                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




        Katz v. State Farm Mutual Automobile Insurance Co., 2012 IL App (1st) 110931




Appellate Court            PHILLIP R. KATZ, Plaintiff-Appellant, v. STATE FARM MUTUAL
Caption                    AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.



District & No.             First District, Second Division
                           Docket No. 1-11-0931


Filed                      February 7, 2012


Held                       In an action arising from an automobile accident where plaintiff was
(Note: This syllabus       insured under three identical policies issued by defendant, but he was
constitutes no part of     driving a vehicle owned by his employer and insured by a second insurer
the opinion of the court   and the other vehicle happened to be insured by defendant, the trial court
but has been prepared      properly rejected plaintiff’s contention that he was entitled to additional
by the Reporter of         underinsured motorist benefits under the three policies issued to him,
Decisions for the          since the trial court properly found plaintiff’s insurer was not plaintiff’s
convenience of the         excess underinsurer and the trial court correctly calculated the applicable
reader.)
                           setoffs to plaintiff’s underinsured motorist benefits, and further,
                           defendant’s conduct in denying plaintiff’s claims was not so unreasonable
                           and vexatious that plaintiff was entitled to damages under section 155 of
                           the Insurance Code.


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CH-08408; the
Review                     Hon. Richard J. Billik, Jr., Judge, presiding.



Judgment                   Affirmed.
Counsel on                 David J. Fitzpatrick & Associates, Ltd., of Chicago (David J. Fitzpatrick,
Appeal                     of counsel), for appellant.

                           Taylor Miller LLC, of Chicago (John R. Adams, of counsel), for appellee.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Presiding Justice Quinn and Justice Connors concurred in the judgment
                           and opinion.



                                              OPINION

¶1          Here we are called upon to determine whether the circuit court properly granted summary
        judgment in favor of defendant State Farm Mutual Automobile Insurance Company (State
        Farm). Plaintiff, Phillip R. Katz, filed an amended complaint against State Farm claiming
        that he was owed additional underinsured motorist benefits under three insurance policies
        issued to him by State Farm. At issue is: (1) whether State Farm is Katz’s excess
        underinsurer; (2) whether the circuit court properly calculated the applicable setoffs to Katz’s
        underinsured motorist benefits; and (3) whether State Farm’s conduct in denying Katz’s
        claims of additional underinsured motorist benefits was unreasonable and vexatious such that
        Katz is entitled to damages under section 155 of the Illinois Insurance Code. 215 ILCS 5/155
        (West 2008). We hold that State Farm is the only underinsurer and not an excess
        underinsurer. The circuit court properly calculated the applicable setoffs to Katz’s
        underinsured motorist benefits. We do not need to address whether State Farm’s conduct in
        denying Katz’s claims of additional underinsured motorist benefits warrants further damages
        because State Farm is not liable to Katz for any further underinsured motorist benefits

¶2                                        JURISDICTION
¶3          On March 18, 2011, the circuit court granted State Farm’s motion for summary judgment
        on Katz’s amended complaint for declaratory judgment and denied Katz’s cross-motion for
        summary judgment. On March 25, 2011, Katz timely filed his notice of appeal. Accordingly,
        this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing
        appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff.
        May 30, 2008).

¶4                                        BACKGROUND
¶5          The facts of this appeal are undisputed. On February 26, 2008, Katz was involved in an
        automobile accident. At the time of the accident, Katz was the named insured on three
        automobile policies issued by State Farm under policy numbers 360 9364-F24-13J; 360

                                                  -2-
       9363-E15-13K, and 153 4222-F08-13. The relevant provisions of these policies are identical
       and each included underinsured motorist benefit coverage limits of $250,000 per person.1 At
       the time of the incident, Katz was driving a vehicle owned by his employer and insured by
       Sentry Select Insurance Company (Sentry). The underinsured motorist coverage under the
       Sentry policy included coverage limits of $50,000 per person. The other vehicle involved in
       the accident, driven by Gregory Belt, was also insured by State Farm and contained a primary
       liability policy limit of $100,000 per person.
¶6          Katz filed the underlying personal injury lawsuit against Belt in the circuit court of Du
       Page County. In settlement of the underlying action, State Farm tendered its primary liability
       policy limits of $100,000 under Belt’s policy to Katz. The settlement order allocated 60%,
       or $60,000, of the $100,000 settlement amount to Katz and 40%, or $40,000, to Katz’s
       spouse in compensation for her loss of consortium claim.
¶7          Katz also received a workers’ compensation benefit, of which $47,654.08 was paid to
       Katz and was available for setoff.2
¶8          Sentry paid Katz $2,345.92 under its policy. Although Sentry is not part of this appeal,
       it appears from the record that Sentry applied a setoff for the workers’ compensation benefits
       Katz received. Sentry’s policy limit for underinsured motorist benefits was $50,000. After
       applying the workers’ compensation setoff of $47,654.08 to the policy limits, $2,345.92 of
       underinsurance motorist benefits remained to be tendered to Katz.
¶9          State Farm, under the policies it issued to Katz, paid him $161,876 in underinsured
       motorist benefits. This amount is $88,124 less than State Farm’s underinsured motorist
       coverage limits of $250,000 under the polices issued to Katz.
¶ 10        On May 3, 2010, Katz filed his amended complaint for declaratory judgment and attached
       as exhibits the three policies issued to him by State Farm. In his amended complaint, Katz
       characterized Sentry as the primary underinsurance policy and State Farm as the excess
       underinsurance policy. Katz stated that Sentry had already tendered him the benefits it owed
       him, after it applied a set-off for Katz’s workers’ compensation benefits. Katz sought to have
       State Farm pay him “the remaining benefit available of $88,124 arising out of the occurrence
       of February 26, 2008.” Katz pointed to the following policy language in the State Farm
       policy to support his position:
                “If There Is Other Underinsured Motor Vehicle Coverage–Coverage W
                ***
                2. Subject to item 1 above, any coverage applicable under this policy shall apply:
                    a. on a primary basis if the insured sustains bodily injury while occupying your
                car, or while not occupying a motor vehicle or trailer.

               1
                We will refer to the three State Farm policies collectively as the State Farm policy because
       the relevant provisions are identical and Katz has not argued before this court or the circuit court that
       the underinsured motorist coverage of the three policies stacks.
               2
                The parties do not dispute that this is the proper amount of workers’ compensation benefits
       available for setoff. The parties only dispute who is able to apply the setoff.

                                                     -3-
                    b. on an excess basis if the insured sustains bodily injury while occupying a
                vehicle other than your car.” (Emphases in original.)
       Katz also sought attorney fees, costs, and statutory penalties.
¶ 11       On July 7, 2010, State Farm filed its motion for summary judgment pursuant to section
       2-1005 of the Illinois Code of Civil Procedure (Code). 735 ILCS 5/2-1005 (West 2008). In
       its motion, State Farm argued that Katz did not have an underinsured motorist claim under
       the Sentry policy because the primary liability limit on Belt’s car in the underlying lawsuit
       was more than the underinsured motorist limits of the Sentry policy. Specifically, the primary
       liability limit for the insurance on Belt’s car was $100,000, whereas the Sentry policy
       contained a $50,000 underinsured motorist limit. State Farm argued that under the Sentry
       policy, Katz did not have a claim for underinsured motorist coverage. State Farm relied upon
       the following language in the Sentry policy, which it attached to its motion:
                “A. COVERAGE
                    1. We will pay all sums the ‘insured’ is legally entitled to recover as
                compensatory damages from the owner or driver of an ‘underinsured motor
                vehicle.’ ”
       The policy defined the term “underinsured motor vehicle” as:
                “ ‘Underinsured motor vehicle’ means a land motor vehicle or ‘trailer’ for which the
           sum of all liability bonds or policies at the time of an ‘accident’ provides at least the
           amounts required by the applicable law where a covered ‘auto’ is principally garaged but
           their limits are less than the limit of this coverage.”
       State Farm argued further that it did not know why Sentry paid Katz $2,345.92, and
       described this payment as a “windfall” for Katz. State Farm noted that “the fact that Mr. Katz
       received a windfall can have no effect on State Farm’s rights or obligations.” Therefore, State
       Farm argued that it is the only applicable underinsurance policy because Sentry’s policy did
       not apply.
¶ 12       In its motion for summary judgment, State Farm also contended that it had already paid
       more than it owed under its own policy with Katz. State Farm relied upon the following
       language in its own policy in making its argument:
                “Coverage W
                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. Under ‘Each Accident’ is the total amount of coverage, subject
           to the amount shown under ‘Each Person’, for all damages due to bodily injury to two
           or more persons in the same accident.
                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

                                                -4-
            amount payable by any policy providing coverage on a primary basis. Any remaining
            reduction shall then be applied to the amount payable by any policy providing coverage
            on an excess basis. However, social security disability benefits shall not be used to
            reduce the amount payable under this coverage.
                3. The underinsured motor vehicle coverage shall be excess over and shall not pay
            again any medical expenses paid under the medical payments coverage.
                4. The limits of liability are not increased because:
                    a. more than one vehicle is insured under this policy;
                    b. more than one person is insured at the time of the accident; or
                    c. more than one underinsured motor vehicle is involved in the same accident.
                5. a. The most we will pay any one insured is the lesser of:
                    (1) the amount 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 injury exceed the sum
                of the ‘each person’ limits of liability of all bodily injury liability insurance coverages
                that apply to the accident.” (Emphases in original.)
¶ 13       State Farm contended that under clause “5 a.(1),” $100,000 must be subtracted from the
       $250,000 policy limit. The $100,000 setoff represents the settlement of the underlying action.
¶ 14        State Farm also argued that an additional setoff of $47,654.08 applied because “clause
       2” of its policy states that workers’ compensation benefits shall reduce the amount of
       underinsured motorist benefits available. According to State Farm, Katz was entitled to
       receive $102, 345.92 under the underinsured motorist policy. This conclusion represents the
       total underinsurance motorist benefit after subtracting both the $100,000 Katz received from
       the Belt settlement and the $47,654.08 in workers’ compensation benefits Katz received from
       the $250,000 policy limit. State Farm stressed that since it had already paid Katz $161,876,
       it “owes him nothing.”
¶ 15        On November 18, 2010, Katz filed his cross-motion for summary judgment and response
       to State Farm’s motion for summary judgment. In his motion, Katz maintained that Sentry
       was the primary underinsurer and State Farm was the excess underinsurer. Katz argues that
       both polices may be stacked so that he is able to claim $50,000 worth of underinsurance
       benefits from Sentry and $250,000 worth of underinsurance benefits from State Farm.
       According to Katz, Sentry was the primary underinsurer and properly first applied the setoff
       of Katz’s workers’ compensation benefits of $47,654.08 before tendering to him $2,395.92
       under its policy. Katz argued that because Sentry had already taken the setoff for Katz’s
       workers’ compensation benefits, State Farm was unable to do so.
¶ 16        On November 30, 2010, State Farm filed its reply in support of its motion for summary
       judgment. In its reply, State Farm argued that the section of its policy that addresses other
       underinsured motor vehicle coverage, and which Katz’s argument is based on, is not
       applicable in this case. State Farm maintained that it is the only underinsurance provider
       because the liability limits of Belt’s policy were greater than the limits of Sentry’s

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       underinsurance policy limits. State Farm also stressed that Katz’s calculation of the
       applicable setoff disregarded the $40,000 of the Belt settlement allocated to Katz’s spouse.
       State Farm argued that Katz’s spouse was an insured under the policy. In support if its
       position, State Farm pointed to the following language of its policy to show Katz’s spouse
       was an insured under the policy and the proper amount to set off:
               “Who Is An Insured–Coverages U, U1 and W Insured–means the person or
           persons covered by uninsured motor vehicle or underinsured motor vehicle coverages.
           With respect to bodily injury, this is:
                   1. the first person named in the declarations;
                   2. his or her spouse;
                   3. their relatives; and
                   4. Any other person while occupying:
                        a. your car, a temporary substitute car, a newly acquired car or a trailer
                   attached to such a car. Such vehicle has to be used within the scope of the
                   consent of you or your spouse; or
                        b. a car not owned by or leased to you, your spouse or any other relative, or
                   a trailer attached to such a car. It has to be driven by the first person named in the
                   declarations or that persons’s spouse and within the scope of the owner’s
                   consent.
                        ***
                   5. any person entitled to recover damages because of bodily injury to an insured
               under 1 through 4 above.” (Emphases in original.)
       State Farm argued that Katz was an insured under “clause 1” above and that Katz’s spouse
       is an insured under “clause 5” above due to her loss of consortium claim after the bodily
       injury suffered to an insured, her husband.
¶ 17       On December 22, 2010, Katz filed a reply to State Farm’s response, in which he
       maintained that Sentry was the primary underinsurer. Katz also argued that his spouse’s loss
       of consortium claim cannot be claimed by State Farm as a setoff because the State Farm
       policy does not unambiguously allow it to do so.
¶ 18       On March 18, 2011, the circuit court granted State Farm’s motion for summary judgment
       and denied Katz’s motion for summary judgment. The court found that the relevant
       provisions in both the State Farm policy and the Sentry policy contain unambiguous language
       showing that Sentry cannot be considered an underinsurer. Specifically, the court found that
       Sentry could not be considered Katz’s underinsurer because its underinsurance policy limit
       of $50,000 was less than the primary liability coverage of Belt’s vehicle, which was
       $100,000. The court found that because State Farm was the only underinsurance policy, the
       provisions in the State Farm policy that Katz relies upon to argue that State Farm is the
       excess underinsurer are not applicable.
¶ 19       The court also found that State Farm was entitled to set off the amount of $100,000,
       which represented the full amount of the primary liability limit of Belt’s vehicle in the
       underlying action. Included in this amount was the $40,000 allocated to Katz’s spouse for

                                                  -6-
       her loss of consortium claim. The court concluded that Katz’s spouse’s “loss of consortium
       claim *** that was settled in the underlying action is derivative in nature resulting from the
       ‘Bodily Injury’ of [Katz].” The court noted that at the hearing on the motion, State Farm
       indicated Katz’s spouse “would not have been precluded from submitting a claim
       derivatively under the State Farm Policies for a loss of consortium,” but that she did not do
       so and is not even a party to this case.
¶ 20       In addition to the $100,000 setoff from the Belt policy, the court found that State Farm
       was also entitled to a setoff of $47,654.08, for Katz’s workers’ compensation benefits
       because State Farm was the only underinsurer. After applying the setoffs of $100,000 and
       $47,654.08 to the underinsured motorist limits of $250,000, as found in the State Farm
       policy, the court concluded Katz was entitled to $102,345.92 in underinsured motorist
       benefits under the State Farm policy. Therefore, the circuit court ordered that “[State Farm]
       has no further liability to [Katz] for [underinsured motorist] benefits under its Policies.” The
       circuit court also found that because it found that State Farm had no further liability to Katz,
       damages pursuant to section 155 of the Insurance Code (215 ILCS 5/155 (West 2008)) were
       not appropriate.
¶ 21       On March 25, 2011, Katz timely filed his notice of appeal. This appeal followed.

¶ 22                                        ANALYSIS
¶ 23       Before this court, Katz argues that he is entitled to be paid by State Farm an additional
       $88,124 in underinsurance benefits. He contends that State Farm should be considered the
       excess underinsurer as opposed to the primary underinsurer. According to Katz’s
       calculations, Sentry, as primary underinsurer, provided $50,000 worth of underinsurance
       benefits under its policy. State Farm, as the excess underinsurer, provided up to $250,000
       worth of excess underinsurance. Katz argues that aggregating or “stacking” the two benefits
       together provides him with an underinsurance benefit of $300,000. Katz maintains that any
       setoffs applied to the underinsurance benefits should first be applied to Sentry, as the primary
       underinsurer, and then any extra setoff applied to State Farm’s policy, as the excess
       underinsurer. Katz calculates the available setoff from his workers’ compensation claim as
       $47,654.08, which he argues should only be applied as a setoff by Sentry. According to Katz,
       because Sentry’s underinsurance policy contains a $50,000 underinsurance benefit and the
       workers’ compensation setoff must first be applied by the primary underinsurer, there was
       no setoff available for State Farm. Accordingly, Katz contends because State Farm had
       already paid him $161,876, he believes he is entitled to the rest of the $250,000
       underinsurance benefit provided by State Farm, which would total $88,124.3 Katz also argues
       that he is entitled to additional damages based on State Farm’s alleged “unreasonable and
       vexatious conduct” under section 155 of the Insurance Code. 215 ILCS 5/155 (West 2008).
¶ 24       State Farm argues before this court that the Sentry policy provided no underinsured


               3
                 Despite State Farm’s position that it owes Katz only $102,345.92 in underinsurance
       benefits, it had previously issued Katz two payments, one for $150,652 and another for $11, 224 for
       a total of $161,876.

                                                  -7-
       motorist coverage for Katz’s accident, and as support for its position, it relies on both the
       relevant language of the Sentry policy and the statutory definition of underinsured motor
       vehicle as found in section 143a-2(4) of the Insurance Code. 215 ILCS 5/143a-2(4) (West
       2008). Because Sentry does not provide any underinsured motorist coverage, State Farm
       contends that it is the only underinsurer. According to State Farm, Katz is only entitled to
       receive $102,345.92 in underinsured motorist benefits from the polices it issued to Katz.
       State Farm arrives at this amount by subtracting the following setoffs from the $250,000
       limits of the underinsured motorist provisions of its policy: the $100,000 settlement Katz
       received from the underlying action and the $47,654.08 in workers’ compensation benefits
       Katz received.
¶ 25       Summary judgment is proper where “the pleadings, depositions, and admissions on file,
       together with the affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2008). This court has held that “construction of an insurance policy provision is a
       question of law that can be properly decided on a motion for summary judgment.” Jones v.
       Country Mutual Insurance Co., 371 Ill. App. 3d 1096, 1098 (2007). We review summary
       judgment rulings de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113
       (1995).
¶ 26       When reviewing an insurance policy, we utilize principles of contract interpretation
       because an insurance policy is a contract. Jones, 371 Ill. App. 3d at 1098. We must therefore
       “determine and give effect to the intent of the parties, as expressed in the policy language.”
       Id. Ambiguous language in an insurance policy that limits an insurer’s liability will be
       construed in favor of the insured; whereas unambiguous language, unless it conflicts with
       public policy, will be applied as written. Id. at 1098-99.
¶ 27       The Insurance Code defines an underinsured motor vehicle as follows:
           “[T]he 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 or 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 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
           vehicle.” 215 ILCS 5/143a-2(4) (West 2008).
       The legislative purpose behind underinsured motorist 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, 57 (2011) (quoting Sulser v. Country Mutual
       Insurance Co., 147 Ill. 2d 548, 555 (1992)).
¶ 28       In this case, Sentry’s policy defines an underinsured vehicle as a vehicle “for which the
       sum of all liability bonds or policies at the time of the ‘accident’ provides at least the


                                                 -8-
       amounts required by the applicable law *** but their limits are less than the limit of this
       coverage.”
¶ 29        According to the definition of underinsured motorist in Sentry’s policy, Belt, the
       tortfeaser, cannot be considered an underinsured motorist because his primary liability policy
       limit of $100,000 is greater than the $50,000 limit of coverage provided by Sentry under the
       underinsured motor vehicle provision of its policy. Katz has not argued, nor do we hold, that
       the language in the Sentry policy is ambiguous. We must apply insurance provisions as
       written where the language in such a provision is unambiguous. Jones, 371 Ill. App. 3d at
       1098. As written, the Sentry policy provisions addressing underinsured motorist coverage
       exclude Belt as an underinsured motorist.
¶ 30        Most importantly, the definition of underinsured motorist in Sentry’s policy is consistent
       with the definition of an underinsured motor vehicle under section 143a-2(4) of the Insurance
       Code. Section 143a-2(4) of the Insurance Code defines an underinsured motor vehicle as one
       “for which the sum of the limits of liability under all bodily injury liability insurance policies
       *** applicable to the driver *** 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.” 215 ILCS 5/143a-2(4) (West 2008). Under the
       Insurance Code, Belt is also not considered an underinsured motorist because the $100,000
       primary liability limit of his vehicle is greater than the $50,000 underinsured motorist benefit
       limit contained in the Sentry policy.
¶ 31        We disagree with Katz’s characterization of State Farm as the “excess underinsurer”
       because the Sentry policy, which Katz believes is the primary underinsurer, does not apply
       in this case. State Farm cannot be considered to be providing excess coverage where it is the
       only coverage. See Mid-Century Insurance Exchange v. State Farm Mutual Automobile
       Insurance Co., 98 Ill. App. 3d 493, 495-96 (1981) (“Excess clauses are only applicable
       where there is other primary coverage available.”). We hold that State Farm’s policy provides
       the only underinsurance coverage in this case because Belt, the tortfeasor, does not meet the
       definition of an underinsured motorist under either the Sentry policy or section 143a-2(4) of
       the Insurance Code. Katz’s reliance on the provisions of the State Farm policy titled, “If
       There Is Other Underinsured Motor Vehicle Coverage” is misplaced because there is not any
       other underinsured motor vehicle coverage, only the State Farm policy. The record discloses
       that Sentry paid Katz $2,345.92 after allegedly applying a setoff for Katz’s workers’
       compensation benefits. However, State Farm’s obligations under the policy it issued to Katz
       are not determined by Sentry’s actions, but rather the terms of the respective policies and the
       Insurance Code apply. State Farm is not an excess underinsurer; rather, it is the only
       underinsurer. As the only provider of underinsurance coverage, State Farm is entitled to
       apply any applicable setoffs regardless of Sentry’s actions.
¶ 32        Next, we must decide whether the circuit court calculated the proper setoffs to the
       underinsured motorist coverage provided Katz by State Farm. State Farm argues that it is
       entitled to a $100,000 setoff, which represents the primary liability limits of Belt’s policy
       with State Farm that was tendered to Katz in settlement of the underlying action. State
       Farm’s policy issued to Katz contains the provision “[t]he most we will pay any one insured
       is the lesser of: *** the amount which the ‘each person’ limit of this coverage exceeds the

                                                  -9-
       sum of the ‘each person’ limits of all bodily injury liability insurance coverages that apply
       to the accident.” Under this provision, State Farm is entitled to set off $100,000, which
       represents the settlement of the underlying action with Belt and tendered to Katz, from the
       $250,000 coverage limit contained in the policy it issued to Katz.
¶ 33        Katz argues that State Farm cannot set off $40,000 of the $100,000 settlement that was
       tendered to him from Belt because $40,000 of the settlement was allocated to his spouse for
       her loss of consortium. We must look to the language in State Farm’s policy to determine
       whether a loss of consortium claim is a separate injury. Berutti v. State Farm Mutual
       Automobile Insurance Co., 288 Ill. App. 3d 997, 1000 (1997). In this case, State Farm’s
       policy contains the following provisions: “ ‘Bodily injury to one person’ includes all injury
       and damages to others resulting from this bodily injury,” and that “[t]he limits of liability are
       not increased because *** more than one person is insured at the time of the accident.”
       (Emphases in original.) In Berutti v. State Farm Mutual Automobile Insurance Co., this court
       held identical policy language “unambiguously limit defendant’s liability to the per-person
       limitation rather than the per-occurrence limitation.” Id. at 1001. The plaintiff’s loss of
       consortium claim in Berutti was therefore not a separate injury outside of the per-person
       limits of the policy. Id.
¶ 34        As in Berutti, we hold that the language contained in the State Farm policy is not
       ambiguous. Under the State Farm policy, the loss of consortium claim is one that results from
       Katz’s injury and therefore a bodily injury to one person under the policy. See Martin v.
       Illinois Farmers Insurance, 318 Ill. App. 3d 751, 763 (2000) (“loss of consortium is a
       derivative claim to the direct injury that causes it and, as a result, is generally included and
       subject to the policy limitations for bodily injury to one person”); Schweighart v. Standard
       Mutual Insurance Co., 227 Ill. App. 3d 249, 253 (1992). The loss of consortium claim
       derived from Katz’s bodily injury is subject to the per-person limitations under the terms of
       State Farm’s policy. The State Farm policy provides that “[t]he most we will pay any one
       insured is the lesser of: *** the amount which the ‘each person’ limits of all bodily injury
       liability insurance coverages that apply to the accident.” Under this provision, the entire
       $100,000 settlement from the Belt policy, which includes the $40,000 allocated to Katz’s
       spouse for loss of consortium, is set off from the $250,000 underinsured motorist benefits
       limit contained in the State Farm policy issued to Katz. The loss of consortium claim is not
       a separate injury under the policy, and the circuit court did not err when it included it as a set-
       off to Katz’s underinsured motorist benefits.
¶ 35        State Farm also argues that it is entitled to set off $47,654.08 for Katz’s workers’
       compensation benefit. Katz does not dispute that a $47,654.08 workers’ compensation
       benefit setoff is available, but claims only Sentry can utilize it. As shown above, the Sentry
       policy is not applicable in this case. State Farm’s policy provides that “[a]ny amount paid or
       payable to or for the insured under any workers’ compensation *** shall reduce the amount
       payable under this coverage.” (Emphasis omitted.) We do not hold, nor does Katz argue, that
       this language is ambiguous. We must apply unambiguous language as written. Jones, 371 Ill.
       App. 3d at 1098. The language of State Farm’s policy allows for a setoff for workers’
       compensation benefits. We agree with the circuit court that State Farm is entitled to a
       $47,654.08 setoff for workers’ compensation.

                                                  -10-
¶ 36       Based on our conclusion that State Farm does not owe any additional benefits, Katz’s
       final argument, that State Farm’s conduct in denying his claim for an additional $88,124 in
       underinsured motorist benefits was unreasonable and vexatious such that he is entitled to
       damages under section 155 of the Insurance Code (215 ILCS 5/155 (West 2008)) is without
       merit. See Martin, 318 Ill. App. 3d at 764 (“a defendant cannot be liable for section 155
       relief where no benefits are owed”).

¶ 37                                   CONCLUSION
¶ 38      The judgment of the circuit court is affirmed.

¶ 39      Affirmed.




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