Appeal from the Circuit Court of Cook County; the Hon. George
W. Rothschild, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This appeal is from a summary judgment for defendant in a declaratory judgment action brought by plaintiffs to recover medical payment benefits under certain policies of automobile insurance issued by defendant.
Plaintiffs, Joan Strzelczyk and her parents, Raymond and Ann Strzelczyk, filed a five-count complaint seeking a declaration that they are entitled to collect medical payments benefits under two separate automobile insurance policies issued by defendant to Joan and Raymond, an award of damages, and attorney fees.
The facts giving rise to this litigation are largely undisputed. On March 1, 1982, Joan and Ann sustained bodily injuries while riding on a bus owned by the Chicago Transit Authority (CTA), which carried no medical payment insurance coverage for persons so injured while passengers on its buses. Joan filed a claim, as the named insured, for $4,022.76 under the medical payments coverage section of her policy, and a claim was filed on Ann's behalf as the spouse of a named insured, for $633.46 under the same section of the separate policy issued to Raymond. Both policies contained identical medical payments coverage provisions which provided, in relevant part, that defendant agreed to pay reasonable medical expenses, up to $25,000, for services furnished as a result of accidental bodily injury sustained by the named insured, his or her spouse or their relatives defined as persons related to the named insured who live in the same household therewith while occupying a non-owned car.
After payment of the original claims, Joan submitted a second claim for $4,022.86 as a relative under Raymond's policy. Similarly, a second claim for $633.46 was filed by Ann as a relative under Joan's policy. Although there was no dispute that Joan and Ann qualified as relatives under the terms of those policies, defendant denied the claims on the basis of its prior payment to them of the medical expenses benefits sought, and plaintiffs then instituted this action. The parties filed cross-motions for summary judgment, and after hearings thereon the trial court entered judgment for defendant. This appeal followed.
Plaintiffs contend that the trial court erred in ruling that they are limited to a single recovery of medical payments benefits, arguing that since they qualify for such coverage under two separate contracts of insurance, for which two separate premiums were paid, they are entitled to recover under both.
Defendant argues, as it did in the trial court, that (1) by virtue of its payment to Joan and Ann on their initial claims, an "excess clause" contained in each policy was then activated, precluding further recovery by either of them and (2) in any event, under Illinois law, it is obligated only to indemnify plaintiffs for actual medical expenses incurred as a result of the accident and not to provide double indemnity.
• 1 As a preliminary matter, plaintiffs assert that under section 2-613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-613(d)), defendant's failure to raise the applicability of the excess clause as an affirmative defense until the filing of its motion for summary judgment resulted in a waiver thereof. While it is true that section 2-613(d) provides that "the facts constituting any affirmative defense * * * must be plainly set forth in the answer" (Ill. Rev. Stat. 1983, ch. 110, par. 2-613(d)), numerous cases have held that since Illinois law permits a defendant to file a motion for summary judgment at any time even before an answer an affirmative defense raised in such a motion is timely and may be considered, even though not raised in defendant's answer. Chaplin v. Geiser (1979), 79 Ill. App.3d 435, 398 N.E.2d 628; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App.3d 298, 393 N.E.2d 1223; Schultz v. American National Bank & Trust Co. (1976), 40 Ill. App.3d 800, 352 N.E.2d 310.
• 2-4 Turning then to the substance of the parties' contentions, we note that the general rules governing the interpretation of contracts of insurance do not differ from those controlling in other contract cases (Jensen v. New Amsterdam Insurance Co. (1965), 65 Ill. App.2d 407, 213 N.E.2d 141). When construing an insurance policy, the court's primary concern is to give effect to the intent of the parties as expressed by the contract (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App.3d 1062, 419 N.E.2d 601). In so doing, words are to be given their plain and ordinary meaning (Rivota v. Kaplan (1977), 49 Ill. App.3d 910, 364 N.E.2d 337), and where a clause is clear and unambiguous, it will be applied as written unless it otherwise contravenes public policy (Menke v. Country Mutual Insurance Co. (1980), 78 Ill.2d 420, 401 N.E.2d 539). However, ambiguous provisions must be construed in favor of the insured and against the insurer (Menke v. Country Mutual Insurance Co. (1980), 78 Ill.2d 420, 401 N.E.2d 539; Squire v. Economy Fire & Casualty Co. (1977), 69 Ill.2d 167, 370 N.E.2d 1044), the underlying rationale for which is that contracts of insurance do not result from negotiation but are drafted by the insurer and submitted to the prospective insured for acceptance without change (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App.3d 1062, 419 N.E.2d 601); and in determining whether there is an ambiguity, the clause must be read in its factual context, not in isolation (Menke v. Country Mutual Insurance Co. (1980), 78 Ill.2d 420, 401 N.E.2d 539; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill.2d 330, 312 N.E.2d 247). Finally, where an insurer attempts to limit liability by excluding coverage under certain circumstances, it has the burden of showing that the claim falls within the exclusion relied upon since it is presumed that the insured intended to obtain coverage and that the insurer would have stated any such exclusions clearly and specifically. State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App.3d 250, 430 N.E.2d 641.
• 5 In the case at bar, the "excess clauses" raised by defendant as a bar to plaintiffs' claims for recovery under both policies are identical. Each provides:
"If a temporary substitute car, a non-owned car, or a trailer has other vehicle medical payments coverage on it, this coverage is excess."
Defendant acknowledges that the bus in which Joan and Ann were injured qualifies as a "non-owned car" under the policy definitions and does not dispute plaintiffs' allegation that the transit company did not carry medical payments insurance on the bus. It maintains, however, that its payment of Joan's claim as a named insured under her own policy and Ann's claim as a spouse under Raymond's policy, had the effect of extending medical payments coverage to the bus, and as a result the excess clause which it characterizes as a provision expanding the coverage available to an insured rather than limiting its own liability was then activated to afford $25,000 additional coverage had it been necessary for the amount by which each of the claimant's medical expenses exceeded the $25,000 primary coverage already provided her by the policy under which her initial claim was made.
This argument is untenable. First, it is our view that placement of the excess clause under the heading "Limits of liability" in the "MEDICAL EXPENSES" section of each policy illustrates that, with respect to defendant's interests, its purpose was not to provide additional coverage to an insured but, rather to reduce the company's liability to excess, or secondary, coverage where the non-owned vehicle carries medical payments coverage insurance. Consequently, having attempted to minimize its liability by way of this provision, defendant must show that the exclusionary language therein is clear, unambiguous and applicable to the claims submitted. In our view, it has failed to meet this burden. Applying ordinary rules of grammar and usage, it is clear that the words "on it" in the phrase "If * * * a non-owned car * * * has other vehicle medical payments coverage on it * * *" refers to coverage on the bus. Inasmuch as primary insurance liability attaches immediately upon the happening of the occurrence giving rise thereto (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App.3d 250, 430 N.E.2d 641), and since there is no ...