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Livingston v. Trustgard Insurance

United States District Court, N.D. Illinois, Eastern Division

October 25, 2013

BRUCE LIVINGSTON, Plaintiff,
v.
TRUSTGARD INSURANCE, Defendant,

Page 874

Bruce Livingston, individually and on behalf of all others similarly situated, Plaintiff, Pro se, Skokie, IL.

For Trustgard Insurance, individually and on behalf of all automotive insurance companies doing business in Illinois similarly situated, Defendant: Rodger L. Eckelberry, LEAD ATTORNEY, Elizabeth Ann Braverman, Baker Hostetler Llp, Columbus, OH; Katharine Elizabeth Heitman, William Kevin Kane, Baker & Hostetler LLP, Chicago, IL.

OPINION

Page 875

JOAN B. GOTTSCHALL, United States District Judge.

MEMORANDUM OPINION & ORDER

Plaintiff Bruce Livingston has an underinsured motorist insurance policy with defendant Trustgard Insurance Company. The policy includes an exhaustion clause, which provides that Trustgard will pay Mr. Livingston only after he exhausts " any" other applicable insurance policies. Mr. Livingston has filed this action against Trustgard, contending that the exhaustion clause has been satisfied because he has exhausted one of the two applicable insurance policies. Trustgard has moved for judgment on the pleadings, contending that Mr. Livingston must exhaust both applicable polices before it is required to pay Mr. Livingston. For the following reasons, Trustgard's motion is granted.

I. Facts

According to the complaint, Mr. Livingston was involved in a car accident on January 19, 2009, suffering injuries to his cervical spine and shoulder. The driver of the other car, Brian Shafar, had a personal automobile liability insurance policy with Hartford Insurance. Mr. Livingston is prosecuting a personal injury action against Mr. Shafar in state court. The vehicle that Mr. Shafar was driving was separately insured by Encompass Insurance Company. Encompass has already settled with and paid Mr. Livingston. Mr. Livingston and Trustgard agree that he has thus exhausted the Encompass policy, but has not yet exhausted the Hartford policy.

Mr. Livingston himself carries underinsured motorist insurance with Trustgard. Plaintiff has demanded coverage from Trustgard, but Trustgard has refused to pay Mr. Livingston, because he has not exhausted all applicable insurance policies. The Trustgard insurance policy states:

We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgment or settlements.

(Compl. Ex. B at C-4, Dkt. No. 1-2.) Trustgard contends that Mr. Livingston has not satisfied this requirement because he has exhausted one, but not both, of the applicable policies.

Mr. Livingston filed a complaint alleging three counts: (i) a count ...


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