Koperski v. Amica Mutual Insurance Co.

                                             Sixth Division





No. 1-96-0046


JOANNA ADAMSKA KOPERSKI,         )  Appeal from the Circuit
                                 )  Court of Cook County
     Plaintiff-Appellee,         )
                                 )
          v.                     )  
                                 )
AMICA MUTUAL INSURANCE COMPANY,  )
a corporation,                   )  Honorable
                                 )  Ellis E. Reid,
     Defendant-Appellant.        )  Judge Presiding.



     JUSTICE ZWICK delivered the opinion of the court:
     Plaintiff brought this action seeking a declaration of her
right to recovery under the underinsured motorist provision
contained in the automobile insurance policy issued by defendant,
Amica Mutual Insurance Company (Amica).  The trial court granted
summary judgment in favor of plaintiff, finding that Amica was
obligated to provide coverage to plaintiff because the vehicle
which was responsible for plaintiff's injuries was an
"underinsured motor vehicle" as defined by the Illinois Insurance
Code (215 ILCS 5/143a-2(4) (West 1994).  Amica appeals the grant
of summary judgment for plaintiff.
     The undisputed facts establish that on September 15, 1989,
while vacationing at Yellowstone Park, plaintiff was a passenger
in a rental car operated by her husband and was injured when the
car was struck from behind by a vehicle driven by Gary Dale
Tamminga.  Tamminga was also driving a rented car, which was
insured under a policy issued by National Casualty Company which
carried "split limits" of $25,000 per person and $50,000 per
occurrence.  Tamminga also had excess coverage for a vehicle he
owned under a policy issued by State Farm Insurance Company which
carried "split limits" of $100,000 per person and $300,000 per
occurrence.  Thus, the total amount of liability coverage carried
by Tamminga equaled $125,000 per person and $350,000 per
occurrence.
     Plaintiff brought suit against Tamminga in the United States
District Court for the Western District of Michigan.  This action
was dismissed in August 1994, pursuant to a settlement agreement
under which plaintiff received $25,000 from National Casualty and
$100,000 from State Farm, as payment of the full amount of the
per-person limits under their respective policies.
     No insurance was provided for in the rental agreement for
the vehicle in which plaintiff was riding when she was injured. 
Plaintiff's family vehicles were insured by Amica under a policy
which provided underinsured motorist coverage and carried a
"single limit" of $300,000 for each accident.
     Plaintiff and Amica filed cross-motions for summary judgment
in the declaratory judgment action.  Amica asserted that because
the $350,000 combined total of the "per occurrence" limits of
Tamminga's policies exceeded plaintiff's $300,000 "single limit"
under the Amica policy, the vehicle driven by Tamminga was not
underinsured.  Plaintiff contended that the $300,000 "single
limit" in her policy must be compared to Tamminga's combined per-
person liability limits of $125,000 in determining whether his
vehicle was underinsured.  Plaintiff argued that after the
statutory set off was applied, she was entitled to recover up to
$175,000 of coverage under the underinsured motorist provision in
her Amica policy.  The trial court agreed with the plaintiff's
position and entered summary judgment in her favor.  Amica has
challenged that ruling, claiming that the trial court erred in
its interpretation of the statutory language which defines an
underinsured motor vehicle.
     The entry of summary judgment is appropriate where there are
no questions of fact and judgment can be entered as a matter of
law.  735 ILCS 5/2-1005 (West 1994); Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397 (1980); Illinois Farmers Insurance
Co. v. Tabor, 267 Ill. App. 3d 245, 247, 642 N.E.2d 159 (1994). 
The interpretation of a statutory provision is a question of law
which is properly decided by summary judgment.  Tabor, 267 Ill.
App. 3d at 247.  Courts of review consider the entry of summary
judgment de novo.  Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).
     Section 143a-2(4) of the Illinois Insurance Code defines an
underinsured motor vehicle as follows:
          "For the purpose of this Code the term
     'underinsured motor vehicle' means a motor vehicle
     whose ownership, maintenance or use had resulted in
     bodily 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 or under bonds or other security required to
     be maintained under Illinois law applicable to the
     driver or to the person or organization legally
     responsible for such vehicle and applicable to the
     vehicle, is less than the limits for underinsured
     coverage provided the insured as defined in the policy
     at the time of the accident.  The 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 underinsured motor vehicle."  215
     ILCS 5/143a-2(4) (West 1994).
     In construing a statutory provision, the primary goal is to
ascertain and give effect to the legislature's intent.  State
Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 540-41,
605 N.E.2d 539 (1992). To accomplish this goal, courts may
consider the reason and necessity for the law, the evils to be
remedied, and the objectives to be attained.  Yapejian, 152 Ill. 2d  at 541.  A court charged with the construction of a statute
will assume that the legislature did not intend to produce an
absurd or unjust result.  Yapejian, 152 Ill. 2d  at 541; Sulser v.
Country Mutual Insurance Co., 147 Ill. 2d 548, 557, 591 N.E.2d 427 (1992).  A statute must be read as a whole, and all relevant
parts must be considered by the court.  See Bonaguro v. County
Officers Electoral Board, 158 Ill. 2d 391, 397, 634 N.E.2d 712
(1994); Cummins v. Country Mutual Insurance Co., 281 Ill. App. 3d
5, 9, 666 N.E.2d 909 (1996).  If the language used in the statute
is clear, it is unnecessary for the court to resort to other
tools of statutory interpretation.  Nottage v. Jeka, 172 Ill. 2d 386, 392, 667 N.E.2d 91 (1996).
     Amica has argued that the clear and unambiguous language
found in section 143a-2 requires that the determination of
whether a vehicle is underinsured is not controlled by the value
of the benefits actually received from the underinsured's
carrier, but rather upon the limits of coverage stated in the
underinsured's liability policy.  We do not agree.
     Prior cases have held the statutory definition of an
"underinsured motor vehicle" contained in the first sentence of
section 143a-2(4) is unambiguous and have ignored the legislative
history supporting this provision.  See Golladay v. Allied
American Insurance Co., 271 Ill. App. 3d 465, 648 N.E.2d 157
(1995); Illinois Farmers Insurance Co. v. Tabor, 267 Ill. App. 3d
245, 642 N.E.2d 159 (1994); Purlee v. Liberty Mutual Fire
Insurance Co., 260 Ill. App. 3d 11, 631 N.E.2d 433 (1994);
Moriconi v. Sentry Insurance of Illinois, Inc., 193 Ill. App. 3d
904, 550 N.E.2d 637 (1990).
     However, we find the better-reasoned approach is that
expressed in Hathaway v. Standard Mutual Insurance Company, 285
Ill. App. 3d 67, 673 N.E.2d 725 (1996), where the court stated
that the legislative history of section 143a-2(4) must be
considered in order to prevent an absurd or an unjust result. 
Hathaway, 285 Ill. App. 3d at 71.  Although that decision
centered upon the recovery of underinsured motorist benefits when
multiple claimants are involved, the reasoning employed also
governs the case at bar.
     It is established that the legislature's intent in enacting
the underinsured motorist statute was to place the insured in the
same position he would have occupied if the tortfeasor had
carried adequate insurance.  Sulser, 147 Ill. 2d  at 555. 
Accordingly, this provision is designed to assure compensation
for an insured's injuries in an amount equal to, but not
exceeding, the limit of underinsured motorist coverage specified
in the insured's policy.  Sulser, 147 Ill. 2d  at 556.
     The aim of this coverage is to provide protection for the
difference between the insured's claim and the amounts available
from the underinsured driver.  Sulser, 147 Ill. 2d  at 556.
Accordingly, section 143a-2 must be construed to allow an insured
to "fill the gap" between the benefits paid by the culpable
driver's liability carrier and the limit of underinsurance
coverage specified in the insured's policy.  Susler, 147 Ill. 2d 
at 556; Hathaway, 285 Ill. App. at 73; Banes v. Western States
Insurance Co., 247 Ill. App. 3d 480, 482-83, 616 N.E.2d 1021
(1993).
     Contrary to the approach taken in previous cases, we hold
that the first sentence of section 143a-2 cannot be read in
isolation to defeat this purpose.  Hathaway, 285 Ill. App. at 73-
74, quoting Hoglund v. State Farm Mutual Automobile Insurance
Co., 148 Ill. 2d 272, 279-80, 592 N.E.2d 1031 (1992).  When the
language of section 143a-2 is considered in its entirety, along
with the drafters' intent, it is clear that the relevant factor
is the amount the injured party can actually recover from the
tortious driver.  See  Cummins, 281 Ill. App. 3d at 13; Banes,
247 Ill. App. 3d at 486.  Here, that amount cannot exceed
$125,000.
     Thus, the insured is entitled to claim benefits in an amount
equalling the limit of his underinsured motorist coverage, and
the insurer has the right to claim a set off for benefits
received from the underinsured's carrier.  Under this scenario,
the insured is afforded the full value of the coverage purchased,
and the insurer is obligated to pay benefits only up to the limit
of the coverage selected by the insured, less those amounts
actually recovered from the tortfeasor's liability insurer.  See
Sulser, 147 Ill. 2d at 556-57; Hathaway, 285 Ill. App. 3d at 69;
Cummins, 281 Ill. App. 3d at 9.
     This construction of section 143a-2 is consistent with the
public policy behind the statute, the policyholder's reasonable
expectations and the coverage intended to be provided by the
policy.  See Hoglund, 148 Ill. 2d  at 279.  To hold otherwise
would nullify the bargained-for coverage under the policies, and
allow the insurance provider to receive premiums which it did not
earn.  See Hoglund, 148 Ill. 2d  at 278-280.  We are secure in the
knowledge that such a windfall to underinsurance providers was
not intended by the legislature or contemplated by the insurance
industry.
     Amica also contends that in determining whether Tamminga's
vehicle was underinsured, the $350,000 per-occurrence maximum
provided by Tamminga's "split limits" policies must be compared
to the $300,000 single limit specified in the policy issued by
Amica.  This argument has no merit.  The accident operates to
trigger the inquiry as to the extent of the coverage carried by
the tortfeasor.  Because plaintiff was the sole party injured in
the September 15, 1989, accident, the maximum amount of coverage
which would ever be applicable to this incident was the $125,000
per person limit.  See generally Tabor, 267 Ill. App. 3d at 250-
51.
     We hold, therefore, that the trial court correctly
determined that Tamminga's vehicle was underinsured after
comparing the plaintiff's underinsurance coverage to the benefits
she received from Tamminga's liability insurer.  That comparison
revealed that plaintiff was entitled to claim $175,000 in
underinsurance benefits.  It is precisely for this protection
that plaintiff negotiated and paid a premium for the $300,000
limit on her underinsured motorist coverage.
     For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
     AFFIRMED.
     THEIS, J., and QUINN, J., concur.