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06/23/97 DONNA P. JONES v. STATE FARM MUTUAL

June 23, 1997

DONNA P. JONES, GUARDIAN OF THE ESTATE OF JESSICA JONES, A MINOR, PLAINTIFF-APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION, PATRICIA C. JUNIOUS, AND HARB BOURY, DEFENDANTS-APPELLEES. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND STATE FARM FIRE AND CASUALTY COMPANY, COUNTERPLAINTIFFS-APPELLANTS, V. NABIL BOURY; MAYSOON BOURY; MAYSOON BOURY, SPECIAL ADMINISTRATOR OF THE ESTATE OF REENA BOURY, DECEASED; RANNIE AL-AMIRI; PAUL LEDER, SPECIAL ADMINISTRATOR OF THE ESTATE OF SUZANNE LEDER, DECEASED; AND DONNA JONES, GUARDIAN OF THE ESTATE OF JESSICA JONES, A MINOR, COUNTERDEFENDANTS-APPELLEES. HARB BOURY, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF REENA BOURY, DECEASED; NABIL BOURY; MAYSOON BOURY; PAUL LEDER, INDIVIDUALLY AND AS INDPENDENDANT ADMINISTRATOR OF THE ESTATE OF SUZANNE LEDER, DECEASED, JANE LEDER; HASSON AL-AMIRI; RONDA AL-AMIRI; AND RANNIE AL-AMIRI, COUNTERPLAINTIFFS/CROSS-APPELLANTS, V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; STATE FARM FIRE AND CASUALTY COMPANY; AND DONNA P. JONES, GUARDIAN OF THE ESTATE OF JESSICA JONES, A MINOR, COUNTERDEFENDANTS/CROSS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE AARON JAFFE, JUDGE PRESIDING.

Released for Publication August 5, 1997.

Presiding Justice Campbell delivered the opinion of the court. O'brien, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

This appeal arises out of an action brought by the plaintiff, Donna P. Jones, guardian of the Estate of Jessica Jones, a minor, seeking a declaratory judgment that certain automobile liability insurance policies issued by defendants, State Farm Mutual Automobile Insurance Company (State Farm Mutual) and State Farm Fire and Casualty Company (State Farm Fire) (collectively, the Insurance Companies), provided underinsured motorist coverage to plaintiff for an accident occurring on June 23, 1992. The Insurance Companies filed a counterclaim against plaintiff and counterdefendants Nabil Boury; Maysoon Boury; Maysoon Boury, Special Administrator of the Estate of Reena Boury, deceased; Rannie Al-Amiri; and Paul Leder, Special Administrator of the Estate of Suzanne Leder, deceased, all of whom were occupants in the same car with plaintiff at the time of the accident, seeking a declaratory judgment that: automobile policies issued by them to all of the counterdefendants did not provide excess underinsured motorist coverage to the counterdefendants; and (2) the umbrella policy issued by State Farm Fire provided a total of $1,000,000 of excess underinsured motorist coverage to all of the counterdefendants.

Plaintiff filed a motion for judgment on the pleadings and all of the other parties filed cross motions for summary judgment. In two orders entered on August 9, 1994, and August 22, 1994, the trial court granted summary judgment in favor of plaintiff and counterdefendants and against State Farm Mutual that certain automobile policies provided excess underinsured motorist coverage to the parties who were insured under said policies. The trial court granted summary judgment in favor of State Farm Fire on the umbrella policy, ruling that it provided a total of $1,000,000 of excess underinsured motorist coverage for all of the counterdefendants. The trial court also ruled that the "each accident" limit, rather than the "each person" limit, applied to the wrongful death claims of Reena Boury and Suzanne Leder, and that the loss of consortium claims of Ronda and Has soon Al-Amiri were covered for excess underinsured motorist coverage under certain automobile policies issued by State Farm Mutual.

On appeal, the Insurance Companies contend that the trial court erred in granting summary judgment in favor of plaintiffs-counterdefendants as follows: (1) determining that certain Illinois policies of automobile liability insurance provide excess underinsured motorist coverage for the accident of June 23, 1992; (2) determining that the "each accident" limit, rather than the "each person" limit, applied to the wrongful death claims of Reena Boury and Suzanne Leder; (3) determining that the Ohio policies provide more than $100,000 of excess underinsured motorist coverage for the claim of Rannie Al-Amiri; (4) determining that Ronda and Hassoon Al-Amiri have claims for loss of consortium for the injuries to their son, Rannie Al-Amiri; and (5) determining that the Ohio policies provide underinsured motorist coverage for the loss of consortium claims of Ronda and Hassoon Al-Amiri.

Plaintiff and counterdefendants filed cross-appeals, contending that the trial court erred in determining that the $1,000,000 limit of personal liability umbrella insurance on the policy issued to Harb Boury provides underinsured motorist coverage with a total limit of $1,000,000 for the claims of all of the occupants of the Ford Explorer at the time of the accident, rather than on a per person basis. For the following reasons, we affirm in part and reverse in part.

BACKGROUND

The record reveals the following relevant facts. On June 23, 1992, Nabil Boury was driving a 1992 Ford Explorer on the Eisenhower Expressway near Damen Avenue, Chicago, Illinois, when he was involved in an accident with a vehicle driven by Patricia Junious. Jessica Jones, Maysoon Boury, Reena Boury, Rannie Al-Amiri and Suzanne Leder were passengers in Nabil's Ford Explorer. Jessica Jones was seriously injured in the collision, sustaining brain damage; Reena Boury and Suzanne Leder died as a result of the accident; Rannie Al-Amiri suffered debilitating brain damage and blindness in one eye; and Nabil Boury and Maysoon Boury both sustained significant injuries.

The vehicle driven by Junious was insured by State Farm Mutual with bodily injury liability limits of $20,000 per person, $40,000 per accident. The parties reached a settlement based on the Junious policy and it is not the subject of this appeal.

The Ford Explorer occupied by counterdefendants was covered by an insurance policy issued by State Farm Mutual which provided primary underinsured motorist coverage with limits of $100,000 per person, $300,000 per accident. The parties do not dispute that this policy provides $260,000 of underinsured motorist coverage for all six occupants in the Ford Explorer with the maximum amount collectible by any one occupant being the sum of $100,000, minus the amount paid to that person by the tort-feasor's liability insurer. This policy and the trial court's order relating thereto are therefore not involved in this appeal.

In addition to the policy on the Ford Explorer, State Farm Mutual issued the following policies to the following counterdefendants:

A. Four separate policies to Harb Boury for four other cars: a 1990 Mercedes; a 1979 Cadillac; a 1988 Honda; and a 1992 Jaguar, all with $100,000/$300,000 underinsured motorist limits;

B. Two separate policies to Paul and Jane Leder for a 1991 Chevrolet and a 1987 Chevrolet, both with $100,000/$300,000 underinsured motorist limits;

C. One automobile policy to Winslow and Donna Jones for a 1989 Jeep, with underinsured motorist limits of $250,000/$500,000;

D. Five separate automobile policies to Ronda and Hassoon Al-Amiri for: a 1989 Toyota; a 1987 Acura; a 1988 Toyota; a 1981 Buick; and a 1982 Toyota, all with underinsured motorist limits of $100,000/$300,000.

State Farm Fire issued one automobile policy to Winslow and Donna Jones on a 1982 Isuzu with $100,000/$300,000 underinsured motorist limits.

The five policies issued to the Al-Amiri family members were issued in Ohio to Ohio residents on vehicles registered in Ohio. All other policies were issued in Illinois to Illinois residents on vehicles registered in Illinois.

In addition to the above described automobile policies, State Farm Fire issued a personal liability umbrella policy to Harb Boury which provided a total of $1,000,000 of underinsured motorist coverage applicable to all of the occupants of the Ford Explorer.

On August 9, 1994, the trial court entered an order granting in part and denying in part both counterdefendants' motion for summary judgment and the Insurance Companies' motion for summary judgment as follows:

"3. The automobile liability policy on the Ford Explorer [citations omitted] provides primary underinsured motor vehicle coverage to the occupants of said Ford Explorer at the time of the accident with total applicable coverage of $260,000 with the maximum amount that any one person can collect being the sum of $100,000 less the amount said person is paid by the tort-feasor's liability insurance.

4. The Court finds that the policy language relied upon by State Farm (i.e. the policy language on page 14 of each State Farm policy) to deny stacking of underinsured motor vehicle coverages is, as a mater of law, ambiguous. Accordingly, the counterdefendants may stack their respective underinsured motor vehicle coverages.

5. The automobile liability policies issued to counterdefendant HARB BOURY, other than the policy on the Ford Explorer [citations omitted] provide excess underinsured motor vehicle coverage with a limit of $100,000 for the claim of NABIL BOURY and a limit of $100,000 for the claim of MAYSOON BOURY under each policy.

6. The automobile liability policies issued to RONDA or HASSOON AL-AMIRI [citations omitted] each provide excess underinsured motor vehicle coverage with a limit of $100,000 for the claim of RANNIE AL-AMIRI.

7. The automobile liability policies issued to PAUL and JANE LEDER [citations omitted] each provide excess underinsured motor vehicle coverage for the claim of PAUL LEDER, Special Administrator of the Estate of Suzanne Leder, Deceased. The amount of the excess underinsured motor vehicle coverage under each of the Leder policies (i.e. whether $100,000.00, the per person limit, or $300,000, the per accident limit) is not determined by this order.

8. The automobile liability policies issued to counterdefendant, HARB BOURY, other than the policy on the Ford Explorer [citations omitted] each provide excess underinsured motor vehicle coverage for the claim of HARB BOURY, Special Administrator of the Estate of Reena Boury, Deceased. The amount of the excess underinsured motor vehicle coverage under each of the Boury policies (i.e. whether $100,000.00 the per person limit, or $300,000.00, the per accident limit) is not determined by this order.

9. The personal liability umbrella policy issued to counterdefendant, HARB BOURY, [citations omitted] provides underinsured motor vehicle coverage with a total limit of liability of $1,000,000.00 for the claims of all of the occupants of the Ford Explorer at the time of the accident."

The trial court did not render its order final and appealable.

On August 22, 1994, the trial court entered a second order, granting counterdefendants' motion for summary judgment and denying the summary judgment motion of the Insurance Companies, finding as follows:

"2. The court finds that the underinsured motor vehicle coverage wrongful death claims relating to the deaths of REENA BOURY and SUZANNE LEDER are subject to the $300,000.00 "each accident" limits of liability under each of the applicable automobile liability policies.

3. The automobile liability policies issued to HARB BOURY, [citations omitted], each provide excess underinsured motor vehicle coverage with limits of $300,000.00 under each policy for the wrongful death claims relating to the death of REENA BOURY.

4. The automobile liability policies issued to PAUL and JANE LEDER [citations omitted], each provide excess underinsured motor vehicle coverage with limits of $300,000.00 under each policy for the wrongful death claims relating to the death of SUZANNE LEDER.

5. The Court finds that Ohio law governs the loss of consortium claims of RONDA and HASSOON AL-AMIRI, the parents of RANNIE AL-AMIRI. Accordingly, the automobile liability policies issued to the AL-AMIRIs [citations omitted] each provide excess underinsured motor vehicle coverage for the loss of consortium claims of RONDA and HASSOON ALL-AMIRI [sic] with a limit of $100,000.00 for the claim of each under each of the policies.

The trial court concluded that both its orders of August 9, 1994, and August 22, 1994, were final and appealable, the court having decided all of the issues in the case.

The Insurance companies filed their timely notice of appeal of portions of the trial court's orders of August 9, 1994, and August 22, 1994, on August 26, 1994. Plaintiff filed her notice of appeal of paragraph 9 of the trial court's order of August 9, 1994, on September 21, 1994.

Initially, the Insurance Companies contend that the trial court erred in determining that: (1) the applicable provision of the eight Illinois policies of automobile liability insurance is ambiguous and therefore permits stacking of underinsured motor vehicle coverages; and (2) the same provisions provide excess underinsured motorist coverage for the accident of June 23, 1992.

Section 143a-2(5) of the Illinois Insurance Code provides in pertinent part as follows:

"(5) Scope. Nothing herein shall prohibit an insurer from setting forth policy terms and conditions which provide that if the insured has coverage available under this Section under more than one policy or provision coverage, any recovery or benefits may be equal to, but may not exceed, the higher of the applicable limits of the respective coverage, and the limits of liability under this Section shall not be increased because of multiple motor vehicles covered under the same policy of insurance * * *." 215 ILCS 5/143a-2(5) (West 1994).

Thus, the Insurance Code provides that if an insurance company intends to prohibit the stacking of underinsured motorist benefits, it must expressly so state.

The function of the court in construing an insurance policy is to ascertain and enforce the intention of the parties as expressed in the agreement, and the construction given the policy should be a natural and reasonable one. de los Reyes v. Travelers Insurance Companies, 135 Ill. 2d 353, 358, 553 N.E.2d 301, 304, 142 Ill. Dec. 787 (1990). If the language of an insurance policy is ambiguous, it must be construed against the insurance company and in favor of the insured. Allstate Insurance Co. v. Gonzalez-Loya, 226 Ill. App. 3d 446, 168 Ill. Dec. 482, 589 N.E.2d 882 (1992). However, if a policy of insurance is clear and unambiguous, it must be enforced according to its terms. United States Fire Insurance Co. v. Schnackenberg, 88 Ill. 2d 1, 429 N.E.2d 1203, 57 Ill. Dec. 840 (1981). An insurer is entitled to the enforcement of unambiguous anti-stacking provisions to the extent that such provisions represent terms to which the parties have agreed to be bound. Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 188-89, 620 N.E.2d 355, 359, 189 Ill. Dec. 387 (1993). This court cannot strain or torture the language of an insurance policy to create an ambiguity. Gonzalez-Loya, 226 Ill. App. 3d at 449.

Each of the Insurance Companies' policies in the present case contain the identical relevant provisions as follows:

"Section III - Uninsured Motor Vehicle - coverage U,

Uninsured Motor Vehicle - Coverage U, and

Underinsured Motor Vehicle - Coverage W

If There is Other Underinsured Motor Vehicle Coverage

3. If the insured sustains bodily injury while occupying a vehicle which is not your car, coverage ...


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