APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
544 N.E.2d 1246, 188 Ill. App. 3d 847, 136 Ill. Dec. 471 1989.IL.1542
Appeal from the Circuit Court of Logan County; the Hon. Gerald G. Dehner, Judge, presiding.
JUSTICE STEIGMANN delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STEIGMANN
Defendant Country Companies appeals an interlocutory order denying its motion to dismiss. That motion contended that a claim for loss of consortium was not covered by its insurance policy because the per person policy limit had been paid to the plaintiffs as a result of settlement negotiations. The trial court disagreed.
Defendant Country Companies issued a motor vehicle insurance policy to defendant Dennis Moehring, whose wife was involved in an automobile accident with plaintiff Terry Cross when this insurance policy was in effect. The parties involved agreed that the insurance company would pay Terry $50,000 in exchange for a covenant not to sue. The insurance policy limited the company's bodily injury liability to $50,000 per person and $100,000 per occurrence.
Plaintiffs Terry Cross and Jenny Cross filed a complaint for declaratory judgment against all of the defendants, alleging that they are additionally liable for a loss of consortium claim. In response, Country Companies filed a motion to dismiss the complaint for declaratory judgment with prejudice, claiming that the loss of consortium claim was limited by the $50,000-per-person ceiling of the policy. Defendants also argued that this claim was precluded because the insurer had previously paid the plaintiffs $50,000 in settlement.
The trial court denied Country Companies' motion to dismiss, but granted its request under Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)) to make a finding that its order denying the motion "involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." In the exercise of our discretion, we accepted the defendant's appeal from the order denying the motion to dismiss. At issue is whether defendant's insurance company must pay loss of consortium damages when the "per person" liability limit under the policy had already been paid to the plaintiff who suffered personal injuries in the automobile accident.
The automobile insurance policy in question provides indemnity of up to $50,000 for each person who suffered a bodily injury as a result of an accident with the insured. Specifically, section 1 of the policy states the following:
"If you have paid for coverage under Section 1 . . ., we promise to pay all sums in behalf of an insured which the insured becomes legally obligated to pay as damages because of:
1. bodily injury (Coverage A), including death resulting from that bodily injury, ...