Court of Appeals of Illinois, First District, Sixth Division
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Appellee,
DOLORES TRUJILLO, Defendant-Appellant
Appeal from the Circuit Court of Cook County. No. 12 CH 02130. Honorable Mary Anne Mason, Judge Presiding.
Reversed and remanded.
In an action arising from an automobile collision involving multiple tortfeasors, the appellate court reversed the trial court's judgment ruling that plaintiff insurer was entitled to set off defendant's claim for underinsured motorist benefits under one of the policies plaintiff issued with the amounts plaintiff paid under the bodily injury coverage of the same policy, since under the circumstances, defendant was allowed to seek both bodily injury and underinsured benefits under the same policy, but defendant was not entitled to a windfall or double recovery, and therefore, the cause was remanded to ensure defendant was not awarded more than the damages suffered.
For APPELLANT: Ronald Fishman, Kenneth A. Fishman, Fishman & Fishman, Ltd., Chicago, Illinois.
For APPELLEE: Peter C. Morse, Cynthia Ramirez, Morse Bolduc & Dinos, LLC, Chicago, Illinois.
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Lampkin concurred in the judgment and opinion.
[¶1] Defendant Dolores Trujillo (Trujillo) appeals an order of the circuit court of
Cook County granting judgment on the pleadings to plaintiff Allstate Property and Casualty Insurance Company (Allstate) in a declaratory judgment action. On appeal, Trujillo contends the circuit court erred in ruling Allstate was entitled to set off her claim for underinsured motorist (UDIM) benefits with amounts Allstate paid under the bodily injury coverage of the same insurance policy, relating to an automobile collision involving multiple tortfeasors. For the following reasons, we reverse the judgment of the circuit court and remand the case for further proceedings.
[¶3] On January 20, 2012, Allstate filed a complaint for declaratory judgment in the circuit court containing the following allegations. Allstate is an insurance company duly licensed to sell automobile insurance in Illinois. Allstate issued a policy (Allstate policy) to Adan Delgado (Delgado), which was in full effect on August 20, 2009. A true and accurate copy of the policy was attached to the complaint as an exhibit.
[¶4] The Allstate policy provided automobile liability insurance including bodily injury coverage with a limit of $100,000 per person and $300,000 per occurrence. In general, pursuant to this coverage, Allstate promised to pay damages when an insured person is legally obligated to pay because of bodily injury sustained by " any person." The policy states it protects an insured person from liability for damages arising from the ownership, maintenance, use, loading or unloading of an insured automobile.
[¶5] The Allstate policy also included uninsured motorist (UM) insurance, the bodily injury coverage of which included UDIM protection with a limit of $100,000 per person and $300,000 per accident. An Illinois amendatory endorsement to the Allstate policy stated in part as follows:
" If the accident involves the use of an underinsured motor vehicle, the limits for this coverage will be reduced by:
1. all amounts paid by or on behalf of the owner or operator of the underinsured auto or anyone else responsible. This includes all sums paid under the
bodily injury or property damage liability coverage of this or any other auto insurance policy."
The endorsement also defined " insured persons" as including the named insured, any resident relative and " [a]ny other person while in, on, getting into or out of an insured auto with your permission."
[¶6] On or about August 10, 2009, Trujillo was a passenger in an Allstate-insured vehicle driven by Delgado when the vehicle was involved in an accident with a vehicle insured by American Access Insurance Company (American Access). Trujillo settled her claim against the American Access insured in exchange for the $20,000 limit of the American Access policy. Trujillo settled her claim against Delgado in exchange for the $100,000 liability coverage limit of the Allstate policy.
[¶7] Trujillo also made a claim against Allstate for UDIM benefits in the amount of $80,000, representing the difference between the Allstate policy's $100,000 UDIM coverage limit and the $20,000 received from her settlement with the American Access insured. Allstate informed Trujillo no UDIM benefits were available under the Allstate policy. Allstate explained the limits of the UDIM coverage were reduced to zero by its $100,000 payment to Trujillo on Delgado's behalf under the bodily injury coverage of the Allstate policy's automobile liability insurance.
[¶8] Accordingly, Allstate filed its declaratory judgment action pursuant to section 2-701 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-701 (West
2010)), requesting a declaration Allstate owed Trujillo no UDIM benefits for the August 10, 2009, accident. On March 6, 2012, Trujillo filed a motion to dismiss Allstate's complaint for failure to adequately state a claim, pursuant to section 2-615(b) of the Code (735 ILCS 5/2-615(b) (West 2010)). Following briefing on the motion to dismiss, the circuit court denied the motion to dismiss on July 19, 2012. Trujillo raises no issue in this appeal regarding the denial of her motion to dismiss.
[¶9] Meanwhile, on May 17, 2012, Trujillo filed a motion for judgment on the pleadings pursuant to section 2-615(e) of the Code (735 ILCS 5/2-615(e) (West 2010)), arguing Allstate's attempt to reduce its UDIM exposure in this case violated public policy.
[¶10] On August 20, 2012, Trujillo answered Allstate's complaint and asserted affirmative defenses. Trujillo denied the Allstate policy attached to the complaint was in full force and effect on August 10, 2009. According to Trujillo, she was a passenger in the Allstate-insured vehicle, which was owned by Adan Delgado, but driven by Juana Delgado. Trujillo also identified the American Access insured as Marta Zawadska. Trujillo asserted the setoff language in the endorsement of the Allstate policy, if in effect at the time of the accident, was illegal and void.
[¶11] On August 23, 2012, Allstate filed a motion for judgment on the pleadings pursuant to section 2-615(e) of the Code (735 ILCS 5/2-615(e) (West 2010)). Allstate argued its endorsement expressly reduced its UDIM exposure by any payment made under other provisions of its policy. Allstate also argued the reduction of its UDIM limit was supported by ...