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12/30/94 STANLEY KING v. ALLSTATE INSURANCE COMPANY

December 30, 1994

STANLEY KING, PLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EVERETTE A. BRADEN, JUDGE PRESIDING.

Released for Publication February 16, 1995.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and Theis, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Stanley King, appeals from an order granting summary judgment in favor of the defendant, Allstate Insurance Company, on his complaint for declaratory judgment. We consider whether it violates the public policy of Illinois to allow the defendant to set off the amounts the plaintiff received from the policies of an insured motorist and an underinsured motorist against the plaintiff's underinsured motorist coverage. For the following reasons, we reverse and remand.

The plaintiff was injured when he was involved in a two-car accident while riding his bicycle on June 30, 1992. He incurred medical bills over $48,000. Susan Episcopo, one of the drivers who was at fault in the accident, had car insurance with a limit for bodily injury liability of $100,000 per person and $300,000 per occurrence. Phyllis Rasmunson, the other driver who was at fault in the accident, had car insurance with a limit for bodily injury liability of $20,000 per person and $40,000 per occurrence. The plaintiff received the limits of both drivers' policies which was $120,000.

At the time of the accident, the plaintiff had a car insurance policy with the defendant which provided underinsured motorist coverage of $50,000 per person and $100,000 per occurrence. The plaintiff's policy required the defendant to pay "damages for bodily injury or property damage which a person insured is legally entitled to recover from the owner or operator of an uninsured auto." An "uninsured auto" was defined, in part, under the policy as:

"An underinsured motor vehicle which has liability protection in effect and applicable at the time of the accident in an amount equal to or greater than the amounts specified for bodily injury or property damage liability by the financial responsibility laws of Illinois, but less than the limit of liability for [underinsured motorist coverage] shown in the declarations page."

The underinsured motorist coverage of the plaintiff's policy also provided that:

"Damages payable will be reduced by:

(a) all amounts paid by or on behalf of the owner or operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other auto policy.

***

In addition, the limits for [underinsured motorist coverage] will be reduced by all amounts paid by or on behalf of the owner or operator of the ...


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