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Roth v. Illinois Farmers Insurance Company

August 07, 2001

BRENDA ROTH, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ANGELA ROTH, DECEASED, PLAINTIFF-APPELLEE
v.
ILLINOIS FARMERS INSURANCE COMPANY, DEFENDANT-APPELLANT



Appeal from the Circuit Court of St. Clair County. No. 99-MR-285 Honorable John M. Goodwin, Jr., Judge, presiding

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

UNPUBLISHED

This is an appeal from an order granting a motion for summary judgment in a declaratory judgment action brought to adjudicate the meaning of the language contained within an insurance policy of Illinois Farmers Insurance Company (defendant). The trial court found the underinsured-motorist clause in defendant's insurance policy ambiguous and awarded the plaintiff $200,000. The only issue in this dispute between the parties is whether the $100,000 per-person limit or the $300,000 per-occurrence limit of the underinsured-motorist coverage applies to the plaintiff's claims. We affirm.

I. FACTS

Angela Roth died as a result of injuries sustained in an automobile accident. Angela was a passenger in a vehicle driven by Ryan Gebke. The accident occurred as a result of an apparent drag race instigated by the driver of the other vehicle, Darin Diesen. Darin Diesen was at fault and was an underinsured motorist. At the time of the accident, the decedent, Angela Roth, was a 17-year-old minor and resided with her parents and eight brothers and sisters.

Defendant had issued an automobile insurance policy to Angela's parents. That policy provided coverage for Angela's injuries and subsequent death. The policy provided coverage for insured persons, including the policyholder or any family member. The terms of the policy include both uninsured- and underinsured-motorist coverage. The parties agreed that Angela Roth was covered under the policy, and they stipulated to the terms of that policy. The limits-of-liability clauses that are the source of contention between the parties provide as follows:

"The amounts shown in the Declarations are the limits of liability for Uninsured Motorist [sic] which apply subject to the following:

1. The uninsured *fn1 motorist bodily injury limit for 'each person' is the maximum we will pay for all damages resulting from bodily injury sustained by one person in any one accident or occurrence. Included in this limit, but not as a separate claim or claims, are all the consequential damages sustained by other persons, such as loss of services, loss of support, loss of consortium, wrongful death, grief, sorrow[,] and emotional distress.

2. The uninsured motorist bodily injury limit for 'each occurrence' is the maximum amount we will pay for two or more persons for bodily injury sustained in any one accident or occurrence." (Emphasis in original.)

The terms of the underinsured-motorist benefits include $100,000 per person and $300,000 per occurrence. The parties stipulated that the total damages sustained by Angela Roth and the next of kin of Angela Roth under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)) exceed $300,000.

In settlement of the claims against him, Darin Diesen's liability carrier tendered the sum of $20,000, which represented Diesen's liability limits. Defendant has paid the plaintiff $80,000, which represents the difference between the per-person limit and the $20,000 received on behalf of Darin Diesen.

The independent administrator of the estate of Angela Roth, Brenda Roth (plaintiff), made multiple claims under defendant's underinsured-motorist coverage, including a claim under the Survival Act (755 ILCS 5/27-6 (West 1998)) for Angela's injuries sustained prior to her death and claims of Angela's next of kin under the Wrongful Death Act. Plaintiff first argued that the policy required defendant to pay the $300,000 per-occurrence limit for the claims since they were for two or more persons for "bodily injury" as defined in the policy. Alternatively, plaintiff argued that the terms and definitions in the underinsured-motorist-coverage section were latently and patently ambiguous. Defendant argued that the $100,000 per-person limit applied because all claims arising out of Angela's injury and subsequent death should be considered one claim.

Plaintiff and defendant filed cross-motions for summary judgment. The trial court granted plaintiff's motion because it found defendant's underinsured-motorist clause ambiguous. The court denied defendant's motion for summary judgment. The trial court entered judgment for plaintiff in the amount of $200,000, which represents the difference ...


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