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07/27/89 Paula Kahn, Adm'r of the v. Aetna Casualty & Surety

July 27, 1989

PAULA KAHN, ADM'R OF THE ESTATE OF DONNA SCLAFANI, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

AETNA CASUALTY & SURETY COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

542 N.E.2d 878, 186 Ill. App. 3d 803, 134 Ill. Dec. 532 1989.IL.1154

Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Defendant, the Aetna Casualty and Surety Company, issued an automobile insurance policy to plaintiff Hope Hughes. Hughes and a passenger were subsequently involved in an automobile accident. Hughes and the other plaintiff, Paula Kahn, administrator of the passenger's estate, claimed benefits pursuant to the underinsured motorist provision of the policy.

Plaintiffs then brought this declaratory judgment action in the circuit court of Cook County against Aetna. Plaintiffs sought a declaration that the policy's underinsured motorist coverage extended to the insured's total damages, reduced by any payment by the tortfeasor. The trial court granted Aetna judgment on the pleadings, finding that the policy's underinsured motorist coverage extended only to the policy's limit of liability, reduced by any payment by the tortfeasor. Plaintiff appeals, assigning error to the trial court's findings and judgment.

We affirm the judgment of the trial court.

BACKGROUND

The pleadings allege that on March 17, 1986, Hughes and her passenger, Donna Sclafani, were involved in an automobile accident near 2700 North Lake Shore Drive in Chicago, Illinois. Another automobile struck Hughes' vehicle, causing serious injuries to Hughes and Sclafani, which resulted in Sclafani's death. The insurers of the tortfeasors paid each plaintiff $39,900, which was the total amount of coverage available to the tortfeasors., Plaintiffs made a claim to Aetna for benefits pursuant to the policy's underinsured motorist coverage. The policy states in pertinent part:

"UNDERINSURED MOTORISTS COVERAGE

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an underinsured motorist vehicle because of bodily injury sustained by a covered person and caused by an accident. . . .

LIMIT OF LIABILITY

The limit of liability shown in the Declarations under Uninsured Motorists ($50,000 per person/$100,000 per accident) is our maximum limit of liability under this coverage for all damages resulting from any one accident. This is the most we will pay regardless of the number of ...


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