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05/09/97 ESTATE KATHRYN SINN v. MID-CENTURY

May 9, 1997

ESTATE OF KATHRYN SINN, DECEASED, BY ROBIN E. SINN, ADMINISTRATOR, MICHAEL SINN, BY HIS FATHER AND NEXT FRIEND, ROBIN E. SINN, AND JENNIFER SINN, BY HER FATHER AND NEXT FRIEND ROBIN E. SINN, PLAINTIFF-APPELLANT,
v.
MID-CENTURY INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 95-MR-13. Honorable David Herndon, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court. Kuehn, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

On July 23, 1992, three minor children, Kathryn, Michael, and Jennifer Sinn, were passengers in a motor vehicle driven by their grandmother, Patricia A. Shaftic, when a vehicle driven by Christian J. Bowman crossed the median and collided with Shaftic's vehicle. Kathryn was killed and Michael and Jennifer were seriously injured. Shaftic was also killed.

The vehicle driven by Bowman was insured by Mid-Century Insurance Company with a liability limit of $50,000. Pursuant to this policy, each of the Sinn children was paid $10,000. The vehicle driven by Shaftic was insured by Royal Insurance Company, with underinsured motorist limits of $100,000 per person/$300,000 per accident. Pursuant to this policy, the estate of Kathryn was paid $75,000, Michael was paid $53,961.10 and Jennifer was paid $50,000. It is undisputed that the children's damages exceed the amounts paid under these two insurance policies.

Accordingly, the children's father, Robin Sinn, sought recovery for his children's damages under the underinsured motorist endorsement of a policy issued to him by Mid-Century Insurance Company (Mid-Century), with limits of $50,000 per person/$100,000 per accident. Mid-Century denied coverage for the reason that the Sinn children had already received payment in excess of the limits of the underinsured motorist coverage and were therefore not underinsured.

On May 26, 1995, Robin Sinn (Sinn) filed, in the circuit court of Madison County, a second amended complaint against Mid-Century, seeking a declaratory judgment that Mid-Century is required to extend underinsured motorist coverage to Sinn up to the policy limit, with a credit of $30,000, the amount paid by the insurer of the at-fault driver (Bowman). In its answer to the complaint, Mid-Century raised the following pertinent affirmative defenses. First, Mid-Century alleged that the children had already been paid more than the underinsured motorist policy limit and were therefore not underinsured. Second, Mid-Century alleged that the "Other Insurance" provision of the policy excluded coverage. This provision states:

"We will not provide insurance for a vehicle other than your insured car or your insured motorcycle unless the owner of that vehicle has no other insurance applicable to this part."

Third, Mid-Century alleged that coverage was excluded under the "Exclusion" provision of the policy, which states:

"This coverage does not apply to bodily injury sustained by a person *** if the injured person was occupying a vehicle you do not own which is insured for this coverage under another policy."

Both parties filed motions for summary judgment in their favor.

On May 2, 1996, the trial court entered summary judgment for Mid-Century, finding that the "Exclusion" set forth above was unambiguous, that under Luechtefeld v. Allstate Insurance Co., 167 Ill. 2d 148, 212 Ill. Dec. 224, 656 N.E.2d 1058 (1995), it does not violate public policy, and that it applies to exclude coverage. Sinn appeals.

The underinsured motorist endorsement contained in Sinn's Mid-Century insurance policy provides in ...


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