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03/13/97 STATE FARM MUTUAL AUTOMOBILE INSURANCE

March 13, 1997

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
JENNIFER VILLICANA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County. No. 96--MR--5. Honorable James C. Franz, Judge, Presiding.

Released for Publication April 18, 1997.

The Honorable Justice Rathje delivered the opinion of the court. Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

Defendant, Jennifer Villicana (Jennifer), appeals from an order of the circuit court of McHenry County granting summary judgment to the plaintiff, State Farm Mutual Automobile Insurance Company (State Farm).

On appeal, Jennifer raises the following issues: (1) whether the exclusion contained in the State Farm insurance policy at issue violates public policy; (2) whether an ambiguity in that policy exists; and (3) whether the case authority relied on by State Farm in support of its motion for summary judgment is distinguishable or is, in fact, supportive of the invalidity of the exclusion contained in the policy.

The facts of this case are not in dispute. Jennifer was a passenger in a 1990 Ford Mustang being driven by Jay Rebscher when the Mustang went off the road and crashed into a tree. As a result of the accident Jennifer sustained personal injuries.

The Mustang was owned by Bernard J. Villicana, Jr., Jennifer's father. Mr. Villicana had insured the Mustang with State Farm under an automobile policy which provided bodily injury "liability" and "underinsured" limits of $100,000 per person/$300,000 per occurrence. Under a separate policy with State Farm, Mr. Villicana insured his 1990 Buick LeSabre. That policy provided "liability" and "underinsured motorist coverage" limits in the sum of $250,000 per person/$500,000 per occurrence. Mr. Rebscher had insurance coverage on his own vehicle (not involved in the accident) through Coronet Insurance Group (Coronet) with bodily injury "liability" limits in the sum of $20,000 per person/$40,000 per occurrence.

State Farm paid Jennifer the $100,000 limit of liability coverage on the Mustang. Jennifer also received the $20,000 limit of liability coverage from Coronet, Mr. Rebscher's insurer. However, due to the amount of the damages she incurred, Jennifer filed a claim with State Farm under Mr. Villicana's Buick's "underinsured" coverage. State Farm denied her claim and filed the instant declaratory judgment action maintaining that its "Underinsured Motor Vehicle--Coverage W" did not provide coverage to Jennifer. That portion of the policy on the Buick provided as follows:

"UNDERINSURED MOTOR VEHICLE--COVERAGE W

You have this coverage if "W" appears in the "Coverages" space on the declarations page.

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be caused by accident or use of an underinsured motor vehicle.

Underinsured Motor Vehicle--means a land vehicle:

1. the ownership, maintenance or use of which:

a. is insured or bonded for bodily injury at the time of ...


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