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Potts v. Madison Cty Mut. Auto. Insur. Co.

OPINION FILED JANUARY 6, 1983.

ESTHER POTTS, INDIV. AND AS ADM'X OF THE ESTATE OF ALVIN A. POTTS, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

MADISON COUNTY MUTUAL AUTOMOBILE INSURANCE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. Clayton R. Williams, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 4, 1983.

Three plaintiffs, Esther Potts, individually and as administratrix of the estate of her deceased husband, Alvin A. Potts, Georgia Potts, individually and as administratrix of the estate of her deceased husband, Arley Potts, and Deborah Icke, individually and as administratrix of the estate of her deceased husband, David Icke, brought this action for a declaratory judgment permitting plaintiffs to aggregate or "stack" benefits potentially payable pursuant to certain provisions under the uninsured automobile coverage of seven insurance policies issued by defendant, Madison County Automobile Insurance Company. After a hearing the circuit court ruled that the seven policies could be "stacked." Defendant appeals from that order.

On April 29, 1979, David Icke, Alvin Potts and his father, Arley Potts, were traveling in a Toyota automobile, owned by Arley Potts, when an uninsured vehicle owned and operated by Ted Vance Williams collided with the Toyota. The three occupants of the Toyota were killed. At the time of the collision Alvin Potts was insured under three policies written by the defendant for three separate vehicles owned by him. Likewise, at the time of the collision David Icke was insured under two policies written by defendant for two separate vehicles owned by Icke, and Arley Potts was insured under two policies written by defendant for two separate vehicles owned by him, one of which was the Toyota involved in the collision. The limits of uninsured automobile coverage provided in each policy are $10,000 for each person and $20,000 for each accident. The three insureds lived in households separate from one another.

Before we examine the pertinent provisions of the policies and the case law with respect to them, we must address our attention to serious omissions in the record. At the hearing only two of the seven policies in dispute were introduced into evidence. Thus, five of the seven policies in dispute are absent from the record without explanation. Furthermore, the record does not indicate with certainty which decedent was issued either of the two policies that were entered into evidence. Unfortunately, these two policies differ in one important respect within one of the two paragraphs of the "Other Insurance" provision contained in each policy with the result that, in order to determine whether the policies may be stacked, the ownership of them must first be determined. However, the ownership of the policies cannot be established with certainty from this record.

Of the two policies entered into evidence one bears the words, "EFFECTIVE DATE: 4-1-79." The other policy indicates no effective date. An examination of plaintiffs' exhibits, which include, among other things, a declarations page for each of the seven vehicles involved, suggests that only one of the seven vehicles was purchased on or after April 1, 1979, a 1974 Mazda purchased in "4/79" by Arley Potts, according to the declarations page admitted as part of Plaintiffs' Exhibit Group 4. This page is dated April 18, 1979, and provides for a policy period of six months from "4-18-79 [t]o 10-18-79." The other six vehicles appear from the evidence to have been purchased and insured by defendant prior to April 1, 1979. By inference, then, the policy bearing no effective date applies to one of those six vehicles. Because six of the seven vehicles are similar in apparently having been purchased and insured prior to April 1, 1979, and because plaintiffs entered but two of the seven policies into evidence, we infer that the policy bearing no effective date, and apparently covering one of the six vehicles so purchased, is representative of the five policies unaccounted for in the record. The record, such as it is, suggests that the policy effective April 1, 1979, was issued to Arley Potts, that the other six policies in dispute were issued before that date and that those six policies were alike. If that is, in fact, the case, three of those six policies were issued to Alvin Potts, two such policies were issued to David Icke and one such policy was issued to Arley Potts. The inference that six of the policies were alike accords with statements made by defendant in its brief indicating that six of the policies were alike while one differed from them.

• 1 However, defendant in its brief indicates that the policy bearing the effective date of April 1, 1979, was issued to Alvin Potts. Thus, not only is the record woefully incomplete, but statements of defendant in its brief seem inconsistent with such evidence as is actually included in the record. Any doubts arising from the incompleteness of a record will be resolved against the appellant. (Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App.3d 154, 427 N.E.2d 1047; Reed v. Hoffman (1977), 48 Ill. App.3d 815, 363 N.E.2d 140.) Despite the difficulties posed by the omissions in this record, we consider the substantive issues presented. We note that the defendant-appellant, who bears the burden of providing this court with an adequate record for review, though not entirely blameless in the matter, was not primarily responsible for the creation of this deplorable record. To effect a just result, pursuant to our power under Supreme Court Rule 366(a)(5) (87 Ill.2d R. 366(a)(5)), we remand the cause to the circuit court for a determination of precisely which vehicle each of the seven policies, either admitted into evidence or represented by such policy admitted into evidence, actually covered and to whom among the decedents each such policy was actually issued. Having made that determination, the circuit court shall then apply the law as stated in the remainder of this opinion.

Defendant contends initially that the policy issued to Arley Potts for the Toyota, in which the accident occurred, precludes stacking of Arley Potts' other policy by means of a "Limits of Liability" provision, which appears in both of the policies introduced into evidence. That paragraph provides as follows:

"The limit of liability stated in the schedule as applicable to `each person' is the limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the schedule as applicable to `each accident' is the total limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident."

Defendant relies upon Sharples v. General Casualty Co. (1980), 85 Ill. App.3d 899, 407 N.E.2d 674. That reliance, however, is misplaced. In Sharples the court considered a "Limits of Liability" provision containing language virtually identical to that just quoted from the policies issued by defendant. However, that language in Sharples was prefaced by the following, which is absent from the provision in the policies disputed in the case at bar:

"Regardless of the number of (1) persons or organizations who are insureds under this policy, (2) persons or organizations who sustain bodily injury or property damage, (3) claims made or suits brought on account of bodily injury or property damage, or (4) automobiles or trailers to which this policy applies * * *." (85 Ill. App.3d 899-900, 407 N.E.2d 674, 675.)

In Sharples the plaintiff sought to stack the uninsured motorist coverage for two vehicles insured under a single policy. Concluding that the language of the provision was clear and unambiguous, the court held that the plaintiff could not stack the uninsured motorist coverage.

• 2, 3 We think that the language of the policies before us does serve to limit the defendant's liability under any one of a number of insurance policies owned by an insured to the limits of that policy but that this language does not prohibit the stacking of benefits potentially recoverable under two or more policies. This construction is one that the language of the policy plainly permits. In view of this construction of the provision vis-a-vis that of the defendant, the provision in the policies is ambiguous and capable of more than one construction. If a clause is unambiguous, the clause may be applied as written unless it contravenes public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill.2d 420, 401 N.E.2d 539.) If the clause is ambiguous, however, it must be construed in favor of the insured. (Menke.) Here the clause is ambiguous and must be construed in favor of the insured. Thus, contrary to defendant's contention, the provision is ineffective to prohibit stacking of benefits potentially recoverable under more than one policy.

We turn now to the "Other Insurance" provision of the policy entered into evidence that bears no effective ...


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