FILED NO. 4-22-0827 June 28, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

MARK KUHN and KAREN KUHN, ) Appeal from the Plaintiffs-Appellees, ) Circuit Court of v. ) McLean County OWNERS INSURANCE COMPANY; ) No. 19MR643 B. McLEAN ARNOLD, Special Representative of ) Ryan Hute, Deceased; JASON FARRELL, ) Individually; JASON FARRELL, d/b/a Jason Farrell ) Trucking; 3 GUYS AND A BUS, INC.; KATHLEEN ) CRABTREE, Executor of the Estate of Charles C. ) Crabtree, Deceased; STEVEN B. PRICE; JESSICA ) O’BRIEN; MONTINIQUE HOWARD; HALEY ) WILLAN; GRACE STORM; ABBY HOEFT; ) OLIVIA REED; KIRSTEN LELLELID; and ) JORIANA BISCHOFF, ) Defendants ) ) (Owners Insurance Company, Defendant-Appellant; ) Kathleen Crabtree; Steven B. Price; Jessica O’Brien; ) Montinique Howard; Haley Willan; Grace Storm; ) Abby Hoeft; Olivia Reed; Kirsten Lellelid; and Joriana ) Bischoff, Defendants-Appellees). ) Honorable ) Scott Kording, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Turner and Harris concurred in the judgment and opinion.

OPINION

¶1 In November 2019, plaintiffs, Mark and Karen Kuhn (the Kuhns), filed a

declaratory judgment action seeking a judicial determination of the available liability insurance

covering an accident between a semitruck owned by Jason Farrell and a school bus driven by Mark. The semitruck was insured under a policy issued by defendant, Owners Insurance Company

(Owners), and that policy also insured six other vehicles—two other semitrucks and four trailers—

that were not involved in the accident. Each vehicle had a limit of $1 million per accident. The

Kuhns sought a declaration that the coverage limits for all of the covered vehicles should be

aggregated, or “stacked,” resulting in a total of available liability insurance of $7 million for the

accident.

¶2 In April 2021, the parties filed cross-motions for summary judgment pursuant to

section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2020)). The Kuhns

argued the policy was ambiguous because it listed a limit of coverage separately for each vehicle

(for a total of seven times) and, as a result, the coverages should be stacked. Owners argued that

the policy was unambiguous and contained an antistacking clause, which provided that “[t]he

Limit of Insurance for this coverage may not be added to the limits for the same or similar coverage

applying to other autos insured by this policy to determine the amount of coverage available for

any one accident.” Subsequently, the parties fully briefed the cross-motions and made oral

arguments to the trial court.

¶3 In August 2022, the trial court entered a written judgment in favor of the Kuhns,

concluding that (1) the policy was ambiguous; (2) because the ambiguity should be construed

against Owners, stacking of the policy’s coverage limits was permitted; and (3) the aggregate limit

of insurance for liability coverage under the policy was $7 million. Accordingly, the court granted

the Kuhns’ motion for summary judgment and entered judgment against Owners.

¶4 Owners appeals, arguing the trial court erred by concluding that (1) the antistacking

clause was ambiguous and (2) stacking of the policy’s coverage limits was permitted. We agree,

reverse the trial court’s judgment, and remand with directions.

-2- ¶5 I. BACKGROUND

¶6 A. The Concept of “Stacking” Coverage Limits of Automobile Insurance

¶7 Because resolution of this case involves an uncommon and generally unfamiliar

area of auto insurance law, we begin by explaining the concept of “stacking” at issue here.

¶8 1. What Is Stacking?

¶9 “Stacking ordinarily involves combining or aggregating the policy limits applicable

to more than one vehicle where the other vehicles are not involved in the accident.” Progressive

Premier Insurance Co. of Illinois v. Kocher,

,

(2010). “The issue of whether coverage may be stacked arises only because the existence of

coverage is a given.” Hobbs v. Hartford Insurance Co. of the Midwest,

,

(2005). That is, stacking, by its nature, requires that one occurrence is covered by

either (1) multiple policies or (2) multiple vehicles under the same policy, so that those multiple

sources of coverage may be combined. See Bruder v. Country Mutual Insurance Co.,

,

(1993) (explaining that whether the antistacking clause appeared

in only one of two policies did not matter because coverage can only be stacked when an

occurrence is covered more than once).

¶ 10 2. Stacking of Uninsured and Underinsured Motorist Coverages

¶ 11 Stacking frequently arises in the context of underinsured motorist (UIM) or

uninsured motorist (UM) coverage (see Progressive Premier Insurance Co. v. Cannon,

,

(2008)) because (1) UIM and UM coverage is provided to

an insured person “regardless of the vehicle in which the insured person is located when injured”

(emphasis added) (Squire v. Economy Fire & Casualty Co.,

,

(1977)), (2) the purpose of UIM and UM is “ ‘to place the insured in the same position he

-3- would have occupied if the tortfeasor had carried adequate insurance’ ” (Cummins v. Country

Mutual Insurance Co.,

,

(1997)), and (3) UIM and UM

coverage is required by statute to be included in all automobile insurance policies (Squire,

; 215 ILCS 5/143a, 143a-2 (West 2020)). These three factors mean that someone who

obtains insurance for multiple vehicles is required to have UIM and UM coverage for each vehicle,

which necessarily means that if such a person is in an accident caused by an uninsured or

underinsured vehicle, then that person is potentially covered by the UIM and UM at least twice,

once for each vehicle. See Squire,

(concluding that, in the absence of clear

antistacking language, an accident victim was entitled to aggregate UM coverages under the terms

of an insurance policy that insured two vehicles and listed the UM coverage and premium for each

vehicle separately).

¶ 12 3. Stacking of Auto Liability Coverages

¶ 13 If stacking in the UIM/UM context were not sufficiently confusing, the concept

becomes even more unclear in the context of auto liability coverage. Unlike UIM/UM coverage,

which is sought by a person from his or her own auto insurance policy—sometimes

notwithstanding the fact that the covered auto was not involved in the accident (see Kocher,

)—auto liability coverage attaches to a particular vehicle (see West v. American

Standard Insurance Co. of Wisconsin,

,

).

Recall that “[t]he issue of whether coverage may be stacked arises only because the existence of

coverage is a given.” Hobbs,

. Generally, for auto liability coverage to be

applicable, the automobile must (1) be covered by the policy and (2) cause damage while being

used as an automobile. Kopier v. Harlow,

,

(1997). Accordingly, it is not clear that “coverage is a given” for vehicles not involved in the

-4- accident because they did not cause the accident.

¶ 14 The Second District Appellate Court succinctly explained as follows:

“ ‘The insurer’s undertaking in an automobile liability policy to pay on

behalf of the insured all sums which the insured shall become legally obligated to

pay as damages because of injury “arising out of the ownership, maintenance or use

of the owned automobile” is directly related to and required the involvement of one

of the vehicles specifically mentioned in the policy or a replacement or temporary

substitute therefor for which a specific premium was charged; coverage provided

by such undertaking is automobile-based and not person-based and is insurance on

the vehicle and not in the nature of a personal accident policy.’ 6B J. Appleman &

J. Appleman, Insurance Law & Practice § 4291 (Supp. 1997).

For this reason, courts, whether or not they allow the stacking of uninsured

motorist coverage or medical payment coverage, do not allow the stacking of

liability coverage. [Citations.] Although plaintiff here does not argue that the

coverages should be stacked, the rationale behind not allowing stacking of liability

coverage—that liability policies insure particular cars—is contrary to plaintiff’s

position. Because the insurance attaches to a particular car, plaintiff is incorrect that

he should be allowed to access the liability limit for another insured vehicle not

involved in the accident.” Id.

¶ 15 However, the Illinois Supreme Court recently declined to consider adopting a per se

rule barring stacking of automobile liability coverage as a matter of law because the antistacking

provision in that case was unambiguous and enforceable as written. Hess v. Estate of Klamm,

,

. We also decline to answer whether stacking of liability coverage

-5- is per se prohibited because we similarly conclude that the antistacking provision in this case is

likewise enforceable.

¶ 16 B. The Declaratory Judgment Complaint

¶ 17 In November 2019, the Kuhns filed their complaint for declaratory judgment

against Owners, in which they sought a judgment that Owners was required to pay $7 million

pursuant to the relevant insurance policy. The Kuhns attached to their declaratory judgment

complaint a copy of (1) the underlying personal injury complaint and (2) the declarations and

insurance policy at issue. The parties stipulated that (1) the declarations and policy were true and

correct copies of the insurance provided and (2) the policy should be interpreted under Illinois law.

¶ 18 1. The Facts of the Underlying Complaint

¶ 19 The declaratory judgment complaint alleged that, in September 2019, the Kuhns

filed the underlying personal injury complaint against defendants B. McLean Arnold, special

representative of Ryan Hute, deceased; Jason Farrell individually; Jason Farrell d/b/a Jason Farrell

Trucking; and 3 Guys and a Bus, Inc. (we note these “underlying defendants” are not parties to

this appeal), asserting various claims of negligence relating to a car accident. In December 2018,

Hute was driving a 2010 Kenworth semitruck owned by Farrell that collided with a school bus

driven by Mark Kuhn and occupied by several other people. The semitruck and school bus were

traveling in opposite directions on Interstate 74 at the time of the accident. Mark and many of the

bus passengers were severely injured or died in the crash. The underlying complaint alleged that,

at the time of the accident, Hute was (1) acting in the scope of his employment with Farrell, Farrell

Trucking, “and/or” 3 Guys and a Bus, Inc. and (2) engaged in several acts of negligence that caused

the crash.

¶ 20 2. The Insurance Policy at Issue

-6- ¶ 21 The Kuhns’ complaint for declaratory judgment alleged that the 2010 Kenworth

semitruck and Hute were both covered by an Owners insurance policy that insured a total of three

semitrucks (including the Kenworth) and four trailers. Farrell owned or operated all of the covered

trucks and trailers. The policy provided “Combined Liability” coverage on each of the seven

vehicles of up to “$1 Million each accident.”

¶ 22 The declaratory judgment complaint noted that the policy provided liability

coverage as follows: “We [(Owners)] will pay all sums an insured legally must pay as damages

because of bodily injury or property damage to which this insurance applies, caused by an accident

and resulting from the ownership, maintenance or use of a covered auto as an auto.” The policy

further provided that Owners would “pay damages for bodily injury, property damage and covered

pollution cost or expense up to the Limit of Insurance shown in the Declarations for this coverage.”

The Kuhns alleged that the term “Limit of Insurance” was not defined in the policy.

¶ 23 The complaint further alleged that the declarations pages had two separate sections

outlining coverage and policy limits, which the complaint described as follows:

“The first [section], titled ‘ITEM TWO—SCHEDULE OF COVERED

AUTOS AND COVERAGES,’ contains a chart outlining various different types of

coverages and limits, with separate premiums paid for each type of coverage, and

lists a single one million dollar *** limit for ‘Combined Liability’ coverage.

The second [section], titled ‘ITEM THREE—SCHEDULE OF COVERED

AUTOS, ADDITIONAL COVERAGES AND ENDORSEMENTS,’ contains a

separate and different list of coverages, including separate listings for seven

separate vehicles, with separately listed limits and separately listed premiums paid

for each. This section lists seven separate one million dollar *** limits for

-7- ‘Combined Liability’ coverage, one limit for each listed vehicle.”

¶ 24 The declaratory judgment complaint asserted that the policy was ambiguous

because it set forth two differing amounts of coverage available—namely, a single $1 million limit

and seven separate $1 million limits. Accordingly, the declaratory judgment complaint sought a

declaration that the policy should be interpreted to provide a $7 million limit.

¶ 25 To help the reader, the declarations pages containing Item Two and the first page

of Item Three are shown below.

Page 1 58979 (1 0-16) Issued 12-06-2018

INSURANCE COMPANY COMMERCIAL AUTO POLICY DECLARATIONS 6101 ANACAPRI BLVD .. LANSI NG. Ml 48917-3999 PREFERRED PROGRAM AGENCY PRINS INS URANCE INC Endorsement Effective 11-27-2018 07-0677-00 MKT TERR 038 (712) 729-3252 POLICY NUMBER S 1-829-065-00 ITEM ONE Company Use 39-04-IA-1 806 NAMEDINSUAeD JASON FARRELL JASON FARRELL TRUCKING Company POLICY TERM Bill 12:01 a.m. 12:01 a.m. ADDRESS 3717 210TH ST to 06-22-2018 06-22-2019 CLINTON IA 52732-8920

Entity: Individual IN RETURN FOR THE PAYMENT OF THE PREMIUM. A ND SUBJECT TO ALL THE TERMS OF THIS POLICY. WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS POLICY. ITEM TWO· SCHEDULE OF COVERED AUTOS AND COVERAGES This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those autos shown as covered autos. Autos are shown as covered autos for a particular coverage by the entry of one or more of the symbols from the COVERED AUTOS section of the Commercial Auto Policy next to the name of the coverage.

COVERAGES COVERED AUTOS LIMIT OF INSURANCE PREMIUM SYMBOLS FOR ANY ONE ACCIDENT OR LOSS Combined Liability 7. 8.9. 19 $1Million each accident $6.311.69

Uninsured Motorist • 7 $27.72 uninsured/Underinsured S100.000 each person/ $100.000 each accident Motorist Cover~ge Underinsured Motorist - 7 $53.3 1 $100.000 each person/ S100.000 each accident

Medical Payments 7 $5.000 each person $39.27

$250 deductible applies for each covered auto unless a ., C, Comprehensive 7 deductible appears in ITEM THREE. $2,120.34

"'E Collision 7 SSOO deductible applies for each covered auto unless a $5.579.75 "' 0 deductible appears in ITEM THREE, i,j V ·;;; Road Trouble Seovice No Coverage >, .r:; 0. Additional Expense No Coverage

Premium for Endorsements and Terrorism Coverage $201.50

ESTIMATED TOTAL PREMIUM• $14,333.58 • This policy may be subject to final audit.

-8- Owners Page 3 Issued 58979 (10-16) 12-06-2018

INSURANCE COMPANY COMMERCIAL AUTO POLICY DECLARATIONS 6101 ANACAPRI BLVD .. LANSING, Ml 4891 7-3999 PREFERRED PROGRAM AGENCV PRINS INSURANCE INC Endorsement Effective 11-27-2018 07-0677-00 MKT TERR 038 (712) 729-3252 POLICY NUMBER 51-829-065-00 Company Use 39-04-IA·1806 NAMEDINSURED JASON FARRELL JASON FARRELL TRUCKING Company POLICY TERM Bill 12:01 a.m. 12:01 a.m. ADDRESS 3717 210TH ST 06-22-2018 to 06-22-2019 CLINTON IA 52732-8920 This por,cy Is amended in consideration of the additional or retum premium shown below. This Declarations voids and replaces all previously issued Oecl3ra1ions bearing the same policy number and premium term.

ITEM THREE · SCHEDULE OF COVERED AUTOS, A DDITIONAL COVERAGES AND ENDORSEMENTS

TERRITORY CLASS

I Hired Autos 048 Clinton County, IA SPL

COVERAGES LIMITS PREMIUM CHANGE Combined Liability $1 Million each accident $72.91 Terrorism Coverage .36 TOTAL $73.27 No Charge

ITEM DETAILS: Estimated cost of hire • liability S If Any (Subject to audit)

160 1184

Non-Owned Autos Liability 048 SPL Clinton County. IA COVERAGES LIMITS PREMIUM CHANGE Combined Liability $1 Million each accident S56.33 Terrorism Coverage .28 TOTAL S56.61 No Charge

160 1184

-9- ¶ 26 The declarations page for the semi involved in the accident provided as follows:

Page 6 58979 (10-1 6) OWNERS INS. CO. Issued 12-06-2018

A$ ENCV PRINS INSURANCE INC Company POLICY NUMB ER 51 -829-065-00 07-0677-00 MKT TERR 038 B ill Company Use 39-04-IA-1806

NAMEOINSUREO JASON FARRE LL Tenm 06-22-2018 to 06-22-2019

TERRITORY CLASS

S. 2010 KW T660 048 VIN: 1XKAD49X1AJ270127 Clinton County, IA COVERAGES LIMITS PREMIUM CHANGE Combined Liability $1 Million each accident $2,265.28 Uninsured Motorist $ 100.000 each person/$ 100.000 each accident 9.24 Underinsured Motorist $ 100.000 each person/$ 100.000 each accident 17.77 Medical Payments $ 5.000 each person 13.og Comprehensive ACV - 52.500 deductible 1.117.83 Collision ACV - $2.500 deductible 2.848,38 Terrorism Coverage 3 1.36 TOTAL $6.302.95 No Charge lntere51ed Panies: Lienholdec MAQUOKETA STATE BANK. 203 N MAIN ST, MAQUOKETA. IA 52060-2204 Additional Endorsements For This Item: 58329 (10-16) 58330 (10-16) 58402 (05-161 ITEM DETAILS: Extra hea"Y 1ruck-tractor operated within a 300 mile radius, USE CLASS (00753): Truckers - Miscellaneous. Commercial Auto Plus Coverage Package applies. Vehidc Counl Factor Applies. A 5% seat belt credit has been applied to 61 and/or Med Pay premium. Diminished Value Coverage applies.

160 0143665 A 1184

6. 2000 NON OWNED TRAILER 048 VIN: NON OWNED Clinton County, IA Secured Interested Partv Chanced COVERAGES LIMITS PREMIUM CHANGE Combined Liability $1 Million each accident $78.66 Comprehensive A CV • $2.500 deductible 133.85 Collision ACV - $2.500 deductible 327.49 Terrorism Coverage 2.70 TOTAL $542.70 NO Charge Interested Parties: Lienholder. XTRA LEASE LLC, 850 66TH AVE SW, CEDAR RAPIDS. IA 52404-4709 ITEM DETAILS: Livestock trailer operated within a 300 mile radius. USE CLASS (007S3): Truckers - Miscellaneous. Vehide Counl Factor Applies. Diminished Value Coverage applies.

160 0080000 1184

- 10 - ¶ 27 In May 2020, the Kuhns filed their first amended complaint for declaratory

judgment in which they added the following people as nominal defendants to the declaratory

judgment action solely for the purpose of binding them by the terms of any judgment: (1) Kathleen

Crabtree, executor of the estate of Charles C. Crabtree, deceased, (2) Steven B. Price, (3) Jessica

O’Brien, (4) Montinique Howard, (5) Haley Willan, (6) Grace Storm, (7) Abby Hoeft, (8) Olivia

Reed, (9) Kirsten Lellelid, and (10) Joriana Bischoff (collectively, potential claimants). The

potential claimants are people other than the Kuhns who were injured in the accident, some of

whom have filed lawsuits against Farrell and participated in the proceedings below. Because the

potential claimants raise the same arguments and are aligned with the Kuhns, we do not address

their arguments separately.

¶ 28 In June 2020, Owners filed an answer, denying that (1) the policy was ambiguous

and (2) it permitted stacking.

¶ 29 C. The Cross-Motions for Summary Judgment

¶ 30 In April 2021, the Kuhns filed a motion for summary judgment, and Owners filed

a cross-motion for summary judgment. The Kuhns argued that the wording of the policy and

accompanying declarations were ambiguous pursuant to Illinois case law because the coverages

and premiums set forth in the declarations were repeated for each insured vehicle. See Bruder,

(“It would not be difficult to find an ambiguity created by such a listing [(next to the

premiums for each vehicle)] of the bodily injury liability limit for each person insured. It could

easily be interpreted that *** [the] total limit [should be] $200,000 *** because a figure of

$100,000 would be shown for each [vehicle].”). That is, the declarations pages identified each

covered vehicle and, below that information, listed (1) each type of coverage on that vehicle,

(2) the limit of liability for each coverage on that vehicle, and (3) the premium paid for each type

- 11 - of coverage on that vehicle. Because the limits were listed for each of the seven covered vehicles

along with a corresponding premium for the coverage, the Kuhns asserted that the declarations

were ambiguous and the policy should be interpreted to permit the stacking of liability limits to

provide a maximum coverage of $7 million.

¶ 31 Owners argued that the policy declarations were consistent with each other and not

ambiguous. Specifically, Owners contended that (1) Item Two provided a summary of the

coverages, limits, and premiums for all vehicles under the policy and (2) Item Three provided that

same information broken down on a vehicle-by-vehicle basis. Additionally, Owners contended

that the policy’s antistacking provisions were unambiguous and prohibited aggregated limits for

the same or similar coverage on vehicles not involved in the accident.

¶ 32 Owners explained that the terms of the liability coverage were set forth in section

II of the policy, titled “COVERED AUTOS LIABILITY COVERAGE.” Subsection A described

the “coverage” and provided that Owners would “pay all sums an insured legally must pay as

damages *** caused by an accident and resulting from the ownership, maintenance or use of a

covered auto as an auto.”

¶ 33 Paragraph C of the liability coverage section of the policy provided as follows:

“C. LIMIT OF INSURANCE

We will pay damages for bodily injury, property damage and

covered pollution cost or expense up to the Limit of Insurance shown in

the Declarations for this coverage. Such damages shall be paid as follows:

1. When combined liability limits are shown in the Declarations, the

limit shown for each accident is the total amount of coverage and the most

we will pay for damages because of or arising out of bodily injury, property

- 12 - damages and covered pollution cost or expense in any one accident.

***

5. The Limit of Insurance for this coverage may not be added to the

limits for the same or similar coverage applying to other autos insured by

this policy to determine the amount of coverage available for any one

accident or covered pollution cost or expense, regardless of the number

of:

a. Covered autos;

b. Insureds;

c. Premiums paid;

d. Claims made or suits brought;

e. Persons injured; or

f. Vehicles involved in the accident.” (Bold in original.)

¶ 34 Owners argued that section II.C. constituted an unambiguous antistacking

provision that cleared up any arguable ambiguity in the declarations and should be enforced as

written. In particular, subsection 5 explicitly stated that the limits for the same or similar coverage

applying to other vehicles could not be added to determine the amount of coverage for an accident.

¶ 35 In their response, the Kuhns argued that the antistacking provision was ambiguous

because the term “Limit of Insurance” was undefined and subject to different interpretations.

Specifically, the “Limit of Insurance” section stated that the limits of coverage set forth in the

declarations would be the most Owners would pay. The Kuhns contended that Item Two and Item

Three stated a different “Limit of Insurance” without saying which controls, rendering the

antistacking provision ambiguous.

- 13 - ¶ 36 D. The Trial Court’s Decision

¶ 37 In August 2021, the trial court conducted a hearing on the motions and took the

matter under advisement. In August 2022, the court issued a 73-page written order analyzing the

parties’ arguments and dozens of cases addressing when stacking is permitted or when an

antistacking clause bars stacking. Ultimately, the court concluded that (1) Illinois case law

weighed heavily in favor of finding the policy ambiguous and (2) stacking was permitted in this

case because the declarations listed the limit of insurance multiple times, specifically, once for

each vehicle. Accordingly, the court entered summary judgment in favor of the Kuhns and ruled

that the limit of insurance Owners was required to pay was $7 million.

¶ 38 This appeal followed.

¶ 39 II. ANALYSIS

¶ 40 Owners appeals, arguing the trial court erred by concluding that (1) the antistacking

clause was ambiguous and (2) stacking of the policy’s coverage limits was permitted. We agree,

reverse the trial court’s judgment, and remand with directions.

¶ 41 A. The Applicable Law and the Standard of Review

¶ 42 1. The Standard of Review

¶ 43 “The filing of cross-motions for summary judgment constitutes an implicit

agreement between the parties that there are no genuine issues of material fact and only a question

of law is presented to the court.” West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan,

Inc.,

,

. A reviewing court reviews the entry of summary

judgment in favor of a party de novo.

Similarly, construction of an insurance policy presents a

question of law that an appellate court reviews de novo.

¶ 44 2. Construction of the Policy

- 14 - ¶ 45 The Illinois Supreme Court recently described the law governing the interpretation

of insurance policies in the context of “stacking” in Hess v. Estate of Klamm,

,

, in which it wrote the following:

“Under Illinois law, ‘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,

,

(2005).

The ‘primary objective’ in interpreting an insurance policy ‘is to ascertain and give

effect to the intention of the parties, as expressed in the policy language.’

Unambiguous policy language is applied as written unless it conflicts with public

policy.

In general, antistacking provisions in insurance policies are not contrary to

public policy. Grzeszczak v. Illinois Farmers Insurance Co.,

(1995). Thus, an unambiguous antistacking clause will be given effect by a

reviewing court. Hobbs,

. If the clause is ambiguous, however, it

will be construed liberally in favor of coverage and strictly against the insurer who

drafted the policy.

. Policy language is ambiguous if it is susceptible to

more than one reasonable interpretation.

Only reasonable constructions of the

language will be considered, not ‘creative possibilities’ suggested by the parties.

See Bruder v. Country Mutual Insurance Co.,

(1993)

(‘Reasonableness is the key.’). Moreover, we ‘ “will not strain to find ambiguity in

an insurance policy where none exists.” ’ ”

¶ 46 When an antistacking clause refers to the limit of coverage in the declarations page,

the formatting of the declarations page becomes important in determining whether the policy

- 15 - language is susceptible to more than one reasonable interpretation. Kovach v. Nationwide General

Insurance Co.,

, 897 (C.D. Ill. 2020) (citing Hess,

).

The Illinois Supreme Court has repeatedly stated that “it would not be difficult to find an ambiguity

arising from a declarations page that lists the liability limits separately for each covered vehicle.”

Hess,

(citing Hobbs,

, and Bruder,

). “In

the absence of other qualifying language in the antistacking clause, ‘[t]here 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].’ ” Hobbs,

(quoting Bruder,

).

Based on this wording, some appellate courts have found certain multivehicle policies with

antistacking clauses were nonetheless ambiguous because the declarations pages listed a separate

premium and limit of liability for each vehicle. See, e.g., Cherry v. Elephant Insurance Co.,

.

¶ 47 However, the Illinois Supreme Court has made clear that its suggestion that listing

the limits of coverage multiple times in the declarations may create an ambiguity “should not be

construed as ‘establishing a per se rule that an insurance policy will be deemed ambiguous as to

the limits of liability anytime the limits are noted more than once on the declarations.’ ” Hess,

(quoting Hobbs,

n.1). “Rather, the question should be

decided on a case-by-case basis. [Citation.] Moreover, the declarations page should not be read in

isolation but must be construed together with the other provisions in the policy.”

¶ 48 B. This Case

¶ 49 In this case, the “Limit of Insurance” provisions refer back to the declarations to

define the policy limits (“We will pay damages *** up to the Limit of Insurance shown in the

Declarations for this coverage.”). Item Three of the declarations lists each vehicle covered by the

- 16 - policy, seven in all, and lists (1) the type of coverage provided, (2) the limits of that coverage, and

(3) the premium paid for that coverage. Because this information is provided for each vehicle, the

declarations pages state seven separate times that the “combined liability” limit on each vehicle is

$1 million for each accident.

¶ 50 The Kuhns argue that the declarations’ listing the limit of insurance for each vehicle

is enough to render the policy ambiguous and to permit stacking. The Kuhns also argue that (1) the

“Limit of Insurance” provisions refer the reader back to the declarations pages to determine the

limits but (2) because the provisions do not specify whether the insured should look at Item Two

or Item Three, the provisions are ambiguous.

¶ 51 Reading the policy as a whole and interpreting its plain language, we conclude that

(1) the declarations are consistent, not ambiguous, and (2) the antistacking clause set forth in the

policy clarifies any possible ambiguity.

¶ 52 1. The Declarations Pages

¶ 53 Because the “Limit of Insurance” provisions (1) refer to the declarations pages and

(2) the declarations pages list the limit of insurance for each vehicle, the policy could arguably be

viewed as ambiguous under Hess. However, we agree with the district court’s decision in Kovach,

a factually similar case that analyzed the declarations and antistacking provisions of an auto policy

very similar to those at issue in this case and concluded the antistacking provisions applied.

¶ 54 In Kovach, the policy at issue covered four scheduled vehicles, and in the

declarations pages, the policy listed for each vehicle the applicable coverages, limits of liability,

and premium amounts for those coverages. Kovach, 475 F. Supp. 3d at 893-95. Although the

coverage limits were the same, the types of coverages, and the premiums therefor, varied based on

the insured vehicle. Id.

- 17 - ¶ 55 The federal district court carefully examined the Illinois Supreme Court’s decision

in Hess and noted that “the decision hinged on if there was a reasonable way to read the policy as

allowing stacking.” Id. at 897. (The supreme court in Hess wrote, “Although the liability limits are

technically listed twice [in the declarations], we find this does not create an ambiguity with respect

to stacking.” Hess,

.) The district court in Kovach explained that the Hess

court “found that it was persuasive that the defendant had needed multiple pages to list the vehicles

which that policy covered.” Kovach, 475 F. Supp. 3d at 897 (citing Hess,

).

Based on this reasoning, the district court concluded that defendants in stacking cases “need to

have a reasonable justification to list their liability limits multiple times in the declarations.”

¶ 56 The district court agreed with the insurer in that case that the insurer was justified

in stating coverages and liability limits for each vehicle insured because the coverages varied from

vehicle to vehicle.

“It seems reasonable for a company to desire to lay out in detail what exactly

is happening with each vehicle when coverages vary.”

¶ 57 In this case, Owners similarly needed multiple pages because (1) it was insuring

seven different vehicles (four trailers and three semitrucks) and (2) the types of coverages and

premiums for those coverages varied based on each vehicle. The following page of the declarations

concretely demonstrates the point.

- 18 - Page 4 58979 (10-16) OWNERS INS. CO. Issued 12-06-2018 ,.ieNCY PRINS INSURANCE INC Company POLICY NUMBER 51-829-065-00 07-0677-00 MKT TERR 038 Bill Company Use 39-04-IA-1806 NAMEOINSUREO JASON FARRELL Term 06-22-2018 to 06-22-2019

TERRITORY CLASS

1. 2000 KW W900 048 V IN: 1XKWDB9X9YR861487 Clinton County. IA COVERAGES LIMITS PREMIUM CHANGE Combined Liability S1 Million each accident $1 ,805.81 Uninsured Motorist $ 100.000 each person/$ 100,000 each accident 9.24 Underinsured Motorist $ 100.000 each person/$ 100.000 each accident 17.77 Medical Payments $ 5.000 each person 13.09 Comprehensive ACV • $2.500 deductible 440.60 Collision ACV - $2,500 deductible 1,644.17 Terrorism Coverage 19.65 TOTAL $3.950.33 No Charge 1n1erested Pii rties: Lienholder: MAQUOKETA STATE BANK, 203 N MAIN ST. MAQUOKETA, IA 52060-2204 Additional Endorsements For This Item: 58329 (10-16) 58330 (10-16) 58402 (05-16)

ITEM DETAILS: Extra hea..y truck-tractor operaled within a 300 mile radius. USE CLASS (00753): Truckers - Miscellaneous. Commercial Auto Plus Coverage Package applies. Vehide Count Factor Applies. A 5% seat belt credit has been applied 10 Bl and/or Med Pay premium. Diminished Value Coverage applies.

160 0103278 A 1184

2. 1999 PTRB 379 048 VIN: 1XP5D69X0XN466052 Clinton County, IA COVERAGES LIMITS PREMIUM CHANGE Combined Liability $1Million each accident $1 ,805.81 Uninsured Motorist $ 100,000 each person/$ 100.000 each accident 9.24 Underinsured Motorist $ 100.000 each person/$ 100,000 each accident 17.77 Medical Payments $ 5.000 each person 13.09 Terrorism Coverage 9.23 TOTAL $1 ,855.1 4 No Charge Interested Parties: None

Addttional Endorsements For This Item: 58329 (10·16) 58330 (10-16) 58402 (05-16)

ITEM DETAILS: Extra hea..y truck-tractor operated within a 300 mile radius. USE CLASS (00753): Truckers - Miscellaneous. Vehicle Count Factor Applies. A 5% seat belt credit has been applied to Bl and/or Med Pay premium.

160 0104995A1184

¶ 58 Based on the level of detail provided in setting forth the coverages, limits, and

premiums for each vehicle, Owners clearly needed to provide information over multiple pages.

Similarly, the coverages varied based on the vehicle insured; for example, the premiums for vehicle

1 and vehicle 2 (both semitrucks) were identical for liability, UIM/UM coverage, and medical

- 19 - payments, but only vehicle 1 had comprehensive and collision coverage.

¶ 59 The “Limit of Insurance” language provides, “When combined liability limits are

shown in the Declarations, the limit shown for each accident is the total amount of the coverage

and the most we will pay for damages *** in any one accident.” The antistacking provisions refer

the insured specifically to “the limit shown for each accident.” Regardless of whether the insured

looks to Item Two or Item Three to determine the limit of coverage, the same answer is reached.

¶ 60 The table shown in Item Two shows the following:

COVERAGES COVERED AUTOS LIMIT OF INSURANCE PREMIUM SYMBOL FOR ANY ONE ACCIDENT OR LOSS Combined Liability 7, 8, 9, 19 $1 Million each accident $6,311.69

Clearly, based on Item Two, the “Limit of Insurance” listed in the declarations is “$1 Million each

accident” for all scheduled vehicles. Importantly, the term “Limit of Insurance” appears only once

in the declarations: in Item Two.

¶ 61 Item Three also leads to the same conclusion. Item Three provides for each vehicle

the types of coverage provided, the limits of those coverages, and the premiums for such coverages

for that vehicle. Every scheduled vehicle in policy had combined liability coverage with a limit of

“$1 Million each accident” listed next to the premium therefor. That is, every single item contained

in Item Three (1) has combined liability coverage, (2) a premium listed for that coverage, and (3) a

limit of $1 million each accident. Given that the antistacking provisions limit coverage to “the

limit shown for each accident,” an insured looking for the “Limit of Insurance” in Item Three

would likewise conclude that the limit was “$1 Million each accident,” the same as provided by

Item Two. We agree with Kovach that “the Limit of [Insurance] clause in this case is much clearer

if each individual limit listed as [Combined Liability] is indeed the maximum [Owners] would pay

for each [accident].” Kovach, 475 F. Supp. 3d at 898. Because the “Limit of Insurance” clause

- 20 - directs the insured to the limit in the declarations for “each accident,” we conclude that the policy

is unambiguous.

¶ 62 Moreover, the premiums listed for combined liability coverage for each item in

Item Three add up to a total of $6311.69, which is the same as the premium amount listed in Item

Two for the same coverage. The same is true relating to the other types of coverages and premiums.

Further, the total estimated premium is the same in Item Two as it is in Item Three. Accordingly,

no insured could believe that he was paying separate premiums for combined liability to be

stacked. Instead, the insured would recognize that Item Two and Item Three convey the same

information in different ways and each premium under each vehicle was providing combined

liability coverage of “$1 Million each accident,” just as the declarations provide.

¶ 63 Item Three “does nothing more than indicate the amount of liability coverage

provided for each owned vehicle and the premium allotted for that coverage. To the extent that

this schedule could create some confusion about whether the liability coverage could be stacked,

the ‘Limit of Insurance’ provision,” specifically subsection II.C.5. prohibiting the adding of limits,

clarifies that question. West Bend Mutual Insurance Co. v. Vaughan’s Fetch, Inc.,

; see also Pekin Insurance Co. v. Estate of Ritter,

,

(2001).

¶ 64 2. The Antistacking Clause

¶ 65 Even if some ambiguity existed, the policy’s antistacking clause clears up any

possible confusion. In Hobbs, the supreme court stated that listing a limit of liability for each

vehicle could lead to an ambiguity “[i]n the absence of other qualifying language in the

antistacking clause.” (Emphasis added.) Hobbs,

. The Prudential Property and

Casualty Insurance Company policy at issue in Hobbs had an antistacking clause that provided,

- 21 - “ ‘This limit of coverage applies regardless of the number of *** insured cars *** or cars involved

in the accident or loss. Coverages on other cars insured by us cannot be added to or stacked on the

coverage of the particular car involved.’ ”

. The supreme court rejected arguments similar

to the ones the Kuhns make here and concluded that the “antistacking clause will be enforced as

written.”

. The court noted, “We will not *** torture ordinary words until they confess to

ambiguity.” (Internal quotation marks omitted.)

¶ 66 Not only does this policy contain the “traditional” antistacking provision described

in Hess, Hobbs, and Bruder in subsection C.1., defining “combined liability,” it also has an explicit

antistacking clause. Subsection C.5. provides as follows:

“5. The Limit of Insurance for this coverage may not be added to the

limits for the same or similar coverage applying to other autos insured by

this policy to determine the amount of coverage available for any one

accident or covered pollution cost or expense, regardless of the number

of:

a. Covered autos;

b. Insureds;

c. Premiums paid;

d. Claims made or suits brought;

e. Persons injured; or

f. Vehicles involved in the accident.” (Bold in original.)

¶ 67 We conclude that the explicit antistacking clause contained in section II.C.5. of the

policy, like the antistacking clause in Hobbs, is unambiguous and should be enforced as written.

We agree with Judge Easterbrook, who wrote, “[An antistacking clause’s] function is to say that

- 22 - even if some other clause suggests the possibility of stacking, that is not what the policy means. It

is a disambiguator. To see ambiguity in the policy is to learn why the anti-stacking clause was

included.” (Emphasis in original.) Grinnell Select Insurance Co. v. Baker,

(7th Cir. 2004).

¶ 68 The Kuhns also argue that the antistacking provisions themselves are ambiguous

because terms like “Limit of Insurance” and “combined liability limits” are not defined. We

disagree. The structure of section II of the policy, and the fact that subsection C is titled “Limit of

Insurance,” clearly demonstrates that the “definition” of “Limit of Insurance” is contained within

the provisions that follow. That is, all of subsection C “defines” what is meant by “Limit of

Insurance.”

¶ 69 Similarly, subsection C.1. defines what is meant by “combined liability” as that

term is used in the declarations. And because subsection C is a structurally a part of section II—

the section of the policy that provides the terms of “Covered Autos Liability Coverage”—the

meaning of the term “coverage” as used in subsection C is controlled by the other provisions in

that section, particularly subsection A.

¶ 70 Other sections of the policy specifically deal with (1) property damage coverage

and (2) UM/UIM coverage, and those sections contain their own antistacking clauses for those

specific types of coverage. We conclude that the antistacking provisions are not ambiguous on

their face or when read together with the other provisions of the policy and the declarations.

¶ 71 In sum, we agree with the observation from Owners in its brief that “[h]ere, instead

of applying the Policy’s clear anti-stacking provision, the trial court engaged in the very sort of

tortured and strained reading of the Policy to find an ambiguity that this Court and the Illinois

Supreme Court have repeatedly rejected. This was error.” Accordingly, we reverse the judgment

- 23 - of the trial court and remand with directions for it to enter summary judgment in favor of Owners,

declaring the “Limit of Insurance” for combined liability under the applicable policy is $1 million.

¶ 72 III. CONCLUSION

¶ 73 For the reasons stated, we reverse the trial court’s order granting the Kuhns’ motion

for summary judgment and remand with directions to enter summary judgment in favor of Owners.

¶ 74 Reversed and remanded with directions.

- 24 - Kuhn v. Owners Insurance Co.,

Decision Under Review: Appeal from the Circuit Court of McLean County, No. 19-MR- 643; the Hon. Scott Kording, Judge, presiding.

Attorneys Krysta K. Gumbiner, of Dinsmore & Shohl LLP, of Chicago, for Kathryn W. Bayer, of Dinsmore & Shohl LLP, of Cincinnati, Appellant: Ohio, and Conor B. Dugan (pro hac vice) and Ashley L. Yuill (pro hac vice), of Warner Norcross and Judd LLP, of Grand Rapids, Michigan, for appellant.

Attorneys K. Lindsay Rakers, of Sumner Law Group LLC, of St. Louis, Mis- for souri, for appellees Mark Kuhn and Karen Kuhn. Appellee: Chase T. Molchin, of Ginzkey Law Office, of Bloomington, for appellees Kathleen Crabtree, Jessica O’Brien, Montinique How- ard, Haley Willan, Grace Storm, Abby Hoeft, Olivia Reed, and Jo- riana Bischoff.

Terence B. Kelly, of Kraft, Wood & Kelly LLC, of Bloomington, for appellee Steven B. Price.

No brief filed for other appellees.

- 25 -