APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
517 N.E.2d 1187, 164 Ill. App. 3d 389, 115 Ill. Dec. 501 1987.IL.1998
Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. HOPF and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The plaintiff, Peter Giardino, appeals from an order of the Circuit Court for the Sixteenth Judicial Circuit, Kane County, granting the defendant's motion for summary judgment. The plaintiff contends on appeal that the trial court misinterpreted the insurance policy in question and asks this court to reverse the trial court's order.
Inasmuch as this court has previously set out the facts surrounding plaintiff's accident and the ensuing trial (see Giardino v. Fierke (1987), 160 Ill. App. 3d 648), we move directly to a Discussion of the procedural posture and legal issues of this particular case. Giardino filed a declaratory judgment complaint alleging that the motorist who struck him could not pay the entire award granted by the jury and asking that the defendant pay him $100,000 pursuant to the underinsured motorist provisions of his insurance policy. The parties stipulated to the facts, and after cross-motions for summary judgment, the trial court granted the defendant's motion, ruling that the plaintiff was not entitled to a recovery under the policy. This appeal ensued. In addition, we note that Mavis Giardino, an original plaintiff in this action, has voluntarily dismissed herself from this appeal.
Summary judgment should only be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112; Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) We will reverse the granting of a summary judgment motion only when a material question of fact exists and the moving party is not entitled to summary judgment as a matter of law. (Tsourmas v. Dineff (1987), 161 Ill. App. 3d 897, 900.) The parties in this case have stipulated to the facts. The only issue remaining is the construction of the insurance contract, which is a matter of law properly decided on a motion for summary judgment. Bohnen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657, 662.
The pertinent provisions of the insurance policy in this case read as follows:
"1. We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle.
3. Underinsured motor vehicle means a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability less than the damages you are legally entitled to recover.
The limits of liability shown in the declarations apply, subject to the following:
Any amounts payable will be reduced by:
1. A payment made by the owner or operator of the underinsured motor vehicle or organization ...