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08/09/88 Anthony J. Scudella, v. Farmers Insurance Company

August 9, 1988

ANTHONY J. SCUDELLA, PLAINTIFF-APPELLANT

v.

ILLINOIS FARMERS INSURANCE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

528 N.E.2d 218, 174 Ill. App. 3d 245, 123 Ill. Dec. 673 1988.IL.1239

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARTMAN delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Plaintiff appeals the dismissal of his declaratory judgment action in an automobile insurance case. He raises as issues for our review whether: (1) workers' compensation benefits and uninsured motorist payments may be set off against payments due under personal injury income continuation coverage; (2) underinsurance should have been offered and added to plaintiff's coverage; and (3) his vexatious and unreasonable delay count was properly dismissed.

On September 17, 1980, plaintiff, a refuse collector, was struck while walking across a street by a motorcycle and was permanently injured. He filed an action against the uninsured cyclist and was awarded $250,000 in a default judgment., Plaintiff owned two assertedly identical automobile insurance policies issued by defendant, one for a 1975 Pontiac and the other for a 1975 Dodge Truck.

Plaintiff's basic "Personal Injury Protection" policy covered reasonable and necessary medical expenses for medical services rendered within one year of an accident, with a limit of $2,000 per person. It also contained income continuation provisions, replacing 85% of income lost within one year of an accident, resulting from total disability, with a payment limit of $150 per week per injured person. Basic PIP requirements also prohibited duplicate recovery based on multiple policies and limited total benefits from any one accident to the total basic PIP benefits under the policy.

Excess PIP covered all reasonable and necessary medical expenses, as well as parallel income replacement provisions for 260 weeks, starting one year after the date of the accident. Both basic and excess PIP contained similar limits of liability clauses:

"Any amount payable to or for the benefit of an injured person under this insurance shall be reduced by:

(1) any amount paid or payable to such injured person under the workmen's compensation laws of any state or the Federal Government;

(2) any amount paid or payable to such injured person under Part I of the policy or under Uninsured Motorists Coverage which would result in a duplication of payment or reimbursement for any loss covered under this insurance."

Another provision of the insurance policy prohibited the "stacking" of defendant's policies.

Plaintiff received the following payments from defendant under the policy: (1) $15,000 for uninsured motorist benefits; (2) $7,800 as income continuation under basic PIP; and (3) ...


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