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08/31/94 GRACE S. BAILEY v. STATE FARM FIRE &

August 31, 1994

GRACE S. BAILEY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF WELDON J. BAILEY, DECEASED, PLAINTIFF-APPELLANT,
v.
STATE FARM FIRE & CASUALTY COMPANY, DEFENDANT-APPELLEE.



Appeal from Circuit Court of McLean County. No. 88CH24. Honorable Joseph H. Kelley, Judge Presiding.

As Corrected September 30, 1994.

Justices: Honorable James A. Knecht, J., Honorable Robert W. Cook, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Plaintiff, Grace Bailey, appeals from the order of the circuit court of McLean County granting the motion of State Farm Fire and Casualty Company (State Farm) for judgment on the pleadings. She alleges the trial court erred in determining the umbrella policy she purchased from State Farm clearly and unambiguously provided the excess uninsured motorist insurance would be reduced by the amount of other insurance received. We disagree and affirm.

In 1979, Grace and Weldon Bailey owned four automobile insurance policies, each of which insured one of their four automobiles. These policies were issued by State Farm and had been sold to the Baileys by State Farm agent Tom Metzger. The policies were in effect over a six-month period and were renewed semiannually on March 21 and September 21.

On September 21, 1979, the Baileys renewed their four automobile insurance policies. At this time each automobile insurance policy provided for uninsured motorist (UM) coverage of $10,000. Also on September 21, 1979, Meztger sold the Baileys a "Success Protector Policy," which is in the nature of an umbrella policy. In order to be eligible to purchase the umbrella policy, the Baileys were required to own underlying (primary) insurance. The four automobile policies constituted underlying insurance to the umbrella policy. The umbrella policy provided $1 million personal liability coverage and $35,000 UM coverage. The umbrella policy was in effect for a 12-month period and could be renewed annually on September 21.

On March 21, 1980, while the umbrella policy was still in effect, the Baileys renewed their four automobile insurance policies. At this time, they increased the UM coverage on two of the policies to $100,000 each. The UM coverage on the other two policies remained at $10,000 each. Thus, the Baileys had a total of $220,000 UM coverage pursuant to their four primary automobile insurance policies.

The coverages section of the umbrella policy provides:

"COVERAGES

2. COVERAGE U: UNINSURED MOTORISTS

This Company will pay all sums up to $35,000, less the amount of the Retained Limit-Coverage U, which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile or an underinsured automobile, provided:

(a) this Company's liability hereunder shall be only in excess of the Retained Limit-Coverage U, and

(b) coverage hereunder for loss involving such uninsured or underinsured automobile shall apply only in accordance with the terms and conditions of underlying Uninsured Motorists insurance afforded to the Insured at the time of loss, or in the absence thereof, Uninsured Motorists insurance afforded to the Insured as of the effective date of this policy.

EXCLUSION

This insurance does not apply, as respects Coverage U:

(a) to loss occurring at any time during which the Insured is not afforded underlying Uninsured Motorists insurance by reason of the ...


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