Tralmer v. Soztneps, Inc. ( 1996 )

                             No. 2--96--0066

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

_________________________________________________________________

KIMBERLY TRALMER,                     )  Appeal from the Circuit

                                     )  Court of Lake County.

    Plaintiff-Appellant,             )

                                     )  No. 93--L--1743

    v.                               )

                                     )

SOZTNEPS, INC., Indiv. and            )

d/b/a Hob Knob Restaurant;            )

PALATINE INVESTMENT CORPORATION; )

PIONEER BANK AND TRUST COMPANY, )

as Trustee of Trust No. 025026,       )

Indiv. and d/b/a Vertigo,             )

a/k/a Club Vertigo,                   )

                                    )

    Defendants-Appellees             )

                                     )

(Pamela K. Loeb and Greater      )  Honorable

Rockford Investments, Inc.,      )  Bernard E. Drew, Jr.,

Defendants).                     )  Judge, Presiding.             

______________________________________________________________

    JUSTICE INGLIS delivered the opinion of the court:

    Plaintiff, Kimberly Tralmer, appeals from the judgment of the

circuit court of Lake County granting summary judgment in favor of

defendants, Soztneps, Inc. (Hob Knob), and Palatine Investment

Corporation (Vertigo)(defendants, collectively).

    On November 28, 1993, plaintiff was injured when the car she

was driving collided with a car operated by defendant, Pamela Loeb.

Plaintiff sued Loeb, alleging that Loeb was intoxicated at the time

of the accident and that her negligence caused the accident.

Additionally, plaintiff sued defendants, Hob Knob and Vertigo,

alleging that defendants were liable for serving liquor to Loeb

under the Illinois Dramshop Act.   235 ILCS 5/6--21  (West 1992).

On March 18, 1994, defendants' insurance carrier, River Forest

Insurance Company, was placed in liquidation.  As a result of River

Forest's insolvency, the Illinois Insurance Guaranty Fund (Fund)

became obligated by law to defend Hob Knob and Vertigo.  215 ILCS

5/532 et seq. (West 1992).  The Fund's payment obligation is

subject to the limitation contained under section 546(a) of the

Insurance Code (Code) (215 ILCS 5/546(a) (West 1992)), and the

setoff limitations of the Dramshop Act which limits recovery to

$30,000.

    In December 1994 plaintiff settled her suit against Loeb for

$100,000, the liability limit under Loeb's automobile insurance

policy with State Farm Insurance Company.  The agreement discharged

Loeb from liability and contribution to any other tort-feasor.  The

cause of action against defendants continued.  

    Subsequently, Hob Knob and Vertigo each filed motions for

summary judgment on the ground that the nonduplication of recovery

provision under section 546(a) of the Code and section 6--21 of the

Dramshop Act relating to setoff recovery relieved them of

liability.  The trial court found that the nonduplication of

recovery provision applied and directed that the maximum $30,000

which plaintiff could recover from the Fund should be reduced by

the $100,000 plaintiff had previously received from Loeb under her

insurance policy.  The trial court concluded that plaintiff could

never obtain any additional recovery from defendants and,

therefore, summary judgment was appropriate.  This timely appeal

followed.

    Plaintiff contends that the trial court erred in granting

summary judgment for several reasons: (1) because there are

separate claims and risks, the nonduplication of recovery provision

is not applicable; (2) even if the provision applies, setoff of

recovery should not occur until damages are ascertained; (3)

regardless of whether the Fund contributes, plaintiff can still

pursue her claims against defendants; and (4) once plaintiff

settles with an inebriated tort-feasor, the statutory damages cap

of the Dramshop Act does not dictate that plaintiff's litigation

has ended.

    Plaintiff first asserts that pursuant to section 546(a) her

recovery of $100,000 from Loeb's insurance carrier does not reduce

the Fund's obligation to plaintiff.  Plaintiff insists that her

claims against the Fund are independent of any claims previously

pursued against Loeb and her insurer.  Plaintiff argues that the

language of section 546(a) is clear and unambiguous in declaring

that the relief for any claimant having a covered claim against the

Fund is limited to making a claim first with any other solvent

insurer covering the same claim.

    The nonduplication of recovery provision which is in dispute

provides in pertinent part:

     Any insured or claimant having a covered claim against

   the Fund shall be required first to exhaust his rights under

   any provision in any other insurance policy which may be

   applicable to the claim.  Any amount payable on a covered

   claim under this Article shall be reduced by the amount of

   such recovery under such insurance policy.   215 ILCS 5/546(a)

   (West 1992).

    We have found no case construing section 546(a) in the present

situation, where the solvent insurer covers a claim for negligence

and the insolvent insurer covers a statutory dramshop claim.

Typically, section 546(a) has been applied where both the solvent

and insolvent insurance carriers cover the same type of claim.

See, e.g., Urban v. Loham, 227 Ill. App. 3d 772 (1992).  

    There is no question that in this case the statutory dramshop

claim is a separate claim from the negligence claim against the

driver, Loeb.  Each claim derives from different risks: one under

statute, the other from common law.  Moreover, the Dramshop Act

provides the only remedy against defendants.  See Stevens v. Lou's

Lemon Tree, Ltd., 187 Ill. App. 3d 458 (1989).  Dramshop defendants

are not considered to be concurring or joint tort-feasors with an

inebriated driver.  Hopkins v. Powers, 113 Ill. 2d 206 (1986).  We

must therefore examine whether the language of section 546(a)

restricts duplication of recovery where there are separate claims

involved.  

    The primary rule of statutory construction is to give effect

to the intent of the legislature.  Urban, 227 Ill. App. 3d at 775.

A court should look to the language of the statute and additionally

consider the purposes to be achieved by the law.  In re Estate of

Callahan, 144 Ill. 2d 32, 43 (1991).

    The Fund was devised to fill a void in insurance coverage when

an Illinois insurance company which otherwise would be responsible

for coverage becomes insolvent.  Lucas v. Illinois Insurance

Guaranty Fund, 52 Ill. App. 3d 237, 239-40 (1977).  Although the

Fund is intended to be a "source of last resort" in the event of

insolvency (Urban, 227 Ill. App. 3d at 777), the legislative intent

is to bar double recovery by both a claimant and the Fund (Lonigro

v. Lockett, 253 Ill. App. 3d 308, 318-19 (1993)).

    We have carefully reviewed the language of section 546(a) and

find it to be unambiguous.  The plain language of the provision

clearly mandates that recovery from the Fund is reduced by the

amount that is received from another insurance policy that covers

the same claim.  In the present case, the only insurance policies

which "may be applicable" to plaintiff's statutory dramshop claim

against defendants are those now held by the Fund.  Loeb's

automobile policy does not provide coverage for plaintiff's

dramshop claim.  Thus, we find that the Fund remains responsible,

subject to statutory limitations, to provide coverage for

plaintiff's dramshop claim.

    In reaching this conclusion, we reject defendants' contention

that this court should be persuaded by dispositive authority from

other jurisdictions.  Defendants cite Zhou v. Jennifer Mall

Restaurant, Inc., No. 84--CA--5771 (D.C. Super. Ct. August 10,

1994); Oglesby v. Liberty Mutual Insurance Co., 832 P.2d 834 (Okla.

1992); Rinehart v. Hartford Casualty Insurance Co., 91 N.C. App.

368, 371 S.E.2d 788 (1988); California Insurance Guarantee Ass'n

v. Liemsakul, 193 Cal. App. 3d 433, 238 Cal. Rptr. 346 (1987); and,

Stagg v. Strauss, 647 So. 2d 621 (La. App. 1994).  These cases are

neither helpful nor binding in this case.  The cases are different

from the present case in one major respect: the corresponding

statutes, although similar, use different language than our

statute.  None of the other statutes contain the language, "which

may be applicable to the claim."  Moreover, after thoroughly

researching this issue, we have not found any provision from other

jurisdictions which contain the language used in section 546(a).

    Defendants argue that, because all insurers must contribute to

the Fund, it is the philosophy of the Fund to have all potential

claims against the Fund's assets reduced by a solvent insurer

whenever possible.  Pierre v. Davis, 165 Ill. App. 3d 759, 760

(1987).  If the legislature had intended to follow the result urged

by defendants in this case, it would have deleted the phrase,

"which may be applicable to the claim."  This they did not do, and

we cannot now assume the role of the legislature.

    Because we find that the nonduplication of recovery provision

does not apply and that the Fund is responsible for coverage of the

dramshop claim, there remains a question concerning the amount of

damages.  Based on the record, we cannot conclude that the actual

damages sustained by plaintiff were less than $100,000, between

$100,000 and $130,000, or more than $130,000.  "[T]he proper

procedure is [for the fact finder] to assess the total damages,

without reference to any amounts already received, and then reduce

the verdict by such amounts.  The difference, of course, would be

subject to the maximum limits provided in the [Dramshop] Act."

Kurth v. Amee, Inc., 3 Ill. App. 3d 506, 510 (1972);  Patton v. D.

Rhodes, Ltd., 166 Ill. App. 3d 809, 811-12 (1988).  Accordingly,

because the nonduplication of recovery provision does not apply and

there remains a material fact as to the amount of damages, summary

judgment was improper.  We need not consider plaintiff's remaining

contentions because of the disposition of this issue.  We therefore

reverse and remand this cause.

    The judgment of the circuit court of Lake County granting

summary judgment to defendants is reversed and the cause is

remanded.

    Reversed and remanded.

    McLAREN, P.J., and THOMAS, J., concur.