                                                                   SECOND DIVISION
                                                                   March 25, 2008




No. 1-06-3601

LISA L. COLLINS, as Special Representative of the           )
Estate of Stanley Collins,                                  )
                                                            )
                Plaintiff and Counterdefendant-Appellant,   )      Appeal from the
       v.                                                   )      Circuit Court of
                                                            )      Cook County.
ST. PAUL MERCURY INSURANCE COMPANY,                         )
and CUMMINS-ALLISON CORPORATION,                            )
                                                            )
                Defendants and Counterplaintiffs-           )
                Appellees                                   )
                                                            )
(St. Paul Mercury Insurance Company,                        )
                                                            )      Honorable
                Third-Party Plaintiff;                      )      James F. Henry,
                                                            )      Judge Presiding.
Michael Fluherty,                                           )
                                                            )
                Third-Party Defendant).                     )


       JUSTICE SOUTH delivered the opinion of the court:

       This appeal arises from an order of the circuit court of Cook County granting defendants’

motion for summary judgment, finding there was no ambiguity in the terms of the insurance

policy and the underinsured motorist (UIM) endorsement for decedent’s company vehicle

covered him only when he was in the assigned vehicle in Mississippi. Plaintiff, Lisa Collins,

instituted this declaratory judgment action against defendants, St. Paul Mercury Insurance

Company (St. Paul) and Cummins-Allison Corporation (Cummins), seeking a declaration that

the Mississippi UIM endorsement on decedent’s company vehicle applied in the event of his
1-06-3601

death from an accident in another company vehicle in Illinois and that, consequently, its stacking

provision entitled her to stack the policy limits for all of the insured Cummins’ vehicles.

                                              FACTS

        The decedent, Stan Collins, and his wife, plaintiff, were residents of Mississippi in 2004

and decedent was employed by Cummins as a technician. As part of his compensation, he was

furnished with a company vehicle, a 2003 Pontiac Aztec (Aztec), for which he made monthly

payments to Cummins. He kept the vehicle garaged at his home in Mississippi.

        St. Paul issued general commercial liability policy No. CK01205207 to Cummins, which

included fleet auto coverage for all of the vehicles owned by Cummins, including the Aztec. The

St. Paul policy also provided UIM and uninsured motorist (UM) coverage for the decedent’s

Aztec and all of the other Cummins vehicles, including those that were in Illinois. The UIM

coverage for the vehicles in each state was provided in a separate endorsement and included

coverage that was specific to each state.

        On December 11, 2004, while he was in Illinois for work-related training at a Cummins

facility, the decedent was involved in a fatal automobile accident with an underinsured vehicle.

At the time, he was a passenger in a Cummins vehicle, a 2001 Dodge Caravan, which was being

driven by a Cummins employee, Michael Fluherty, during travel related to the training session.

The Caravan was a Cummins fleet vehicle and was insured under the same St. Paul policy as the

Aztec. The Caravan, which was garaged in Illinois, was covered by an Illinois UIM endorsement

to the St. Paul policy.

        The vehicle in which the decedent was a passenger was struck by a car being driven by


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Melvin Kennedy, who was also killed.. The other vehicle belonged to Laura Wells and was

insured by a State Farm Insurance Company (State Farm) auto policy which provided coverage

only for $25,000 per person and $50,000 per accident. Pursuant to the St. Paul policy, which

provided UIM coverage of $1,000,000, Wells’ vehicle was an underinsured vehicle as the policy

defined that term.

       The introduction to the UIM endorsement for vehicles garaged in Mississippi, including

the decedent’s Aztec, states as follows, in pertinent part:

            “UNINSURED AND UNDERINSURED MOTORISTS PROTECTION

                                     MISSISSIPPI-STACKED

                       We’ve designed this agreement to cover damages for bodily

               injury and property damage caused by an accident which the named

               insured or anyone else covered under this agreement are legally

               entitled to collect from the driver or owner of an uninsured or

               underinsured vehicle.

                       This agreement provides coverage for covered autos

               registered or mainly garaged in Mississippi.”

       This endorsement further provides that the applicable UIM coverage limit is calculated by

adding together the limits of all of the policies which have been issued to Cummins. The policy

contains the following language with respect to the stacking process:

               “If there is more than one covered auto, our maximum limit for any

               one accident is the total, added together, of the limits that apply to


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               autos the named insured owns which are covered autos.”

The Mississippi UIM endorsement defines covered autos as follows:

               “The Coverage Summary, shows which autos are covered under

               this agreement.

               Scheduled autos. If this is shown in the Coverage Summary, the

               autos listed in the schedule are the covered autos at the time the

               agreement goes into effect.”

Both the decedent’s Aztec and Fluherty’s Caravan were listed in the coverage summary as

covered autos. However, the Illinois UIM endorsement does not contain a stacking provision.

       St. Paul’s fleet policy used the term “protected person” to identify those persons who are

entitled to coverage under that policy. The Mississippi UIM endorsement used the following

language to provide that any person who is in a covered auto is a protected person:

               “If the named insured is shown in the Introduction as *** any other

               form of organization, then the following are protected persons:

               •      Anyone in a covered auto or temporary substitute for a

                      covered auto; and

               •      Anyone for damages he or she is entitled to recover because

                      of bodily injury to another protected person.”

       With respect to vehicles that are covered in Illinois, the St. Paul policy provides the

following types of coverage: liability, underinsured motorists, and medical payments. It also

indicates that UM property damage applies.


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       The declarations page of the St. Paul policy reflects that the limits for UIM coverage are

$1 million per accident for “any owned auto” in several states, including Mississippi. The policy

also states that each state’s separate UIM endorsement provides coverage for covered autos

which are registered or principally garaged in that state.

       Plaintiff and Fluherty, contending that Wells’ vehicle was underinsured, made claims for

UIM benefits under the St. Paul policy. In addition, plaintiff filed a complaint for declaratory

judgment, seeking a declaration that the Mississippi UIM endorsement applies to her husband’s

death and that its stacking provision entitles her to stack the policy limits for all insured

Cummins’ vehicles (approximately 268 across the country). She argued that because the

Mississippi UIM endorsement did not distinguish between the Aztec, which was given to her

family in Mississippi, or any other vehicles owned by Cummins that decedent would possibly

use, the Mississippi endorsement should apply to the accident which occurred in Illinois.

Plaintiff also argued that decedent was a covered person under the Illinois UIM endorsement.

       St. Paul filed a counterclaim against plaintiff and Fluherty, seeking a declaration that the

UIM claims relating to the underlying accident were governed by the Illinois UIM endorsement

because the accident vehicle was registered in Illinois. There is a maximum of $1 million in

UIM benefits available under the Illinois UIM endorsement, and there is no stacking provision.

       Both plaintiff and St. Paul filed cross-motions for summary judgment. Additionally, St.

Paul filed a motion to strike plaintiff’s affidavit, which contained plaintiff’s statements regarding

the Aztec that decedent used as a company car in Mississippi.

       The circuit court subsequently entered a written order granting St. Paul’s motion for


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summary judgment, concluding that the terms in the St. Paul policy were unambiguous and that

the Illinois UIM endorsement governed the UIM claims arising out of the underlying accident. In

so finding, the court found that St. Paul’s interpretation of the policy language was logical in that

the Mississippi UIM endorsement did not apply to an accident in Illinois involving a covered

auto which is registered and principally garaged in Illinois because that endorsement states that

coverage is provided for “autos registered or mainly garaged in Mississippi.” The circuit court

further found that plaintiff’s affidavit was irrelevant to the determination of which state’s UIM

endorsement applies.

                                            ANALYSIS

       In an appeal from the grant of summary judgment, we conduct a de novo review. Pekin

Insurance Co. v. Estate of Robin Goben, 303 Ill. App. 3d 639, 642 (1999). Although it is

recognized that summary judgment is a drastic means of disposing of litigation, it is appropriate

in cases where there is no genuine issue of material fact and the moving party is entitled to a

judgment as a matter of law. Pekin Insurance, 303 Ill. App. 3d at 642. In reviewing a grant of

summary judgment, this court considers anew the facts and the applicable law and determines

whether the circuit court was correct in its ruling. Frigo v. Motors Insurance Corp., 271 Ill. App.

3d 50, 57 (1995).

       The construction of an insurance policy is a question of law and can be appropriately

disposed of by summary judgment. Pekin Insurance, 303 Ill. App. 3d at 642. When construing

the language of an insurance policy, the court’s primary objective is to determine and effectuate

the partes’ intentions as expressed in their written agreement. Pekin Insurance, 303 Ill. App. 3d


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1-06-3601

at 642. If the terms in the policy are “clear and unambiguous,” they must be given their plain and

ordinary meaning. Pekin Insurance, 303 Ill. App. 3d at 642. If the terms are ambiguous,

meaning that they are susceptible to more than one meaning, they will be construed strictly

against the insurer. Pekin Insurance, 303 Ill. App. 3d at 642. The court will interpret the policy

as a whole, considering the type of insurance purchased, the nature of the risks involved, and the

purpose of the contract. Pekin Insurance, 303 Ill. App. 3d at 642-43. Limiting provisions are

interpreted liberally in favor of the insured and against the insurer. Pekin Insurance, 303 Ill. App.

3d at 642.

       In determining whether an ambiguity exists, the provisions in an insurance policy should

be read together and not separately. Johnson v. Davis, 377 Ill. App. 3d 602, 607 (2007). The

inquiry is whether the provision is subject to more than one reasonable interpretation, not

whether other possibilities can be suggested. Johnson, 377 Ill. App. 3d at 607.

       Turning to the case at bar, we find that the terms of the St. Paul policy are unambiguous.

The policy clearly contains separate UIM endorsements for each state in which Cummins has

vehicles registered. In turn, each state’s UIM endorsement clearly states that it applies to

vehicles which are registered and garaged within that state. Neither party disputes that the Aztec,

which was covered under the Mississippi UIM endorsement, was registered and garaged in

Mississippi. Nor do the parties dispute that the Caravan, which was covered under the Illinois

UIM endorsement, was registered and garaged in Illinois. There is also no dispute that the

accident occurred in Illinois in the Caravan in which the decedent was a passenger.

Consequently, the Illinois UIM endorsement would apply for a calculation of the UIM benefits


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due plaintiff since no vehicle registered or principally garaged in Mississippi was involved in the

accident. Accordingly the Mississippi UIM endorsement is not triggered. See, e.g., Berg v.

Liberty Mutual Insurance Co., 319 F. Supp. 2d 933, 938 (N.D. Iowa 2004).

       Next, plaintiff contends the trial court erred in striking her affidavit on relevancy grounds.

She maintains that her affidavit was relevant because it shed light on the Collins’ expectations.

       The use of affidavits in summary judgment proceedings is subject to Supreme Court Rule

191. 145 Ill. 2d R. 191(a). Unsupported assertions, opinions, and conclusions do not comply

with the rule and may be stricken. Lewis v. Rutland Township, 359 Ill. App. 3d 1076, 1079

(2005). When a trial court rules on a motion to strike an affidavit in conjunction with a motion

for summary judgment, the appellate court reviews that ruling de novo. Jackson v. Graham, 323

Ill. App. 3d 766. 773 (2001).

       We find that plaintiff’s affidavit was properly stricken because it failed to comply with

the requirements of Rule 191 in that it contained unsupported assertions, opinions, and

conclusions regarding plaintiff’s “expectations” about the St. Paul policy’s coverage.

       Accordingly, the judgment of the circuit court is affirmed.

       Affirmed.

       HOFFMAN, P.J., and HALL, J., concur.




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