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                              Appellate Court                         Date: 2016.02.09 14:28:31
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                   Acuity v. Decker, 2015 IL App (2d) 150192



Appellate Court   ACUITY, Plaintiff-Appellant, v. DONALD DECKER, Defendant-
Caption           Appellee (Groot Industries, Inc., Defendant).



District & No.    Second District
                  Docket No. 2-15-0192



Filed             December 23, 2015



Decision Under    Appeal from the Circuit Court of Lake County, No. 14-MR-1236; the
Review            Hon. Thomas M. Schippers, Judge, presiding.



Judgment          Affirmed.



Counsel on        Bradley A. Bertkau and Jason Orleans, both of Chilton, Yambert &
Appeal            Porter LLP, of Waukegan, for appellant.

                  Thomas D. Campe, Jr., of Linn, Campe & Rizzo Ltd., of Waukegan,
                  for appellee.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Justices Hutchinson and Zenoff concurred in the judgment and
                  opinion.
                                               OPINION


¶1       Defendant Donald Decker suffered personal injuries from an automobile accident while
     working for his employer, defendant Groot Industries, Inc. (Groot). 1 Decker received
     workers’ compensation benefits from plaintiff, Acuity, which was Groot’s insurance carrier.
     Decker settled his claim against USAA, the insurer for Carol Hunter, the third-party tortfeasor,
     for the full policy limit, and Decker paid Acuity the portion of that settlement required for
     satisfaction of the workers’ compensation lien. Decker filed an underinsured motorist (UIM)
     claim with Acuity, which was Groot’s automobile insurance carrier. Acuity filed a declaratory
     judgment action against Decker and Groot, contending that it was entitled to a set off for the
     entire amount it paid to Decker on the workers’ compensation claim, plus the entire amount
     that Decker received from USAA, and that certain elements of loss for which Decker had been
     compensated through workers’ compensation were precluded under Groot’s automobile
     insurance policy. The parties filed cross-motions for summary judgment. Acuity’s motion was
     denied, but Decker’s was granted. We affirm for the following reasons.

¶2                                        I. BACKGROUND
¶3       The facts are undisputed. While working as a truck driver on March 19, 2012, Decker was
     involved in a motor vehicle collision with Hunter. Hunter was responsible for the accident.
     Decker settled his claim with USAA for the full policy limit of $50,000.
¶4       On his workers’ compensation claim, Acuity paid Decker $350,942. Decker paid Acuity
     $37,067.48 from the USAA settlement as satisfaction of the workers’ compensation lien. See
     820 ILCS 305/5(b) (West 2014). Decker then submitted a claim for UIM compensation under
     Groot’s automobile insurance policy, which provided for $2 million in UIM coverage.
¶5       In its declaratory judgment complaint, Acuity sought a judgment that the UIM coverage
     from which Decker sought compensation precluded certain elements of loss for which Decker
     had already been compensated. Acuity contended that Decker was not allowed to make a claim
     for lost wages, past medical expenses, and future medical expenses on his UIM claim. Acuity
     also contended that it was entitled to a set off for the full settlement that Decker received from
     USAA, including the $37,067.48 Decker paid Acuity from the settlement, plus the full amount
     paid for the workers’ compensation claim. Acuity sought a total set off of $400,942. Acuity
     moved for summary judgment.
¶6       In his cross-motion, Decker responded that Acuity should get a set off for the amount paid
     by USAA and for the amount paid by Acuity on the workers’ compensation claim, less the
     amount it was paid back. Decker pointed out that Acuity paid $350,942 on the workers’
     compensation claim and that USAA paid $50,000. Decker argued that, if Acuity had not been
     reimbursed by Decker, then Acuity would receive a set off for the full amount paid on the
     workers’ compensation claim and the full amount of the settlement with USAA. However,

        1
         The trial court voluntarily dismissed Groot from this case pursuant to Groot’s stipulation to be
     bound by the coverage findings made by the courts.

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       because Acuity was reimbursed $37,067.48, it should not be able to claim a set off for the full
       $50,000, as this would amount to a double set off. Under Decker’s position, Acuity would be
       entitled to a set off for only $363,874.52 ($350,942 paid in workers’ compensation benefits,
       plus the $50,000 settlement from USAA minus the $37,067.48 reimbursed to Acuity). Further,
       when the case went to arbitration on the UIM claim, Decker argued, he could seek damages for
       all elements of loss, subject to the set off.
¶7          The trial court denied Acuity’s summary judgment motion and granted Decker’s motion.
       The court found that (a) Decker was allowed to present all elements of loss in his UIM claim,
       even though he had already been compensated for certain elements through workers’
       compensation, and (b) Acuity was not entitled to a set off for the full settlement with USAA,
       because Decker was statutorily required to pay 75% of the settlement toward the workers’
       compensation lien. The trial court concluded that the total set off that Acuity was entitled to
       was $363,874.52. Acuity timely appeals from the denial of its motion for summary judgment
       and the granting of Decker’s motion.

¶8                                            II. ANALYSIS
¶9                                        A. Standard of Review
¶ 10       Summary judgment is appropriate when the pleadings, depositions, admissions, and
       affidavits show that there is no issue of material fact and that the moving party is entitled to
       judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014); Outboard Marine Corp. v.
       Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Our review of the trial court’s grant
       of summary judgment is de novo. Also, the construction of an insurance policy is a question of
       law, which we review de novo. Burcham v. West Bend Mutual Insurance Co., 2011 IL App
       (2d) 101035, ¶ 10.
¶ 11       We construe an insurance policy by ascertaining and giving effect to the parties’ intent, as
       expressed in the policy language. West American Insurance Co. v. Yorkville National Bank,
       238 Ill. 2d 177, 184 (2010). We give unambiguous words in the policy their plain, ordinary,
       and popular meanings. Id. We will read narrowly a policy provision purporting to exclude or
       limit coverage and apply it only where its terms are clear, definite, and specific. Gillen v. State
       Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393 (2005). Where such a provision
       is ambiguous, it will be construed liberally in favor of coverage. Founders Insurance Co. v.
       Munoz, 237 Ill. 2d 424, 433 (2010).
¶ 12       Groot’s automobile insurance policy contains an “Illinois Uninsured and Underinsured
       Motorists Coverage” endorsement. Pertinent to the present case is paragraph 4b of the
       endorsement, which pertains to the UIM coverage limit for bodily injury. Paragraph 4b(5)
       states: “No one will be entitled to receive duplicate payments for the same elements of loss
       under this Coverage Form or any Liability Coverage Form.” (Emphasis in original.) Paragraph
       4b(3) provides:
                   “Except in the event of a settlement agreement, the Limit of Insurance for this
               [UIM] coverage shall be reduced by all sums paid or payable:
                       (a) By or for anyone who is legally responsible, including all sums paid under
                   this Coverage Form’s Liability Coverage.




                                                    -3-
                      (b) Under any workers’ compensation, disability benefits or similar law.
                  However, the Limit of Insurance for this coverage shall not be reduced by any sums
                  paid or payable under Social Security disability benefits.
                      (c) Under any automobile medical payments coverage.” (Emphasis in original.)

¶ 13                                           1. Set Off Amount
¶ 14        Acuity first argues that the trial court erred in reducing the UIM set off by the $37,067.48
       that Decker paid Acuity for the workers’ compensation lien. Acuity argues that the set off
       should include the entire $50,000 paid by USAA, notwithstanding Decker’s payment to
       Acuity.
¶ 15        Section 143a-2(4) of the Illinois Insurance Code provides: “The limits of liability for an
       insurer providing underinsured motorist coverage shall be the limits of such coverage, less
       those amounts actually recovered under the applicable bodily injury insurance policies, bonds
       or other security maintained on the underinsured motor vehicle.” (Emphasis added.) 215 ILCS
       5/143a-2(4) (West 2014). The Illinois Supreme Court has noted that the underlying purpose of
       UIM coverage is to “ ‘place the insured in the same position he would have occupied if the
       tortfeasor had carried adequate insurance.’ ” Phoenix Insurance Co. v. Rosen, 242 Ill. 2d 48, 69
       (2011) (quoting Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992)). Thus, it
       is evident that UIM coverage was not designed to give either the injured party or the insurer a
       windfall.
¶ 16        Here, if we were to adopt Acuity’s position, Acuity would be allowed to count the
       $37,067.48 twice as part of the “sums paid” under Acuity’s UIM policy or the “amounts
       actually recovered” under the statute. When the $37,067.48 was paid for the workers’
       compensation lien, that amount was no longer part of Decker’s workers’ compensation award,
       i.e., it was no longer a sum paid on the workers’ compensation claim, or an amount Decker
       actually recovered.
¶ 17        This holding is supported by the reasoning in Berrey v. Travelers Indemnity Co. of
       America, 770 F.3d 591 (7th Cir. 2014), and Roberts v. Northland Insurance Co., 291 Ill. App.
       3d 727 (1997), rev’d on other grounds, 185 Ill. 2d 262 (1998). In Berrey, the plaintiff was
       injured in a car accident at work. The at-fault driver carried liability insurance, but the cost of
       the plaintiff’s injuries exceeded the $100,000 insurance policy limit. The plaintiff received
       partial compensation under her employer’s workers’ compensation scheme but, because her
       employer was not legally responsible for the accident, the workers’ compensation carrier had a
       lien on any recovery the plaintiff received from the at-fault driver. The at-fault driver’s
       insurance carrier paid the policy limit directly to the workers’ compensation carrier to satisfy
       the workers’ compensation lien. At arbitration, the arbitrator found that the plaintiff’s case had
       a total value of $310,000. Berrey, 770 F.3d at 593.
¶ 18        The defendant-insurer provided UIM coverage to the plaintiff’s employer. The defendant
       paid the plaintiff $210,000, the difference between her total calculated damages of $310,000
       and the at-fault driver’s policy limit of $100,000. The plaintiff claimed that the defendant
       improperly deducted the at-fault driver’s insurance carrier’s payment from the total the
       defendant owed to the plaintiff, because that payment was made directly to the workers’
       compensation carrier rather than to the plaintiff herself. She argued that the language of the
       UIM policy precluded such a deduction. Id. at 594.


                                                    -4-
¶ 19       The court held that the defendant should receive a credit for the amount the at-fault driver’s
       carrier paid directly to the plaintiff’s workers’ compensation carrier. What the court did not do
       was credit the defendant for the amount paid directly to the workers’ compensation carrier and
       the amount paid to the plaintiff by the workers’ compensation carrier, which is what Acuity
       seeks here.
¶ 20       In Berrey, the plaintiff attempted to recover the full amount of her damages from the
       defendant in addition to what she received from her workers’ compensation carrier. This
       would have given the plaintiff an impermissible double recovery. Id. at 598. Here, we are
       presented with the other side of the same coin. Allowing Acuity to set off the amount that
       Decker received from Acuity plus the amount that Decker paid back to Acuity would deny
       Decker full compensation for his damages and give Acuity a windfall.
¶ 21       In Roberts, the Third District Appellate Court considered whether the UIM carrier should
       get credit for the $50,000 paid by the at-fault driver’s insurance carrier, which payment had
       been applied to the plaintiff’s workers’ compensation lien. The Roberts court concluded:
                “We find that the court properly reasoned a carrier may not claim a setoff that is greater
                than the amount actually received by plaintiff. Here, plaintiff did not actually recover
                the $50,000 from [the at-fault driver’s carrier]. Instead, the $50,000 was applied in part
                to his attorney fees and the remaining amount to his workers’ compensation carrier
                pursuant to its statutory lien. Therefore, we find that the court did not err in denying a
                setoff of the $50,000 paid by [the at-fault driver’s carrier].” Roberts, 291 Ill. App. 3d at
                731.
¶ 22       In Roberts, the amount paid directly to the workers’ compensation carrier was not included
       in the set off amount. That result applies here. Acuity is claiming a double set off; it is claiming
       a set off for the full $50,000 paid by USAA, even though $37,067.48 was reimbursed to
       Acuity. The $400,942 set off suggested by Acuity is $37,067.48 greater than the amount
       Decker actually received. Accordingly, the trial court did not err in finding that the set off
       should not include the $37,067.48 reimbursement.
¶ 23       Acuity takes issue with any reduction in the $50,000. In actuality, the full $50,000 is being
       set off. The reduction comes in the amount reimbursed to Acuity. When Acuity received
       $37,067.48 from Decker, it no longer had paid, nor had Decker received, that $37,067.48. In
       Berrey, Roberts, and the present case, the underlying purpose of UIM coverage has been
       fulfilled. Each insured was placed in the same position he or she would have occupied had the
       tortfeasor carried adequate insurance. See Phoenix Insurance, 242 Ill. 2d at 69.

¶ 24                                       2. Elements of Loss
¶ 25       Acuity, relying on our opinion in Burcham v. West Bend Mutual Insurance Co., 2011 IL
       App (2d) 101035, contends that the trial court erred in allowing Decker to recover for the same
       elements of loss that were compensated by workers’ compensation benefits. Acuity’s reliance
       is misplaced.
¶ 26       In Burcham, we interpreted an uninsured motorist (UM) policy provision that excluded
       payment for any element of loss where the person is entitled to receive workers’ compensation
       for the same element of loss. That provision stated:
                   “ ‘No one will be entitled to receive duplicate payments for the same elements of
               “loss” under this Coverage Form and any Liability Coverage Form, Medical Payments


                                                     -5-
               Coverage Endorsement or Underinsured Motorists Coverage Endorsement attached to
               this Coverage Part.
                   ***
                   We will not pay for any element of “loss” if a person is entitled to receive payment
               for the same element of “loss” under any workers’ compensation, disability benefits or
               similar law.’ ” (Emphasis in original.) Id. ¶ 5.
¶ 27       Here, unlike in Burcham, we are considering a UIM policy provision that states that “[n]o
       one will be entitled to receive duplicate payments for the same elements of loss under this
       Coverage Form and any Liability Coverage Form.” If workers’ compensation were treated
       under the Acuity policy as a “Liability Coverage Form,” then the Burcham holding
       interpreting “ ‘element[s] of “loss” ’ ” (id.) as categories of loss rather than dollar amounts of
       loss would apply. However, the trial court found that Acuity’s policy does not treat workers’
       compensation as an element of loss under a “Liability Coverage Form.” We agree with the trial
       court’s conclusion.
¶ 28       In arriving at this conclusion, the trial court looked to Black’s Law Dictionary and the
       supreme court’s decision in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), for
       guidance. However, we need look no further than the Acuity policy itself. See West American
       Insurance, 238 Ill. 2d at 184.
¶ 29       The UM provision in Burcham stated that “[n]o one will be entitled to receive duplicate
       payments for the same elements of ‘loss’ under this Coverage Form and any Liability
       Coverage Form” and that “[w]e will not pay for any element of ‘loss’ if a person is entitled to
       receive payment for the same element of ‘loss’ under any workers’ compensation, disability
       benefits or similar law.” (Emphasis and internal quotation marks omitted.) Burcham, 2011 IL
       App (2d) 101035, ¶ 5. Clearly, the UM provision separated workers’ compensation payments
       from any liability coverage when it provided that duplicate payments for the same elements of
       loss would not be made. In the UIM provision here, Acuity likewise could have specifically
       included workers’ compensation in the “elements of loss” clause, but it did not. The
       provision’s language thus indicates that it does not prohibit recovery for “elements of loss” that
       might also be covered by workers’ compensation.
¶ 30       Under the UIM provision, any workers’ compensation payments result in a set off. To read
       the policy as Acuity argues would render the workers’ compensation set off utterly
       meaningless. If all elements of loss covered by workers’ compensation were excluded from
       coverage, there would never be anything to set off.
¶ 31       This holding comports with the public policy underlying UIM coverage. As we noted in
       Burcham: “The purpose of underinsured coverage is to put the insured in the same position he
       or she would have occupied had the at-fault vehicle carried liability coverage in the same
       amount as selected by the insured in his or her underinsured motor vehicle policy ***.”
       (Internal quotation marks omitted.) Id. ¶ 31.

¶ 32                                      III. CONCLUSION
¶ 33       For the preceding reasons, we conclude that Decker should be allowed to present all
       elements of loss in the UIM arbitration, including those elements paid through workers’
       compensation. However, those elements will be subject to the set off for the amount Decker
       actually recovered on his workers’ compensation claim and on his claim against Hunter. That


                                                   -6-
       set off will total $363,874.52. Accordingly, we affirm the judgment of the circuit court of Lake
       County denying Acuity’s motion for summary judgment and granting Decker’s motion.

¶ 34      Affirmed.




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