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                                    Appellate Court                           Date: 2016.12.27
                                                                              10:35:16 -06'00'




           Sherrod v. Esurance Insurance Services, Inc., 2016 IL App (5th) 150083



Appellate Court         APRYL   SHERROD,    Plaintiff-Appellee, v.     ESURANCE
Caption                 INSURANCE SERVICES, INC., Defendant-Appellant.



District & No.          Fifth District
                        Docket No. 5-15-0083


Rule 23 order filed     October 4, 2016
Motion to publish
granted                 November 21, 2016
Opinion filed           November 21, 2016


Decision Under          Appeal from the Circuit Court of St. Clair County, No. 13-MR-411;
Review                  the Hon. Richard A. Aguirre, Judge, presiding.



Judgment                Reversed and remanded.



Counsel on              Elizabeth M. Bartolucci, of O’Hagen, LLC, of Chicago, for appellant.
Appeal
                        Jeremy A. Gogel, of The Gogel Law Firm, of St. Louis, Missouri, for
                        appellee.



Panel                   PRESIDING JUSTICE SCHWARM delivered the judgment of the
                        court, with opinion.
                        Justice Welch concurred in the judgment and opinion.
                        Justice Goldenhersh dissented, with opinion.
                                              OPINION

¶1       The defendant, Esurance Insurance Services, Inc. (Esurance), appeals from an order of the
     circuit court of St. Clair County entering summary judgment in favor of the plaintiff, Apryl
     Sherrod, after the parties filed cross-motions for summary judgment. The trial court
     determined that the plaintiff and the estate of the deceased daughter were entitled to the
     underinsured motorist limits under the plaintiff’s Esurance policy in excess to the bodily injury
     liability limits the plaintiff and the estate of the plaintiff’s deceased daughter recovered under
     the at-fault driver’s separate automobile insurance policy, despite the fact that the at-fault
     driver’s bodily injury liability limits exceeded the plaintiff’s underinsured motorist coverage
     limits. Specifically, the trial court found an ambiguity in the Esurance policy’s “Other
     Insurance” clause, which it held must be construed in favor of coverage. We reverse and
     remand.

¶2                                          BACKGROUND
¶3       On April 15, 2011, the plaintiff and her daughter, Amari Clark, were involved in an
     automobile accident after their vehicle was struck by a drunk driver, Andrew Fraticelli. Amari
     Clark died as a result of the accident, and the plaintiff herself sustained severe injuries. At the
     time of the accident, Fraticelli was covered under an insurance policy with liability limits of
     $100,000 per person and $300,000 per occurrence. Pursuant to this policy, Fraticelli’s
     insurance company paid $100,000 to the plaintiff and $100,000 to the estate of Amari Clark.
¶4       Also at the time of the accident, the plaintiff was covered under a personal automobile
     policy issued by Esurance with underinsured motorist liability limits of $50,000 per person and
     $100,000 per occurrence. The relevant provisions of plaintiff’s Esurance policy are as follows:
             “PART III: UNINSURED AND UNDERINSURED MOTORIST COVERAGE
                                                   ***
             INSURING AGREEMENT: UNDERINSURED MOTORIST BODILY INJURY
             COVERAGE
             In return for payment of the premium for this coverage when due, and subject to the
             limits of liability, ‘we’ agree with ‘you’ as follows:
                 1. ‘We’ will pay compensatory damages that an ‘insured’ is legally entitled to
             recover from the ‘owner’ or operator of an ‘underinsured motor vehicle’ because of
             ‘bodily injury’:
                     A. Sustained by an ‘insured’; and
                     B. Caused by an ‘accident’.
             The liability of that ‘owner’ or operator for these damages must arise out of the
             ownership, maintenance, or use of the ‘underinsured motor vehicle’. Any judgment for
             damages arising out of a lawsuit brought without ‘our’ written consent is not binding
             on ‘us’.
                                                   ***
             ADDITIONAL DEFINITIONS FOR PART III: UNINSURED AND
             UNDERINSURED MOTORIST COVERAGE
                                                   ***


                                                  -2-
            ‘Underinsured motor vehicle’ means a land motor vehicle of any type to which a bodily
            injury liability bond, policy or other security required to be maintained under Illinois
            law applies at the time of the ‘accident’ but the sum of the limits of liability for ‘bodily
            injury’ under that bond, policy or other security to an ‘insured’ is less than the
            Underinsured Motorist Bodily Injury Coverage limit of liability under this policy.”
¶5      There is also a “Limit of Liability” section provided under the uninsured and underinsured
     motorist coverage portion of plaintiff’s policy. This section states in relevant part:
            “LIMIT OF LIABILITY
                1. The limit of liability shown in the Declarations page for each person for
            Uninsured Motorist Coverage or Underinsured Motorist Coverage is ‘our’ maximum
            limit of liability for all damages, including, but not limited to, damages for:
                     A. Loss of society;
                     B. Loss of companionship;
                     C. Loss of services;
                     D. Loss of consortium; or
                     E. Wrongful death;
            arising out of ‘bodily injury’ sustained in any one ‘accident’. Subject to this limit for
            each person, the limit of liability shown on the Declarations page for each accident for
            Uninsured/Underinsured Motorist Coverage is ‘our’ maximum limit of liability for all
            damages for ‘bodily injury’ resulting from any one ‘accident’. The limit of liability
            shown in the Declarations page for ‘property damage’ is ‘our’ maximum limit of
            liability for all damages for ‘property damage’ resulting from any one ‘accident’.
            This is the most ‘we’ will pay regardless of the number of:
                     A. ‘Insureds’;
                     B. Claims made;
                     C. Vehicles or premiums shown in the Declarations page; or
                     D. Vehicles involved in the ‘accident’.
            There will be no stacking or combining of coverage afforded to more than one ‘auto’
            under this policy. If more than one policy of uninsured or underinsured motorist
            coverage applies to an ‘accident’, the maximum the ‘insured’ may recover from all of
            the applicable coverage is the highest limit available under one policy for one ‘auto’.
                2. No one will be entitled to receive duplicate payments for the same elements of
            damages under this coverage and:
                     A. Part I: Liability Coverage;
                     B. Part II: Medical and Funeral Services Payments Coverage of this policy; or
                     C. Any other source.
                3. ‘We’ will not make a duplicate payment under this coverage for any element of
            damages for which payment has been made by or on behalf of persons or organizations
            who may be legally responsible.
                                                  ***
                5. The limit of liability shown in the Declarations page for ‘bodily injury’ under
            Part III shall be reduced by all sums:


                                                  -3-
                         A. Paid because of ‘bodily injury’ by or on behalf of any persons or
                     organizations that may be legally responsible, including, but not limited to, all sums
                     paid under Part I;
                                                     ***
                     7. The maximum amount payable pursuant to any underinsured motor vehicle
                insurance settlement agreement shall not exceed the amount by which the limits of the
                underinsured motorist coverage exceed the limits of the ‘bodily injury’ liability
                insurance of the ‘owner’ or operator of the ‘underinsured motor vehicle’.”
¶6         In addition to the “Limit of Liability” section above, the policy further includes an “Other
       Insurance” clause. Specifically, the “Other Insurance” clause states in relevant part:
                “OTHER INSURANCE
                If there is other applicable insurance available under one or more policies or provisions
                of coverage that is similar to the Uninsured Motorist Coverage or Underinsured
                Motorist Coverage provided in this section, ‘we’ will only pay ‘our’ share of the
                damages. ‘Our’ share is the proportion that ‘our’ limit of liability provided in this Part
                III bears to the total of all applicable limits on either a primary or excess basis.
                However:
                         1. Any recovery for damages under all policies or provisions of coverage may
                     equal, but not exceed, the highest applicable limit for any one vehicle under any
                     one insurance policy providing coverage on either a primary or excess basis.
                         2. Any insurance ‘we’ provide with respect to a vehicle ‘you’ do not ‘own’,
                     including any temporary substitute, shall be excess over any collectible insurance
                     providing such coverage on a primary basis.”
¶7         After the plaintiff agreed to settle with Fraticelli’s insurance company for the limits under
       Fraticelli’s policy, the plaintiff submitted a claim to Esurance seeking to recover $50,000 for
       her personal damages and $50,000 for the estate of Amari Clark. Esurance denied the
       plaintiff’s claim. Esurance advised the plaintiff that pursuant to the terms of her policy,
       underinsured motorist coverage was not available because the amount the plaintiff and the
       estate of Amari Clark each received under Fraticelli’s policy ($100,000) exceeded the
       plaintiff’s own policy coverage limits ($50,000).
¶8         The plaintiff subsequently filed a petition for declaratory judgment, seeking a
       determination of the amount of underinsured motorist coverage she was entitled to under her
       Esurance policy. The plaintiff and Esurance then filed cross-motions for summary judgment.
       The trial court returned a judgment in favor of the plaintiff and against Esurance after finding
       an ambiguity in the policy’s “Other Insurance” clause. Because Illinois law requires
       ambiguities in insurance policies to be construed in favor of the insured, the trial court
       determined that the plaintiff and the estate of Amari Clark were each entitled to $50,000 under
       the plaintiff’s Esurance policy in addition to the $100,000 each recovered under Fraticelli’s
       policy. After the trial court denied Esurance’s motion for reconsideration, Esurance timely
       filed its notice of appeal.

¶9                                            ANALYSIS
¶ 10       This appeal is taken from the trial court’s grant of a summary judgment in favor of the
       plaintiff and against Esurance. Summary judgment is appropriate when there is no genuine

                                                    -4-
       issue of material fact and the moving party is entitled to judgment as a matter of law. Valley
       Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 360 (2006). When parties
       file cross-motions for summary judgment, they agree that only a question of law is involved
       and the court should decide the issue based on the record. Millennium Park Joint Venture, LLC
       v. Houlihan, 241 Ill. 2d 281, 309 (2010). A trial court’s entry of a summary judgment is subject
       to de novo review, and the construction of an insurance policy, which presents a question of
       law, is similarly reviewed de novo. Valley Forge Insurance Co., 223 Ill. 2d at 360.
¶ 11        An insurance policy is a contract, and the general rules governing the interpretation of
       contracts also govern the interpretation of insurance policies. Hobbs v. Hartford Insurance Co.
       of the Midwest, 214 Ill. 2d 11, 17 (2005). Accordingly, when a court construes an insurance
       policy, the agreement is to be enforced as written provided that it is unambiguous and only to
       the extent it does not contravene public policy. Johnson v. Davis, 377 Ill. App. 3d 602, 606-07
       (2007). Any ambiguity in the policy must be construed in favor of the insured. Id. at 607.
¶ 12        When determining whether an ambiguity exists, the court must read the provisions of an
       insurance contract together and not in isolation. Id. Policy provisions are considered
       ambiguous if they are subject to more than one reasonable interpretation. Id. Reasonableness is
       essential, and the key is whether the provision is subject to more than one reasonable
       interpretation, not whether creative possibilities may be suggested. Id. As such, we will not
       strain to find an ambiguity where none exists. Hobbs, 214 Ill. 2d at 17.
¶ 13        In the instant case, the issue for our consideration is whether the trial court erred when it
       determined that the plaintiff and the estate of Amari Clark were entitled to the underinsured
       motorist limits under the plaintiff’s Esurance policy, in addition to the amount recovered under
       Fraticelli’s policy, where the amount recovered under Fraticelli’s policy exceeded the
       plaintiff’s own policy limits. The trial court found that when all the provisions of the plaintiff’s
       policy were considered, there existed an ambiguity in the “Other Insurance” clause that must
       be construed in favor of coverage for the plaintiff and the estate of Amari Clark and against
       Esurance.
¶ 14        On appeal, Esurance argues that the statutory and policy definitions of an “underinsured
       motor vehicle” demonstrate that Fraticelli’s vehicle was not an underinsured vehicle, and
       therefore, underinsured motorist coverage was not triggered under the plaintiff’s policy.
¶ 15        The burden is on the insured to prove that its claim falls within the coverage of an
       insurance policy. Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453-54 (2009). Once the
       insured has demonstrated coverage, the burden shifts to the insurer to prove that a limitation or
       exclusion applies. Id. The issue of ambiguity regarding the extent of underinsured motorist
       coverage, as opposed to the existence of underinsured motorist coverage, only arises when the
       existence of coverage is established. See Hobbs, 214 Ill. 2d at 23; see also Bruder v. Country
       Mutual Insurance Co., 156 Ill. 2d 179, 187 (1993) (issue of whether coverages can be stacked
       arises only because it is a given that coverage exists under the policies).
¶ 16        In the present case, the underinsured motorist coverage portion of the policy provides that
       Esurance will pay compensatory damages that an insured “is legally entitled to recover from
       the ‘owner’ or operator of an ‘underinsured motor vehicle’ because of ‘bodily injury’ ”
       sustained by the insured and caused by the accident. The Illinois Insurance Code defines an
       underinsured motor vehicle 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

                                                    -5-
                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 motor vehicle.” 215 ILCS 5/143a-2(4) (West 2008).
¶ 17        Section 143a-2(4) of the Insurance Code clearly reveals the General Assembly’s intent to
       limit underinsured motorist carriers from having to provide benefits where the limits of the
       bodily injury liability insurance applicable to an at-fault driver’s vehicle exceed the limits of
       the relevant underinsured motorist coverage. Id.; Thurman v. Grinnell Mutual Reinsurance
       Co., 327 Ill. App. 3d 920, 927-28 (2002) (statute mandated no amount payable by underinsured
       motorist insurer because coverage limits of underinsured motorist policy were less than the
       liability limits of the at-fault driver’s policy); see also Roberts v. Northland Insurance Co., 185
       Ill. 2d 262, 269 (1998) (General Assembly intended that underinsured motorist coverage place
       insured in same position he would have occupied if injured by a tortfeasor who carried liability
       insurance in the same amount as the insured).
¶ 18        Consistent with the statutory definition above, the policy at issue defines an underinsured
       motor vehicle as follows:
                “ ‘Underinsured motor vehicle’ means a land motor vehicle of any type to which a
                bodily injury liability bond, policy or other security required to be maintained under
                Illinois law applies at the time of the ‘accident’ but the sum of the limits of liability for
                ‘bodily injury’ under that bond, policy or other security to an ‘insured’ is less than the
                Underinsured Motorist Bodily Injury Coverage limit of liability under this policy.”
¶ 19        Notably, the plaintiff concedes that the definition of an underinsured motor vehicle is not
       ambiguous. Thus, the contract between Esurance and the plaintiff clearly states that an
       underinsured motor vehicle is a vehicle whose limits for bodily injury liability are “less than
       the Underinsured Motorist Bodily Injury Coverage limit of liability under this policy.” Since
       Fraticelli’s coverage was not less than the limit of liability under the plaintiff’s policy,
       Fraticelli’s vehicle did not constitute an “underinsured motor vehicle” under either the
       plaintiff’s policy or the Insurance Code, and there is no basis for underinsured motorist
       coverage.
¶ 20        Moreover, a plain reading of the “Limit of Liability” section of the policy is also consistent
       with the statutory language of the Insurance Code and further supports the conclusion that
       Esurance is not obligated to pay underinsured motorist coverage to its insured. See Thurman,
       327 Ill. App. 3d at 929 (section 143a-2(4) makes it “clear that where the limits of the
       underinsured-motorist coverage do not exceed the limits of the bodily injury liability insurance
       of the owner or operator of the underinsured motor vehicle, there is no amount payable by the
       underinsured-motorist-coverage carrier” (emphases in original)). In the “Limit of Liability”
       portion of the plaintiff’s insurance policy, the contract provides that “[t]he limit of liability
       shown in the Declarations page for ‘bodily injury’ under Part III shall be reduced by all sums
       *** [p]aid because of ‘bodily injury’ by or on behalf of any persons *** that may be legally
       responsible.”

                                                     -6-
¶ 21        The effect of this provision is to set off the $100,000 paid by Fraticelli’s insurer against the
       $50,000 coverage provided by the defendant. The underinsured motorist coverage, therefore,
       is not excess coverage as the plaintiff argues. Instead, that coverage provides a total amount of
       protection to be paid to the plaintiff if other persons legally responsible for the plaintiff and her
       daughter’s injuries have less liability limits than those provided under the plaintiff’s
       underinsured motorist coverage. Indeed, the plaintiff concedes that Esurance’s policy’s setoff
       provisions are also unambiguous and clearly limit Esurance’s coverage. Thus, this section
       bolsters our conclusion that Esurance is not obligated to pay the plaintiff underinsured motorist
       coverage because the plaintiff and the estate of Amari Clark each received coverage under
       Fraticelli’s policy ($100,000) that is a greater amount than the limits of the plaintiff’s own
       policy ($50,000).
¶ 22        The plaintiff argues that all of the provisions—including the definition of an underinsured
       motor vehicle, the policy’s setoff provisions, and the policy’s “Other Insurance” clause—when
       read together, create an ambiguity in the policy as a whole and require coverage in her and the
       estate’s favor.
¶ 23        As noted above, in part III of the policy relating to uninsured and underinsured motorist
       coverage, it states the following under the heading “OTHER INSURANCE”:
                “If there is other applicable insurance available under one or more policies or
                provisions of coverage that is similar to the Uninsured Motorist Coverage or
                Underinsured Motorist Coverage provided in this section, ‘we’ will only pay ‘our’
                share of the damages. ‘Our’ share is the proportion that ‘our’ limit of liability provided
                in this Part III bears to the total of all applicable limits on either a primary or excess
                basis. However:
                        ***
                        2. Any insurance ‘we’ provide with respect to a vehicle ‘you’ do not ‘own’,
                    including any temporary substitute, shall be excess over any collectible insurance
                    providing such coverage on a primary basis.”
¶ 24        The plaintiff contends that this paragraph creates an ambiguity because this language “can
       reasonably be interpreted by an average lay person to mean that the [underinsured motorist]
       coverage is available in excess to the amounts recovered from the tortfeasor.” The plaintiff
       argues that “[b]ecause the Esurance’s policy specifically states that [underinsured motorist]
       coverage is provided by Esurance with respect to a vehicle not owned by [the plaintiff], it ‘shall
       be excess over any collectible insurance providing such coverage on a primary basis’ ” thereby
       triggering Esurance’s duty to pay its proportion of the total policy limits.
¶ 25        Esurance argues that the “other insurance” provisions in the policy are limiting provisions
       and do not in themselves create coverage. Esurance further argues that when the “excess over
       any collectible insurance” paragraph is read in conjunction with the introductory paragraph, it
       is clear that the other “collectible insurance providing such coverage on a primary basis” refers
       to uninsured motorist, underinsured motorist, or similar coverage.
¶ 26        “Only when a policy is triggered and the insurer becomes obligated to pay *** does the
       ‘other insurance’ clause come into play” to allow liability to be apportioned among insurers.
       Zurich Insurance Co. v. Raymark Industries, Inc., 145 Ill. App. 3d 175, 200 (1986); see also
       Farmers Automobile Insurance Ass’n v. Rowland, 379 Ill. App. 3d 696, 698 (2008) (before the
       “other insurance” clause comes into play, there must be insurance under the policy in the first


                                                     -7-
       place). “ ‘Other,’ as relevant here, means ‘additional.’ Merriam-Webster’s Collegiate
       Dictionary 821 (10th ed. 2001).” Farmers Automobile Insurance Ass’n, 379 Ill. App. 3d at
       698. Because there is no insurance under the policy, there can be no “other” insurance with
       which Esurance can share the loss. Id. “Put another way, because [the] policy unambiguously
       denies [underinsured motorist] coverage here, its proportional share of the total coverage
       would be zero.” Id.
¶ 27       The plaintiff cites Hartford Underwriters Insurance Co. v. Ledbetter, 353 S.W.3d 645
       (Mo. Ct. App. 2011), a Missouri Court of Appeals case, which interpreted an underinsured
       motorist provision that is similar to the one in this case. The plaintiff’s reliance on Ledbetter,
       however, is misplaced. Ledbetter is a Missouri case, applying Missouri law, and is therefore
       not binding precedent in Illinois. See Fosse v. Pensabene, 362 Ill. App. 3d 172, 186 (2005)
       (“this court is not bound to follow decisions from other states”). Moreover, the policy here
       contained a choice-of-law provision, explicitly stating that any dispute “as to the coverage
       provided or the provisions of the Policy shall be governed by the laws of Illinois.”
¶ 28       In sum, pursuant to the Insurance Code and the express terms of the policy, the plaintiff and
       the estate of Amari Clark cannot recover the policy limits under plaintiff’s Esurance policy,
       since each recovered an amount under Fraticelli’s policy ($100,000) that is greater than
       plaintiff’s policy limits ($50,000). The foregoing definitions of an underinsured motor vehicle
       provide that Fraticelli’s vehicle was not underinsured because Fraticelli’s policy limits
       ($100,000) exceed plaintiff’s policy limits ($50,000). “[A]n ‘other insurance’ provision does
       not create an ambiguity where an unambiguous provision otherwise bars coverage.” Farmers
       Automobile Insurance Ass’n, 379 Ill. App. 3d at 698. Accordingly, the plaintiff’s attempt to
       rely on the “other insurance” provision to create an ambiguity fails.

¶ 29                                         CONCLUSION
¶ 30       For the reasons stated herein, we reverse the judgment of the circuit court of St. Clair
       County granting summary judgment in favor of the plaintiff. We remand the cause to the
       circuit court to enter judgment in Esurance’s favor.

¶ 31      Reversed and remanded.

¶ 32       JUSTICE GOLDENHERSH, dissenting.
¶ 33       I respectfully dissent. A plain reading of the “Limit of Liability” section quoted in the
       majority opinion, when read in isolation, would suggest Esurance is not obligated to pay
       underinsured motorist coverage to its insured when its insured has received coverage under a
       separate policy that exceeds the insured’s own policy limits. Thus, as it relates to the instant
       case, this section alone suggests Esurance is not obligated to pay plaintiff’s underinsured
       motorist coverage because plaintiff and the estate of Amari Clark each received coverage
       under Fraticelli’s policy ($100,000) that is a greater amount than the limits of plaintiff’s own
       policy ($50,000). However, when interpreting an insurance contract, courts must read the
       policy provisions together and not in isolation. Johnson, 377 Ill. App. 3d at 607.
¶ 34       In addition to the “Limit of Liability” section, the policy further provides an “Other
       Insurance” clause which contains ambiguity which must be construed in favor of plaintiff and
       the estate of Amari Clark. Specifically, the “Other Insurance” clause states in relevant part:


                                                   -8-
               “OTHER INSURANCE
               If there is other applicable insurance available under one or more policies or provisions
               of coverage that is similar to the Uninsured Motorist Coverage or Underinsured
               Motorist Coverage provided in this section, ‘we’ will only pay ‘our’ share of the
               damages. ‘Our’ share is the proportion that ‘our’ limit of liability provided in this Part
               III bears to the total of all applicable limits on either a primary or excess basis.
               However:
                        1. Any recovery for damages under all policies or provisions of coverage may
                    equal, but not exceed, the highest applicable limit for any one vehicle under any
                    one insurance policy providing coverage on either a primary or excess basis.
                        2. Any insurance ‘we’ provide with respect to a vehicle ‘you’ do not ‘own’,
                    including any temporary substitute, shall be excess over any collectible insurance
                    providing such coverage on a primary basis.”
¶ 35       The plain language of the “Other Insurance” clause indicates Esurance has contemplated
       situations in which an insured may recover underinsured motorist coverage in excess to
       amounts already recovered under the tortfeasor’s separate insurance policy. The “Other
       Insurance” clause expressly states that Esurance will provide underinsured motorist coverage
       to a vehicle not owned by the insured, and this coverage “shall be excess over any collectible
       insurance providing such coverage on a primary basis.” Accordingly, I find plaintiff’s
       Esurance policy containing underinsured motorist coverage limits of $50,000 per person and
       $100,000 per occurrence which may be obtained in excess of what was recovered under
       Fraticelli’s insurance policy.
¶ 36       Esurance’s primary argument on appeal concerns whether plaintiff’s underinsured
       motorist coverage was triggered. Esurance argues the statutory and policy definitions of an
       underinsured motor vehicle demonstrate that Fraticelli’s vehicle was not an underinsured
       vehicle, and, therefore, underinsured motorist coverage was not triggered under plaintiff’s
       policy. Esurance contends underinsured motorist coverage cannot be owed to plaintiff and the
       estate of Amari Clark, since plaintiff was not involved in an accident with an underinsured
       motor vehicle.
¶ 37       The Insurance Code defines an underinsured motor vehicle 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 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 motor vehicle.” 215 ILCS 5/143a-2(4) (West 2008).
¶ 38       Consistent with the statutory definition above, the policy at issue defines an underinsured
       motor vehicle as follows:



                                                   -9-
               “ ‘Underinsured motor vehicle’ means a land motor vehicle of any type to which a
               bodily injury liability bond, policy or other security required to be maintained under
               Illinois law applies at the time of the ‘accident’ but the sum of the limits of liability for
               ‘bodily injury’ under that bond, policy or other security to an ‘insured’ is less than the
               Underinsured Motorist Bodily Injury Coverage limit of liability under this policy.”
¶ 39       As indicated above, the insuring agreement provided under the underinsured motorist
       coverage portion of the Esurance policy incorporates the above definition of an underinsured
       motor vehicle, and states in relevant part:
               “INSURING AGREEMENT: UNDERINSURED MOTORIST BODILY INJURY
               COVERAGE
               In return for payment of the premium for this coverage when due, and subject to the
               limits of liability, ‘we’ agree with ‘you’ as follows:
                    1. ‘We’ will pay compensatory damages that an ‘insured’ is legally entitled to
               recover from the ‘owner’ or operator of an ‘underinsured motor vehicle’ because of
               ‘bodily injury’:
                        A. Sustained by an ‘insured’; and
                        B. Caused by an ‘accident’.”
¶ 40       I disagree with Esurance’s assertion that plaintiff and the estate of Amari Clark cannot
       recover the policy limits under plaintiff’s Esurance policy. While the foregoing definitions of
       an underinsured motor vehicle suggest Fraticelli’s vehicle was not underinsured because
       Fraticelli’s policy limits ($100,000) exceed plaintiff’s policy limits ($50,000), this does not
       preclude plaintiff and the estate of Amari Clark from recovery under plaintiff’s Esurance
       policy.
¶ 41       The instant case closely resembles Hartford Underwriters Insurance Co. v. Ledbetter, 353
       S.W.3d 645 (Mo. Ct. App. 2011), a Missouri Court of Appeals case that interpreted a nearly
       identical underinsured motorist provision. Although this court is not bound to follow a
       Missouri appeals court decision, such decision can provide guidance and serve as persuasive
       authority.
¶ 42       The litigation in Ledbetter arose from an automobile accident in which the insured was
       injured after her vehicle was struck by a vehicle operated by Danny Harris (Harris). The
       insured brought suit against Harris for injuries sustained in the accident. At the time of the
       accident, Harris was covered by an insurance policy with limits of $50,000 for injuries
       sustained by a single person in an automobile accident. The insured’s suit against Harris was
       settled in exchange for the insured receiving Harris’s policy limits of $50,000 and a dismissal
       of the lawsuit.
¶ 43       Also at the time of the accident, the insured held an insurance policy with Hartford
       Underwriters Insurance Company (Hartford), which provided $50,000 underinsured motorist
       coverage on each of the insured’s four covered vehicles. The insured claimed entitlement to
       underinsured motorist coverage under the terms of the Hartford policy, which Hartford denied.
       Hartford argued that the vehicle operated by Harris was not an underinsured motor vehicle
       under the terms of the policy because Harris and Hartford each contained the same liability
       limits of $50,000 and Harris had already paid the insured $50,000. Since the Hartford policy
       defined an underinsured motor vehicle as one with liability limits less than the limits of its
       policy, Hartford asserted Harris’s vehicle could not be considered as being underinsured.

                                                    - 10 -
¶ 44      In relevant part, the Hartford policy set out as follows:
              “ ‘SECTION II—UNDERINSURED MOTORISTS COVERAGE
                                                     ***
                   A. We will pay compensatory damages which an insured is legally entitled to
              recover from the owner or operator of an underinsured motor vehicle because of bodily
              injury ***
                                                     ***
                   C. “Underinsured motor vehicle” means a land motor vehicle or trailer of any type
              to which a bodily injury liability bond or policy applies at the time of the accident but
              its limit for bodily injury liability is less than the limit of liability for this coverage.
                                                     ***

               LIMIT OF LIABILITY
                    A. The limit of liability shown in the Declarations for each person for
               [underinsured motorist] is our maximum limit of liability for all damages, including
               damages for care, loss of services or death, arising out of bodily injury sustained by any
               one person in any one accident. Subject to this limit for each person, the limit of
               liability shown in the Declarations for each accident for [underinsured motorist] is our
               maximum limit of liability for all damages for bodily injury resulting from any one
               accident.
               This is the most we will pay regardless of the number of:
                    1. Insureds;
                    2. Claims made;
                    3. Vehicles or premiums shown in the Declarations; or
                    4. Vehicles involved in the accident
                                                    ***
               OTHER INSURANCE
               If there is other applicable insurance available under one or more policies or provisions
               of coverage that is similar to the insurance provided by this Part:
                    1. Any recovery for damages under all policies or provisions of coverage may equal
               but not exceed the highest applicable limit for any one vehicle under any insurance
               providing coverage on either a primary or excess basis.
                    2. Any insurance we provide with respect to a vehicle you do not own shall be
               excess over any collectible insurance providing such coverage on a primary basis.’ ”
               (Emphasis in original.) Ledbetter, 353 S.W.3d at 647-48.
¶ 45       The trial court entered summary judgment for Hartford, and the insured appealed. The
       court of appeals reversed the trial court after finding the “other insurance” provision of the
       policy created an ambiguity that must be construed in favor of the insured. As indicated above,
       the “other insurance” clause at issue provided:
               “ ‘Any insurance we provide with respect to a vehicle you do not own shall be excess
               over any collectible insurance providing such coverage on a primary basis.’ ”
               Ledbetter, 353 S.W.3d at 648.


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¶ 46        After reviewing the “Other Insurance” clause, the court determined:
                    “[A]n objective examination of the ‘excess’ language of the Other Insurance clause
               suggests not just that this language might reasonably be interpreted by an average lay
               person to mean underinsured coverage was excess to amounts recovered from the
               tortfeasor ***, it could also be interpreted to mean that this language prevailed over the
               preceding and apparently conflicting language contained in the [P]olicy’s definition of
               underinsured and Limits of Liability sections. [Citation.] This created an ambiguity
               which must be resolved in favor of Insured and in favor of [underinsured motorist]
               coverage under the terms of the Policy.” (Internal quotation marks omitted.) Ledbetter,
               353 S.W.3d at 652.
¶ 47        Similar to Ledbetter, plaintiff here is seeking to recover underinsured motorist limits
       ($50,000) in excess to an amount recovered under a separate policy ($100,000), despite the
       amount already recovered being equal to or greater than plaintiff’s underinsured motorist
       limits. As in Ledbetter, this court is being asked to examine the excess language in the “Other
       Insurance” clause of plaintiff’s Esurance policy. Notably, the policy provisions in Ledbetter
       and the instant case contain nearly identical “Limit of Liability” and “Other Insurance”
       clauses. Both policy provisions also contain corresponding definitions of what constitutes an
       underinsured motor vehicle.
¶ 48        Given the plain language of the “Other Insurance” clause, “[a]ny insurance we provide
       with respect to a vehicle you do not own shall be excess over any collectible insurance
       providing such coverage on a primary basis,” along with the court’s reasoning in Ledbetter,
       which is persuasive authority, I find there is an ambiguity in plaintiff’s policy which must be
       construed in favor of the insured. This is not a case where one must be creative to find an
       ambiguity. As in Ledbetter, the excess language of the “Other Insurance” clause can
       reasonably be interpreted to denote underinsured coverage in excess to amounts recovered
       from the tortfeasor. Further, the “Other Insurance” clause can also reasonably be interpreted to
       denote that the excess language prevails over the conflicting language contained in the policy’s
       definitions regarding the underinsured and limit of liability provisions.
¶ 49        For these reasons, I conclude there is an ambiguity in plaintiff’s Esurance policy that must
       be construed in favor of the insured. Thus, plaintiff and the estate of Amari Clark may obtain
       coverage under plaintiff’s Esurance policy in excess to what was received under Fraticelli’s
       policy. Accordingly, the trial court did not err in awarding $50,000 to plaintiff and $50,000 to
       the estate of Amari Clark under plaintiff’s Esurance policy in addition to the $100,000 each
       received under Fraticelli’s policy.
¶ 50        Esurance cites this court’s decision in Thurman v. Grinnell Mutual Reinsurance Co., 327
       Ill. App. 3d 920 (2002), in support of its argument that underinsured motorist coverage cannot
       properly be found to be owed to plaintiff. At issue in Thurman was whether the plaintiff was
       entitled to underinsured motorist coverage under her policy where the limits of her coverage
       were less than the limits of the bodily injury liability insurance of the at-fault driver from
       which the plaintiff recovered the maximum amount. The dispositive question presented to this
       court was whether section 143a-2(4) of the Insurance Code prohibited plaintiff from
       recovering the underinsured motorist coverage benefits under her policy.
¶ 51        The version of section 143a-2(4) in effect at the time of the accident included the following
       provision:


                                                   - 12 -
                “ ‘[T]he maximum amount payable by the underinsured[-]motorist[-]coverage carrier
                shall not exceed the amount by which the limits of the underinsured[-]motorist
                coverage exceeds [sic] the limits of the bodily[-]injury liability insurance of the owner
                or operator of the underinsured motor vehicle.’ (Emphasis added.) 215 ILCS
                5/143a-2(4) (West 1998).” Thurman, 327 Ill. App. 3d at 928.
¶ 52       After reviewing the above provision, this court found no ambiguity. Specifically, this court
       stated that section 143a-2(4) makes it “clear that where the limits of the underinsured-motorist
       coverage do not exceed the limits of the bodily injury liability insurance of the owner or
       operator of the underinsured motor vehicle, there is no amount payable by the
       underinsured-motorist-coverage carrier.” (Emphases in original.) Thurman, 327 Ill. App. 3d at
       929.
¶ 53       Thurman is distinguishable from the instant case; there is no evidence that the policy at
       issue in Thurman contained language similar to the “Other Insurance” provision of plaintiff’s
       Esurance policy. For the reasons stated above, the “Other Insurance” clause creates an
       ambiguity when interpreting the policy as a whole, which must be construed in favor of
       coverage for the insured.
¶ 54       Citing section 143a-2(4) of the Insurance Code in its current version, Esurance further
       alleges the trial court improperly interpreted or ignored the policy and Insurance Code’s setoff
       provisions. Esurance asserts the policy’s setoff provisions unambiguously establish its right to
       set off the amount plaintiff received under Fraticelli’s policy.
¶ 55       Section 143a-2(4) of the Insurance Code provides, in relevant part:
                “The limits of liability for an insurer providing underinsured motorist coverage shall be
                the limits of such coverage, less those amounts actually recovered under the applicable
                bodily injury insurance policies, bonds or other security maintained on the
                underinsured motor vehicle.” 215 ILCS 5/143a-2(4) (West 2008).
¶ 56       Esurance’s argument is misplaced. Here, plaintiff does not argue the policy’s setoff
       provisions are ambiguous. Rather, plaintiff concedes the policy’s setoff provisions are
       unambiguous when read in isolation from the rest of the policy, as those provisions clearly
       limit Esurance’s coverage. However, insurance policies are not to be read in isolation, but as a
       whole. After carefully considering the setoff provisions along with all other portions of the
       policy, particularly the “Other Insurance” clause, I find an ambiguity which must be construed
       in favor of the insured.
¶ 57       Esurance also argues plaintiff’s claim should be barred by the anti-stacking language
       provided in the policy. In support of its argument, Esurance cites the following three cases:
       Willison v. Economy Fire & Casualty Co., 294 Ill. App. 3d 793 (1998); McElmeel v. Safeco
       Insurance Co. of America, 365 Ill. App. 3d 736 (2006); Hobbs v. Hartford Insurance Co. of the
       Midwest, 214 Ill. 2d 11 (2005).
¶ 58       Each of the above-referenced cases involved a plaintiff seeking to stack the insurance
       benefits of either multiple policies issued by the same insurer or the coverage benefits for
       multiple vehicles covered under the same policy. These courts held that the anti-stacking
       clauses provided in the policies unambiguously prohibited the plaintiff from stacking
       uninsured motorist benefits.
¶ 59       The instant case is distinguishable from the three cases cited above. Here, plaintiff is not
       seeking to stack coverage. Rather, plaintiff is requesting the underinsured motorist limits


                                                   - 13 -
       provided in the declarations page of her personal automobile policy for the single vehicle she
       owned in excess to the bodily injury limits recovered under Fraticelli’s separate policy. Unlike
       the three cases Esurance cites above, plaintiff is not attempting to stack similar coverage limits.
¶ 60       Lastly, Esurance asserts the introductory language in the “Other Insurance” section of the
       policy demonstrates that the “Other Insurance” section is only implicated in situations where
       the insured attempts to stack multiple underinsured motorist limits or coverage that is similar
       to the insured’s underinsured motorist coverage, which Esurance alleges is not the case here.
       The introductory language Esurance references provides:
               “If there is other applicable insurance available under one or more policies or
               provisions of coverage that is similar to the Uninsured Motorist Coverage or
               Underinsured Motorist Coverage provided in this section, ‘we’ will only pay ‘our’
               share of the damages.”
¶ 61       Esurance argues that even if plaintiff’s underinsured motorist coverage were to be
       triggered, the policy’s “Other Insurance” provisions are not implicated because plaintiff is not
       attempting to obtain underinsured motorist coverage under different policies. I disagree with
       Esurance’s proposition.
¶ 62       Here, plaintiff is seeking the uninsured motorist limits under her personal automobile
       policy in excess of the bodily injury limits recovered under Fraticelli’s policy for injuries
       sustained in the same accident. Importantly, both Fraticelli’s bodily injury liability coverage
       and plaintiff’s underinsured motorist coverage protect similar risks in this case, as both
       concern the damages sustained by plaintiff and Amari Clark in the accident. I cannot say these
       two coverages are so dissimilar such that the “Other Insurance” clause does not apply.
       Accordingly, I would reject Esurance’s argument concerning the introductory language of the
       “Other Insurance” clause.
¶ 63       For the reasons stated herein, the judgment of the circuit court of St. Clair County granting
       summary judgment in favor of plaintiff and against Esurance should be affirmed.




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