's policy, but to the amount
actually available to the injured party after payments to third
parties. In other words, if a tortfeasor has a policy with a
$100,000 limit, but has paid $50,000 to other parties injured in
the same accident, his policy should be considered as having a
$50,000 limit in determining whether underinsured motorist coverage
applies.
It is difficult to understand how this argument helps
plaintiffs' case. Apparently, plaintiffs contend that the $100,000
paid to Clifford Berutti should be viewed as exhausting Gallagher's
coverage so that his policy limit should be viewed as $0 when
compared to plaintiffs' underinsured motorist coverage.
The language of the policy, tracking the statute, defines an
underinsured motor vehicle as one covered by a policy in which:
"2. [T]he limits of liability for bodily injury liability:
a. are less than the limits you carry for underinsured
motor vehicle coverage under this policy; or
b. have been reduced by payments to persons other than
an insured to less than the limits you carry for
underinsured motor vehicle coverage under this
policy." (Emphasis in original.)
The policy thus clearly limits the reduction to payments made to
persons other than an insured. Moreover, this issue is still
controlled by the language cited above defining what constitutes an
injury. Because the per-person liability refers to one person
injured, if the injured person receives the maximum per-person
liability, the coverage is deemed exhausted. Here, plaintiffs
stipulated that Clifford Berutti received the $100,000 liability
limit from Gallagher's policy.
Cummins v. Country Mutual Insurance Co., 281 Ill. App. 3d 5
(1996), appeal allowed, 168 Ill. 2d 586 (1996), and Hathaway v.
Standard Mutual Insurance Co., 285 Ill. App. 3d 67 (1996), leave to
appeal pending, are distinguishable. In Cummins, the at-fault
driver's $50,000 was exhausted by paying $35,000 to plaintiffs and
$15,000 to passengers in the at-fault driver's car. The court held
that plaintiffs were entitled to collect $15,000 from their
underinsured motorist coverage to "fill the gap" between the
tortfeasor's liability limit and the amount plaintiffs actually
recovered. However, the payments there were made to third parties,
not to another insured under the same policy.
Cummins and Hathaway certainly do not stand for plaintiffs'
broad proposition that an insured may recover under an underinsured
motorist policy any time the tortfeasor's insurance fails to
compensate fully the insured for his or her injuries. Such a
reading would violate the purpose of the statute and the insurance
contract by effectively increasing the limit of underinsured
motorist coverage to the amount of the insured's damages without
requiring the insured to pay for the additional coverage.
In Gober v. State Farm Mutual Automobile Insurance Co., 263
Ill. App. 3d 846 (1994), plaintiffs, Charles and Helen Gober, had
a State Farm policy providing $100,000 of underinsured motorist
coverage. After Charles was injured in an accident with another
driver, the latter's insurance company paid Charles $10,000 for his
personal injuries and Helen $10,000 for her loss of consortium.
These payments exhausted the limits of that policy. In their suit
against State Farm, plaintiffs claimed that the husband was
entitled to $90,000 in underinsured motorist benefits. State Farm
contended that it owed only $80,000. This court agreed with State
Farm, stating:
"The record is clear *** that Helen did, indeed, recover under
the bodily injury insurance on the car of Galvin, the
underinsured motorist. Since Allstate's payment to Helen was
made as part of a larger, overall payment for the bodily
injury caused to Charles, State Farm Fire properly reduced its
benefit by the $10,000 paid to Helen in addition to the
$10,000 paid to Charles." Gober, 263 Ill. App. 3d at 850.
Plaintiffs also contend that limiting their recovery to the
per-person rather than the per-occurrence limit is contrary to
public policy. However, they present no reasoned argument or
citations to relevant authority on this issue. In fact, Stearns,
on which they heavily rely, is directly contrary to their position.
Although Stearns held that plaintiffs were entitled to the per-
occurrence limit under the terms of the specific policy in
question, the court explicitly rejected the contention that the
opposite result would be contrary to public policy. Stearns, 278
Ill. App. 3d at 899.
The judgment of the circuit court of Kane County is affirmed.
Affirmed.
GEIGER, P.J., and INGLIS, J., concur.