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FIFTH DIVISION
June 8, 2001

Plaintiff, Philip Armando, brought a two-count declaratoryjudgment action against defendant, State Farm Mutual AutomobileInsurance Company (State Farm), seeking a determination of his rightto uninsured motorist coverage under his State Farm policy. StateFarm filed a counterclaim for declaratory relief and motion forsummary judgment arguing that under the "other insurance" provisionsof its policy it owed no coverage to plaintiff. Thereafter, plaintifffiled a cross-motion for summary judgment, arguing that the "otherinsurance" clause violated the public policy of this state asexpressed in section 143a of the Illinois Insurance Code (Code). 215ILCS 5/143a (West 1998). The trial court granted summary judgment onthe counterclaim and denied summary judgment on plaintiff's complaint,finding that plaintiff was not entitled to coverage, that the "otherinsurance" provision was consistent with public policy, and that StateFarm did not act vexatiously or unreasonably in handling plaintiff'sclaim. For the following reasons, we affirm.

The following facts are undisputed. On May 22, 1997, whileplaintiff was operating a vehicle owned by Steven and Marie Woodman,he was struck by an uninsured motorist and suffered personal injuries. The Woodmans' vehicle was insured under a policy issued by AmericanFamily Insurance Company (American Family). The policy provided foruninsured motorist coverage with limits of $100,000 per person and$300,000 per occurrence. Plaintiff settled his accident claim againstAmerican Family for the full $100,000 limits of uninsured motoristcoverage. However, he was also the named insured under a policyissued by State Farm and sought additional coverage for his injuriesunder that policy. The limits of liability for uninsured motoristcoverage under the State Farm policy were $100,000 per person and$300,000 per accident.

State Farm denied plaintiff's claim, citing an "other insurance"clause in the policy which defeated coverage. That clause providedthat, when plaintiff had other primary uninsured motorist coverageunder another insurance policy, its State Farm coverage applied asexcess insurance, but only in the amount by which the excess coverageexceeded the primary coverage. Thus, under the terms of the policy,since plaintiff received $100,000 from American Family, State Farmclaimed it owed no additional coverage to plaintiff.

On appeal, plaintiff contends that this restrictive excess clauseis contrary to the public policy of the State of Illinois as expressedin section 143a of the Code. 215 ILCS 5/143a (West 1998). Section143a provides in relevant part that every motor vehicle liabilityinsurance policy issued to an insured must provide coverage for bodilyinjury caused by an uninsured motorist. 215 ILCS 5/143a (West 1998). Specifically, plaintiff argues that, where the insured is occupying anonowned vehicle to which another insurance policy applies, the "otherinsurance" clause amounts to an exclusion of uninsured motoristcoverage which is void and unenforceable under Illinois law, citingIllinois Farmers Insurance Co. v. Cisco, 178 Ill. 2d 386, 687 N.E.2d807 (1997), in support. Additionally, plaintiff argues that theoperation of the "other insurance" clause deprives him of the benefitof his bargain, uninsured motorist coverage under his own policy forwhich he paid a premium.

The policy provision at issue provides as follows:

"If There is Other Uninsured Motor Vehicle Coverage***

3. If the insured sustains bodily injurywhile occupying a vehicle not owned orleased by you, your spouse or anyrelative, and:

a. such vehicle is described onthe declarations page ofanother policy providinguninsured motor vehiclecoverage, ***

*** this coverage applies:

a. as excess to any uninsuredmotor vehicle coverage whichapplies to the vehicle ordriver as primary coverage, but

b. only in the amount by which itexceeds the primary coverage."(Emphasis omitted.)

The terms of an insurance policy are to be applied as writtenunless those terms are in conflict with public policy. Menke v.Country Mutual Insurance Co., 78 Ill. 2d 420, 423, 401 N.E.2d 539, 541(1980). While our supreme court has long ago found "other insurance"clauses to be valid limitations on liability (Putnam v. New AmsterdamCasualty Co., 48 Ill. 2d 71, 83, 269 N.E.2d 97, 103 (1970)), it hasmore recently addressed the public policy concerns of section 143awith respect to various "other insurance" clauses in Luechtefeld v.Allstate Insurance Co., 167 Ill. 2d 148, 656 N.E.2d 1058 (1995), andCisco, 178 Ill. 2d 386, 687 N.E.2d 807. We find these casesinstructive.

In Luechtefeld, the plaintiff was injured when an uninsuredmotorist struck his motorcycle. He made a claim under the policywhich insured the motorcycle and additionally sought coverage under apolicy issued to him by another insurer which covered his othervehicles. Although the latter policy provided for greater uninsuredmotorist coverage than the policy covering his motorcycle, it excludedcoverage for owned vehicles covered by another policy. The plaintiffargued that the exclusion was unenforceable and that he was entitledto coverage under both policies for which he paid a premium. 167 Ill.2d at 149-50, 656 N.E.2d at 1059-60.

The court held that the exclusion did not violate public policybecause the purpose of the statute was to place the policyholder insubstantially the same position he would occupy if the uninsuredmotorist had the minimum liability insurance required under the Code. 167 Ill. 2d at 152, 656 N.E.2d at 1061. Where the insured selectedthe policy limits that applied to the vehicle in which the injuryoccurred, as long as the coverage under that policy equaled orexceeded the statutory minimum required under the Code, the courtfound no conflict between the exclusionary clause in the policy andsection 143a. 167 Ill. 2d at 152, 656 N.E.2d at 1061.

In Cisco, the plaintiffs were injured in accidents with uninsuredmotorists while driving vehicles owned by their employers. Theuninsured motorist coverage provided by the employers' insurancepolicies was $20,000 per person and $40,000 per occurrence, theminimum required under the Code at that time. The plaintiffs alsosought coverage under policies issued to them by their own insurers. Those policies provided coverage in the amounts of $100,000 per personand $300,000 per occurrence. However, the "other insurance" clause inthe plaintiffs' policies completely excluded uninsured motoristcoverage for a vehicle not owned by plaintiffs unless the owner ofthat vehicle had no other applicable insurance. Cisco, 178 Ill. 2d at387-389, 687 N.E.2d at 808-09.

The court held that this exclusion violated public policy becauseit attempted to condition coverage on the availability of similarcoverage on a nonowned vehicle rather than on the uninsured status ofthe person causing the injury. Additionally, unlike the plaintiff inLuechtefeld, the plaintiffs in Cisco did not select the limits ofliability on the nonowned vehicle which provided them with lesscoverage than they had bargained for when purchasing their ownpolicies. The court expressed that the insured should not be limitedto the uninsured motorist coverage choices made by a third party overwhich the insured has no control. 178 Ill. 2d at 393, 687 N.E.2d at811.

Thus, based on the holdings in Luechtefeld and Cisco, publicpolicy dictates (1) that the insured must be placed in substantiallythe same position he would have occupied if the tortfeasor had beenminimally insured; and (2) that an insured who chooses to purchasehigher levels of uninsured motorist coverage is entitled to thedifference between his own coverage and the coverage afforded to himby a nonowned vehicle.

Applying these principles to the present case, we find that StateFarm's "other insurance" clause does not violate public policy. Unlike the exclusion in Cisco, the State Farm provision ensures thatthe insured is never deprived of uninsured motorist protection andensures that he will receive uninsured motorist coverage up to thelimits for which he paid. Thus, his coverage selection is neverundermined. If the uninsured motorist coverage on the nonownedvehicle were less than the amount of coverage plaintiff purchasedunder his State Farm policy, State Farm would pay the difference up tobut not exceeding the applicable limits of the State Farm coverage.

Moreover, plaintiff's proposal that the policies be "stacked" toallow double compensation would violate public policy. Plaintiff hasalready recovered from the American Family policy the amount he wouldhave received had the tortfeasor been insured to the extent requiredby statute and has recovered the amount for which he bargained. Ifthe policies were "stacked," plaintiff would receive greatercompensation by virtue of the fact that the tortfeasor violated thefinancial responsibility laws of Illinois. See Putnam, 48 Ill. 2d at86, 269 N.E.2d at 104 (addressing same public policy concerns inrelation to validity of similar "other insurance" clause prior toenactment of financial responsibility law).

While under State Farm's policy plaintiff does not receive the$100,000 from State Farm, to whom he paid a premium, payment of apremium does not always create a reasonable expectation that theinsured will receive the full amount of coverage from his insurer. Luechtefeld, 167 Ill. 2d at 158, 656 N.E.2d at 1063. The Codespecifically provides that where the insured has uninsured motoristcoverage under more than one policy the insurer may insert terms thatlimit recovery to the highest limits in any applicable policy. Section 143a-2(5) provides:

"Scope. Nothing herein shall prohibit aninsurer from setting forth policy terms andconditions which provide that if the insured hascoverage available under this Section under morethan one policy or provision of coverage, anyrecovery or benefits may be equal to, but may notexceed, the higher of the applicable limits of therespective coverage ***." 215 ILCS 5/143a-2(5)(West 1998).

Nothing in the statute limits this application to policies issued bythe same insurer. Darwish v. Nationwide Mutual Insurance Co., 246Ill. App. 3d 903, 907, 617 N.E.2d 72, 75 (1993). Accordingly, underthe terms of the applicable insurance policies and Code provisions,plaintiff received the full amount of uninsured motorist coverage towhich he was entitled. We therefore find no violation of publicpolicy. Furthermore, because there is no coverage under the StateFarm policy, we find that State Farm did not act vexatiously orunreasonably in handling plaintiff's claim. Martin v. IllinoisFarmers Insurance, 318 Ill. App. 3d 751, 764, 742 N.E.2d 848, 858(2000).

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

QUINN, P.J., and GREIMAN, J., concur.