                                                                              FIFTH DIVISION
                                                                              March 2, 2007




No. 1-05-1417

JERRY W. JONES, Individually and as Independent,                 )    Appeal from the
Administrator of the Estate of Jerry Jones, Jr., a Deceased      )    Circuit Court of
Minor; LADONNA S. JONES, an Individual; DANTE                    )    Cook County
JONES, a Minor, by his Guardians Jerry W. Jones and              )
LaDonna S. Jones; DONOVAN JONES, a Minor, by his                 )
Guardians, Jerry W. Jones and LaDonna S. Jones,                  )
                                                                 )
       Plaintiffs-Appellees,                                     )
                                                                 )
v.                                                               )    No. 98 CH 11186
                                                                 )
COUNTRY MUTUAL INSURANCE COMPANY, an                             )    Honorable
Insurance Company Licensed to Write Insurance in Illinois,       )    Lee Preston,
                                                                 )    Judge Presiding.
       Defendant-Appellant.                                      )


       JUSTICE GALLAGHER delivered the opinion of the court:

       Defendant, Country Mutual Insurance Company, appeals from an order of the trial court

denying its summary judgment motion and granting summary judgment in the amount of

$100,000 each to plaintiffs, the estate of Jerry Jones, Jr., and Dante Jones. The trial court

concluded that two separate insurance policies issued by Country Mutual to two different parties

could be stacked for the purposes of underinsured motorist coverage. For the reasons that follow,

we reverse and remand for further proceedings consistent with this order.
1-05-1417

                                          BACKGROUND

       In August 1996, a vehicle driven by LaDonna Jones was involved in an accident with a

vehicle driven by Maria Salcedo. The vehicle driven by LaDonna Jones contained several

passengers, including her sons, Jerry Jones, Jr., Dante Jones and Donovan Jones. Jerry Jones, Jr.

died as a result of the accident, and Dante Jones suffered severe injuries. Those are the only two

claims relevant to this appeal. Plaintiffs, Jerry W. Jones, as independent administrator of the

estate of Jerry Jones, Jr., and Dante Jones, a minor, by his guardians Jerry W. Jones and LaDonna

Jones, each received the $100,000 maximum per-person limit from Salcedo’s insurance policy.

       At the time of the accident, the vehicle driven by LaDonna Jones was leased by Isaiah

Harrison. Harrison carried underinsured motorist coverage for the vehicle issued by Country

Mutual in the amount of $100,000 per person and $300,000 per occurrence (Harrison Policy).

Jerry W. Jones and LaDonna Jones also carried an insurance policy issued by Country Mutual

which provided for underinsured motorist coverage in the amount of $100,000 per person and

$300,000 per occurrence (the Jones Policy). Both the Harrison Policy and Jones Policy contain

the same relevant terms and conditions.

       Plaintiffs contend that each policy’s $100,000 underinsured motorist coverage limits may

be stacked resulting in a total of $200,000 in underinsured motorist coverage for each plaintiff.

Defendant asserts that the policies may not be stacked and that each policy’s $100,000 limit is

offset by the $100,000 payment received from the underinsured motorist’s insurer, leaving $0 left

in underinsured motorist coverage on each policy.




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       After a long history, the trial court granted plaintiffs’ motion for summary judgment in

the amount of $100,000 to each plaintiff, concluding that the Jones Policy and the Harrison

Policy could be stacked for the purposes of underinsured motorist coverage. Specifically, the

trial court stated that the antistacking language in the respective policies only applied to the

insured and relatives of the insured. Therefore, the court reasoned, since the policies originated

from two separate households, where the insureds were unrelated to one another by blood or

marriage, the policies do not expressly prohibit stacking. Thus, the trial court decided that

plaintiffs were entitled to $200,000 per person in underinsured motorist coverage. Since each

plaintiff had already received $100,000 from Salcedo’s insurer, the trial court entered a judgment

on behalf of each plaintiff for $100,000 ($200,000 in underinsured motorist coverage offset by

the $100,000 payment already received from Salcedo’s insurer). Defendant, Country Mutual

Insurance Company, now appeals from the order of the trial court denying its summary judgment

motion and granting summary judgment in the amount of $100,000 to each plaintiff.

                                            ANALYSIS

       The construction of an insurance policy provision is a question of law that can be

properly decided on a motion for summary judgment. We review a grant of summary judgment

de novo. State Farm Mutual Automobile Insurance Co. v. Coe, 367 Ill. App. 3d 604, 607, 855

N.E.2d 173, 176 (2006).

       An insurance policy is a contract and, as such, is subject to the same rules of

interpretation that govern the interpretation of contracts. Hobbs v. Hartford Insurance Co. of the

Midwest, 214 Ill. 2d 11, 17, 823 N.E.2d 561, 564 (2005). Consequently, our primary objective is


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to determine and give effect to the intent of the parties, as expressed in the policy language.

Hobbs v. Hartford Insurance Co., 214 Ill. 2d at 17. If the policy language is unambiguous, the

policy will be applied as written unless it conflicts with public policy. Hobbs v. Hartford

Insurance Co., 214 Ill. 2d at 17. Where ambiguous, and therefore subject to more than one

reasonable interpretation, policy terms that limit an insurer’s liability will be construed in favor

of the insured. Hobbs v. Hartford Insurance Co., 214 Ill. 2d at 17.

       The trial court’s conclusion that the Harrison and Jones policies may be stacked is based

on the following language in the identical policies:

               “General Policy Conditions

               8. Other Vehicle Insurance with Us. If this policy and any other vehicle

       insurance policy issued to you or a relative by one of our companies apply to the

       same accident, the maximum limit of our liability under all the policies will not

       exceed the highest applicable limit of liability under any one policy.” (Emphasis

       added.).

       The respective policyholders are unrelated according to the definition of “relative” in both

insurance policies. The trial court therefore concluded that not only does this antistacking

provision not apply to the Jones and Harrison policies, but that the policies therefore provide for

stacking. We disagree.

       The fact that the respective policies were issued to unrelated individuals renders the

above policy provision inapplicable to the present case. We, therefore, must look to other




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language in the policies for guidance. The relevant language as to the underinsured motorist

coverage in both the Harrison and Jones policies provides as follows:

              2. “Limits of Liability. The Uninsured - Underinsured motorists limits of

              liability shown on the declarations page apply as follows:

                      e. The most we will pay under Underinsured motorists Coverage,

                      Coverage U, to any one person is the lesser of:

                             (1) the difference between the ‘each person’ limit of this

                             coverage as shown on the declarations page for this

                             coverage and the amount paid to the insured by or on behalf

                             of persons or organizations who may be legally responsible

                             for the bodily injury caused by the underinsured motor

                             vehicle; or

                             (2) the difference between the amount of the insured’s

                             damages and the amount paid to the insured by or on behalf

                             of persons or organizations who may be legally responsible

                             for the bodily injury caused by an underinsured motor

                             vehicle.”

       The “each person” limit for underinsured motorist coverage under both the Harrison and

Jones policies as shown on the declarations page is $100,000. Each plaintiff received $100,000

from Salcedo’s insurer, an amount equal to the per-person limit for bodily injury coverage on

Salcedo’s insurance policy. Thus, under (1) above, the difference between the “each person”


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limit of this coverage and the amount paid to each plaintiff is $0 ($100,000 minus $100,000).

Accordingly, plaintiffs effectively have no underinsured motorist coverage since the most that

Country Mutual is obligated to pay under either policy is $0.

       Despite the above policy language, plaintiffs, nevertheless, assert that the $100,000

underinsured motorist coverage limits should be stacked for total coverage of $200,000 before

being offset by the $100,000 payment received from Salcedo’s insurer. However, assuming,

arguendo, that the $100,000 underinsured motorist coverage limits should be stacked, Country

Mutual would still be allowed to offset each $100,000 policy limit by the $100,000 payment

from Salcedo’s insurer before the amounts are stacked. Kapinus v. State Farm Mutual

Automobile Insurance Co., 317 Ill. App. 3d 185, 188, 738 N.E.2d 1003 (2000). As a result, each

policy, containing $0 in underinsured motorist coverage, would be stacked for a total of $0 in

coverage.

       In Kapinus, plaintiff was in an automobile accident and received $50,000 from the

underinsured motorist’s insurance company. Kapinus v. State Farm Mutual Automobile

Insurance Co., 317 Ill. App. 3d at 186. Plaintiff was allowed to stack her two underinsured

motorist coverage policies issued by the same insurer with $100,000 per-person limits. Kapinus

v. State Farm Mutual Automobile Insurance Co., 317 Ill. App. 3d at 186. Plaintiff sought to limit

the aggregate setoff under the underinsured motorist clauses of the two policies to $50,000.

Kapinus v. State Farm Mutual Automobile Insurance Co., 317 Ill. App. 3d at 186. There, the

court interpreted a portion of section 143a-2(4) of the Illinois Insurance Code which states:

               “For the purpose of this Code the term 'underinsured motor vehicle' means

       a motor vehicle whose ownership, maintenance or use has resulted in bodily



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       injury or death of the insured, as defined in the policy, and for which the sum of

       the limits of liability under all bodily injury liability insurance policies *** is less

       than the limits for underinsured coverage provided the insured as defined in the

       policy at the time of the accident.” (Emphasis added.). 215 ILCS 5/143a-2(4)

       (West 1998).

       The Kapinus court reasoned that section 143a-2(4) defines the limits of liability on a per-

policy, not a per-insurer, basis. Kapinus v. State Farm Mutual Automobile Insurance Co., 317

Ill. App. 3d at 188. Thus, the court concluded that the insurer may offset each $100,000

underinsured motorist coverage policy limit by the $50,000 received from the underinsured

driver’s insurer. Kapinus v. State Farm Mutual Automobile Insurance Co., 317 Ill. App. 3d at

188. Accordingly, the insured is allowed to stack the amount remaining on each policy after the

amount recovered from the underinsured motorist’s insurer is subtracted from the underinsured

motorist coverage liability limit. Kapinus v. State Farm Mutual Automobile Insurance Co., 317

Ill. App. 3d at 188. Therefore, in Kapinus, the insurer’s total liability for underinsured motorist

coverage was $100,000, not $150,000. Kapinus v. State Farm Mutual Automobile Insurance

Co., 317 Ill. App. 3d at 188.

       Likewise, in the present case, even if stacking is allowed, the amount of underinsured

motorist coverage would be determined on a per policy basis before the policies are stacked.

Here, each policy’s $100,000 underinsured motorist coverage limit would be offset by the

$100,000 payment received from Salcedo’s insurer, resulting in $0 in underinsured motorist

coverage. Consequently, stacking the policies would also result in total underinsured motorist

coverage of $0.



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       Plaintiff argues erroneously that Kapinus is inapposite to the present case because, there,

the court interpreted an amended version of section 143a-2(4), not the previous version

applicable to the present case.1 However, the amendment to section 143a-2(4) is irrelevant to the

Kapinus holding and has no bearing on the present case, because in both Kapinus and the instant

case, the amount recovered from the underinsured motorist’s insurer by plaintiff(s) was equal to

the amount of the underinsured motorist’s bodily injury liability insurance limit. Kapinus is

therefore applicable to this case despite the fact that it was decided under the amended version of

section 143a-2(4).

       Nevertheless, plaintiff asserts that the trial court correctly relied on Cummins v. Country

Mutual Insurance Co., 178 Ill. 2d 474, 687 N.E.2d 1021 (1997), in which the Illinois Supreme

Court interpreted the earlier version of section 143a-2(4). In Cummins, the plaintiff, who had

underinsured motorist coverage in the amount of $50,000, suffered injuries in excess of $50,000.

Cummins v. Country Mutual Insurance Co., 178 Ill. 2d at 476. The underinsured motorist’s



       1
           Both versions of the statute provide that “[t]he 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 undersinsured motor vehicle.” 215 ILCS 5/143a-2(4)(1998), Ill. Rev. Stat.

1987; ch. 73, par. 755a-2(3). The only difference between the two versions of the statute is that

the 1997 amendment added the following sentence: “However, the maximum amount payable by

the underinsured motorist coverage carrier shall not exceed the amount by which the limits of the

underinsured motorist coverage exceeds the limits of the bodily injury liability insurance of the

owner or operator of the underinsured motor vehicle.” 215 ILCS 5/143a-2(4) (West 1998).

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bodily injury liability limit was also $50,000. Cummins v. Country Mutual Insurance Co., 178

Ill. 2d at 477. However, plaintiff only recovered $35,000 from the underinsured motorist’s

insurer. Cummins v. Country Mutual Insurance Co., 178 Ill. 2d at 477. There, the court held that

plaintiff was entitled to recover $15,000 in underinsured motorist benefits to “fill the gap.”

(Emphasis added.) Cummins v. Country Mutual Insurance Co., 178 Ill. 2d at 486.

       Here, there is no gap between the underinsured motorist coverage limit and the amount

actually recovered from the underinsured motorist. Though not explicitly stated, the trial court

apparently decided that, under Cummins, each plaintiff was entitled to fill the gap between the

stacked coverage limit of $200,000 and the $100,000 received from the underinsured motorist’s

insurer. However, as discussed earlier, after the $100,000 payment was recovered from the

underinsured motorist’s insurer, the underinsured motorist coverage liability limit under both the

Harrison policy and the Jones policy was actually $0. Furthermore, even if the $100,000 limits

were allowed to be stacked, according to Kapinus, defendant could offset each $100,000 policy

limit by the $100,000 already received by each plaintiff, resulting in $0.

       Both plaintiffs and the trial court relied on Pekin Insurance Co. v. Estate of Robin Goben,

303 Ill. App. 3d 639, 707 N.E.2d 1259 (1999), as support for allowing stacking of the policies.

Pekin, however, is inapplicable to the present case. There, as in Cummins, the amount recovered

by plaintiff was less than the underinsured motorist coverage policy limit. Pekin Insurance Co. v.

Estate of Robin Goben, 303 Ill. App. 3d at 641. There was a gap. Furthermore, the facts in

Pekin are even more remote, since the court’s decision to allow stacking turned on the fact that

the underinsured motorist limit was set forth two times, once for each vehicle, on the declarations

page, and was therefore ambiguous. Pekin Ins. Co. v. Estate of Robin Goben, 303 Ill. App. 3d at



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648. No similar facts exist in the present case, nor is there any such ambiguity in the policies at

issue here.

       Finally, we find meritless plaintiff’s argument that pursuant to Supreme Court Rule

341(g) (188 Ill. 2d R. 341(g)), we should disregard certain arguments set forth by Country

Mutual in its reply brief. Plaintiff asserts that Country Mutual waived certain arguments by

failing to make them in its opening brief. Plaintiff misunderstands Rule 341(g), and the purpose

of the reply brief. Rule 341(g) states, “The reply brief, if any, shall be confined strictly to

replying to arguments presented in the brief of the appellee and need only contain Argument.”

188 Ill. 2d R. 341(g). Therefore, Country Mutual is allowed to reply to plaintiff appellee’s

arguments regardless of whether those arguments were raised in Country Mutual’s opening brief.

       For the reasons stated, we reverse the trial court's judgment and remand for further

proceedings consistent with this order.

       Reversed and remanded.

       TULLY and O'MARA FROSSARD, JJ., concur.




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