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08/31/95 LINDA HAGLER v. COUNTRY MUTUAL INSURANCE

August 31, 1995

LINDA HAGLER, ADMINISTRATOR OF THE ESTATE OF JARRED TERRY BENNETT, DECEASED, PLAINTIFF-APPELLEE,
v.
COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Johnson County. No. 93-MR-62. Honorable James R. Williamson, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Maag, P.j., and Kuehn, J. *fn1, concur.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Linda Hagler, on behalf of the estate of Jarred Bennett, filed a declaratory judgment action which requested the court to declare that the underinsured motorists coverage of three separate policies issued by Country Mutual Insurance Company could be stacked for a total of $150,000 underinsured motorists coverage. The trial court declared that the underinsured motorist coverage could be aggregated. The court also found that defendant was only entitled to a $25,000 setoff, which was the amount of coverage applicable to the motor vehicle in which plaintiff's decedent was riding at the time of his death. Country Mutual Insurance Company (Country Mutual) appeals. We reverse.

Jarred Bennett was a passenger in a car driven by Robert Drew. Drew's car collided with a tree, and Bennett was killed. At the time of the accident Drew had insurance with Madison Mutual Insurance Company with bodily injury limits of $25,000 per person. Madison Mutual Insurance Company paid its policy limits of $25,000.

Linda Hagler is married to Robert Bruce Hagler. Jarred resided with his mother, Linda Hagler, and her husband Bruce Hagler, at the time he was killed. On the date of the accident Country Mutual had in effect three policies which are identical except that one policy was issued to Jarred T. Bennett, another to Robert Bruce Hagler, and the third to Robert B. and Linda S. Hagler. There is no dispute that Jarred was an insured entitled to underinsured motorists coverage under all three policies. The dispute is over the antistacking provisions in the policies.

The declarations page of each policy discloses that underinsured motorists coverage was purchased for each of them. Each policy has limits of $50,000 per person and $100,000 per occurrence for underinsured motorists coverage. Each of the policies also has the following provision:

"If you have paid for this coverage (see the declarations page), we will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by an insured and caused by an accident. The owner's or operator's liability for these damages must arise from the ownership, maintenance or use of the uninsured or underinsured motor vehicle.

If you have Underinsured Motorists coverage, (see the declarations page), a. and b. apply:

a. The limits of liability for this coverage will be reduced by the total payments of all bodily injury liability insurance policies applicable to the person or persons legally responsible for such damages. ***"

The policies also provide:

"Other Vehicle Insurance With Us. If this policy and any other vehicle insurance policy issued to you or a relative by one of our companies apply to the same accident, the maximum limit of our liability under all the policies will not exceed the highest applicable limit of liability under any one policy."

After a bench trial the court found that the underinsured motorists provisions of the policies did not provide coverage for an underinsured death claim because "Section 2, Uninsured-Underinsured Motorists" provides:

"We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by an ...


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