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02/02/98 JOHN G. WILLISON v. ECONOMY FIRE &

JOHN G. WILLISON, PLAINTIFF-APPELLANT,
v.
ECONOMY FIRE & CASUALTY COMPANY, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice Garman delivered the opinion of the court:

This is a declaratory Judgement action filed in the circuit court of Douglas County by plaintiff John G. Willison against defendant Economy Fire and Casualty Company, seeking a declaratory Judgement as to the rights and liabilities of the parties with respect to a personal auto insurance policy issued by defendant to plaintiff's parents. Plaintiff was injured in an automobile accident and sought to stack underinsured motorist (UIM) coverage under the personal auto policy with the UIM coverage under his father's business auto policy, also issued by defendant. Plaintiff had previously recovered UIM benefits under the business auto policy. Both parties filed motions for summary judgment. The trial court denied plaintiff's motion and entered summary judgment for defendant. Plaintiff now appeals. We affirm.

Plaintiff's complaint was filed in June 1996 and alleged that defendant had issued to his parents two policies of automobile liability insurance. One was a business auto policy and the other was a personal auto policy. On December 31, 1994, plaintiff was a passenger in an automobile and was involved in an accident in which he sustained bodily injuries. At the time, plaintiff was living with his parents. Plaintiff recovered $75,000 (the policy limits) from the insurance company insuring the driver. Plaintiff later recovered $25,000 under the UIM provisions of the business auto policy issued by defendant, which represented the limits of UIM benefits available under that policy. Plaintiff made a demand upon defendant for benefits under the UIM provision of the personal auto policy, but the demand was refused as the parties did not agree on which provisions of the policy applied to plaintiff's demand.In defendant's answer, it alleged that both the personal auto policy and the business auto policy have a limit of $100,000 (each person) of UIM coverage.

On July 22, 1996, defendant filed a motion for summary judgment. UIM coverage had been added as an amendatory endorsement to the personal auto policy. That endorsement replaced former part IV of the policy, which had covered only uninsured motorist benefits. The provisions of the personal auto policy in question are as follows:

"PERSONAL AUTO FORM

DEFINITIONS

Throughout this policy, 'you' and 'your' refer to the 'named insured' shown in the Declarations and the spouse if a resident of the same household. ***

Family member means a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child, provided neither such family member nor such family member's spouse owns a motor vehicle.

PART VI -- GENERAL CONDITIONS

G. TWO OR MORE AUTO POLICIES

If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under any one policy.

PERSONAL AUTO UNINSURED MOTORISTS AMENDATORY--ILLINOIS PART IV - UNINSURED MOTORISTS COVERAGE is replaced by the following:

B. Insured as used in this Part means:

1. you or any family ...


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