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11/27/96 STATE FARM FIRE AND CASUALTY COMPANY v.

November 27, 1996

STATE FARM FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLEE,
v.
SANDRA TROUSDALE, ADMINISTRATOR OF THE ESTATE OF JERRY E. TROUSDALE, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 92-CH-1338. Honorable John Hourihane, Judge Presiding.

Released for Publication January 15, 1997.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Jerry Trousdale was killed in a one-car accident while he was a passenger in a Corvette he owned with his wife. At the time of the accident, Joanne Grygiel was driving the Corvette with his permission. Trousdale cancelled all but the comprehensive coverage portion of his Corvette's underlying insurance policy prior to the accident. Therefore, Trousdale did not have automobile insurance covering the injuries arising from the Corvette's accident.

The Trousdales did own three other insurance policies: (1) an automobile policy on their Mercedes-Benz; (2) an automobile policy on their Lincoln Town Car; and (3) a personal liability umbrella policy which included an optional endorsement adding uninsured and underinsured motor vehicle coverage with a $2 million liability limit.

Grygiel had primary vehicle insurance for her own automobile, which provided coverage while she was driving the Corvette. Grygiel's policy had a liability limit of $100,000 and Grygiel did not have an excess liability or umbrella policy. As administrator of Trousdale's estate, Mrs. Trousdale sought damages in excess of the coverage provided by Grygiel's policy. Grygiel's policy, however, is not at issue in this suit. What is at issue is whether the underinsured motor vehicle ("UIM") endorsement from the Trousdales' umbrella policy provides coverage under the facts of this case.

State Farm brought a declaratory action to determine whether Trousdale's estate could recover under the umbrella's UIM endorsement. State Farm contended that the Corvette did not fall within the definition of an underinsured motor vehicle as defined by the umbrella policy, because the policy expressly excluded coverage for the insured's own vehicle. In addition, this excess policy required the insured to maintain an underlying vehicle insurance policy.

Defendant filed an amended counterclaim alleging that State Farm violated the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1994)) because: (1) State Farm did not explain to the Trousdales that the scope of the coverage under the UIM endorsement differed from that contained in the Corvette's original underlying insurance policy; (2) a clause in the umbrella policy adopted the terms of the underlying vehicle insurance policies, all the policies were deceptive in stating no vehicle insured under the liability coverage of the policy could be considered uninsured or underinsured; and (3) the policies were deceptive and they violated section 143.01(b) of the Insurance Code. 215 ILCS 5/143.01(b) (West 1994).

The parties filed cross-motions for summary judgment on State Farm's complaint. In response to State Farm's motion for summary judgment, defendant conceded that the umbrella's UIM endorsement clearly excluded the insured's own vehicle from coverage. However, defendant argued that State Farm was still obligated to cover the injuries arising from the accident. Defendant claimed that: (1) the exclusionary clause was void because it violated public policy and section 143.01(b) of the Insurance Code; and (2) if the court accepted State Farm's position, the coverage under the policy would be illusory.

The trial court granted State Farm's motion for summary judgment and denied defendant's motion for summary judgment. The trial court found that the policy's provisions clearly excluded coverage for the Corvette, that the public policy codified in section 143.01 did not apply to umbrella policies, and that the coverage was not illusory as the UIM protected insureds when involved in accidents with underinsured third parties.

The trial court also granted State Farm's section 2-619 motion (735 ILCS 5/2-619 (West 1994)) to dismiss defendant's counterclaim, finding that defendant failed to state a cause of action under the Consumer Fraud Act. Defendant appeals from all of these rulings, and we affirm.

On appeal, defendant first argues that the clause in the umbrella's UIM endorsement which excludes coverage for the insured's own vehicle violates section 143.01 of the Insurance Code. Section 143.01 provides:

"(b) A provision in a policy of vehicle insurance excluding coverage for bodily injury to members of the family of the insured shall not be applicable when any person not in the household of the insured was driving the vehicle of the insured involved in the accident which is the ...


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