Opinion filed November 5, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

MARILYN K. BOWERS and ROBERT ) Appeal from the Circuit Court BOWERS, ) of the 13th Judicial Circuit, ) Bureau County, Illinois. Plaintiffs-Appellees, ) ) Appeal No. 3-13-0655 v. ) Circuit No. 13-MR-12 ) GENERAL CASUALTY INSURANCE ) COMPANY, ) The Honorable ) Marc P. Bernabei, Defendant-Appellant. ) Judge, presiding.

_____________________________________________________________________________

PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Wright specially concurred, with opinion. _____________________________________________________________________________

OPINION

¶1 Plaintiffs, Marilyn and Robert Bowers, filed a complaint against defendant, General

Casualty Insurance Company, seeking a declaratory judgment that their underinsured motorist

(UIM) coverage for three vehicles was not limited to one vehicle. The trial court granted

summary judgment in plaintiffs’ favor, finding that the $250,000 UIM limit for each vehicle

could be aggregated, or stacked, to arrive at a maximum coverage limit of $750,000. General Casualty appeals, claiming that the provisions of the policy are unambiguous and prohibit

stacking of UIM coverage. We affirm.

¶2 On August 8, 2011, Marilyn sustained injuries when an underinsured motorist drove his

vehicle into a convenience store building in which Marilyn was standing. At the time of the

accident, plaintiffs were covered under a General Casualty insurance policy that provided

underinsured motorist coverage for three vehicles. The declarations page for the policy listed

three limits of UIM coverage and three premiums for each listed vehicle. Coverage information

was provided in a section entitled “Vehicle Coverages” and was listed in the following table

format:

2005 Pont Grand Prix 1997 Chry Sebring JXI 2005 Ford F150 Limit Premium Limit Premium Limit Premium UIM $250,000 Ea Person $250,000 Ea Person $250,000 Ea Person Bodily Injury $500,000 Ea Accident $29.00 $500,000 Ea Accident $24.00 $500,000 Ea Accident $29.00

A provision directly above the table of vehicles was entitled “Coverage Information.” It stated:

"The coverages listed below apply separately for each vehicle and are provided

only where a premium or Included is shown. The Limit of Liability applies

separately for each vehicle."

¶3 UIM coverage was added to the Bowers’ policy by an endorsement. Among other things,

the endorsement provided:

"We will pay compensatory damages which an 'insured' is legally entitled to

recover from the owner or operator of an underinsured motor vehicle because of

bodily injury:

1. Sustained by an 'insured'; and

2. Caused by an accident."

2 The endorsement also contained a "Limit of Liability" provision, which stated:

"The limit of liability shown in the Schedule or in the Declarations for each

person for Underinsured Motorist Coverage is our maximum limit of liability for

all damages, including damage for care, loss of service or death, arising out of

'bodily injury' sustained by any one person in any one accident. Subject to this

limit for each person, the limit of liability shown in the Schedule or in the

Declarations for each accident for Underinsured Motorist Coverage is our

maximum limit of liability for all damages for 'bodily injury' resulting from any

one accident.

This is the most we will pay regardless of the number of:

1. 'Insureds;'

2. Claims made;

3. Vehicles or premiums shown in the Schedule of Declarations; or

4. Vehicles involved in the accident."

¶4 The underinsured motorist that drove into the building carried a per-person bodily injury

liability limit of $100,000, which was paid to Marilyn. The Bowers filed a declaratory judgment

action against defendant claiming that policy provided up to an additional $650,000 because the

UIM coverages could be stacked. General Casualty responded that the policy only provided up

to an additional $150,000, because the UIM limit was $250,000. Both parties filed motions for

summary judgment.

¶5 The trial court granted the Bowers’ motion for summary judgment and denied General

Casualty's motion. The court found that the table on the declarations page, which listed each of

the three UIM limits, and the use of the term “the limit" in the endorsement led to an ambiguous

3 interpretation. It then construed the contract against General Casualty, thus allowing stacking of

the UIM coverages.

¶6 ANALYSIS

¶7 General Casualty argues that the trial court erred in finding that the insurance policy

allowed the Bowers to stack their underinsured motorist vehicle coverage limits listed for each

vehicle to arrive at a maximum per-person coverage limit of $750,000. It argues that the layout

of the declarations page, together with the antistacking provision, is unambiguous and does not

allow the insured to stack the coverage limits. It further argues that the term "separately," as

used in the coverage information section, clarifies any ambiguity that may be found in the

policy's provisions.

¶8 The construction of an insurance policy is a question of law that this court reviews de

novo. Smagala v. Owen,

(1999). Our primary objective in construing

an insurance policy's language is to ascertain and give effect to the parties' intent, as expressed in

their agreement. Hobbs v. Hartford Insurance Co. of the Midwest,

(2005).

Clear and unambiguous policy terms will be given their plain and ordinary meaning, and the

policy will be applied as written, unless it contravenes public policy.

If the terms are

susceptible to more than one meaning, the policy is ambiguous and will be strictly construed

against the insurer that drafted it. Pekin Insurance Co. v. Wilson,

(2010). In

construing the drafter's language, we must interpret the policy as a whole, considering the type of

insurance purchased, the nature of the risks involved and the contract's overall purpose.

Provisions that limit or exclude coverage will be interpreted liberally in the insured's favor and

against the insurer. Hobbs,

.

4 ¶9 The Illinois Insurance Code allows for the use of antistacking provisions in motor vehicle

insurance policies (215 ILCS 5/143a-2(5) (West 2010)), and our supreme court has stated that

antistacking provisions generally are not contrary to public policy (Hobbs,

).

Thus, unambiguous antistacking clauses will be given effect. Bruder v. Country Mutual

Insurance Co.,

(1993).

¶ 10 The seminal case in the interpretation of antistacking clauses is Bruder v. Country Mutual

Insurance Co.,

(1993). In Bruder, our supreme court stated, in dicta, that it

"would not be difficult to find an ambiguity" where an insurance policy listed the uninsured or

underinsured motorist coverage amounts and premiums separately for each vehicle covered

under the policy.

. The court noted that, where that occurs, it is "reasonable to assume

that the parties intended" that, in return for the premiums paid, equal amounts of uninsured or

underinsured motorist coverage were afforded, regardless of language indicating otherwise in the

policy.

However, in Bruder, the uninsured motorist coverage was listed only one time in the

policy, even though separate premiums were listed for each vehicle covered. The court found

that "[t]he only reasonable interpretation" was that the policy provided only the UIM amount

listed one time for each person injured regardless of the number of vehicles insured or premiums

paid.

. Since the declarations page listed the UIM coverage only one time, the court

ruled that there was no ambiguity in the limit of liability provision and applied it as written,

without allowing aggregation or stacking of coverage.

.

¶ 11 The distinction between listing the UIM limit of liability once and listing it more than

once was crucial to our supreme court's determination in Hobbs v. Hartford Insurance Co. of the

Midwest,

(2005). In Hobbs, the insurance policy in question listed the limits of

UIM coverage only once on the declarations page. Hobbs noted the similarities between the

5 insurance policy and the policy in Bruder.

. The antistacking provision in the policy

tied the limit of UIM coverage to the limit shown on the declarations page. The declarations page

listed the premiums for the two vehicles separately but listed the relevant limit of liability only

once. The supreme court read the antistacking provision in conjunction with the declarations

page and determined that the policy was unambiguous and that the coverages did not stack.

Hobbs did not overrule Bruder but rather used the Bruder analysis in determining that coverage

could not be stacked.

¶ 12 The case law since Bruder has followed the same line of reasoning when considering

whether to allow the stacking of uninsured or underinsured motorist coverage. In Estate of

Goben, the court relied on the Bruder decision and found that because the UIM coverage was set

forth two times on the declarations page, once for each covered vehicle, there were two possible

interpretations of the policy: one that provided UIM coverage based on one limit as described in

the antistacking provision, and one that provided two coverage amounts for the two UIM limits

and the corresponding premiums listed on the declarations page. Based on the ambiguity, the

court construed the policy strictly against the insurer that drafted it and allowed the limits to be

stacked. Pekin Insurance Co. v. Estate of Goben,

(1999); see also

Allen v. Transamerica Insurance Co.,

(7th Cir. 1997) (holding that the antistacking

clause was ambiguous because the declarations page to which the clause referred listed two

vehicles with separate UIM coverages and separate premiums).

¶ 13 Yates v. Farmers Automobile Insurance Ass'n,

(2000), also permitted

stacking. In Yates, the policy covered two vehicles and contained antistacking language in the

endorsement nearly identical to the language in this case. The underinsured motorist coverage

was said to be limited to the liability shown on the declarations page and was described as "the

6 limit" in the antistacking provision.

. The declarations page identified two vehicles

that were covered, UIM policy limits were listed under "auto one" and "auto two," and a separate

premium was listed for each vehicle. The declarations page also contained a statement that

provided, " 'COVERAGE IS PROVIDED WHERE A PREMIUM AND A LIMIT OF

LIABILITY OR THE WORD ‘INCLUDED’ ARE SHOWN FOR COVERAGE.' "

.

Yates held that the declarations page was inconsistent with and contradictory to the antistacking

provision in the endorsement. The court construed the policy in favor of the insured, and the

UIM coverages were stacked. Id; see also Johnson v. Davis,

(2007)

(stacking allowed based on ambiguity where the antistacking provision referred to a singular

"limit," but the policy named four vehicles and listed separate UIM coverages for each of the

vehicles).

¶ 14 In this case, the insurance policy contains contradictory provisions. The underinsured

motorist endorsement contains an antistacking provision, which states that the "limit of liability"

is the maximum limit the company would pay for all damages, regardless of the vehicles or

premiums shown. On the other hand, the antistacking provision also states that the limit of

liability is based on the description in the declarations page, which states that coverage is

provided where a premium and a limit of liability are shown. The declarations page shows three

UIM coverages of $250,000 and a UIM premium for each of the three vehicles. The language

contained in the declarations page is inconsistent with the endorsement's antistacking provision

and creates an ambiguity. Since the policy contains inconsistent provisions, we must construe it

against the drafter, General Casualty.

¶ 15 General Casualty argues that there is no per se rule that listing the UIM limits more than

once on the declarations page creates an ambiguity resulting in allowing the coverages to be

7 stacked. In Hobbs, the court stated that the declarations page of a policy is but one piece of the

insurance agreement and cannot address every conceivable coverage issue. Hobbs,

. However, when read in conjunction with the antistacking provision, an ambiguity may arise.

See Yates,

; Johnson,

. In this case, reading those

two provisions together creates an ambiguity.

¶ 16 General Casualty cites Ritter in support of its position. In Ritter, the appellate court

found that the antistacking provision, which contained language identical to the endorsement

policy provision here, was unambiguous and prohibited stacking. However, Ritter does not

attempt to reconcile its decision with the Bruder dicta and fails to address language in the

declarations page that lists more than one UIM coverage and more than one UIM premium.

Accordingly, we are unpersuaded by its analysis.

¶ 17 Last, General Casualty argues that the use of the word "separately" in the coverage

information section of the declarations page, which states that "the coverages listed below apply

separately for each vehicle and are provided only where a premium or included is shown,"

precludes stacking of the three UIM coverage limits. We disagree. The word "separately" can

have more than one connotation. "Separate" means "to set or keep apart"; "to make a distinction

between"; or "to sort." Webster's Third New International Dictionary 2069 (1986). Although

use of the term "separately" may signify recovery under only one of the coverages, it may also

lead to the opposite conclusion; it may also indicate that the UIM coverage limit of $250,000

applies to each vehicle where a premium is shown. Regardless, the use of the word "separately"

in the coverage information section does not address an insured's ability to combine UIM

coverages for which the insured has paid a premium. As we noted in Progressive Premier

Insurance Co. v. Cannon,

(2008), by listing each vehicle separately in the

8 vehicle coverages section, an ambiguity arises in the policy in that an insured may reasonably

presume separate UIM limits apply to each covered vehicle and that the limits could be stacked

because separate UIM premiums were paid for each vehicle. See

. Nothing in the

language of the coverage information section removes that ambiguity.

¶ 18 CONCLUSION

¶ 19 The judgment of the circuit court of Bureau County, allowing Marilyn to aggregate the

underinsured motorist coverages in the General Casualty policy, is affirmed.

¶ 20 Affirmed.

¶ 21 JUSTICE WRIGHT, specially concurring.

¶ 22 I specially concur. I respectfully submit a factual ambiguity warrants the result reached

by the majority in this case. Here, plaintiff was injured by an underinsured motorist while

plaintiff was inside a convenience store rather than present in one of the multiple vehicles subject

to her insurance policy. Due to the very unusual factual circumstances, I agree with the result.

9