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10/26/94 ILLINOIS FARMERS INSURANCE COMPANY v.

October 26, 1994

ILLINOIS FARMERS INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
GEORGE TABOR, SPECIAL ADM'R OF THE ESTATE OF KATRINA TABOR, DECEASED. DEFENDANT-APPELLANT.



Appeal from the Circuit Court of De Kalb County. No. 91-MR-37. Honorable John W. Countryman, Judge, Presiding.

Released for Publication December 2, 1994.

Bowman, Woodward, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant George Tabor, special administrator of the estate of Katrina Tabor, appeals from summary judgment for plaintiff, Illinois Farmers Insurance Company, in a declaratory judgment action. We affirm.

On the night of November 4, 1989, Katrina Tabor (Katrina), the daughter of George Tabor (Tabor), was killed in a train-car accident in De Kalb. Katrina and her friend, Jamie Tucker, were passengers in a car driven by John Denton. Denton attempted to race across a railroad crossing ahead of an oncoming train. The train struck the car, killing both Jamie and Katrina. John Denton survived.

At the time of the accident, there were two insurance policies applicable to the Denton car. John Denton himself was insured by United States Fidelity and Guaranty (USF&G) on a single-limit, $100,000-per-accident liability policy. The car, owned by Denton's father, was separately insured by USF&G on a single limit, $300,000-per-accident liability policy. The total coverage applicable to the car was, therefore, $400,000.

Following the accident, the estates of Katrina and Jamie each filed wrongful death claims against Denton. USF&G settled these claims on Denton's behalf with payments of $200,000 to each estate, exhausting the policy limits on both of Denton's liability policies. Denton's liability for the deaths of Jamie and Katrina was not an issue in the trial court.

At the time of the accident, Tabor had an automobile insurance policy with Illinois Farmers Insurance Company (Farmers) which included uninsured/underinsured motorist coverage. The payment limits on this policy were $250,000 per person and $500,000 per occurrence. Tabor filed an underinsured motor vehicle (UIM) claim with Farmers based on Katrina's death, claiming that she was an insured under the policy. He sought payment of $50,000, the difference between the $200,000 he recovered from Denton and the $250,000-per-person limit on his UIM policy with Farmers. Farmers denied the claim on the basis that the Denton automobile was not an underinsured motor vehicle as defined by either the Farmers policy or the Illinois Insurance Code (Insurance Code) (Ill. Rev. Stat. 1991, ch. 73, par. 755a-2 (now 215 ILCS 5/143a-2 (West 1992)), and on the basis that Katrina was not an insured as defined in the policy.

Subsequently, Farmers filed the instant declaratory judgment action seeking a declaration that, under the terms of the policy, it could reject Tabor's UIM claim. After a hearing, the trial court granted summary judgment to Farmers, ruling that because the Denton vehicle carried $400,000 in total liability insurance, and Tabor's UIM policy had a limit of $250,000, Denton's vehicle was not an underinsured motor vehicle under the UIM provision of the Insurance Code. Because it granted summary judgment based on the UIM provision of the Insurance Code, the trial court did not reach the issue of Katrina's status under the policy, and that issue is not before this court.

Tabor makes three principal contentions on appeal. First, he argues that the definition of an underinsured motor vehicle should be determined by comparing the amount actually received by the insured from the tort-feasor with the limit of the insured's UIM policy. Second, he argues in the alternative that an acceptable method for defining an underinsured motor vehicle is to compare the maximum-per-occurrence limits of the insured's UIM policy with the maximum-per-occurrence limits of the tort-feasor's liability policy. Finally, he contends that the Farmers policy in the present case is ambiguous.

The use of summary judgment is appropriate where, as here, there are no questions of fact and judgment can be entered as a matter of law. (735 ILCS 5/2-1005(c) (West 1992); Banes v. Western States Insurance Co. (1993), 247 Ill. App. 3d 480, 482, 186 Ill. Dec. 579, 616 N.E.2d 1021.) The construction of the terms of an insurance policy and the effect of the statutory UIM requirements are questions of law appropriate for summary judgment Disposition. ( Banes, 247 Ill. App. 3d at 482.) We review the entry of summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204.

I

The Illinois Insurance Code defines an underinsured ...


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