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Illinois Farmers Insurance Co. v. Marchwiany

September 21, 2006


The opinion of the court was delivered by: Justice Kilbride

Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, and Karmeier concurred in the judgment and opinion.

Justice Burke took no part in the decision.


In this case, we construe the underinsured-motorist coverage provisions of an automobile insurance policy to determine whether the "per-person" limit of liability, the "per-occurrence" limit, or both limits, apply to an accident involving bodily injury to only one person insured under the policy. As a result of a fatal accident, the insured's family members asserted derivative claims. The circuit court of Cook County granted the insurer's motion for summary judgment, finding the "per-person" limit applied to those claims and the "per-occurrence" limit did not apply. The appellate court affirmed (361 Ill. App. 3d 916), and we now affirm the appellate court.


Boguslaw Marchwiany, while driving a car belonging to his wife, Urszula, died as a result of bodily injuries sustained in a three-car accident. Urszula's car was insured with Illinois Farmers Insurance Company (Farmers) with underinsured-motorist coverage limits of $100,000 per person and $300,000 per occurrence. The car was also insured by American Family under a policy providing underinsured-motorist coverage in limits identical to Farmers'. Boguslaw was the only person insured under the policies who sustained bodily injury. The two other automobiles involved in the accident, driven by Peter Gonzalez and Kashonda Milliner, had liability coverage of $100,000 and $20,000, respectively.

Urszula, as administrator of Boguslaw's estate, sued the two other drivers, asserting a claim under the Survival Act (755 ILCS 5/27-6 (West 2000)) for Boguslaw's personal injuries and a separate claim under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)) for injuries to Urszula and to Boguslaw's four children as next of kin. Those claims were settled by Gonzalez's insurer and by Milliner's insurer.

Urszula then asserted underinsured-motorist claims against American Family and Farmers. In return for a release of all liability, American Family paid $80,000 in settlement of the claim, representing the difference between its $100,000 underinsured-motorist limits and Milliner's $20,000 liability limit. Farmers denied the claim, contending that American Family's coverage was primary, that its underinsured- motorist per-person coverage limit of $100,000 was identical to Farmers coverage and, therefore, that claimants were entitled to no further recovery against Farmers. Farmers then filed an action for declaratory judgment pursuant to section 2-701 of the Code of Civil Procedure (735 ILCS 5/2-701 (West 2000)), asserting that all of the Marchwiany claims were subject to the policy's $100,000 per-person limit, that American Family's coverage was primary and Farmers coverage was excess to that coverage, thus requiring it to pay underinsured-motorist claims only to the extent that its limits exceeded those of American Family. Consequently, Farmers claimed it owed no payment to the Marchwianys.

The Marchwianys filed a counterclaim for declaratory judgment, contending principally that their claims were subject to the $300,000 per-occurrence limit in Farmers policy. Both parties filed motions for summary judgment. The trial court granted Farmers motion and denied Marchwiany's motion. Marchwiany appealed, and the appellate court affirmed. 361 Ill. App. 3d 916. No argument is raised here on the issue of whether Farmers coverage is excess. We allowed Marchwiany's petition for leave to appeal. 177 Ill. 2d R. 315.


The sole issue presented for review by this court is whether the appellate court erred in finding that only the $100,000 per-person limit in Farmers underinsured-motorist coverage, and not the $300,000 per- occurrence limit, applied to plaintiff's claims. Resolution of this question requires us to construe the relevant language of the insurance policy. This presents a question of law, and our review is de novo. McKinney v. Allstate Insurance Co., 188 Ill. 2d 493, 497 (1999).

Analysis of the meaning of an insurance policy must start with the policy language. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997). We will, therefore, first set out the relevant policy provisions. The Farmers policy contained the following grant of coverage applicable to both its uninsured and underinsured provisions:

"We will pay all sums which an Insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the Insured person. The bodily injury must be caused by an accident and arise out ...

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