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Hartbarger v. Country Mutual Insurance

OPINION FILED MAY 19, 1982.

KENNETH S. HARTBARGER, PLAINTIFF-APPELLANT,

v.

COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. P.J. O'NEILL, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 14, 1982.

On August 21, 1979, Kenneth Hartbarger was injured in an automobile collision involving an uninsured motorist. On that date, he was covered by automobile insurance policy number A12A1067618, issued by Country Mutual Insurance Company. For bodily injury liability, the limits of the policy were $200,000 for each person and $500,000 per occurrence, with a limitation of $100,000 per occurrence for property damage liability. Policy A12A1067618 also indicated uninsured motorist coverage at a maximum of $100,000 for each person and $300,000 per occurrence.

Hartbarger was additionally covered by umbrella policy number U511011, also issued by Country Mutual. It provided for a $1,000,000 coverage limit and listed the above-mentioned automobile policy among the underlying insurance policies to which the umbrella coverage would attach.

In February 1981, Hartbarger filed a complaint for a declaratory judgment against Country Mutual in the circuit court of Madison County. In count II of that complaint, he alleged that he had been injured in an amount greater than that provided for in the uninsured motorist coverage of policy A12A1067618, and that since the umbrella policy included that automobile policy without specifically excluding uninsured motorist coverage, he was therefore entitled to compensation under the umbrella policy. The plaintiff later amended this count of the complaint to include the allegation that an agent for Country Mutual had informed him that the umbrella policy provided coverage for the "entire" automobile policy. Plaintiff's affidavit to that effect was attached to the amended count II.

Country Mutual moved for a summary judgment on the plaintiff's complaint. Under count II, it was argued that the umbrella policy, by its terms, provided only liability insurance, not uninsured motorist protection, and that the plaintiff was entitled to compensation only according to the terms of the uninsured motorist clauses of policy A12A1067618. After hearing arguments from counsel, the court held that the umbrella policy was unambiguous in providing only for liability coverage, and therefore judgment was entered for Country Mutual on count II, as it was on the rest of the complaint. The plaintiff has perfected this appeal only from the judgment against him on count II.

In this court, the plaintiff argues, as he did at trial, that the umbrella policy was ambiguous as to whether it provided uninsured motorist coverage, and that therefore he should have been permitted to introduce extrinsic evidence to resolve that ambiguity. The parties have not cited any Illinois authority on the issue of when an umbrella policy will be construed as including uninsured motorist coverage. According to our research, they are correct in characterizing this question as one of first impression in this State.

However, the plaintiff's argument was raised in Matarasso v. Continental Casualty Co. (1981), 82 App. Div.2d 861, 440 N.Y.S.2d 40 (mem. op.). The plaintiffs in Matarasso, as here, were covered by an umbrella liability policy which listed an automobile insurance policy as part of the underlying coverage. The declarations contained in the umbrella policy did not include uninsured motorist coverage. When the plaintiffs were injured in an accident involving an uninsured motorist, they recovered the maximum amount under the uninsured motorist portion of the automobile policy. They then sought recovery under the umbrella policy. In rejecting the plaintiffs' claims, the court premised its decision on the plain language of the umbrella policy, and noted that it incorporated the underlying policies only insofar as they provided protection against liability for damages to third parties. A different interpretation, the court stated, would distort the purpose of the umbrella policy.

The plaintiff points to two features of the umbrella policy in this case which, it is claimed, render it ambiguous. First, he notes that uninsured motorist coverage was not specifically listed in the exclusions to the umbrella policy. Second, it is argued that since the defendant, in that policy, agreed "to indemnify the insured for ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay," he should be reimbursed for his own medical expenses, which he was legally obligated to pay.

In response, the defendants urge us to recall that the umbrella policy was entitled a "personal and professional umbrella liability policy," and that on the declarations sheet, policy A12A1067618 was described as an "automobile liability policy" and in the column for that policy's limits of liability, the figures "200/500/100" were placed. They also state that the definition of coverage, quoted in part in the previous paragraph, provides in full as follows:

"The company agrees to indemnify the insured for ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay:

(a) Personal Liability. As damages because of personal injury or property damage caused by or arising out of an occurrence happening anywhere in the world during the policy period;

(b) Professional Liability. As damages because of injury arising out of:

(1) malpractice, error or mistake of the named insured, or of a person whose acts or omissions the named insured is legally responsible in rendering or ...


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