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02/28/95 VALERIO FRIGO AND ISABELLA FRIGO v. MOTORS

February 28, 1995

VALERIO FRIGO AND ISABELLA FRIGO, PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,
v.
MOTORS INSURANCE CORPORATION, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Everette A. Braden, Judge Presiding.

Released for Publication April 13, 1995.

The Honorable Justice DiVITO delivered the opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

This action was brought to seek stacked medical payments coverage and underinsured motorist coverage under an insurance policy sold by defendant Motors Insurance Corporation (Motors) to plaintiffs Valerio Frigo and Isabella Frigo (the Frigos). The circuit court entered summary judgment for the Frigos, finding that the insurance policy was ambiguous. The court denied Motors' amended motion for summary judgment, including a counterclaim in the alternative for reformation of the insurance policy. Prior to completion of the briefing schedule on the cross-motions for summary judgment, Motors brought an amended motion to reopen discovery and the court denied the motion. Motors appeals from the grant ofsummary judgment to the Frigos, the denial of its motion for summary judgment, and the denial of its motion to reopen discovery. The circuit court granted Motors a stay pending appeal, and the Frigos cross-appeal the granting of the stay. For reasons that follow, we reverse the granting of summary judgment to the Frigos and the denial of summary judgment to Motors, and enter summary judgment for Motors, rendering the other issues moot.

The Frigos filed their complaint for a declaratory judgment on April 26, 1990. The case had been begun in 1987, but was dismissed for want of prosecution and refiled pursuant to section 13-217 of the Illinois Code of Civil Procedure (735 ILCS 5/13-217 (West 1992)). The Frigos alleged that they were insured by Motors; that Isabella Frigo had been injured in a covered automobile accident on December 31, 1986; that the insurance company of the driver of the other automobile had paid her a total of $15,000 in settlement of her claims; that Motors had paid her $5,000 under her medical payment coverage and $35,000 under her underinsured motorist coverage; and that she was insured under three policies for a total of $15,000 under medical payment coverage and $150,000 under underinsured motorist coverage. The Frigos requested a declaration of rights and a declaratory judgment that they were entitled to an additional $10,000 under their medical payment coverage under a theory called "stacking" (the piling up of benefits from different insurance policies, or from different automobiles insured under the same policy) because the portions of the policy limiting their recovery are void as contrary to public policy, and that they are due an additional $100,000 under their underinsured motorist coverage under the same theory. They believed they were entitled to stack these coverages because of ambiguities in the policy as it existed on the day of the accident.

Motors filed its answer and affirmative defense to the complaint on July 10, 1990, alleging the existence of only one policy covering three separate automobiles. It asked the court to declare that stacking is impermissible in this case, and that its liability under the policy was limited to the $40,000 it had already paid to the Frigos.

Discovery began on December 3, 1990, and continued until July 31, 1991. The record contains the Frigos' answers to interrogatories; the deposition of Valerio Frigo; the deposition of Isabella Frigo; the affidavit of Shelvie Faust, branch manager of Motors; the affidavit of Isabella Frigo; the affidavit of Valerio Frigo; the affidavit of Daniel E. Murphy, Motors' attorney; and the insurance policy.

The Frigos had made a written application for automobile insurance with Motors on April 26, 1986, when they purchased a new 1986 Chevrolet Nova. At the time, they resided in Dolton, Illinois. The application was signed by Isabella Frigo. It sets bodily injury and property damage coverage limits of $50,000/$100,000/$25,000, with uninsured and underinsured motorist coverage in equal amounts.

On the day of their application, Motors issued one policy of insurance covering three of the Frigos' motor vehicles: two 1986 Chevrolet Novas and one 1982 Buick Skylark. The Frigos were provided with the insurance policy documents, read them when they received them, and understood that the policy provided $50,000 in underinsured motorist coverage in April 1986. They also understood that at that time the policy provided $5,000 in medical payment coverage.

On or about June 5, 1986, Motors issued a declaration sheet reflecting the coverages provided to the Frigos pursuant to their April 1986 application for insurance. The Frigos received a copy and in fact produced a copy through discovery. The declaration sheet provided for $50,000 for each person and $100,000 for each accident in underinsured motorist coverage, and $5,000 for each person in medical payments coverage. The declaration sheet further stated that endorsements PP0001, PP0311, and PP0402, among others, comprised the Motors insurance policy issued to the Frigos.

Endorsement PP0001 provided for medical payments coverage, in pertinent part, as follows:

"LIMIT OF LIABILITY

The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for each person injured in any one accident. This is the most we will pay regardless of the number of:

1. 'Insureds';

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident.

OTHER INSURANCE

If there is other applicable auto medical payments insurance we will pay only our share of the loss. Our share is the proration that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible auto insurance providing payments for medical or funeral expenses."

The declaration sheet also stated the following:

"UNDERINSURED MOTORIST COVERAGE

$50,000 each person/$100,000 each accident."

Endorsement PP0311 of the policy provided, in pertinent part, as follows:

"LIMIT OF LIABILITY

The limit of liability shown in the Schedule for this coverage is our maximum limit of liability for all damages, resulting from any one accident. This is the most we will pay regardless of the number of:

1. Covered persons;

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident."

Endorsement PP0402 of the policy provided, in pertinent part, as follows:

"The first paragraph of the Limit of Liability provision in the Underinsured Motorists Coverage Endorsement is replaced by the following:

LIMIT OF LIABILITY

The limit of liability shown in the Schedule or in the Declarations for each person for Underinsured Motorist Coverage is our maximum limit of liability for all damages for care, loss of services or death, arising out of 'bodily injury' sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Underinsured Motorist Coverage is our maximum limit of liability for ...


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