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11/22/96 ROBERT J. HATHAWAY v. STANDARD MUTUAL

November 22, 1996

ROBERT J. HATHAWAY, ADMINISTRATOR OF THE ESTATE OF RODY RAY HATHAWAY, DECEASED, AND ERIC W. VAN ZANT, PLAINTIFFS-APPELLANTS, AND JASON M. BARTON, PLAINTIFF,
v.
STANDARD MUTUAL INSURANCE COMPANY, A CORPORATION, AND COUNTRY COMPANIES INSURANCE COMPANY, A CORPORATION, DEFENDANTS-APPELLEES, AND BLAKE E. VAUGHN, LODEWYK C. BORST, PAIGE E. BORST, SOLANGE A. BORST, KAREN S. KNUIST, ROBERT A KNUIST, AND STATE FARM INSURANCE COMPANY, A CORPORATION, DEFENDANTS.



Appeal from the Circuit Court of Saline County. No. 91-L-36. Honorable Arlie O. Boswell, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Justice Kuehn, specially concurring" Justice Goldenhersh, specially concurring.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Several times in recent years this court has ruled on the recoverability of underinsured motorist benefits when multiple claimants exhaust the coverage of the underinsured vehicle. See Golladay v. Allied American Insurance Co., 271 Ill. App. 3d 465, 648 N.E.2d 157, 207 Ill. Dec. 701 (1st Dist. 1995); Illinois Farmers Insurance Co. v. Tabor, 267 Ill. App. 3d 245, 642 N.E.2d 159, 204 Ill. Dec. 697 (2d Dist. 1994); Moriconi v. Sentry Insurance of Illinois, 193 Ill. App. 3d 904, 550 N.E.2d 637, 140 Ill. Dec. 752 (4th Dist. 1990); Purlee v. Liberty Mutual Fire Insurance Co., 260 Ill. App. 3d 11, 631 N.E.2d 433, 197 Ill. Dec. 430 (5th Dist. 1994); Cummins v. Country Mutual Insurance Co., 281 Ill. App. 3d 5, 666 N.E.2d 909, 217 Ill. Dec. 240 (5th Dist. 1996), appeal allowed, 168 Ill. 2d 586, N.E.2d (1996). The rulings have been mixed, not only among the districts, but also within the same district. See Purlee v. Liberty Mutual Fire Insurance Co., 260 Ill. App. 3d 11, 631 N.E.2d 433, 197 Ill. Dec. 430 (5th Dist. 1994); Cummins v. Country Mutual Insurance Co., 281 Ill. App. 3d 5, 666 N.E.2d 909, 217 Ill. Dec. 240 (5th Dist. 1996). We conclude that beneficiaries of underinsured motorist coverage whose injuries are not fully compensated for by the coverage on the underinsured vehicle are entitled to recover under their underinsured motorist coverage even though the bodily injury liability limits of the underinsured vehicle are equal to or greater than the underinsured motorist limits.

Before we begin the analysis of this problem, a brief general history of underinsured motorist coverage is in order. Historically, underinsured coverage is a complement to uninsured coverage. What is uninsured coverage? Uninsured coverage is insurance that provides limited benefits to responsible insureds who are injured in accidents with people who do not carry liability insurance. Uninsured coverage enables prudent drivers, who are willing to pay the appropriate premium, to protect themselves against the likelihood that they will be involved in an accident with a person who has no insurance. Uninsured motorist coverage became generally available in Illinois in approximately 1963, and it obviously filled a perceived void in insurance coverage. The uninsured motorist coverage in essence said:

"For an appropriate premium, if you are injured in an auto accident, you will be compensated for your injuries up to $XXX, even though the other person has no insurance."

In 1980, only 17 years after the advent of uninsured motorist coverage, it became apparent that uninsured motorist coverage alone was not enough to protect responsible drivers who were willing to pay appropriate premiums. The gap in protection for responsible drivers occurred when the other driver in an occurrence was not completely uninsured. If, for example, the driver at fault had bodily injury liability limits of $20,000 and the injured person had uninsured motorist limits of $100,000, the injured person could recover nothing from an uninsured motorist policy. He or she would have been better off if the driver at fault had been completely uninsured instead of only underinsured. The legislative response to this problem was to provide for insurance, in fact, to require insurance companies to offer underinsured motorist coverage. Ill. Rev. Stat. ch. 73, par. 755a-1 (West Supp. 1980) (now see 215 ILCS 5/143a-2 (West 1994)).

The underinsured coverage was intended to offer responsible drivers a way to protect themselves not only from uninsured motorists but also from underinsured motorists. By paying the appropriate premium, responsible drivers could be assured that, if they were injured in an auto accident, they would be able to recover up to the limits they purchased from their own insurance companies, regardless of the insurance status of the driver at fault. The driver at fault could be completely without insurance, in which case they could recover the entire amount of their uninsured motorist coverage limits, assuming of course that their injuries were severe enough to entitle them to the full amount. If, on the other hand, the driver at fault had insurance, and their injuries were severe enough, they would be able to recover the entire amount of their underinsured limits, less the amount recovered from the driver at fault. In both situations, the responsible driver was protected up to the limits of the coverage, whether uninsured motorist coverage or underinsured motorist coverage. In both situations, the insurance companies' maximum exposure was limited to the amount of the coverage selected by their insureds, and in the case of underinsured coverage, that exposure would be reduced by the amount their insureds received from the underinsured driver. The insurance companies' exposure was also limited by the limits they imposed of so much per person, so much per occurrence. At this point everything seems covered. Insureds can purchase the appropriate protection, and insurance companies will pay the appropriate amounts.

What happened next? There was an accident in which several insureds were injured. If the driver at fault had been uninsured, each of the injured insureds would have been able to recover up to the uninsured limits, assuming that their injuries were that serious. What if the driver at fault was underinsured, that is, what if the limits of the driver at fault were not enough to compensate all the insureds for the full extent of their injuries? Well, most people would say, "Since underinsured motorist insurance was extended to fill the gap created by underinsured versus uninsured motorist coverage, obviously the insureds are entitled to recover up to the limits of their underinsured coverage, less whatever amounts they can recover from the underinsured driver."

Most, if not all, people might see it that way, but the courts have not. Beginning with Moriconi v. Sentry Insurance of Illinois, Inc., 193 Ill. App. 3d 904, 550 N.E.2d 637, 140 Ill. Dec. 752 (1990), and extending through Golladay v. Allied American Insurance Co., 271 Ill. App. 3d 465, 648 N.E.2d 157, 207 Ill. Dec. 701 (1995), most courts have applied the definition of underinsured vehicle found in the first sentence of section 143a-2(4) of the Illinois Insurance Code (215 ILCS 5/143a-2(4) (West 1994)) to deprive insureds of the protection they had purchased. See also Purlee v. Liberty Mutual Fire Insurance Co., 260 Ill. App. 3d 11, 631 N.E.2d 433, 197 Ill. Dec. 430 (1994); Illinois Farmers Insurance Co. v. Tabor, 267 Ill. App. 3d 245, 642 N.E.2d 159, 204 Ill. Dec. 697 (1994). But see Cummins v. Country Mutual Insurance Co., 281 Ill. App. 3d 5, 666 N.E.2d 909, 217 Ill. Dec. 240 (1996).

We conclude that Moriconi and the other cases relying solely on the first sentence of section 143a-2(4) have misconstrued the statute as applied to the multiple-claimant anomaly.

Section 143a-2 of the Illinois Insurance Code that was in effect at the time of plaintiffs' accident read:

"For the purpose of this Act 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." (Emphasis added.) Ill. Rev. Stat. 1989, ch. 73, par. 755a-2.

Most of the courts that have construed the statute have focused on the first sentence and found it unambiguous. Consequently, they have ignored the legislative history and ruled in the insurance companies' favor. Although ambiguity in a statute is one reason for a court to examine the legislative history, it is not the only reason. An examination of the legislative history is also appropriate if the examination helps to prevent an absurd result. See W. Eskridge, Legislative History Values, 66 Chi.-Kent L. Rev. 365 (1990).

Although most of the cases construing the underinsured motorist statute have either refused or neglected to examine its legislative history because they found no ambiguity in it or because they concluded that it would be inappropriate to look behind its words, we do not share that view for several reasons.

First, as Professor Eskridge points out, although Justice Holmes' statement, "We do not inquire what the legislature meant; we ask only what the statute means" (Holmes, Collected Legal Papers, 207), is often quoted by those reluctant to examine legislative history, that was not his final word on the subject. Holmes also said:

"It is said that when the meaning of language is plain we are not to resort to [extrinsic] evidence in order to raise doubts. That is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel Co. ...


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