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Fidelity and Casualty Company v. Merridew

December 17, 2001

FIDELITY AND CASUALTY COMPANY, PLAINTIFF-APPELLEE
v.
DORIS MERRIDEW, AS ADM'R OF THE ESTATE OF REGINALD MERRIDEW, AND DORIS MERRIDEW, INDIV., DEFENDANTS-APPELLANTS



Appeal from the Circuit Court of Cook County No. 99 CR 7541 The Honorable Stephen A. Schiller, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

UNPUBLISHED

In June 1997, Reginald Merridew was involved in an automobile accident with a vehicle driven by Jack Torcolese. Reginald Merridew filed an action against Torcolese seeking damages for his bodily injuries. His wife, Doris Merridew, brought an action against Torcolese alleging loss of consortium. Torcolese was insured for automobile liability by Unitrin Property & Casualty Company (Unitrin). The Merridews were insured by Fidelity & Casualty Company (Fidelity). After the suits were settled, Doris Merridew made a claim against Fidelity for underinsured motorist coverage. Fidelity sought a declaration that it did not owe underinsured motorist coverage to Doris Merridew or to Reginald Merridew's estate. Fidelity subsequently filed a motion for summary judgment. Doris Merridew filed a cross-motion for summary judgment against Fidelity. On July 19, 2000, the trial court granted Fidelity's motion for summary judgment and denied Doris' cross-motion for summary judgment.

Doris Merridew, individually and as special administrator of Reginald's estate, now appeals the trial court's July 19, 2000, order. Doris Merridew presents the following issue upon appeal: whether Torcolese was an underinsured motorist pursuant to the terms of the Fidelity policy.

BACKGROUND

On June 11, 1997, 81-year-old Reginald Merridew was involved in an automobile collision with Jack Torcolese. Merridew was hospitalized for over 90 days and his medical expenses exceeded $300,000. Merridew filed a personal injury suit against the driver. His wife, Doris Merridew, brought a loss of consortium suit. In July 1998, Reginald Merridew died after undergoing gallstone surgery that was unrelated to the accident. On August 10, 1998, Doris Merridew was appointed special administrator of Reginald Merridew's estate.

At the time of the accident, Torcolese was insured by Unitrin. The policy issued by Unitrin contained a single liability limit of $500,000. Reginald Merridew and Doris Merridew were named insureds on a motor vehicle insurance policy issued by Fidelity for the period covering September 9, 1996, through September 9, 1997. The Fidelity policy included an underinsured motorist coverage endorsement with a $500,000 limit for underinsured motorist liability coverage. The underinsured motorist coverage endorsement provides:

"DEFINITIONS

***

1. Covered Person means:

a. You for the ownership, maintenance or use of any vehicle;

5. Underinsured Motor Vehicle means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability:

a. Is less than the limit of liability for Underinsured Motorists coverage.

b. Has been reduced by payments to other p[e]rsons injured in the accident to an amount less than the limit of liability for this coverage.

INSURING AGREEMENT

We will pay compensatory damages which any covered person is legally entitled to recover from the owner or operator of an underinsured ...


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