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                                    Appellate Court                           Date: 2018.04.16
                                                                              09:47:55 -05'00'




             Busch v. Country Financial Insurance Co., 2018 IL App (5th) 140621



Appellate Court         GEORGIE BUSCH, Individually and as Special Administrator of the
Caption                 Estate of Amber Wood, Deceased, Plaintiff-Appellee, v. COUNTRY
                        FINANCIAL INSURANCE COMPANY, Defendant-Appellant.



District & No.          Fifth District
                        Docket No. 5-14-0621



Rule 23 order filed     January 17, 2018
Motion to publish
allowed                 February 22, 2018
Opinion filed           February 22, 2018



Decision Under          Appeal from the Circuit Court of Madison County, No. 14-MR-100;
Review                  the Hon. Donald M. Flack, Judge, presiding.



Judgment                Reversed and remanded with directions.


Counsel on              Keith G. Carlson, of Carlson Law Offices, of Chicago, and David T.
Appeal                  Butsch, of Butsch, Roberts & Associates, LLC, of Clayton, Missouri,
                        for appellant.

                        Lanny Darr, of Schrempf, Kelly, Napp & Darr, Ltd., of Alton, for
                        appellee.
     Panel                     JUSTICE MOORE delivered the judgment of the court, with opinion.
                               Justice Cates concurred in the judgment and opinion.
                               Justice Goldenhersh dissented, with opinion.


                                                 OPINION

¶1         This appeal is taken from the Madison County circuit court’s order granting summary
       judgment in favor of the plaintiff, Georgie Busch, and against the defendant, Country Financial
       Insurance Company (Country Mutual). 1 The circuit court found that the antistacking
       provisions in Country Mutual’s insurance policies were ambiguous and should be construed
       against Country Mutual. On April 13, 2017, this court issued a decision in this cause, which
       affirmed the order of the circuit court. On May 5, 2017, Country Mutual filed a petition for
       rehearing, which this court granted on May 26, 2017. After full briefing on the petition for
       rehearing pursuant to Illinois Supreme Court Rule 367 (eff. Aug. 15, 2016), we reverse and
       remand with directions that a summary judgment be entered in favor of Country Mutual.

¶2                                                FACTS
¶3         The following facts are not in dispute. The plaintiff is the mother of Amber Wood. On
       April 27, 2012, at approximately 1:49 a.m., 23-year-old Amber was killed by a speeding
       hit-and-run driver as she attempted to cross South Broadway in St. Louis, Missouri. At the time
       of the accident, the plaintiff and Amber were insured under the following two insurance
       policies issued by Country Mutual:
               “a. Policy no. A12A8077880
                   Uninsured limits: $100,000
                   Named insureds: Georgie Busch and Amber Wood
                   Insured vehicle: 2001 Ford Focus (primary driver Amber Wood)
               b. Policy no. A12A3258332
                   Uninsured limits: $250,000
                   Named insured: Georgie Busch
                   Insured vehicle: 2003 Infiniti (primary driver Georgie Busch)”
¶4         Following Amber’s accident, the plaintiff, individually and as special administrator of the
       estate of Amber Wood, deceased, sought uninsured motorist coverage pursuant to the two
       policies. The parties stipulated there was no question of liability and that the total amount of
       damages for wrongful death met or exceeded $350,000, which is the total combined uninsured
       limits of the two policies. On or about July 24, 2014, Country Mutual paid the $250,000
       uninsured limits under the policy listing the plaintiff as the sole named insured. The parties do
       not dispute that Country Mutual has no further obligation to the plaintiff concerning the
       uninsured motorist benefits under this policy. However, Country Mutual denied the plaintiff,


             1
            The circuit court entered an order on May 30, 2014, correcting the misnomer of Country Financial
       and ordering that the defendant shall be designated as Country Mutual in all subsequent pleadings.

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       as the special administrator of Amber’s estate, coverage under the policy listing the plaintiff
       and Amber as the named insureds with uninsured motorist limits of $100,000.
¶5         The parties subsequently filed cross-motions for summary judgment. Country Mutual
       asserted that the $250,000 it had already paid the plaintiff was the maximum amount it was
       obligated to pay in relation to Amber’s accident under both policies, pursuant to the
       antistacking provisions in each policy. The plaintiff argued she was entitled to $100,000 as the
       special administrator of Amber’s estate in addition to the $250,000 she had received
       individually under her own policy since Amber paid a separate premium on a separate policy
       and it was stipulated that the total amount of damages met or exceeded $350,000.
¶6         On November 20, 2014, after briefing by the parties on their cross-motions for summary
       judgment, the circuit court granted the plaintiff’s motion and denied Country Mutual’s motion
       after finding an ambiguity in the provisions of Country Mutual’s policies. The court
       determined this ambiguity must be resolved in favor of the plaintiff, and its order provided that
       the plaintiff was entitled to $100,000 under the subject policy in addition to the $250,000 the
       plaintiff had received under her individual policy. On December 19, 2014, Country Mutual
       timely filed its notice of appeal.
¶7         On April 13, 2017, this court issued a decision in this cause, which affirmed the order of the
       circuit court. On May 5, 2017, Country Mutual filed a petition for rehearing, which this court
       granted on May 26, 2017.

¶8                                               ANALYSIS
¶9          Summary judgment is appropriate only 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 2012). 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). We
       apply de novo review to both the court’s summary judgment ruling and to the extent we
       construct the terms of the insurance policies. Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446,
       455 (2010).
¶ 10        In construing the language of an insurance policy, our primary objective is “to ascertain
       and give effect to the intentions of the parties as expressed by the words of the policy.” Central
       Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). We construe the policy
       as a whole, giving effect to every provision. Id. Where the words used in the policy are clear
       and unambiguous, we afford them their plain, ordinary, and popular meaning. Id. Ambiguous
       policy terms that limit an insurer’s liability will be liberally construed in favor of coverage.
       Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). Ambiguity exists in
       an insurance contract if the language is subject to more than one reasonable interpretation, but
       we will not strain to find an ambiguity where none exists. Id.
¶ 11        Here, the plaintiff and Amber purchased two insurance policies from Country Mutual. The
       first policy, policy No. A12A8077880, lists the plaintiff and Amber as the named insureds and
       includes uninsured motorist limits of $100,000. The second policy, policy No. A12A3258332,
       lists only the plaintiff as the named insured and includes uninsured motorist limits of $250,000.
       Each policy contains, in relevant part, the following language:


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                “General Policy Conditions
                    8. Other Vehicle Insurance with Us. If this policy and any other vehicle insurance
                policy issued to you or a relative by one of our companies apply to the same accident,
                the maximum limit of our liability under all the policies will not exceed the highest
                applicable limit of liability under any one policy.” (Emphases in original.)
¶ 12       Our supreme court has held that an antistacking provision nearly identical to the one at
       issue was unambiguous and did not violate public policy. Grzeszczak v. Illinois Farmers
       Insurance Co., 168 Ill. 2d 216 (1995). The policy at issue unambiguously states that the
       General Policy Conditions are applicable to uninsured/underinsured motorist coverage.
       Nevertheless, the circuit court refused to apply the provision because it found that it conflicted
       with paragraph 4 of the conditions stated in the uninsured/underinsured coverage section of the
       policy, thus creating an ambiguity to be construed against Country Mutual. Paragraph 4 states
       as follows:
                    “4. Other Insurance. If there is other applicable uninsured-underinsured motorists
                insurance that covers a loss, we will pay our proportionate share of that loss. Our share
                is the proportion our limits of liability bear to the total of all applicable limits.
                However, in the case of motor vehicles you do not own, this policy will be excess and
                will apply only in the amount our limit of liability exceeds the sum of the applicable
                limits of liability of all other applicable insurance. We will pay only after all other
                applicable liability limits have been paid.”
¶ 13       The circuit court found that because this “Other Insurance” provision does not clearly limit
       itself to insurance issued by other companies, an ambiguity exists as to which provision to
       apply in the case at bar. We disagree and adopt the reasoning of our colleagues in the Second
       District in American Family Mutual Insurance Co. v. Martin, 312 Ill. App. 3d 829, 833 (2000).
       Reading both provisions together, we find that it is clear that the “Other Vehicle Insurance with
       Us” provision applies where two or more vehicles belonging to the same insured are covered
       by policies issued by Country Mutual, and the “Other Insurance” provision refers only to a
       situation where a different policy issued by a different company applies. See id. If the “Other
       Insurance” provision were intended to refer to other policies issued by Country Mutual, there
       would be no need to refer to a proportionate share; Country Mutual’s proportionate share of
       liability would always be 100%. See id. “Moreover, reading the [‘O]ther [I]nsurance[’] clause
       in this fashion would render the antistacking provision meaningless.” Id. Accordingly, we find
       that each clause applies to a different situation, and the antistacking clause is simply not
       ambiguous.
¶ 14       Our supreme court’s decision in Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179
       (1993), provides further support for our decision. While in Bruder the antistacking provision
       was applied to prevent stacking uninsured motorist coverage on two vehicles set forth on a
       single automobile policy (id. at 189-94), we find this to be a distinction without a difference.
       Although the two vehicles were covered under the same policy, two separate premiums were
       paid, as in the case at bar. Id. at 191. With regard to the “premium rule,” the Illinois Supreme
       Court held that antistacking provisions do not per se violate this rule, whether it be for
       coverage afforded under separate vehicles under one policy or separate policies. Id. at 184.
       Instead, Bruder affirmed that it is the law in Illinois that an insurer is entitled to the
       enforcement of unambiguous antistacking provisions to the extent that such provisions
       represent terms to which the parties have agreed to be bound. Id. at 185-86. As explained

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       above, we find these conditions are met in the case at bar. For these reasons, the circuit court
       erred in granting a summary judgment in favor of the plaintiff and in denying Country
       Mutual’s motion for a summary judgment.

¶ 15                                        CONCLUSION
¶ 16       For the foregoing reasons, we reverse the circuit court’s summary judgment in favor of the
       plaintiff and remand with directions that a summary judgment be entered in favor of Country
       Mutual.

¶ 17      Reversed and remanded with directions.

¶ 18       JUSTICE GOLDENHERSH, dissenting:
¶ 19       I respectfully dissent from the majority opinion and would affirm the trial court’s order
       granting summary judgment in favor of plaintiff and against Country Mutual. After careful
       review of the insurance policies at issue, I find there is a conflict creating an ambiguity when
       the “Other Insurance” clause is compared to the “Other Vehicle Insurance with Us” clause.
       While the “Other Vehicle Insurance with Us” clause attempts to limit Country Mutual’s
       liability to the highest limit of a single policy, the “Other Insurance” clause directly states that
       Country Mutual will pay its proportionate share of a loss if there is applicable uninsured
       motorist insurance covering that loss.
¶ 20       Provisions of an insurance contract must be read together and not in isolation. Johnson v.
       Davis, 377 Ill. App. 3d 602, 607 (2007). I reiterate the majority that where such a provision is
       ambiguous, it will be construed liberally in favor of coverage. Founders Insurance Co. v.
       Munoz, 237 Ill. 2d 424, 433 (2010). As the majority further notes, policy provisions are
       considered ambiguous if they are subject to more than one reasonable interpretation. Johnson,
       377 Ill. App. 3d at 607. Moreover, a policy provision purporting to exclude or limit coverage is
       to be read narrowly and applies only where its terms are clear, definite, and specific. Gillen v.
       State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393 (2005).
¶ 21       In the instant case, Country Mutual issued two separate policies to plaintiff and Amber.
       One policy lists only plaintiff as the named insured, while the other policy lists plaintiff and
       Amber as the named insureds. Importantly, it has been stipulated that the damages of plaintiff
       and Amber’s estate exceed all applicable policy limits.
¶ 22       After careful review, I do not find this is a case where one must be creative to find an
       ambiguity. While both policies contain antistacking language in their respective “Other
       Vehicle Insurance with Us” clauses, each policy also contains an “Other Insurance” clause. My
       plain reading of the “Other Insurance” clause indicates that Country Mutual has contemplated
       situations where more than one of its insurance policies may apply to a single occurrence.
       Specifically, the “Other Insurance” clause provides that Country Mutual will pay its
       proportionate share of a loss where there is other applicable uninsured-underinsured motorist
       insurance covering that loss.
¶ 23       Even assuming the antistacking clause is applicable, Country Mutual’s policies contain
       inconsistent provisions, which should be construed in favor of the insured. Accordingly, given
       that the damages of plaintiff and Amber’s estate exceed all applicable policy limits and that



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       multiple Country Mutual policies may apply to a single occurrence, I would find plaintiff is
       entitled to the policy limits at issue as the administrator of Amber’s estate.
¶ 24       Further, I find it relevant to note that plaintiff is not seeking additional uninsured motorist
       coverage in her individual capacity, but as the special administrator of Amber’s estate on a
       separate policy which lists Amber as a named insured. Here, Country Mutual sold two separate
       insurance policies to plaintiff and Amber, as evidenced by the two separate declaration sheets
       containing differing limits of uninsured motorist coverage, differently assigned policy
       numbers, and different premium amounts.
¶ 25       With this in mind, I find plaintiff is merely seeking coverage for the “each person” limit
       under section 2 of the policies. The $250,000 that plaintiff claimed in her individual capacity
       under her individual policy should not prevent Amber’s estate from claiming the $100,000
       policy limits under the separate policy listing Amber as a named insured. It is of no
       consequence that plaintiff is the individual making the $100,000 claim under Amber’s policy,
       as plaintiff is making the claim as the special administrator of Amber’s estate rather than in her
       individual capacity.
¶ 26       The majority cites our supreme court’s decision in Bruder in support of its decision. In
       Bruder, our supreme court considered whether a plaintiff should be allowed to stack uninsured
       motorist coverage on two vehicles set forth on a single automobile policy issued by Country
       Mutual. Bruder held there was no ambiguity when the antistacking clause was read in
       conjunction with the declarations page because the limit of the uninsured motorist coverage
       was set forth only one time on the declarations page instead of two times. However, the Bruder
       court further discussed what would happen if the uninsured motorist coverage was set forth
       two times on the declarations page, one adjacent to each insured vehicle, stating:
                    “It would not be difficult to find an ambiguity created by such a listing of the bodily
               injury liability limit for each person insured. *** There would be little to suggest in
               such a listing that the parties intended that coverage was to be limited to that provided
               for only one of the two pickup trucks. It would be more reasonable to assume that the
               parties intended that, in return for the two premiums, two *** coverage amounts were
               afforded.” Bruder, 156 Ill. 2d at 192.
¶ 27       In contrast to Bruder, the two policies in the instant case set forth separate uninsured
       motorist coverage limits, once for plaintiff’s individual policy and once for the policy issued to
       plaintiff and Amber. Unlike Bruder where the single policy was covered by a single
       declaration page, here there are two separate policies with two separate declarations sheets
       containing different policy numbers and different premium amounts. This is not a case that
       involves the stacking of liability limits under a single policy. Plaintiff, acting in the capacity of
       the special administrator to Amber’s estate, is seeking the benefit of what was purchased under
       the policy issued to plaintiff and Amber, to which Amber paid a premium.
¶ 28       Since Bruder was decided, Country Mutual has changed its clause to include policies held
       by “relatives.” It is clear that Amber fits the policy definition of “relative.” However, after
       careful review of the policy language, I find this antistacking clause only prevents Amber’s
       estate from making a duplicate claim under plaintiff’s individual policy from which plaintiff
       has received $250,000. Considering it is stipulated that the damages meet or exceed $350,000,
       I find no reason why the antistacking clause would prevent Amber’s estate from making a
       claim against Amber’s separate policy for $100,000. Country Mutual’s payment of $250,000
       to plaintiff under plaintiff’s individual policy should not prevent Amber’s estate from making a

                                                     -6-
       separate claim for $100,000 under Amber’s separate policy to which Amber paid a separate
       premium. As the trial court noted, to do so would permit Country Mutual to collect premiums
       for multiple policies from multiple related household members but be liable only under the
       single largest policy, resulting in a windfall for Country Mutual and an unjust result for its
       insureds.
¶ 29       Finally, I find no reason to focus on the “Other Vehicle Insurance with Us” clause
       contained outside the uninsured motorist section of the policy and ignore the “Other
       Insurance” clause expressly contained within the uninsured motorist section. It is a well-settled
       principle of contract construction that when a contract contains both general and specific
       provisions concerning the same subject, the specific provision controls. Skidmore v.
       Throgmorton, 323 Ill. App. 3d 417, 426 (2001).
¶ 30       Here, the “Other Insurance” provision is specifically provided under section 2 concerning
       uninsured motorist coverage, whereas the “Other Vehicle Insurance with Us” provision is
       stated under the “General Policy Conditions” portion of the policies. While section 2 makes
       reference to the general policy conditions, the antistacking clause lending support to Country
       Mutual’s position is expressly stated outside the uninsured motorist section of the policy.
       Therefore, since both provisions concern uninsured motorist coverage, I would find the
       specific provision “Other Insurance” controls over the general provision “Other Vehicle
       Insurance with Us.” As I previously noted, the “Other Insurance” clause directly states that
       Country Mutual will pay its proportionate share of a loss if there is applicable uninsured
       motorist insurance covering that loss. Accordingly, I believe plaintiff is entitled to the
       coverage limits at issue on behalf of Amber’s estate.
¶ 31       I would find plaintiff is entitled to receive the uninsured policy limits at issue as the
       administrator of Amber’s estate pursuant to the plain language of the “Other Insurance” clause
       in section 2 of the policies. When the “Other Insurance” clause and the “Other Vehicle
       Insurance with Us” clause are read together, the latter, on which Country Mutual relies to deny
       coverage, creates an ambiguity, which should be resolved in favor of the insured. Here, Amber
       paid a premium on a policy that covers the loss at issue, namely uninsured motorist insurance.
       Accordingly, I would find Amber’s estate is entitled to receive the uninsured limits of
       $100,000 under the policy that lists Amber as a named insured. For these reasons, I would
       affirm.




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