                         SECOND DIVISION
                         Date Filed: October 17, 2006

No. 1-05-1891


STATE FARM MUTUAL AUTOMOBILE                      ) Appeal from the
INSURANCE COMPANY,                               ) Circuit Court of
                                                 ) Cook County.
   Plaintiff-Appellee,                           )
                                                         )
   v.                                                    ) No. 04 CH 07463
                                                   )
STEVEN E. COE,                                           ) Honorable
                                                 ) Julia Nowicki,
   Defendant-Appellant.                                    ) Judge Presiding.

                         Modified Opinion Upon Denial of Rehearing

   JUSTICE HALL delivered the opinion of the court:

   The plaintiff, State Farm Mutual Automobile Insurance Company (State Farm) filed a

complaint for declaratory judgment seeking a determination that the defendant, Steven

E. Coe, was not entitled to underinsured motorist benefits under his automobile liability

policy with State Farm. Both parties filed motions for summary judgment. Mr. Coe

appeals the order of the circuit court of Cook County granting summary judgment to

State Farm and denying Mr. Coe's motion for summary judgment.

   The sole issue on appeal is the correctness of the circuit court's order. The pertinent

facts are summarized below.

   On November 20, 2001, Mr. Coe, a police officer for the Village of Park Forest, was

directing traffic when he was struck by a car driven by Nicole Moorehouse. Ms.

Moorehouse was insured for automobile liability, with limits of $50,000. Mr. Coe

received over $100,000 in workers' compensation benefits, but claimed special
No. 1-05-1891

damages in the amount of $150,000. 1

   At the time of the accident, Mr. Coe was insured by State Farm for automobile

      1
       Mr. Coe's workers' compensation settlement was structured

as follows: Total settlement $75,000; minus $15,000 for attorney

fees and $136.03 (unexplained deduction), leaving Mr. Coe with

$59,863.97.      In addition, Mr. Coe's employer agreed to waive its

lien under section 5(b) of the Workers' Compensation Act (820

ILCS 305/5(b) (West 2004) against the portion of the recovery

funded by Ms. Moorehouse's coverage.




                                          2
No. 1-05-1891

liability. The policy provided underinsured motorist coverage with a $100,000 limit.

Under the underinsured motorist coverage, State Farm agreed to "pay damages for

bodily injury an insured is legally entitled to collect from the owner or driver of an

underinsured motor vehicle." State Farm's agreement to pay damages pursuant to

the underinsured motorist provision was subject to the following policy limitations:

          "1. The amount of coverage is shown on the declarations page under 'Limits

       of Liability - W - Each Person, Each Accident.' Under 'Each Person' is the

       amount of coverage for all damages due to bodily injury to one person. 'Bodily

       injury to one person' includes all injury and damages to others resulting from

       this bodily injury and all emotional distress resulting from this bodily injury

       sustained by other persons who do not sustain bodily injury. ***

           2. Any amount paid or payable to or for the insured under any workers'

       compensation, disability benefits, or similar law shall reduce the amount payable

       under this coverage. The reduction may be taken only once and shall first be

       applied to the amount payable by any policy providing coverage on a primary

       basis. ***

                                             ***

           5. a. The most we will pay any one insured is the lesser of:

                        (1) the amount by which the 'each person' limit of this coverage

                     exceeds the sum of the 'each person' limits of liability of all bodily

                     injury liability insurance coverages that apply to the accident; or

                        (2) the amount by which the insured's damages for bodily

                                             3
No. 1-05-1891

                    injury exceed the sum of the 'each person' limits of liability of all

                    bodily injury liability insurance coverages that apply to the

                    accident." 2

   Pursuant to the policy terms, Mr. Coe sought arbitration of his underinsured

coverage claim. State Farm responded by filing the instant complaint for declaratory

judgment. The complaint alleged that Ms. Moorehouse's insurance company had

agreed to pay the $50,000 limit of liability under her policy to Mr. Coe and that Mr. Coe

      2
       Mr. Coe notes that the record contains two different

insurance policies.          As there is no dispute as to what the policy

states, as opposed to what it means, the language quoted is from

the copy of the policy attached to State Farm's motion for

summary judgment.




                                            4
No. 1-05-1891

was entitled to in excess of $100,000 in workers' compensation benefits. Based on

those amounts, State Farm sought a declaration that Mr. Coe was not entitled to any

benefit under the underinsured motorist provision of his State Farm policy. In response

to a request to admit facts, Mr. Coe admitted he settled his workers' compensation

claim with the Village of Park Forest for an amount not less than $100,000. Both parties

filed motions for summary judgment.

   In its motion, State Farm argued that, under the underinsured motorist limitations

provisions, it was entitled to set off Mr. Coe's workers' compensation settlement against

the underinsured coverage amount. The settlement amount of $100,000 reduced the

underinsured benefits of $100,000 to -0-. Therefore, Mr. Coe was not entitled to any

recovery under the underinsured motorist provisions of the policy.

   In his motion, Mr. Coe maintained that his special damages were well in excess of

$150,000. He further maintained, "[T]o the extent that the Illinois Insurance Code

permits any set-off for benefits received though [sic] Workers' Compensation, the Code,

the plain language of the insurance policy, and public policy define the 'amounts

payable' to which such a set-off may be applied as the total damages of the insured

Defendant, not the limits of [underinsured motorist] coverage." (Emphasis in original.)

   The circuit court granted summary judgment to State Farm and denied Mr. Coe's

summary judgment motion. In its ruling, the circuit court relied on the supreme court's

decisions in Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 591 N.E.2d 427

(1992), and Ullman v. Wolverine Insurance Co., 48 Ill. 2d 1, 269 N.E.2d 295 (1970).

This timely appeal followed.

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No. 1-05-1891

                                        ANALYSIS

                                  I. Standard of Review

   The court reviews motions for summary judgment de novo. Chubb Insurance Co. v.

DeChambre, 349 Ill. App. 3d 56, 59, 808 N.E.2d 37 (2004). Summary judgment is

proper if, and only if, the pleadings, depositions, admissions, affidavits and other

relevant matters on file show that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law. DeChambre, 349 Ill. App. 3d at 59.

   By filing cross-motions for summary judgment, the parties invite the court to

determine the issues as a matter of law and enter judgment in favor of one of the

parties. Wolfram Partnership, Ltd. v. LaSalle National Bank, 328 Ill. App. 3d 207, 765

N.E.2d 1012 (2001). Yet the mere filing of cross-motions does not preclude a

determination that triable questions of fact exist. Wolfram, 328 Ill. App. 3d at 215.

Summary judgment should only be allowed when the right of the moving party is free

from doubt. Elliott v. Williams, 347 Ill. App. 3d 109, 112, 807 N.E.2d 506 (2004).

                      II. Principles Applicable to the Construction of

                                    Insurance Policies

   "An insurance policy is a contract, and 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, 214 Ill. 2d 11, 17, 823 N.E.2d 561 (2005).

The court's "primary objective when construing an insurance policy is to ascertain and

give effect to the intention of the parties, as expressed in the policy language." Gillen v.

State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393, 830 N.E. 2d 575

                                             6
No. 1-05-1891

(2005). "If the policy language is unambiguous, the policy will be applied as written,

unless it contravenes public policy." Hobbs, 214 Ill. 2d at 17. "Whether an ambiguity

exists turns on whether the policy language is subject to more than one reasonable

interpretation." Hobbs, 214 Ill. 2d at 17. "If the policy language is susceptible to more

than one reasonable meaning, it is considered ambiguous and will be construed against

the insurer." Gillen, 215 Ill. 2d at 393.

   "Importantly, a policy provision that purports to exclude or limit coverage will be read

narrowly and will be applied only where its terms are clear, definite, and specific."

Gillen, 215 Ill. 2d at 393. However, this rule of construction only comes into play if the

policy is ambiguous. Hobbs, 214 Ill. 2d at 17.

                                        III. Discussion

    Section 143a-2(4) of the Illinois Insurance Code (215 ILCS 5/143a-2(4) (West

2000)) (the Insurance Code) provides in pertinent part as follows:

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

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

       other security required to be maintained under Illinois law applicable to the driver

       or to the person or organization legally responsible for such vehicle and

       applicable to the vehicle, is less than the limits for underinsured coverage

       provided the insured as defined in the policy at the time of the accident. The

       limits of liability for an insurer providing underinsured motorist coverage shall be

                                               7
No. 1-05-1891

       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. 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 2000).

   The underlying purpose of underinsured motorist coverage is to place the insured in

the same position he would have occupied if the tortfeasor had carried adequate

insurance. Sulser, 147 Ill. 2d at 555; see Martin v. Illinois Farmers Insurance, 318 Ill.

App. 3d 751, 758, 742 N.E.2d 848 (2000) (the purpose of underinsured coverage is to

furnish protection for the difference between the insured's claim and the amounts

available from the underinsured driver). Section 143a-2(4) "must be construed to allow

an insured to 'fill the gap' between the benefits paid by the tortfeasor's insurance carrier

and the limit of underinsurance coverage specified in the insured's policy." Martin, 318

Ill. App. 3d at 758, quoting Koperski v. Amica Mutual Insurance Co., 287 Ill. App. 3d

494, 498, 678 N.E.2d 734 (1997). Our supreme court has interpreted this section to

allow an insurer to reduce its underinsured motorist coverage by the amount of the

workers' compensation payments made to the insured. Sulser, 147 Ill. 2d at 553.

   Mr. Coe contends that the policy language, "amount payable under this coverage,"

does not mean policy limits but refers to "all legally available damages for bodily injury."

In support of his argument, Mr. Coe suggests that the policy could have been, but was

                                             8
No. 1-05-1891

not, drafted to state that any underinsured motorist payment would be reduced by

subtracting the workers' compensation benefits from the limits of the underinsured

coverage provided under the policy. We conclude that no redrafting is necessary.

   We begin by addressing Mr. Coe's argument that the circuit court's reliance on

Sulser and Ullman was misplaced as the focus of those cases was whether workers'

compensation benefits could be set off against underinsured or uninsured coverage

amounts. Nonetheless, the circuit court noted that in both cases, the policies contained

an "amount payable" phrase.

   In Ullman, the policy provided, "'any amount payable under the terms of this

Endorsement [uninsured motorist coverage] because of bodily injury sustained in an

accident by a person who is an insured under this coverage shall be reduced by *** (2)

the amount paid and the present value of all amounts payable on account of such bodily

injury under any workmen's compensation law.'" Ullman, 48 Ill. 2d at 6. The decedent

had $10,000 in uninsured motorist coverage, and the plaintiff received $14,000 in

workers' compensation benefits.

   In addition to holding that the workers' compensation deduction from the uninsured

motorist coverage was not against public policy, the Ullman court rejected an argument

that Mr. Coe raises here, stating as follows:

          "An argument of the plaintiff is that the provable damages sustained through

       the decedent's death far exceeded $10,000. If this were a case involving an

       insured tortfeasor, reimbursement of the employer would not be required, she

       contends, as the claim against the tortfeasor was not satisfied in full. Therefore,

                                                9
No. 1-05-1891

       the protection available under the uninsured motorist coverage provides less

       protection than would have been afforded had the tortfeasor been insured.

       However, the plaintiff errs. Our workmen's compensation statute does not make

       the employee's obligation to reimburse his employer dependent on the

       employee's recovering his full measure of damages from the tortfeasor. The

       appellate court correctly observed: 'To the extent that workmen's compensation

       benefits have been received, the obligation of reimbursement exists regardless of

       the amount recovered or the total damages sustained by the injured employee.'

       [Citations.]" Ullman, 48 Ill. 2d at 8.

   In Sulser, Mr. Sulser was killed in an automobile accident. The Sulsers' policy with

Country Mutual provided $100,000 in underinsured motorist coverage but specified that

any amounts received from workers' compensation would be deducted from Country

Mutual's coverage amount. Mrs. Sulser recovered $50,000 from the underinsured

motorist and sought $50,000 from Country Mutual, the difference between the $100,000

underinsured motorist coverage and the recovery from the underinsured motorist.

Based on the parties' stipulation that over $50,000 had been paid in workers'

compensation benefits, Country Mutual declined to pay the $50,000 under the

underinsured motorist coverage. The circuit court agreed with Country Mutual, but the

appellate court reversed, finding that the Insurance Code did not provide for the setoff of

workers' compensation benefits against underinsured motorist coverage. See Sulser v.

Country Mutual Insurance Co., 208 Ill. App. 3d 15, 566 N.E.2d 851 (1991). The

supreme court disagreed, holding that the uninsured motorist statute and the

                                                10
No. 1-05-1891

underinsured motorist statute served the same underlying purpose, and therefore,

workers' compensation benefits could be set off against underinsured as well as

uninsured motorist coverage. Sulser, 147 Ill. 2d at 558.

   The Sulser court then addressed the argument raised by the amicus curiae that Mrs.

Sulser should receive the compensation paid for by her underinsured motorist

premiums. The court noted that "an insurance policy is a contract between the

company and the policyholder, the benefits of which are determined by the terms of the

contract unless the terms are contrary to public policy. [Citation.] The legislature

intended for the insurer to state clearly in the policy what coverage was offered."

Sulser, 147 Ill. 2d at 558. The court then set forth the Sulzers' underinsured motorist

policy provision:

       "'Amounts payable for damages under Underinsured Motorists Coverage will be

       reduced by:

          a. all sums paid by or on behalf of persons or organizations who may be legally

       responsible for the bodily injury. This includes all amounts paid under the liability

       coverage of this policy;

          b. the present value of all amounts payable under any workmen's

       compensation ***.'" (Emphasis in original.) Sulser, 147 Ill. 2d at 559.

Observing that "[p]arties to a contract may agree to any terms they choose unless their

agreement was contrary to public policy," the court held that County Mutual had no

obligation to Mrs. Sulser under the underinsured motorist coverage. Sulser, 147 Ill. 2d

at 559.

                                            11
No. 1-05-1891

   Mr. Coe relies on McKinney v. American Standard Insurance Co. of Wisconsin, 296

Ill. App. 3d 97, 694 N.E.2d 200 (1998). In that case, the insured claimed damages

exceeding $318,000. He received the policy limits of $300,000 under the tortfeasor's

policy and additional $18,000 from the tortfeasor. The insured then looked to the

underinsured motorist provisions of his own automobile policy, which had limits of

$25,000 per person and $50,000 per accident. The insurer argued that, under the

policy, "'[a]ny amounts payable,'" were reduced by "'[a] payment made or amount

payable by or on behalf of any person or organization which may be legally liable, or

under any collectible auto liability insurance, for loss caused by an accident with an

underinsured motor vehicle.'" McKinney, 296 Ill. App. 3d at 98. The insured argued

that, because the tortfeasor was an underinsured motorist, the insured was entitled to

prove up the entire amount of damages and recover the difference between the amount

paid and his total damages up to the policy limit.

   In reversing the summary judgment for the insurer, the reviewing court noted that the

policy provided that the insurer would pay "all compensable damages." McKinney, 296

Ill. App. 3d at 100. "Thus, a reasonable person in the position of the insured could

expect 'amounts payable' to be the equivalent of the total damages incurred."

McKinney, 296 Ill. App. 3d at 100-01. The court determined that the term "amounts

payable" was ambiguous, and therefore, a construction favorable to the insured was

required. The court explained that the insurer was not responsible for more than the

$50,000 contracted amount of underinsured motorist coverage. The $318,000 was to

be subtracted from the total amount of the insured's damages. The remaining amount

                                            12
No. 1-05-1891

of damages was recoverable from the insurer, subject to the $50,000 coverage limit.

The case was remanded for a determination of the total amount of the insured's

damages. McKinney, 296 Ill. App. 3d at 102.

   We agree with State Farm that McKinney is distinguishable from the present case.

First, under the policy in McKinney, an underinsured motor vehicle was defined as

having "'bodily injury liability limits less than the damages an insured person is legally

entitled to recover.'" (Emphasis in original.) McKinney, 296 Ill. App. 3d at 100. In the

present case, the policy defines an underinsured motor vehicle as one where the limits

of liability "are less than the limits you carry for underinsured motor vehicle coverage

under this policy." Further, whereas in the present case, the workers' compensation

setoff applied to reduce the "amount payable under this coverage," in McKinney, the

limitation applied to "amounts payable." McKinney, 296 Ill. App. 3d at 98.

   Significantly, the McKinney court did not conclude that the term "amounts payable"

always meant total damages. Rather, the court reasoned that, having provided that the

insurer would pay all compensable damages, the insured reasonably could have

interpreted the term "amounts payable" to mean the total amount of damages incurred,

thus creating an ambiguity. The existence of the ambiguity required that the "amounts

payable" clause be interpreted in the insured's favor. McKinney, 296 Ill. App. 3d at 101.

   Finally, Mr. Coe relies on Bergmann v. Hutton, 337 Or. 596, 101 P.3d 353 (2004). In

Bergmann, the injured insured's damages totaled more than $650,000. She received

the policy limits of $25,000 from the tortfeasor and $107,652 in workers' compensation

benefits. She then claimed the $100,000 in underinsured motorist coverage under her

                                             13
No. 1-05-1891

own policy. The insurer denied the claim.

   In reversing the grant of summary judgment for the insurer, the Oregon Supreme

Court explained that uninsured coverage was subject to section 742.504 of the Oregon

Insurance Code (Or. Rev. Stat. '742.504 ( ) which sets out required provisions for

uninsured motorist coverage. That section provided in pertinent part:

          "'(c) Any amount payable under the terms of this coverage because of bodily

       injury sustained in an accident by a person who is an insured under this

       coverage shall be reduced by:

          (A) ***

          (B) The amount paid and the present value of all amounts payable on account

       of such bodily injury under any workers' compensation law ***.'" (Emphasis in

       original.) Bergmann, 337 Or. at 602, 101 P.3d at 357, quoting Or. Rev. Stat.

       '742.504(7)(c) (   ).

   The court noted, first, that the term "coverage" was not synonymous with the term

"policy." While the terms of the policy between the insured and the insurer contained

limits of liability, the only statutory limit as to coverage was the minimum limits. The

court further noted that the phrase, "'any amount payable under the terms of this

coverage because of bodily injury sustained in an accident by a person who is insured

under the coverage'" tracked the wording of the statute defining the insurer's liability for

uninsured coverage. (Emphasis in original.) Bergmann, 337 Or. at 605, 101 P.3d at

358. The court stated:

       "Thus, the amount that is 'payable' by the insurer under the 'coverage' is 'all

                                             14
No. 1-05-1891

       sums' that the insured is 'legally entitled to recover' as a result of an accident with

       an uninsured motorist. In the usual case, that amount would be equal to the

       insurer's total damages, although there may be cases in which the insured would

       not be 'legally entitled to recover' all of his or her damages, such as when the

       tortfeasor is immune from liability or when there has been a determination of

       comparative fault. Notably, in defining the insurer's liability for coverage, ORS

       742.504(1)(a) does not speak to any limits on the insurer's liability under a

       policy." (Emphasis in original.) Bergmann, 337 Or. at 605, 101 P.3d at 358.

   Finally, noting that the uninsured/underinsured motorist statute repeatedly employed

the terms "limits of liability" and "liability limits," the court concluded that "if the

legislature had intended the phrase, 'any amount payable under the terms of this

coverage' in ORS 742.504(7)(c) to mean the insurer's liability limit, it would have done

so expressly." Bergmann, 337 Or. at 607, 101 P.3d at 359.

   State Farm concedes that its policy language is similar to the language in section

742.504(7)(c) of the Oregon Insurance Code. However, State Farm points out that the

decisions of other state courts are not binding on Illinois courts and need not be

followed where the Illinois Supreme Court has addressed the issue. See Fosse v.

Pensabene, 362 Ill. App. 3d 172, 186, 838 N.E.2d 258 (2005) ("this court is not bound to

follow decisions from other states"); Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347

Ill. App. 3d 828, 836, 807 N.E.2d 1165 (2004) ("After our supreme court has declared

the law with respect to an issue, this court must follow that law, as only the supreme

court has authority to overrule or modify its own decisions"). Under the Bergmann

                                                15
No. 1-05-1891

court's construction of the policy language, the insured would do better if the accident

involved an underinsured motorist rather than a fully insured one. That is contrary to

the purpose behind the Illinois statute and, therefore, we will not follow Bergmann. See

Roberts v. Northland Insurance Co., 185 Ill. 2d 262, 269, 705 N.E.2d 762 (1998),

quoting Sulser, 147 Ill. 2d at 558 (General Assembly intended "that underinsured-

motorist coverage 'place the insured in the same position he would have occupied if

injured by a motorist who carried liability insurance in the same amount as the

policyholder'").

   Mr. Coe then argues that the term "amount payable under this coverage" is

ambiguous and must be resolved in his favor as the insured. In determining the extent

to which the limits of liability clause affects the insured's underinsured motorist claim, it

is appropriate to consider an insured's reasonable expectations and the coverage

intended by the policy. McKinney, 296 Ill. App. 3d at 100. Nonetheless, parties to a

contract may agree to any terms they chose unless their agreement is against public

policy. Sulser, 147 Ill. 2d at 559.

   Under the terms of the policy, State Farm promised to pay "damages for bodily injury

an insured is legally entitled to collect from the owner or driver of an underinsured motor

vehicle." (Emphasis omitted.) 3 This promise to pay was subject to the policy's limits of

liability clause under which any workers' compensation benefits "shall reduce the

       3
        There is no dispute in this case that Ms. Moorehouse's vehicle was an

underinsured vehicle.


                                              16
No. 1-05-1891

amount payable under these coverages." "Amount payable under this coverage" is not

ambiguous but clearly refers to the $100,000 available under the underinsured motorist

provision, not the total amount of Mr. Coe's damages.

   Mr. Coe then contends that allowing the workers' compensation setoff against the

underinsured coverage amount without considering the total damages he sustained

violates the purpose behind the underinsured motorist statute. He argues that the

circuit court's interpretation of Sulser conflicts with the supreme court's decision in

Hoglund v. State Farm Mutual Automobile Insurance Co., 148 Ill. 2d 272, 592 N.E.2d

1031 (1992).

   In Hoglund, Ms. Hoglund was insured under her father's automobile liability policy,

which provided $100,000 in uninsured motorist coverage. While a passenger on an

uninsured motorcycle, she was injured when it collided with another vehicle. Both

drivers were at fault, and Ms. Hoglund received the policy limits of $100,000 from the

other driver. As her total damages were over $200,000, she sought the policy limit of

$100,000 under the uninsured motorist coverage of her father's policy.

   The uninsured motorist coverage contained a limits of liability provision stating: "'Any

amount payable under this coverage shall be reduced by any amount paid or payable to

or for the insured: *** or c. under any worker's compensation, disability benefits or

similar law.'" Hoglund, 148 Ill. 2d at 275. Arguing that the policy language tracked

section 143a(4) of the Insurance Code, State Farm maintained that it was entitled to a

setoff against the uninsured motorist coverage of all amounts recovered from other

sources. Since Ms. Hoglund had received $100,000 from the other driver, State Farm

                                             17
No. 1-05-1891

reasoned that it owed nothing to Ms. Hoglund. While the circuit court agreed with State

Farm, the appellate court reversed. On further review, the supreme court affirmed the

appellate court.

   Based on its review of the policies and the Insurance Code, the court found that the

meaning of the setoff provisions was to prevent a double recovery by the insured.

Hoglund, 148 Ill. 2d at 277. In addition to the payment of premiums for the uninsured

motorist coverage, the court also found it significant that Ms. Hoglund was injured by

both an insured and an uninsured motorist, and that State Farm was seeking a credit

"for money paid by another party for that fault which is unrelated to the fault of the

uninsured motorist." Hoglund, 148 Ill. 2d at 279. To allow a literal interpretation of the

policy language would (1) violate the public policy behind the uninsured motorist statute;

(2) nullify the coverage intended by the policies; and (3) deny the policyholder

substantial economic value in return for the payment of premiums. Hoglund, 148 Ill. 2d

at 280.

   The court concluded that by adopting State Farm's argument, the purpose of placing

the injured party in the same position he would be in if the uninsured driver had been

insured would be frustrated. The court pointed out that if the uninsured driver had

carried $100,000 in coverage, as did the other driver, Ms. Hoglund would have been

entitled to collect $100,000 from each driver, which would have "fully compensated her

for her $200,000 in damages." Hoglund, 148 Ill. 2d at 280.

   Mr. Coe's reliance on Hoglund is misplaced. In Banes v. Western States Insurance

Co., 247 Ill. App. 3d 480, 483, 616 N.E.2d 1021 (1993), the court held that, while the

                                             18
No. 1-05-1891

Hoglund rationale was not limited to uninsured motorist cases, it did not apply where

there was only one tortfeasor. The Banes court noted that the "concern for double

recovery arises only in the context of more than one tort-feasor, as the amount paid by

one tort-feasor acts to reduce the recoverable damages from the remaining tort-

feasors." Banes, 247 Ill. App. 3d at 483. In the present case, there is only one

tortfeasor.

   Moreover, unlike the present case, Hoglund did not involve a setoff for workers'

compensation benefits. In Roberts, the supreme court explained that setoffs for

benefits received from workers' compensation implicate different considerations than

setoffs for amounts received from a tortfeasor's liability insurer. Roberts, 185 Ill. 2d at

270 (finding the latter cases inapplicable in deciding cases involving setoffs for workers'

compensation benefits).

   In any event, Hoglund does not support Mr. Coe's argument that "amount payable

under this coverage," means the injured party's total damages. The Hoglund court

agreed that the policies, which contained the same "amount payable under this

coverage" language and the rights to setoffs similar to those in the present case,

permitted the setoffs to reduce State Farm's obligation under the uninsured motorist

coverage to -0-. The "total amount of damages" played no part in the court's analysis of

why the provision was ambiguous; the court was concerned only with the amount of

coverage available. See Hoglund, 148 Ill. 2d at 274, 280 (while Ms. Hoglund claimed

her total damages were over $200,000, the court concluded that she would be fully

compensated by the payment of $200,000).

                                             19
No. 1-05-1891

   Had Ms. Moorehouse carried $100,000 in liability coverage, Mr. Coe would have

been required to reimburse his employer for the $100,000 in workers' compensation

benefits he acknowledged receiving for the accident up to the full amount of the

insurance proceeds of $100,000. See Roberts, 185 Ill. 2d at 268, citing Sulser, 147 Ill.

2d at 553; 820 ILCS 305/5(b) (West 1992). Thus, he would have been left with

$100,000 only, despite his damages being in excess of $150,000. "Underinsured

motorist coverage is 'not intended to allow the insured to recover amounts from the

insurer over and above the coverage provided by the underinsured motorist policy.'"

Banes, 247 Ill. App. 3d at 485, quoting Sulser, 147 Ill. 2d at 556.

   Mr. Coe received $50,000 from Ms. Moorehouse and $100,000 in workers'

compensation benefits from his employer. Without the workers' compensation setoff,

had he also received the $50,000 from his underinsured motorist coverage (the

difference between Ms. Moorehouse's policy limits and Mr. Coe's $100,000

underinsured motorist coverage) he sought in this case, Mr. Coe would receive

$200,000 or twice as much as he would have received had Ms. Moorehouse not been

an underinsured motorist. Allowing State Farm a setoff for the $100,000 workers'

compensation benefit would reduce the amount to $100,000 or the same amount Mr.

Coe would have received if Ms. Moorehouse had carried the same liability limits.

   Crediting State Farm with the workers' compensation benefit, Mr. Coe is in

substantially the same position as he would have been had Ms. Moorehouse carried the

same insurance coverage. Unlike Hoglund, the setoff sought by State Farm is related

to the fault of the underinsured Ms. Moorehouse. Unlike the insured in Hoglund, Mr.

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Coe did receive the insurance protection for which he paid because he was as fully

compensated as he would have been had Ms. Moorehouse carried the same liability

limits as he did. But see McKinney, 296 Ill. App. 3d at 101 (the court, in dicta,

concluded that if "amounts payable" meant the underinsured motorist coverage limit, the

insurer would never pay its underinsured motorist policy limits, rendering an

endorsement for underinsured motorist coverage an illusory contract).

   We conclude that the term "amount payable under this coverage" was not

ambiguous and did not include the total damages incurred by Mr. Coe. We further

conclude that the setoff for workers' compensation benefits in this case did not violate

the purpose of the underinsured motorist statute, and therefore, did not violate public

policy. Thus, the circuit court's order granting summary judgment to State Farm and

denying summary judgment to Mr. Coe was correct.

   The judgment of the circuit court is affirmed.

   Affirmed.

   GARCIA, P.J., and WOLFSON, J., concur.




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