Cherry v. Elephant Insurance Company

2018 IL App (5th) 170072
NOTICE
Decision filed 01/31/18. The
text of this decision may be NO. 5-17-0072
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
AUSTIN L. CHERRY and LESLEY TAYLOR, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Massac County.
)
v. ) No. 16-MR-10
)
ELEPHANT INSURANCE COMPANY, INC., )
d/b/a Elephant Auto Insurance, ) Honorable
) Joseph Jackson,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court, with opinion.
Justices Cates and Moore concurred in the judgment and opinion.
OPINION
¶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
1
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:
“READ YOUR POLICY, DECLARATIONS, AND ENDORSEMENTS
CAREFULLY
2
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 autos;
3. Autos and trailers shown on the declarations page;
4. Insureds;
5. Lawsuits filed;
6. Motor vehicles and trailers involved in an accident;
7. Heirs or survivors of person with bodily injury; or
8. Premiums paid.”
3
¶6 The next paragraph states that “[i]f 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.”
¶7 As previously mentioned, a dispute arose between the parties regarding the amount of
underinsured motorist coverage available to Cherry and Taylor under this policy. In its motion
for summary judgment, Elephant argued that the underinsured motorist coverage limits are
$25,000 per person and $50,000 per occurrence, citing the declarations page, the cover page, and
Richard Cherry’s application, which lists uninsured/underinsured motorist coverage with limits
of liability of $25,000 per person and $50,000 per accident. Elephant also argued that the policy
clearly and unambiguously prohibits the stacking of underinsured motorist coverage by stating
that “[t]here will be no stacking or combining of coverage afforded to more than one auto under
this policy.” Elephant concluded that because each plaintiff settled with the underlying tortfeasor
for $25,000, no underinsured motorist coverage claim exists because the tortfeasor’s limits are
not less than the insured’s limits, and therefore, the tortfeasor’s vehicle is not considered
underinsured by statute. Attached to Elephant’s motion was a copy of Richard Cherry’s
insurance application, along with copies of the declarations page and the policy.
¶8 The plaintiffs responded that the certified copy of the policy sent to them did not include
the application and, as such, any reference to the application should be disallowed or considered
an impermissible introduction of parol evidence. The plaintiffs argued that, because the limits of
liability for underinsured motorist coverage on the declarations sheet were listed multiple times,
the policy was ambiguous as to whether the plaintiffs may combine the limits of all the vehicles
insured under the policy. The plaintiffs maintained that the policy’s language does not clearly
4
prohibit stacking and the language pointed to by Elephant does not clearly and definitively
clarify the ambiguity. The trial court found in favor of Elephant, and the plaintiffs appeal.
¶9 The issue in this case is whether the underinsured motorist coverage on the four vehicles
insured by Elephant may be stacked, despite the antistacking language in the relevant section of
the policy. Elephant maintains that the limit of liability for underinsured motorist coverage is
$25,000 per person and $50,000 per accident and that the coverages may not be stacked because
the antistacking provisions are clear and unambiguous. The plaintiffs respond that listing
multiple limits on the declarations page creates an ambiguity that is not cured by Elephant’s
antistacking clause, which prohibits the combining of coverages, as opposed to prohibiting the
combining of the limits of liability. We agree with the plaintiffs.
¶ 10 In an appeal from the grant of a summary judgment, we conduct a de novo review. Crum
& Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993). The
construction of an insurance policy is a question of law and is an appropriate subject for
disposition by way of a summary judgment. Johnson v. Davis, 377 Ill. App. 3d 602, 606 (2007).
¶ 11 An insurance policy is a contract, and the general rules governing the interpretation of
other types of contracts also govern the interpretation of insurance policies. Hobbs v. Hartford
Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). In general, antistacking clauses do not
contravene public policy. Grzeszczak v. Illinois Farmers Insurance Co., 168 Ill. 2d 216, 229
(1995). The Illinois Insurance Code (Code) authorizes antistacking provisions of underinsured
motorist coverage in automobile insurance policies. The underinsured motorist statute provides:
“Nothing herein shall prohibit an insurer from setting forth policy terms and conditions
which provide that if the insured has coverage available under this Section under more
than one policy or provision of coverage, any recovery or benefits may be equal to, but
5
may not exceed, the higher of the applicable limits of the respective coverage, and the
limits of liability under this Section shall not be increased because of multiple motor
vehicles covered under the same policy of insurance.” 215 ILCS 5/143a-2(5) (West
2014).
¶ 12 Where the terms of a policy are clear and unambiguous, the language used will be given
its plain meaning; however, if a provision is subject to more than one reasonable interpretation, it
is ambiguous and should be construed against the insurer and in favor of the insured. Murphy v.
State Farm Mutual Automobile Insurance Co., 234 Ill. App. 3d 222, 225 (1992). The reasons
behind interpreting an insurance policy in this way are twofold: (1) an insured’s intent in
obtaining insurance is to have coverage, and thus, any ambiguity jeopardizing coverage should
be construed consistent with the insured’s intent, and (2) it is the insurer who is the drafter of the
policy, and the insurer could have drafted the ambiguous provision clearly and specifically. Id. at
226. Therefore, attempts to limit or exclude coverage must be done clearly, unambiguously, and
free of any doubt as to the intended meaning. Lenkutis v. New York Life Insurance Co., 374 Ill.
136, 140 (1940).
¶ 13 In determining whether an ambiguity exists, all of the provisions in an insurance contract
should be read together. Glidden v. Farmers Automobile Insurance Ass’n, 57 Ill. 2d 330, 336
(1974). Reasonableness is the key, and the touchstone is whether the provision is subject to more
than one reasonable interpretation, not whether creative possibilities can be suggested. Bruder v.
Country Mutual Insurance Co., 156 Ill. 2d 179, 193 (1993); Johnson, 377 Ill. App. 3d at 607.
¶ 14 After reviewing the policy as a whole, we find that the policy is ambiguous as to whether
the limits of liability may be stacked. We reach this conclusion from an analysis of Bruder and
its progeny.
6
¶ 15 In Bruder, the Illinois Supreme Court considered whether a plaintiff should be allowed to
stack uninsured motorist coverage on two vehicles set forth on a single automobile policy. 156
Ill. 2d at 191. The policy’s limit of liability for uninsured benefits provided that “ ‘[t]he most we
will pay for all damages resulting from bodily injury to any one person caused by any one
accident is the limit of Bodily Injury shown in the declarations for “Each Person.” ’ ” Id. at 189.
The court held that there was no ambiguity when the antistacking clause was read in conjunction
with the declarations page because the limit of the bodily injury for “each person” (in the amount
of $100,000) was set forth only once on the declarations page, despite listing two vehicles. Id. at
193-94. The court noted, however, that multiple printings of policy limits on a declarations page
could create an ambiguity, stating:
“It would not be difficult to find an ambiguity created by such a listing of the
bodily injury liability limit for each person insured. *** There would be little to suggest
in such a listing that the parties intended that coverage was to be limited to that provided
for only one of the two [vehicles]. It would be more reasonable to assume that the parties
intended that, in return for the two premiums, two *** coverage amounts were afforded.”
Id. at 192.
In other words, the court opined that such a policy could easily be interpreted as providing a total
limit of $200,000 because a figure of $100,000 would be shown for each vehicle. Id. However,
in the case before it, because the policy listed only one limit of liability on the declarations page,
it could only reasonably be read as providing that amount and was therefore unambiguous.
¶ 16 Courts interpreting Illinois law, including this court, have followed the Bruder rationale
and found that, despite indication elsewhere in the contract that stacking of policy limits is not
permitted, a declarations page that prints the policy limit more than once could reasonably be
7
interpreted as providing a policy limit that is the sum of the printed limits. See Allen v.
Transamerica Insurance Co., 128 F.3d 462, 466-67 (7th Cir. 1997) (the policy’s limit of liability
section directed the insured to find the limit of underinsured coverage in the declarations, where
multiple numerical limits appeared; the limit of liability clause could thus be read multiple ways,
rendering the meaning ambiguous and aggregation to result); Pekin Insurance Co. v. Estate of
Goben, 303 Ill. App. 3d 639, 648-49 (5th Dist. 1999) (same); Yates v. Farmers Automobile
Insurance Ass’n, 311 Ill. App. 3d 797, 800 (5th Dist. 2000) (same).
¶ 17 The Illinois Supreme Court returned to this issue in Hobbs v. Hartford Insurance Co. of
the Midwest, 214 Ill. 2d 11 (2005). The court noted the similarities between the insurance policy
at issue and the Bruder policy, noting that, in both cases, the antistacking clauses tied the limit of
liability to the limit shown in the declarations page and both policies’ declarations pages listed
the premiums for two vehicles separately “but, importantly, list[ed] the relevant limit of liability
only once.” Id. at 21. The court read the antistacking provision in conjunction with the
declarations page and determined that the policy in question was unambiguous and that the
coverages did not stack. Id. The Hobbs court noted that listing multiple numerical limits on the
policy’s declaration page does not per se result in aggregation, and variances in policy language
“frequently require case-by-case review.” Id. at 26 n.1. However, the court reiterated its
statement in Bruder that “where the antistacking clause limits liability to the limit shown on the
declarations page, and the declarations page lists the limit of liability twice, it would not be
difficult to find an ambiguity.” Id. at 25 (citing Bruder, 156 Ill. 2d at 192).
¶ 18 Finally, relying on Bruder, Allen, Estate of Goben, and Yates, this court determined in
Johnson v. Davis that stacking was allowed under the policy in question because the limits of the
coverage were listed multiple times, once for each vehicle covered, and four separate premiums
8
for the coverage were also listed on the declarations sheet. 377 Ill. App. 3d 602, 609 (2007). In
Johnson, the four vehicles under the policy carried underinsured motorist coverage of $50,000
per person and $100,000 per accident. Id. at 603. The policy contained a general antistacking
provision. Id. at 605-06. The underinsured motorist endorsement directed the insured to “ ‘SEE
DECLARATION FOR LIMIT OF LIABILITY AND PREMIUM,’ ” and the endorsement also
contained a limit of liability clause stating that the limit of liability shown in the declarations
page was the maximum limit of liability. Id.
¶ 19 The declarations page showed limits of $50,000 per person, and those limits were listed
four separate times. Id. at 610. Applying the case-by-case review directed by Hobbs, this court
found that a reasonable person could believe that the policy provided $50,000 of underinsured
motorist coverage for each of the four vehicles carrying underinsured motorist coverage, for a
total of $200,000 in underinsured motorist coverage. Id. at 609. This court found that the
antistacking clauses in the policy created an ambiguity when read with the declarations page and
affirmed the trial court’s decision granting plaintiff Johnson $200,000 in underinsured motorist
coverage. Id. at 610.
¶ 20 Here, like the cases described above, the policy’s limit of liability section directs the
insured to find the limit of underinsured coverage in the declarations under the limit of liability
section for underinsured motorist coverage; specifically, this policy states that “[t]he limit of
liability shown on the declarations page for the coverages under Part C is the most we will pay.”
Then, like the above-discussed cases, the declarations page lists four vehicles with four separate
limits of liability. The abundant case law precedent indicates that this creates an ambiguity
favoring aggregation of the four vehicles’ limits of liability for underinsured motorist coverage.
9
¶ 21 We remain mindful that “there is no per se rule that listing the numerical limits more than
once on the declarations page creates an ambiguity which results in allowing the policies to be
stacked.” Id. at 609. Further, although we recognize that the policy has specific antistacking
language stating that “[t]here will be no stacking or combining of coverage afforded to more than
one auto under this policy,” this clause does nothing to cure the ambiguity created by its limit of
liability clause combined with the multiple listed limits on the declarations page.
¶ 22 On the declarations page, under each of the four vehicles, there are four columns with
five rows of coverage descriptors. Below, we have reproduced the coverage outline details for
the 2008 Ford Focus. 1
Coverage Type Limits Deductible Premium
Bodily Injury Liability $25,000/$50,000 $155.15
Property Damage Liability $25,000 $137.08
Uninsured/Underinsured
Motorist—Bodily Injury $25,000/$50,000 $16.19
Other Than Collision $100 $196.61
Collision $500 $482.48
As mentioned above, the policy’s antistacking language stated that there will be no stacking or
combining of “coverage.” Based on the above coverage outline details, a logical conclusion is
that these five coverages cannot be stacked with any of the other coverages; e.g., an insured may
not combine his “property damage liability” with his “other than collision” liability. Meanwhile,
there is no blanket prohibition on combining the limits of the available coverage. In other words,
the ambiguity created by printing multiple limits on the declarations page is not cured by
language prohibiting the combining of coverages and not the limits of liability. “Coverage” and
“limit of liability” of that particular coverage are not synonymous terms. The language is plainly
1
The formatting in our example is not exact. Please refer to the copy of the policy’s declarations
page included in this opinion’s appendix for an exact replica.
10
susceptible to more than one reasonable interpretation—the insured may be prohibited from
combining his different coverages, or he may be prohibited from aggregating the limits of his
coverages, despite paying premiums for them all.
¶ 23 In support of its position, Elephant cites State Farm Mutual Automobile Insurance Co. v.
McFadden, in which the Second District prohibited aggregation. 2012 IL App (2d) 120272, ¶ 39.
In McFadden, an insured wished to aggregate underinsured limits of liability on five separate
policies insuring five separate vehicles. Id. ¶ 5. State Farm argued that its antistacking provisions
limited underinsured coverage to the highest single policy, citing language in the policy that
“ ‘[i]f underinsured motor vehicle coverage for bodily injury is available to an insured from more
than one policy provided by us or any other insurer, the total limit of liability available from all
policies provided by all insurers shall not exceed the limit of liability of the single policy
provided the highest limit of liability.’ ” (Emphasis omitted.) Id. ¶ 15. The court found that while
reading the declarations sheets in isolation might leave open the question of stacking, the
antistacking provision unambiguously answered the question in the negative. Id. ¶ 36.
¶ 24 We do not find Elephant’s supporting case law persuasive. The antistacking language in
McFadden involves an issue not before this court; that is, whether limits of liability on multiple
separate policies may be aggregated. Elephant has a similar provision in its policy dealing with
multiple insurance policies applicable to an accident, which states that “[i]f 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.” As there is not “more than one policy” of underinsured motorist coverage in the
instant case, we find that McFadden is inapposite to our conclusion.
11
¶ 25 Elephant also argues that the application for the Elephant policy, read in conjunction with
the declarations and the policy, makes clear that the coverage available for underinsured motorist
coverage is $25,000 per person and $50,000 per accident. Elephant points to the first page of the
insurance policy, which states that, “[t]his contract, the declarations page, your Application and
any endorsements that apply to this contract contain all of the agreements between you and us.”
¶ 26 An insurance policy must be interpreted from examination of the complete document.
Hobbs, 214 Ill. 2d at 23. However, as the plaintiffs properly point out, the application was not
included in the certified copy of the policy sent to the plaintiffs, and the title page of the certified
policy states that “[t]he automobile insurance contract between the named insured and Elephant
consists of this policy, plus the declarations page and any applicable endorsements.” This policy
statement directly conflicts with the subsequent policy statement that the application is included
in “all of the agreements between [Richard Cherry] and [Elephant].” Again, an ambiguity is
created when the insured reads these statements together. Moreover, Elephant’s reference to the
application ignores the language on the title page following the initial statement, which states
that “amounts of insurance are shown on the declarations,” which corresponds with Elephant’s
directions in the limit of liability clause for the insured to find the limits in the declarations page.
¶ 27 The Code authorizes Elephant to limit its liability in providing underinsured motorist
coverage to a single amount, despite collecting premiums for multiple amounts. See 215 ILCS
5/143a-2(5) (West 2014). However, Elephant is required to clearly and unambiguously inform its
policyholders that their coverage has limitations or exclusions. Elephant failed to do so, and the
ambiguity created by this failure must be construed against the insurer and in favor of the
insured. See Murphy, 234 Ill. App. 3d at 225. As such, the limits of liability of the four vehicles
aggregate to provide $100,000/$200,000 of underinsured motorist coverage.
12
¶ 28 We turn now to the question of the amount of coverage to which the plaintiffs are
actually entitled. In the policy’s description of uninsured/underinsured motorist coverage, under
“LIMITS OF LIABILITY,” the policy states:
“If the declarations page shows one limit under this coverage for each person and
another limit for each accident, the following limits shall apply to each accident:
1. The amount shown for ‘each person’ is the most we will pay for all
damages due to a bodily injury to one person;
2. Subject to the ‘each person’ limit, the amount shown for ‘each accident’
is the most we will pay for all damages due to bodily injury sustained by two or
more persons in any one accident.”
¶ 29 Thus, the policy states, if the declarations page shows one limit for “each person” and
one limit for “each accident,” different payment terms apply. However, the plaintiffs point out
that when the limit of liability and the declarations are read together, “$25,000/$50,000” are the
amounts encountered under the “Limits” column of uninsured/underinsured motorist coverage—
there is no reference to “each person” or “each accident” anywhere on the declarations page.
Thus, the plaintiffs argue, while one reasonable interpretation of the limit of liability is $25,000
per person and $50,000 per accident, another reasonable interpretation, based on the formatting
of the page, is that the limits are $25,000 for uninsured bodily injury and $50,000 for
underinsured bodily injury.
¶ 30 Again, the relevant row appears on the declarations page as the following:
“Uninsured/Underinsured Motorist—Bodily Injury $25,000/$50,000”
Uninsured and underinsured coverage are stated on the same row, separated by a slash. The
amounts of $25,000 and $50,000, directly across from these coverages and having no indication
13
of a “per person” or “per accident” designation, also are separated by a slash. We agree with the
plaintiffs that both interpretations are reasonable. Again, where there is more than one reasonable
interpretation of a provision, it is ambiguous and will be construed against the insurer and in
favor of the insured. Murphy, 234 Ill. App. 3d at 225.
¶ 31 Therefore, as the policy does not unambiguously prohibit aggregation, nor does it
unambiguously state the amounts of the underinsured limits when the policy’s limits of liability
clauses and the declarations page are read together, we find that the plaintiffs could reasonably
conclude that Richard Cherry had purchased $50,000 of underinsured benefits four times,
resulting in $200,000 of underinsured motorist coverage for each plaintiff. We therefore find that
the plaintiffs are each entitled to that amount of coverage.
¶ 32 For the foregoing reasons, we reverse the decision of the Massac County circuit court and
aggregate the underinsured motorist benefits available to the plaintiffs in this case.
¶ 33 Reversed.
14
¶ 34 APPENDIX
2018 IL App (5th) 170072 NO. 5-17-0072
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
AUSTIN L. CHERRY and LESLEY TAYLOR, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Massac County.
)
v. ) No. 16-MR-10
)
ELEPHANT INSURANCE COMPANY, INC., )
d/b/a Elephant Auto Insurance, ) Honorable
) Joseph Jackson,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
Opinion Filed: January 31, 2018
________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable Judy L. Cates, J., and
Honorable James R. Moore, J.,
Concur
________________________________________________________________________
Attorneys James R. Lambert, Stephen W. Stone, Howerton, Dorris, Stone &
for Lambert, 300 West Main Street, Marion, IL 62959
Appellants
________________________________________________________________________
Attorney Joseph T. Madrid, Shelton & Madrid, LLC, 11820 Tesson Ferry
for Road, Suite 208, Plaza 21, St. Louis, MO 63128
Appellee
________________________________________________________________________