23 order filed October 4, 2016
from the Circuit Court of St. Clair County, No. 13-MR-411;
the Hon. Richard A. Aguirre, Judge, presiding.
Reversed and remanded.
Elizabeth M. Bartolucci, of O'Hagen, LLC, of Chicago, for
A. Gogel, of The Gogel Law Firm, of St. Louis, Missouri, for
PRESIDING JUSTICE SCHWARM delivered the judgment of the
court, with opinion. Justice Welch concurred in the judgment
and opinion. Justice Goldenhersh dissented, with 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 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.
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
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
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:
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
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
A. Paid because of 'bodily injury' by or on behalf of
any persons or organizations that may be legally responsible,
including, but not ...