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08/07/97 YOUNG PAHN v. STATE FARM MUTUAL AUTOMOBILE

August 7, 1997

YOUNG PAHN, PLAINTIFF-APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS DURKIN, JUDGE PRESIDING.

Released for Publication September 11, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Cerda, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

The question we are asked to resolve is whether an insurance company is entitled to enforce a provision of its policy which prohibits recovery of underinsured motorist benefits (UIM) when uninsured motorist benefits (UM) have been recovered for the same accident and on the same policy by the same person.

Plaintiff Young Pahn brought a declaratory judgment action seeking a declaration that she was entitled to recover UIM benefits in addition to the UM benefits she was awarded under a policy of insurance issued by State Farm Mutual Automobile Insurance Co. (SFM) to Pahn's husband. The trial court granted SFM's motion for summary judgment in its favor. Pahn now brings this appeal. We affirm the trial court's judgment.

FACTS

On March 27, 1994, Pahn was a passenger in a car driven by her husband. The car was struck by another automobile driven by William Buss (Buss). Pahn was injured in the accident. Both Buss and Pahn's husband were at fault.

Buss had liability insurance with a limit of $20,000 per person, the minimum liability insurance rate allowed by statute. 625 ILCS 5/7-203 (West 1996). This amount was paid to Pahn.

The automobile Pahn's husband was driving was covered by a SFM insurance policy purchased in his name. This insurance policy provided underinsured and uninsured motorist coverage with limits of $100,000 per person/$300,000 per occurrence.

Because an insured woman is legally entitled to recover from her tort-feasor husband under an uninsured motorist policy provision (see Hoglund v. State Farm Mutual Auto Insurance Co., 148 Ill. 2d 272, 592 N.E.2d 1031, 170 Ill. Dec. 351 (1992); Allstate Insurance Co. v. Elkins, 77 Ill. 2d 384, 396 N.E.2d 528, 33 Ill. Dec. 139 (1979)), SFM paid Pahn $100,000 on her claim under the UM provision of her husband's policy.

In addition, however, to the UM benefits, Pahn claimed UIM benefits because Buss' policy limit of $20,000 was less than the UIM benefit limit in the SFM policy. SFM denied the claim, asserting that UIM coverage was unavailable pursuant to the terms of the policy. Specifically, SFM noted that section III, entitled "UNINSURED MOTOR VEHICLE - COVERAGE U, UNINSURED MOTOR VEHICLE - COVERAGE U1, AND UNDERINSURED MOTOR VEHICLE - COVERAGE W" states:

"THERE IS NO COVERAGE UNDER COVERAGE W IF THE UNINSURED MOTOR VEHICLE COVERAGE APPLIES TO THE ACCIDENT."

Pahn filed a declaratory judgment action in the circuit court to determine the limits of coverage under the SFM policy. SFM moved for summary judgment based on the above-quoted policy exclusion. Pahn moved for summary judgment, claiming that she was entitled to UIM ...


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