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Deanne Berrey v. the Travelers Indemnity Company of America

January 8, 2013

DEANNE BERREY, PLAINTIFF,
v.
THE TRAVELERS INDEMNITY COMPANY OF AMERICA DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Wednesday, 09 January, 2013 12:22:46 PM Clerk, U.S. District Court, ILCD

OPINION

On October 25, 2011, Plaintiff Deanne Berrey filed a Complaint in the Sangamon County Circuit Court. The two-count Complaint alleges state law claims for breach of insurance contract (Count I) and violation of the Illinois Insurance Code (Count II). In November 2011, Defendant, the Travelers Indemnity Company of America (Travelers), removed the case to federal court. The matter is now before the Court on the cross motions for summary judgment filed by Travelers (d/e 9) and Plaintiff (d/e 11). Because Traveler's has fulfilled its obligations under the insurance policy at issue, Traveler's motion for summary judgment is granted and Plaintiff's motion for summary judgment is denied.

BACKGROUND

On March 26, 2009, Plaintiff suffered injuries in an automobile accident that occurred while operating a vehicle within the scope of her employment with Curry Ice & Coal, Incorporated (Curry Ice & Coal). Sheri Campbell, the other driver, caused the accident. Plaintiff made a claim for workers' compensation benefits and received $103,224.02 in benefits as follows: (1) $26,106.25 in temporary total disability benefit payments; (2) $51,535.27 for medical bills; and (3) $25,582.50 in permanent partial disability benefit payments. Plaintiff also made a liability claim against Campbell, the at-fault driver of the vehicle that hit Plaintiff. Campbell's policy had a $100,000 limit. Finally, Plaintiff submitted a claim under the underinsured motorist (UIM) coverage of policy number P-810-932K4769-TIA-08 (Policy) that Travelers had issued to Curry Ice & Coal.

On July 26, 2011, a binding arbitration hearing took place pursuant to an agreement between Plaintiff and Curry Ice & Coal. Two days later the arbitration panel issued its "Decision of Arbitration" that found "an appropriate and just award to the Plaintiff for all elements of the damages presented in this matter is the amount of $310,000. This amount is inclusive of all medical expenses that were incurred and paid." In coming to this conclusion, the arbitration panel considered all of Plaintiff's relevant medical records and a summary of her medical bills incurred because of the accident. The panel also considered Plaintiff's scars, information from the crash report, photographs of the vehicles involved in the accident, the information on Plaintiff's W-2 forms for 2007, 2008, and 2009, and a document summarizing Plaintiff's lost income.

Plaintiff has received two checks from Travelers totaling $210,000 (one for $181,346.31 and a second for $28,653.69) and $103,223.02 in workers' compensation benefits from the workers' compensation carrier. Additionally, the other driver Campbell's liability insurer paid $100,000, which was paid directly to the worker's compensation carrier to satisfy its workers' compensation lien.

Plaintiff claims Travelers still owes her money pursuant to the UIM coverage of the Policy. In Count I, Plaintiff seeks the $100,000 she claims Travelers still owes her pursuant to the UIM provision of the Policy.*fn1 Count II seeks relief under the Illinois Insurance Code for Travelers' alleged wrongful and vexatious refusal to pay the amount due and owing Plaintiff under the Policy.

This case involves the interpretation of the Policy issued by Travelers to Curry Ice & Coal. The Policy was in effect from August 1, 2008 through August 1, 2009 and covered vehicles owned by Curry Ice & Coal. The Policy provides UIM coverage up to $1 million per accident. The Policy also contains the following provisions relevant to Travelers' UIM exposure to Plaintiff:

A. COVERAGE

1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "underinsured motor vehicle."

See d/e 9-1 at p. 36 (Exhibit D, p. 1) . . .

D. LIMIT OF INSURANCE . . .

2. Except in the event of a "settlement agreement", the Limit of Insurance for this coverage shall be reduced by all sums paid or payable:

a. By or for anyone who is legally responsible, including all sums paid under this Coverage Form's Liability Coverage.

b. Under any workers' compensation, disability benefits or similar law. However, the Limit of Insurance for this coverage shall not be reduced by any sums paid or payable under Social Security disability benefits. . . .

4. No one will be entitled to receive duplicate payments for the same elements of "loss" under this Coverage Form and any Liability Coverage Form.

See d/e 9-1 at p. 37 (Exhibit D, p. 2).

Also, near the top of the first page of the UIM endorsement, ...


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