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June 14, 1994


Appeal from the Circuit Court of Du Page County. No. 92-MR-0286. Honorable Bonnie M. Wheaton, Judge, Presiding.

Inglis, Bowman, Quetsch

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, James W. Vanek, brought a declaratory judgment action against defendant, Illinois Farmers Insurance Company (Farmers), seeking a determination of his rights to underinsured motorist (UIM) coverage under three policies issued to him by Farmers. The circuit court dismissed the complaint for a failure to state a cause of action, and plaintiff appeals from that order.

Plaintiff was involved in an accident with Kristen O'Leary on July 7, 1991. O'Leary was insured by State Farm Insurance Company (State Farm), and State Farm tendered their limits of $50,000 to plaintiff. Plaintiff filed suit against Farmers, alleging that he was entitled to UIM coverage under a motorcycle policy and two automobile policies on which plaintiff was the named insured. Plaintiff also requested attorney fees pursuant to section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 1992)). Farmers filed a motion to dismiss count I of the complaint under section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615(West 1992)) because it failed to state a cause of action. Specifically, defendant alleged that the motorcycle policy which covered the motorcycle upon which plaintiff was riding at the time of the accident did not provide UIM coverage. Defendant further alleged that each of the Farmers' policies limited liability to the coverage contained in the policy for the vehicle which plaintiff was driving at the time of the accident so plaintiff was not entitled to recover under his automobile policies. The trial court granted defendant's motion for judgment on the pleadings. The trial court dismissed as moot plaintiff's second count for attorney fees.

When reviewing a circuit court's grant of judgment on the pleadings, a reviewing court must determine whether the allegations in the complaint, when viewed in a light most favorable to plaintiff, are sufficient to state a cause of action upon which relief may be granted. ( Howard v. Druckemiller (1992), 238 Ill. App. 3d 937, 941, 183 Ill. Dec. 148, 611 N.E.2d 1.) This court will affirm the order for judgment on the pleadings only if no set of facts can be proven under the pleadings which would entitle plaintiff to relief. ( Griffis v. Board of Education, District 122 (1979), 72 Ill. App. 3d 784, 787.) We turn now to an examination of the policies involved in this dispute.

Plaintiff was the named insured on a motorcycle policy insuring the motorcycle which he was riding at the time of the accident. Plaintiff was also the named insured on two automobile policies which contain uninsured motorist (UM) coverage in the amounts of $100,000 per person/$300,000 per occurrence and which state both on the declarations page and in the caption for the UM coverage that the UM coverage includes UIM coverage. The declarations page of the motorcycle policy shows coverage in the amount of $20,000 per person/$40,000 per occurrence for UM coverage, but does not reflect any separate coverage limits for UIM coverage.

Despite the fact that the motorcycle policy does not contain any specific language regarding UIM coverage, we note that under the UM coverage section an "uninsured motor vehicle" includes a motor vehicle which is "b. insured by a bodily injury liability bond or policy at the time of the accident which provides coverage in amounts less than the limits of Uninsured Motorists Coverage shown in the Declarations." This definition is consistent with the definition of "underinsured motor vehicle" as used in the Insurance Code (215 ILCS 5/143a-2(4) (West 1992)). (See Allstate Insurance Co. v. Gonzalez-Loya (1992), 226 Ill. App. 3d 446, 450, 168 Ill. Dec. 482, 589 N.E.2d 882.) The Illinois Insurance Code provides:

"(4) For the purpose of this Code 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." (215 ILCS 5/143a-2(4) (West 1992).)

Definition b of "uninsured motor vehicle" in the motorcycle policy mirrors that of the definition of "underinsured motor vehicle" used by Farmers in its other policies wherein UIM coverage was specifically included in UM coverage by virtue of the inclusions of the definition of "underinsured motor vehicle" within the definition of "uninsured motor vehicle." Therefore, while the motorcycle policy may not use the term UIM coverage to describe this coverage, the UM portion includes coverage for what is statutorily referred to as UIM coverage.

Even determining that the motorcycle policy provides UIM coverage as part of UM coverage, under the circumstances of this case, the motorcycle policy would not provide any coverage to this plaintiff. The UIM coverage only comes into play if the bodily injury policy limits of O'Leary's policy are less than the limits of the UIM coverage available to plaintiff under the motorcycle policy. Since O'Leary had $50,000 limits and plaintiff's UIM coverage was part of the UM coverage with limits of $20,000 per person, there would be no UIM coverage available to plaintiff under the motorcycle policy.

We must next consider whether there is any language in the motorcycle policy which prohibits plaintiff from looking to his two automobile policies for applicable UIM coverage for this accident. Under the UM coverage portion of the policy, which we have determined includes UIM coverage, there is a section entitled "Limits of Liability." That section provides in part:

"The limits of liability shown in the Declarations apply subject to the following:

1. The limit for 'each person' is the maximum for bodily injury sustained by any ...

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