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Janes v. Western States Insurance Company

August 31, 2001

LINDA JANES, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF PHILLIP ERNEST JANES, DECEASED, PLAINTIFF-APPELLANT AND CROSS-APPELLEE
v.
WESTERN STATES INSURANCE COMPANY, LEE HOOKER, EXECUTOR OF THE ESTATE OF CHARLES R. CHURCH, DECEASED, AND LEE HOOKER, EXECUTOR OF THE ESTATE OF CONNIE H. CHURCH, DECEASED, DEFENDANTS, AND RUSSELL HARRIS, ADMINISTRATOR OF THE ESTATE OF JERRY G. HARRIS, DECEASED, RUSSELL HARRIS, ADMINISTRATOR OF THE ESTATE OF CLEO HARRIS, DECEASED, DEFENDANT-APPELLEE, AND TRANSAMERICA INDEMNITY COMPANY, A/K/A TIG INSURANCE COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT



Appeal from the Circuit Court of Williamson County. Nos. 95-MR-76, 95-MR-77, 95-MR-78 Honorable C. David Nelson, Judge, presiding

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

UNPUBLISHED

Linda Janes (plaintiff), individually and as the administrator of the estate of Phillip Ernest Janes, filed a declaratory judgment action in the circuit court of Williamson County regarding her underinsured-motorist coverage through Transamerica Indemnity Company, also known as TIG Insurance Group (defendant). On cross-motions for summary judgment, the court entered judgment in part for plaintiff and in part for defendant. Plaintiff appeals and defendant cross-appeals. The appeal raises numerous issues.

I. FACTS

Plaintiff and her husband, Phillip Ernest Janes, were policyholders of an insurance policy on a Nissan van. On October 1, 1993, Phillip was driving the van and plaintiff was a passenger. There were four other occupants: Cleo Harris and her husband, Jerry Harris, and Connie Church and her husband, Charles Church. A vehicle driven by Alice Phelps crossed the center line and collided with the van. Plaintiff suffered serious injuries. Plaintiff claims that she was in intensive care until October 21, 1993, and that her medical bills total $162,226.43. All the other occupants of the van died. Defendant concedes that the damages exceed all alleged policy limits. Phelps's liability insurance provider tendered her policy limits of $50,000.

Plaintiff and her husband were the named insureds on two separate insurance policies. One policy was issued by Western States Insurance Company (Western States), the other by defendant.

The insuring-agreement section for the underinsured-motorist coverage of the policy issued by defendant provided, "We will pay under this coverage only after the limits of liability under any applicable bodily injury bonds or policies have been exhausted by payment of judgment or settlements."

Defendant issued a document entitled "Split Underinsured Motorists Limits" instructing plaintiff that the first paragraph of the limit of liability in the original endorsement was replaced by the following:

"LIMIT OF LIABILITY

The limit of liability shown in the Schedule or in the Declarations for each person for Underinsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services[,] or death[] arising out of 'bodily injury' sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Underinsured Motorists Coverage is our maximum limit of liability for all damages for 'bodily injury' resulting from any one accident. This is the most we will pay regardless of the number of:

1. 'Insureds;'

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident."

The schedule did not list the limit of liability.

The declarations page has a section entitled "Coverages & Limits," which lists horizontally across the top a Nissan GXE van, a Dodge Shadow, and a Dodge pickup. Listed in the first column are the coverages provided: bodily injury liability, property damage, medical payments, uninsured/underinsured motorists, property damage/uninsured motorists, other than collision, and collision. In this column, after the listing of bodily injury liability and after the listing of uninsured/underinsured motorists, there is an asterisk (*). In the left margin, alongside the first column, is this legend: "* PER PERSON/PER ACCIDENT OR OCCURRENCE PER POLICY PROVISION; 000 OMITTED." The remaining columns list dollar amounts for the limits of coverage and for premiums.

For each vehicle there are two columns, one listing the limits of coverage and the other listing the premium. For example, on the line for uninsured/underinsured motorists, the columns read $50/100 and $14 (under Nissan GXE van), $50/100 and $13 (under Dodge Shadow), and $50/100 and $13 (under Dodge pickup). At the bottom of the columns listing the premiums, the premiums for each vehicle are subtotaled. These subtotals are referred to as "PREMIUM PER CAR" (e.g., $178 under Nissan GXE van). Under this section, on the right side of the page, there is a box listing the "TOTAL SEMI[]ANNUAL PREMIUM" at $513.

On September 29, 1995, plaintiff filed a 16-count complaint for declaratory judgment against Western States and defendant. Plaintiff asked that the coverage given by defendant be stacked, for a total of $300,000 in coverage. Plaintiff asked, in the alternative, that if defendant's coverage were deemed to be $100,000, it still be stacked with the coverage from Western States. Western States tendered its policy limits of $50,000 after the declaratory judgment action was filed.

On July 17, 1998, defendant filed a petition for leave to deposit proceeds, seeking to deposit $50,000 with the circuit clerk. Plaintiff filed an objection, conceding that defendant could deposit the funds but objecting to a deposit that would relieve defendant of any liability beyond the deposit. In a docket entry, the court ordered as follows:

"The Petition will be granted. Order to be submitted. Deposit allowed but not to be construed as any determination of any of the issues pending between parties[,] such as stacking, interest, set[]off, etc. Order to be submitted."

There is no indication in the record that a proposed order was submitted or a deposit made.

Plaintiff filed a motion for summary judgment, and defendant filed a cross-motion. On April 8, 1999, the court entered an order finding that the policy issued by defendant "stacked," making the total coverage from defendant $300,000. The court also found that defendant's policy should be aggregated with Western States' coverage of $50,000, for a total of $350,000. The issues regarding applicable setoffs were reserved pending further hearing. Plaintiff then filed a motion asking for sanctions for vexatious and unreasonable failure to pay. See 215 ILCS 5/155 (West 1998); 735 ILCS 5/2-1005(a) (West 1998). On October 19, 1999, the court entered an order denying all claims against defendant for bad faith. The court also granted defendant a setoff for the total amount of $50,000 paid by Phelps's insurer. The court ruled that all the insurance proceeds should be divided equally among the six claimants (one for each occupant of the Janes vehicle). The court awarded each of the six claimants $8,333.33 from the deposit previously made by Western States and $41,666.66 from defendant.

Plaintiff appeals. Defendant cross-appeals.

II. ...


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