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10/27/89 Richard G. Rutter, v. the Horace Mann Insurance

October 27, 1989

RICHARD G. RUTTER, PLAINTIFF-APPELLANT

v.

THE HORACE MANN INSURANCE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

545 N.E.2d 1381, 190 Ill. App. 3d 467, 137 Ill. Dec. 366 1989.IL.1710

Appeal from the Circuit Court of Winnebago County; the Hon. Daniel D. Doyle, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. McLAREN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Richard G. Rutter, appeals from orders of the circuit court of Winnebago County (1) denying plaintiff's and granting defendant the Horace Mann Insurance Company's motions for summary judgment and (2) denying plaintiff's amended motion to reconsider the granting of defendant's motion for summary judgment on plaintiff's complaint seeking a declaratory judgment reforming his automobile insurance policy with defendant by implying underinsured-motorist coverage. We affirm in part, reverse in part, and remand.

On April 15, 1983, defendant reissued a policy of automobile liability insurance providing plaintiff with, inter alia, bodily-injury liability coverage of $100,000 per person and $300,000 per occurrence and uninsured-motor-vehicle-bodily-injury coverage of $15,000 per person and $30,000 per occurrence. It appears that on September 16, 1983, plaintiff was involved in an automobile accident in which another driver, Carlyle L. Gemmer (Gemmer), was at fault. Plaintiff contends that Gemmer was underinsured, that defendant did not make a proper offer to him of underinsured-motorist coverage (see Ill. Rev. Stat. 1981, ch. 73, par. 755a-2(3); Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 516 N.E.2d 268; Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 465 N.E.2d 956), and that he is therefore entitled to implied underinsured-motorist coverage "in the amount of his bodily-injury liability portion of his policy ($100,000 per person/$300,000 per occurrence)" under his policy with defendant.

The basis of the trial court's order granting defendant's and denying plaintiff's motions for summary judgment was its Conclusion that Gemmer was not an underinsured motorist. Section 143a -- 2 of the Illinois Insurance Code (the Code) provides, inter alia :

"For the purpose of this Act the term 'underinsured motor vehicle' means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident." (Ill. Rev. Stat. 1981, ch. 73, par. 755a-2(3).)

Gemmer's policy provided single limit liability coverage. It also contained the following provision, as an amendment, designed to satisfy the requirements of Illinois law (see Ill. Rev. Stat. 1981, ch. 95 1/2, par. 7-203):

"The limit of Bodily Injury and Property Damage Liability Coverage shall first be

1. $15,000 for all damages arising out of bodily injury sustained by one person as the result of any one occurrence,

2. $30,000 for all damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence, and

3. $10,000 for all damages arising out of injury to or destruction of all property of one or more persons or organizations as the result of any one occurrence. [ sic ]

and such limits shall then be supplemented by any amount remaining within the limit for Bodily Injury and Property Damage Liability Coverage stated in the Declarations, which limit is the total amount of the Company's liability for all damages as the result of any one occurrence.", Plaintiff, asserting as he has throughout this litigation that Gemmer's policy had a single limit for liability of $100,000, argues:

"At the time of the accident, therefore, the Gemmer policy only afforded $90,000.00 as the limit of bodily injury liability coverage available to Gemmer. If plaintiff's policy is reformed to equal his own $100,000/$300,000 limit, Gemmer is an underinsured motorist under any interpretation of Sec. 143a -- 2."

From the arguments in the trial court and the trial court's statement of the reasons for its ruling, it is apparent that both parties and the court believed that, if plaintiff's insurance policy with defendant was reformed to include underinsured-motorist coverage, that coverage's limits would be equal to the $100,000-per-person/$300,000-per-occurrence limits of the policy's bodily-injury liability coverage. It is also apparent that all concerned recognized that it was the $100,000-per-person limit that would apply to the September 16, 1983, accident. Moreover, plaintiff claims that after Gemmer's policy paid for $16,757.97 in property-damage claims as a result of the September 16, 1983, accident, there remained only $83,242.03 in coverage for bodily injury.

Thus, plaintiff's contentions that Gemmer was underinsured are premised on the assumption that Gemmer's policy provided $100,000-single-limit liability coverage which, after setting aside the required $10,000 pursuant to the policy amendment or paying the actual $16,757.97 for property damage, provided less than the $100,000 per person bodily-injury limit in plaintiff's insurance policy with defendant. (See Ill. Rev. Stat. 1981, ch. 73, par. 755a-2.) Defendant and the trial court also assumed, apparently based on plaintiff's amended complaint, that Gemmer's insurance policy had a single limit for liability of $100,000.

During oral argument of this case, this court brought to the attention of counsel for both parties an exhibit indicating Gemmer's policy had a single limit of $300,000 which was attached to plaintiff's counsel's affidavit in support of the amended motion to reconsider. In response to a suggestion from the bench as to how to present the matter to the court, counsel for plaintiff has filed a motion to amend the record on appeal supported by an affidavit of plaintiff's counsel and a stipulation by both parties "that the Record on Appeal herein may be amended in accordance with Plaintiff's Motion for Leave to Amend the Record on Appeal." In the motion, plaintiff seeks "leave to amend the record on appeal . . . by deleting page 381 of the Record on Appeal, which purports to show the declaration page of the automobile liability policy of Carlyle L. Gemmer . . . at the time of the September 16, 1983 automobile accident with [plaintiff] at issue herein, but which actually is a Gemmer declaration page dated 10/28/82 in the amount of $300,000.00, and substituting the correct declaration page dated 4/28/83 in the amount of $100,000.00." Plaintiff's counsel's affidavit in support of the motion to amend the record states, inter alia :

"8. At the time of the filing of Affiant's Affidavit at pages 366-395 of the Record on Appeal herein, the October 28, 1982/$300,000.00 declaration page was inadvertently attached to Gemmer's insurance policy rather that [ sic ] the April 28, 1983/$100,000.00 declaration page.

9. The April 28, 1983/$100,000.00 declaration page attached to Appellant's Motion to Amend the Record on Appeal is a true and correct copy of the declaration page of Gemmer, which was in effect at the time of the September 13, 1983 automobile accident as produced in Appellant's civil suit against Gemmer."

From the foregoing it is apparent that the record on appeal is completely accurate with respect to what occurred in the trial court. The case was tried on the assumption that Gemmer's policy had a $100,000 single limit; plaintiff's counsel's affidavit in support of the motion to reconsider stated that Gemmer's policy had a $100,000 single limit; and the exhibit attached to plaintiff's counsel's affidavit in support of the motion to reconsider included a declaration page indicating Gemmer had a policy with a single limit of $300,000. All of this occurred in the trial court and is accurately reflected in the record. Plaintiff's motion to amend the record seeks to substitute for the exhibit actually filed in the trial court an exhibit not only never ...


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