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Sherrod v. Esurance Insurance Services, Inc.

Court of Appeals of Illinois, Fifth District

October 4, 2016

APRYL SHERROD, Plaintiff-Appellee,
v.
ESURANCE INSURANCE SERVICES, INC., Defendant-Appellant.

          Motion to publish granted November 21, 2016

         Appeal from the Circuit Court of St. Clair County, No. 13-MR-411 Honorable Richard A. Aguirre, Judge, presiding.

          Attorney for Appellant Elizabeth M. Bartolucci, O'Hagan, LLC

          Attorney for Appellee Jeremy A. Gogel

          PRESIDING JUSTICE SCHWARM delivered the judgment of the court, with opinion. Justice Welch concurred in the judgment and opinion. Justice Goldenhersh dissented, with opinion.

          OPINION

          SCHWARM PRESIDING JUSTICE

         ¶ 1 The defendant, Esurance Insurance Services, Inc. (Esurance), appeals from an order of the circuit court of St. Clair County entering summary judgment in favor of the plaintiff, Apryl Sherrod, after the parties filed cross-motions for summary judgment. The trial court determined that the plaintiff and the estate of the plaintiff's deceased daughter were entitled to the underinsured motorist limits under the plaintiff's Esurance policy in excess to the bodily injury liability limits the plaintiff and the estate of the plaintiff's deceased daughter recovered under the at-fault driver's separate automobile insurance policy, despite the fact that the at-fault driver's bodily injury liability limits exceeded the plaintiff's underinsured motorist coverage limits. Specifically, the trial court found an ambiguity in the Esurance policy's "Other Insurance" clause, which it held must be construed in favor of coverage. We reverse and remand.

         ¶ 2 BACKGROUND

         ¶ 3 On April 15, 2011, the plaintiff and her daughter, Amari Clark, were involved in an automobile accident after their vehicle was struck by a drunk driver, Andrew Fraticelli. Amari Clark died as a result of the accident, and the plaintiff herself sustained severe injuries. At the time of the accident, Fraticelli was covered under an insurance policy with liability limits of $100, 000 per person and $300, 000 per occurrence. Pursuant to this policy, Fraticelli's insurance company paid $100, 000 to the plaintiff and $100, 000 to the estate of Amari Clark.

         ¶ 4 Also at the time of the accident, the plaintiff was covered under a personal automobile policy issued by Esurance with underinsured motorist liability limits of $50, 000 per person and $100, 000 per occurrence. The relevant provisions of plaintiff's Esurance policy are as follows:

"PART III: UNINSURED AND UNDERINSURED MOTORIST COVERAGE
* * *
INSURING AGREEMENT: UNDERINSURED MOTORIST BODILY INJURY COVERAGE
In return for payment of the premium for this coverage when due, and subject to the limits of liability, 'we' agree with 'you' as follows:
1. 'We' will pay compensatory damages that an 'insured' is legally entitled to recover from the 'owner' or operator of an 'underinsured motor vehicle' because of 'bodily injury':
A. Sustained by an 'insured'; and B. Caused by an 'accident'.
The liability of that 'owner' or operator for these damages must arise out of the ownership, maintenance, or use of the 'underinsured motor vehicle'. Any judgment for damages arising out of a lawsuit brought without 'our' written consent is not binding on 'us'.
** *
ADDITIONAL DEFINITIONS FOR PART III: UNINSURED AND UNDERINSURED MOTORIST COVERAGE
** *
'Underinsured motor vehicle' means a land motor vehicle of any type to which a bodily injury liability bond, policy or other security required to be maintained under Illinois law applies at the time of the 'accident' but the sum of the limits of liability for 'bodily injury' under that bond, policy or other security to an 'insured' is less than the Underinsured Motorist Bodily Injury Coverage limit of liability under this policy."

         ¶ 5 There is also a "Limit of Liability" section provided under the uninsured and underinsured motorist coverage portion of plaintiff's policy. This section states in relevant part:

"LIMIT OF LIABILITY
1. The limit of liability shown in the Declarations page for each person for Uninsured Motorist Coverage or Underinsured Motorist Coverage is 'our' maximum limit of liability for all damages, including, but not limited to, damages for:
A. Loss of society;
B. Loss of companionship;
C. Loss of services;
D. Loss of consortium; or E. Wrongful death;
arising out of 'bodily injury' sustained in any one 'accident'. Subject to this limit for each person, the limit of liability shown on the Declarations page for each accident for Uninsured/Underinsured Motorist Coverage is 'our' maximum limit of liability for all damages for 'bodily injury' resulting from any one 'accident'. The limit of liability shown in the Declarations page for 'property damage' is 'our' maximum limit of liability for all damages for 'property damage' resulting from any one 'accident'. This is the most 'we' will pay regardless of the number of:
A. 'Insureds';
B. Claims made;
C. Vehicles or premiums shown in the Declarations page; or D. Vehicles involved in the 'accident'.
There will be no stacking or combining of coverage afforded to more than one 'auto' under this policy. If more than one policy of uninsured or underinsured motorist coverage applies to an 'accident', the maximum the 'insured' may recover from all of the applicable coverage is the highest limit available under one policy for one 'auto'.
2. No one will be entitled to receive duplicate payments for the same elements of damages under this coverage and:
A. Part I: Liability Coverage;
B. Part II Medical and Funeral Services Payments Coverage of this policy; or C. Any other source.
3. 'We' will not make a duplicate payment under this coverage for any element of damages for which payment has been made by or on behalf of persons or organizations who may be legally responsible.
* * *
5. The limit of liability shown in the Declarations page for 'bodily injury' under Part III shall be reduced by all sums:
A. Paid because of 'bodily injury' by or on behalf of any persons or organizations that may be legally responsible, including, but not ...

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