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06/12/96 CRAIG CUMMINS v. COUNTRY MUTUAL INSURANCE

June 12, 1996

CRAIG CUMMINS, PLAINTIFF-APPELLANT,
v.
COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County. No. 93-L-937. Honorable Stephen M. Kernan, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins, P.j., concurs. Justice Maag, specially concurring:

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, Craig Cummins, filed suit in the circuit court of St. Clair County to recover underinsured motorist benefits from defendant, Country Mutual Insurance Company. Defendant filed a motion to dismiss plaintiff's complaint on the grounds that the at-fault driver's vehicle was not "underinsured." The trial court ultimately granted defendant's motion, and plaintiff now appeals. The sole issue we are asked to consider is whether a beneficiary of an underinsured motorist policy can state a valid claim for such coverage when the at-fault motorist's liability insurance, which has identical policy limits as the underinsured motorist coverage, is exhausted by payments to other claimants in the same occurrence. The Illinois Trial Lawyers Association filed an amicus curiae brief in support of plaintiff. We reverse and remand.

I.

Plaintiff sustained damages exceeding $50,000 in a two-car collision. At the time of the accident, plaintiff was covered by an insurance policy with defendant which provided for underinsured motorist benefits in the amount of $50,000 per person and $100,000 per accident. These limits were identical to the limits found in the at-fault motorist's liability insurance. Plaintiff received a court-approved, good faith settlement of $35,000 from the at-fault driver, with the balance of the liability insurance proceeds going to passengers in the at-fault driver's vehicle. Plaintiff filed suit seeking the $15,000 differential between the $35,000 which he received from the at-fault driver and the $50,000 limit of defendant's underinsured motorist coverage. Plaintiff is the sole claimant to defendant's underinsured motorist coverage.

Defendant filed a motion to dismiss plaintiff's complaint, arguing that the at-fault driver's vehicle was not "underinsured" under similar definitions of that term contained in both the policy in issue and section 143a-2(4) of the Illinois Insurance Code (the Code). 215 ILCS 5/143a-2(4) (West 1992). Defendant argued that even though the at-fault driver did not indemnify plaintiff up to the limits guaranteed by defendant's underinsured motorist coverage, the at-fault driver's vehicle was not underinsured because the limits of liability coverage were equal to the limits of defendant's underinsured motorist coverage. Initially, the trial court denied defendant's motion to dismiss on the basis of Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 591 N.E.2d 427, 169 Ill. Dec. 254 (1992). However, in light of this court's decision in Purlee v. Liberty Mutual Fire Insurance Co., 260 Ill. App. 3d 11, 631 N.E.2d 433, 197 Ill. Dec. 430 (1994), the trial court felt obligated to reconsider its original ruling and grant defendant's motion to dismiss. Plaintiff now appeals from the trial court's order dismissing plaintiff's complaint.

II.

The parties agree that the issue we are asked to address is similar to the issue presented in Purlee, namely, whether a beneficiary of an underinsured motorist policy can state a valid claim for such coverage when the at-fault motorist's liability insurance, which has identical policy limits as the underinsured motorist coverage, is exhausted or reduced due to payments made to other claimants in the same occurrence. In Purlee, the issue was framed as follows:

"(1) whether the availability of underinsured motorist coverage to a claimant, when the at-fault motorist's liability insurance is exhausted by payments to other claimants injured in the same occurrence, should be determined by comparing the amount of the claimant's underinsured motorist coverage to the stated amount of the at-fault motorist's liability coverage or to the amount the claimant actually recovers from the at-fault motorist's coverage." Purlee, 260 Ill. App. 3d at 13, 631 N.E.2d at 436.

The statutory language in issue here is identical to the language under consideration in Purlee:

"(4) For the purpose of this Code the term 'underinsured motor vehicle' means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle[] is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.

On or after July 1, 1983, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle designed for use on public highways and required to be registered in this State unless underinsured motorist coverage is included in such policy in an amount equal to the total amount of uninsured motorist coverage provided in that policy where such uninsured motorist coverage exceeds the limits set forth in ...


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