Appeal from the Circuit Court of Cook County. No. 04 CH 07463 Honorable Julia Nowicki, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
Modified Opinion Upon Denial of Rehearing
The plaintiff, State Farm Mutual Automobile Insurance Company (State Farm) filed a complaint for declaratory judgment seeking a determination that the defendant, Steven E. Coe, was not entitled to underinsured motorist benefits under his automobile liability policy with State Farm. Both parties filed motions for summary judgment. Mr. Coe appeals the order of the circuit court of Cook County granting summary judgment to State Farm and denying Mr. Coe's motion for summary judgment.
The sole issue on appeal is the correctness of the circuit court's order. The pertinent facts are summarized below.
On November 20, 2001, Mr. Coe, a police officer for the Village of Park Forest, was directing traffic when he was struck by a car driven by Nicole Moorehouse. Ms. Moorehouse was insured for automobile liability, with limits of $50,000. Mr. Coe received over $100,000 in workers' compensation benefits, but claimed special damages in the amount of $150,000.*fn1
At the time of the accident, Mr. Coe was insured by State Farm for automobile liability. The policy provided underinsured motorist coverage with a $100,000 limit. Under the underinsured motorist coverage, State Farm agreed to "pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle." State Farm's agreement to pay damages pursuant to the underinsured motorist provision was subject to the following policy limitations:
"1. The amount of coverage is shown on the declarations page under 'Limits of Liability - W - Each Person, Each Accident.' Under 'Each Person' is the amount of coverage for all damages due to bodily injury to one person. 'Bodily injury to one person' includes all injury and damages to others resulting from this bodily injury and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury.
2. Any amount paid or payable to or for the insured under any workers' compensation, disability benefits, or similar law shall reduce the amount payable under this coverage. The reduction may be taken only once and shall first be applied to the amount payable by any policy providing coverage on a primary basis. ***
5. a. The most we will pay any one insured is the lesser of:
(1) the amount by which the 'each person' limit of this coverage exceeds the sum of the 'each person' limits of liability of all bodily injury liability insurance coverages that apply to the accident; or
(2) the amount by which the insured's damages for bodily injury exceed the sum of the 'each person' limits of liability of all bodily injury liability insurance coverages that apply to the accident."*fn2
Pursuant to the policy terms, Mr. Coe sought arbitration of his underinsured coverage claim. State Farm responded by filing the instant complaint for declaratory judgment. The complaint alleged that Ms. Moorehouse's insurance company had agreed to pay the $50,000 limit of liability under her policy to Mr. Coe and that Mr. Coe was entitled to in excess of $100,000 in workers' compensation benefits. Based on those amounts, State Farm sought a declaration that Mr. Coe was not entitled to any benefit under the underinsured motorist provision of his State Farm policy. In response to a request to admit facts, Mr. Coe admitted he settled his workers' compensation claim with the Village of Park Forest for an amount not less than $100,000. Both parties filed motions for summary judgment.
In its motion, State Farm argued that, under the underinsured motorist limitations provisions, it was entitled to set off Mr. Coe's workers' compensation settlement against the underinsured coverage amount. The settlement amount of $100,000 reduced the underinsured benefits of $100,000 to -0-. Therefore, Mr. Coe was not entitled to any recovery under the underinsured motorist provisions of the policy.
In his motion, Mr. Coe maintained that his special damages were well in excess of $150,000. He further maintained, "[T]o the extent that the Illinois Insurance Code permits any set-off for benefits received though [sic] Workers' Compensation, the Code, the plain language of the insurance policy, and public policy define the 'amounts payable' to which such a set-off may be applied as the total damages of the insured Defendant, not the limits of [underinsured motorist] coverage." (Emphasis in original.)
The circuit court granted summary judgment to State Farm and denied Mr. Coe's summary judgment motion. In its ruling, the circuit court relied on the supreme court's decisions in Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 591 N.E.2d 427 (1992), and Ullman v. Wolverine Insurance Co., 48 Ill. 2d 1, 269 N.E.2d 295 (1970). This timely appeal followed.
The court reviews motions for summary judgment de novo. Chubb Insurance Co. v. DeChambre, 349 Ill. App. 3d 56, 59, 808 N.E.2d 37 (2004). Summary judgment is proper if, and only if, the pleadings, depositions, admissions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. DeChambre, 349 Ill. App. 3d at 59.
By filing cross-motions for summary judgment, the parties invite the court to determine the issues as a matter of law and enter judgment in favor of one of the parties. Wolfram Partnership, Ltd. v. LaSalle National Bank, 328 Ill. App. 3d 207, 765 N.E.2d 1012 (2001). Yet the mere filing of cross-motions does not preclude a determination that triable questions of fact exist. Wolfram, 328 Ill. App. 3d at 215. Summary judgment should only be allowed when the ...