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Cherry v. Elephant Insurance Co., Inc.

Court of Appeals of Illinois, Fifth District

January 31, 2018

AUSTIN L. CHERRY and LESLEY TAYLOR, Plaintiffs-Appellants,
ELEPHANT INSURANCE COMPANY, INC., d/b/a Elephant Auto Insurance, Defendant-Appellee.

          Appeal from the Circuit Court of Massac County, No. 16-MR-10; the Hon. Joseph Jackson, Judge, presiding.

          James R. Lambert and Stephen W. Stone, of Howerton, Dorris, Stone & Lambert, of Marion, for appellants.

          Joseph T. Madrid, of Shelton & Madrid, LLC, of St. Louis, Missouri, for appellee.

          Panel JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Cates and Moore concurred in the judgment and opinion.


          WELCH JUSTICE.

         ¶ 1 The plaintiffs, Austin Cherry (Cherry) and Lesley Taylor (Taylor), were injured when Cherry's vehicle was struck by an underinsured driver on June 6, 2015, in Massac County, Illinois. His vehicle was insured by the defendant, Elephant Insurance Company (Elephant). Both plaintiffs settled their bodily injury claims with the at-fault driver's automobile insurer for $25, 000, though their damages far exceeded that amount. The plaintiffs filed a complaint for declaratory judgment against Elephant on February 9, 2016, asking the circuit court to find that Elephant's policy provides $300, 000 in underinsured motorist coverage to both plaintiffs, as the policy allowed aggregation of the liability limits of the underinsured motorist coverage on four vehicles. The plaintiffs filed a motion for summary judgment on July 13, 2016, and Elephant filed a motion for summary judgment on August 30, 2016. On February 27, 2017, the circuit court entered an order denying the plaintiffs' motion and granting Elephant's motion. For the following reasons, we reverse the judgment of the circuit court.

         ¶ 2 At the time of the accident, Cherry was driving a 2008 Ford Focus with Taylor as his passenger. Cherry was insured under a policy issued by Elephant. At the plaintiffs' request, Christy Parks, a product compliance specialist for Elephant, sent them a certified copy of the policy on November 6, 2015. This copy, which was attached to the plaintiffs' complaint for declaratory judgment, included the declarations page, cover page, and the policy details.

         ¶ 3 The policy was issued to Richard Cherry, Austin Cherry's father, for a period extending from January 12, 2015, to January 12, 2016. The drivers listed on the policy declaration page are Richard A. Cherry, Amy Cherry, Austin Cherry, and Israel Cherry. On the next two sheets of the declaration page, under "Coverage Outline, " the policy shows four insured vehicles: the 2008 Ford Focus that Cherry was driving at the time of the accident, a 2010 Kia Soul, a 2010 Ford Flex, and a 2006 BMW 330. The policy charged four separate premiums, one for each vehicle. The coverage type and the corresponding limits of liability are listed separately for each vehicle. Each vehicle under the policy carried coverage for "uninsured/underinsured motorist-bodily injury" with a limit listed as "$25, 000/$50, 000." For clarity, the declaration pages in their original formatting are included at the end of this opinion.

         ¶ 4 Following the declaration pages, the policy has a cover page titled "Illinois Personal Auto Policy." In the bottom left corner, in smaller type, the page reads:

The automobile insurance contract between the named insured and Elephant consists of this policy, plus the declarations page and any applicable endorsements.
The policy provides the coverages, and amounts of insurance are shown on the declarations when premium is charged."

         After a table of contents, the first paragraph in the policy, titled "AUTO POLICY, " states:

"This policy is a contract between the named insured shown on the declarations page and us. This contract, the declarations page, your Application and any endorsements that apply to this contract contain all of the agreements between you and us. If you pay the required premium when due, we will provide the insurance described in this contract."

         After listing general definitions, the policy is divided into parts. Part A describes liability coverage, part B describes medical payments coverage, part C describes uninsured/underinsured motorist coverage, part D describes damage to an auto (collision coverage), and part E describes roadside assistance coverage.

         ¶ 5 In part C's description of uninsured/underinsured motorist coverage, under "LIMITS OF LIABILITY, " the policy states:

"There will be no stacking or combining of coverage afforded to more than one auto under this policy. The limit of liability shown on the declarations page for the coverages under Part C is the most we will pay regardless of the number of:
1. Claims made;
2. Covered ...

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