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THIRD DIVISION

November 21, 2001

No. 1-01-1143

JUSTICE WOLFSON delivered the opinion of the court:

The question before us is whether uninsured motoristcoverage under a particular insurance policy could be "stacked"or aggregated. The answer seems to come down to how many timesthe policy's limits of liability appear on its Declarations page. The trial court entered summary judgment for the insureds. Wereverse the trial court's decision and remand this cause withdirections to enter summary judgment for the insurance company.

FACTS

Terrence and Marie Domin (the Domins) insured two cars underan automobile policy issued by Shelby Insurance Company (Shelby). The policy provided uninsured/underinsured motorists coverage tothe Domins. On January 21, 1998, Terrence Domin was driving oneof the insured vehicles when he was injured in a collision withan oncoming car.

Terrence later filed a lawsuit in the Circuit Court of CookCounty against the owner, driver, and passenger of the other car(the "underlying suit"). That lawsuit was based on negligence. Marie Domin, who was neither involved nor injured in theaccident, joined her husband's lawsuit. She asserted claims for loss of society due to his injuries.⁽¹⁾

The defendants in the underlying suit were uninsured, so theDomins turned to Shelby. The Domins requested Shelby provideuninsured motorist coverage under their insurance policy No. IA8537640. That policy provided, in part:

"PART C - UNINSURED MOTORISTS COVERAGE

INSURING A. We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. Sustained by an insured; and

2. Caused by an accident."

The policy defined "bodily injury" as "bodily harm, sicknessor disease, including death that results."

The uninsured motorist coverage provision was subject toanother provision titled "Limit of Liability." It provided:

"SPLIT SCHEDULE

UNINSURED Uninsured Motorists Coverage $ See Declarations each person

MOTORISTS $ See Declarations each accident

LIMITS The first paragraph of the Limit provision in Part C is replacedby the following:

LIMIT OF LIABILITY

The limit of liability shown in the Schedule or in theDeclarations for each person for Uninsured Motorists Coverage isour maximum limit of liability for all damages, including damagesfor care, loss of services or death, arising out of bodily injurysustained by any one person in any one accident. Subject to thislimit for each person, the limit of liability shown in theSchedule or in the Declarations for each accident for UninsuredMotorists Coverage is our maximum limit of liability for alldamages for bodily injury resulting from any one accident. Thisis 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."

With respect to uninsured motorist coverage, The policy'sDeclarations page showed the following "Limits of Liability:"

"INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN FOR THE COVERAGE

COVERAGE LIMITS OF LIABILITY PREMIUMS

***        
                                                         AUTO  1           2    

UNINSURED/UNDERINSURED $100,000 EACH PERSON                 18.00    17.00

MOTORISTS - BODILY INJURY $300,000 EACH ACCIDENT

OTHER THAN COLLISION $250 DEDUCTIBLE                                  23.00    19.00

COLLISION $250 DEDUCTIBLE                                                            66.00    49.00

In response to the Domins' request, Shelby offered to paythem $100,000 -- the per person bodily injury limit of thepolicy's uninsured motorist coverage. The Domins rejectedShelby's $100,000 offer.

The Domins do not question the clarity of the "LIMIT OFLIABILITY" provision. There is no ambiguity to it. It clearlymeans what it says -- the limit of liability shown in theSchedule or in the Declarations for each insured who receivesbodily injury is the most the company will pay, no matter howmany claims or vehicles are covered. But, they say, ambiguityarises when the "LIMIT OF LIABILITY" provision is read with theDeclarations page. That is, the policy can reasonably beinterpreted to allow liability limits of the two covered vehiclesto be "stacked" or aggregated, providing a total maximum coverageof $200,000. The Domins contend they must be the beneficiariesof ambiguity in the policy language.

Of course, Shelby denies the policy is ambiguous. It saysthe "LIMITS OF LIABILITY" provision clearly prohibits stacking. That is, says Shelby, the policy limit for one bodily injury is$100,000, regardless of the number of vehicles insured by theDomins, and here there is only one bodily injury.

The Domins filed a complaint for declaratory judgment in theCircuit Court of Cook County.

On plaintiffs' motion for summary judgment, the trial courtentered judgment for the Domins. The court ruled that underYates v. Farmer's Automobile Insurance Ass'n, 311 Ill. App. 3d797, 724 N.E.2d 1042 (2000), the Domins were entitled to "stack"the "$100,000 each person" limits of uninsured motorist coverageunder the automobile policy they purchased from Shelby becausethe Domins paid premiums for two vehicles.

This appeal followed.

DECISION

The trial judge felt obligated to follow Yates v. Farmer'sAutomobile Insurance Ass'n, 311 Ill. App. 3d 797, 724 N.E.2d 1042(2000). We, however, do not.

STANDARD OF REVIEW

Summary judgment is proper when the pleadings, depositions,and admissions on file, together with the affidavits, if any,reveal there is no genuine issue of material fact and the movingparty is entitled to judgment as a matter of law. See 735 ILCS5/2-1005(c) (West 1998); American Family Mutual Insurance Co. v.Hinde, 302 Ill. App. 3d 227, 231, 705 N.E.2d 956 (1999). Wereview de novo a trial court's order granting summary judgment. Pekin Insurance Co. v. Estate of Ritter, 322 Ill. App. 3d 1004,1004-05, 750 N.E.2d 1285 (2001).

STACKING

Anti-stacking provisions in insurance policies areunenforceable when the language employed is unclear or ambiguous. Grzeszczak v. Illinois Farmers Insurance Co., 168Ill. 2d 216, 220, 659 N.E.2d 952 (1995). If an anti-stackingclause is unambiguous and does not violate public policy, thereis no need for construction; it must be enforced according to itsterms. Grzeszczak, 168 Ill. 2d at 223.

"The touchstone when determining whether an ambiguity existsregarding an insurance policy is whether the relevant portion issubject to more than one reasonable interpretation, not whethercreative possibilities can be suggested. 'Reasonableness is thekey.' " Pekin Insurance Co. v. Estate of Goben, 303 Ill. App. 3d639, 646, 707 N.E.2d 1259 (1999), quoting Bruder v. CountryMutual Insurance Co., 156 Ill. 2d 179, 193, 620 N.E.2d 355(1993).

We review de novo a trial court's construction of aninsurance policy. Ritter, 322 Ill. App. 3d at 1004-05. Theconstruction of an insurance policy is a question of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 108, 607 N.E.2d 1204 (1992).

Shelby does not dispute the Domins are entitled to benefitsunder the policy's uninsured motorist coverage provision. Thevehicle owned and operated by the defendants in the underlyingsuit was uninsured. The Domins are entitled to the "each person"limit of uninsured motorists coverage shown on the policy'sDeclarations page. This is true regardless of whether the limitis $100,000 or $200,000. But only the insured who incurs "bodilyinjury" -- here, Terence -- is covered.

The parties dispute whether the Domins are entitled to"stack" the "$100,000 each person" liability limits for each oftheir two vehicles insured under the policy, for a totalavailable benefit of $200,000.

First, we must determine whether the policy clearly andunambiguously prohibits the Domins from stacking their liabilitylimits. If the policy is unambiguous, summary judgment isappropriate for Shelby. But, if the policy is ambiguous, it mustbe interpreted in favor of the insured and the trial court'sgrant of summary judgment for the Domins will be affirmed. SeeRitter, 322 Ill. App. 3d at 1004-05.

The Domins do not and cannot assert that simply because theypaid separate premiums for the two cars they should be able tostack coverage. See American Family Mutual Insurance Co. v.Martin, 312 Ill. App. 3d 829, 833, 728 N.E.2d 115 (2000). Norcan they say an anti-stacking clause is per se violative ofpublic policy. See Pahn v. State Farm Mutual Auto Insurance Co.,291 Ill. App. 3d 343, 345, 683 N.E.2d 972 (1997).

The Illinois Supreme Court has addressed the question ofwhether uninsured motorists coverage for multiple vehiclescovered in a single insurance policy can be stacked or aggregatedto provide additional coverage. Bruder, 156 Ill. 2d at 189-94.

In Bruder, the plaintiffs insured two pickup trucks underthe same insurance policy. 156 Ill. 2d 189-90. The policycontained an anti-stacking provision that referred the insured tothe Declarations page for the limit of liability. Bruder, 156Ill. 2d at 189-91. On the Declarations page of the policy, thetwo vehicles were listed separately and there was only oneliability limit listed for both vehicles. Bruder, 156 Ill. 2d at191.

Since the liability limit was listed only once on theDeclarations page, the court held the anti-stacking clause wasunambiguous. The court did not allow the plaintiff to stack theuninsured motorists coverage. Bruder, 156 Ill. 2d at 193.

The court then went beyond the precise issue in the case. In dicta, it noted that if there were a liability limit listedfor each vehicle on the Declarations page, the policy wouldlikely be ambiguous and stacking would be allowed. Bruder, 156Ill. 2d at 192. The court reasoned that if there were a separateliability limit listed for each vehicle listed on theDeclarations page, there would be little to suggest the partiesintended to limit coverage to the amount provided for only one ofthe two vehicles. Bruder, 156 Ill. 2d at 192. In that case, thecourt said, "It would be more reasonable to assume that theparties intended that, in return for the two premiums, two$100,000 coverage amounts were afforded." Bruder, 156 Ill. 2d at189.

Here, as in Bruder, stacking is prohibited. The policy'santi-stacking provision is clear and unambiguous. The policy's"Limit of Liability" provision says that regardless of the numberof vehicles or premiums shown on the Declarations page, Shelbyonly agreed to pay up to the limit of insurance shown foruninsured motorists coverage for bodily injury, which is"$100,000 each person." Only Terrence Domin suffered bodilyinjury.

The Domins' two vehicles were listed separately on theDeclarations page of the policy and there was only one liabilitylimit listed for both vehicles. Since, as in Bruder, theliability limit was listed only once on the Declarations page, wehold the anti-stacking clause is unambiguous and the Dominscannot stack their uninsured motorists coverage. Bruder, 156Ill. 2d at 193.

The Domins contend we should find Shelby's policy ambiguouson whether stacking is permitted. They suggest this case iscontrolled by the Seventh Circuit's decision in Allen v.Transamerica Ins. Co., 128 F.3d 462 (7th Cir. 1997), and by theFifth District's decision in Yates v. Farmer's AutomobileInsurance Ass'n, 311 Ill. App. 3d 797, 724 N.E.2d 1042 (2000).

Specifically, the Domins contend Allen -- which has beenadopted by the Fifth District (see, e.g., Janes v. Western StatesInsurance Co., No. 5--99--0763, slip op. at 5-6 (August 31,2001)) -- and Yates have resolved the issue before us. That is,we should find, under Allen and Yates, the anti-stackingprovision in Shelby's policy is ambiguous. The Domins concludethe policy should be interpreted to allow stacking and provide aliability limit of $200,000 per person because all ambiguitiesmust be interpreted in favor of the insured.

The Domins are incorrect. This case is not controlled byAllen and Yates. We need not conduct a frontal assault on theAllen and Yates decisions in order to reach a contraryconclusion. Those cases involve construction of differentinsurance policy language. Not much different, but differentenough.

In Allen, the Seventh Circuit, relying on the dicta inBruder, allowed an insured to stack underinsured motoristcoverage due to ambiguity in her policy. Allen, 128 F.3d 462. Allen had insured two vehicles under the same policy. Eachvehicle had an underinsured motorist liability limit of $50,000per person and $100,000 per incident. Allen, 128 F.3d 464.

Allen's policy contained a limit of liability provision thatsaid:

"The limit of liability shown in the Schedule or in theDeclarations for each person for Underinsured MotoristsCoverage 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 personin any one accident. Subject to this limit for each person,the limit of liability shown in the Schedule or in theDeclarations for each accident for Underinsured MotoristsCoverage is our maximum limit of liability for all damagesfor 'bodily injury' resulting from any one accident. Thisis 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." Allen, 128 F.3d 464.

The court held there was no ambiguity in the anti-stackinglanguage of the limit of liability provision of the policy,Allen, 128 F.3d 464, but the court found an ambiguity when ittried to determine the "limit of liability" referred to in theanti-stacking provision.

The limit of liability provision directed the insured toeither the "Schedule" or the "Declarations" to determine theamount of the limit. The limit of liability sections on theSchedules were left blank. The only place to look to determinethe limits was the Declarations page. There, two limits ofliability were listed -- one for each vehicle. Allen, 128 F.3d464. After looking at the Declarations page, the court looked toBruder for guidance in construing the anti-stacking provision inconjunction with the Declarations page. Allen, 128 F.3d at 465-66.

After analyzing Bruder, the court noted the Declarationspage in Bruder listed the amount of coverage only once, nottwice, as did the Declarations page in Allen's policy. The courtexplained the significance of this distinction by relying onBruder's dicta. Allen, 128 F.3d at 465.

The court held "the Bruder dicta predicts that the IllinoisSupreme Court would find the anti-stacking clause ambiguous whenviewed in conjunction with the columnar arrangement of thedeclarations page, and would therefore rule in favor ofcoverage." Allen, 128 F.3d at 467. In short, the court foundthe anti-stacking provision in the plaintiff's policy had beenrendered ambiguous under Illinois law and it stacked theunderinsured motorist coverage. Allen, 128 F.3d at 467.

In Yates, the plaintiff insured two vehicles under a singleinsurance policy that provided underinsured motorist coverage. Yates, 311 Ill. App. 3d at 798-99. The policy had an anti-stacking provision that referred to the Declarations page for thelimit of liability amounts.

The policy's Declarations page included a statement directlyabove the policy limits that said: "COVERAGE IS PROVIDED WHERE APREMIUM AND A LIMIT OF LIABILITY OR THE WORD 'INCLUDED' ARE SHOWNFOR COVERAGE." (Emphasis in original.) Yates, 311 Ill. App. 3dat 800.

On the declarations page, the row corresponding touninsured/underinsured motorist coverage showed limits of"50/100" and a premium of $5 under both "auto one" and "auto two"-- in other words, two vehicles were listed separately and a$50,000 per person liability limit was listed under each. Yates,311 Ill. App. 3d at 800.

The court found the plaintiff's policy contained provisionsthat were ambiguous and contradictory because "in one part of theinsurance policy, there is a provision claimed to be an anti-stacking provision," and "on the declarations page, the policystates that coverage is provided where a premium and a limit ofliability are shown." Yates, 311 Ill. App. 3d at 800.

The court said that where "on the declarations page, thepolicy shows limits of '50/100' and a premium under each of thetwo vehicles," it must construe the policy in a manner that ismost favorable to the insured. It held the trial court'sdecision granting the plaintiff $100,000 in underinsured motoristcoverage, a figure calculated by aggregating the $50,000 limitfor underinsured motorist coverage on each of the two vehicles inthe plaintiff's insurance policy, was correct. Yates, 311 Ill.App. 3d at 800.

In Allen, and again in Yates, it was the Declaration page ofthe policy that turned a clear anti-stacking provision intoambiguity. That is, the Declarations page in each policy listedthe amount of maximum liability coverage separately for eachvehicle. The Declarations page of the Domins' policy does not. Nor did the Declarations page in Bruder. There, as here, theDeclarations page contained only one limit of liability forbodily injury suffered by each person on the page.

While the Fifth District has held to the course staked outin Yates, see Janes v. Western States Insurance Co., No. 5--99--0763, slip op. at 5-8 (August 31, 2001); Skidmore v. SafecoInsurance Co., 323 Ill. App. 3d 417, 423-25, 751 N.E.2d 637(2001); Pekin Insurance Co. v. Estate of Goben, 303 Ill. App. 3d639, 647-49, 707 N.E.2d 1259 (1999), agreement has not beenuniversal, even where Declarations page wording is similar.

In Pekin Insurance Co. v. Estate of Ritter, 322 Ill. App. 3d1004, 1005, 750 N.E.2d 1285 (2001), the Fourth District said itwas "equally unpersuaded by the analysis" in Yates. In Ritter,as in Yates, the Declarations page in the policy (an underinsuredmotorists policy) contained separate columns for each vehicle andshowed separate coverage limits for each column. The court saidthe separate coverage limits do not allow for aggregation ofcoverage. Ritter makes no mention of the Bruder dicta. Instead,it relies in part on the First District case of Frigo v. MotorsInsurance Corp., 271 Ill. App. 3d 50, 62-65, 648 N.E.2d 180(1995). In Frigo, the court held an unambiguous anti-stackingclause was not made ambiguous by the presence of separatepremiums paid for medical payments coverage of separate vehicles,even though the Declarations page expressed a maximum liabilitylimit for each injured person.

Here, the Declarations page carefully and unambiguouslyidentifies the types and amounts of coverage for each vehicle --there is no confusing columnar arrangement. Because thearrangement of the policy's anti-stacking provisions andDeclarations page are different than in Allen and Yates, andidentical to that in Bruder, Bruder is controlling precedent. Wefind Shelby's policy is unambiguous -- no stacking allowed.

We admit to some discomfort deciding a case on the basis ofhow many times the "Limits of Liability" figure appears on apiece of paper -- here, the Declarations page. But that is wherethe cases, especially the Bruder dicta, take us. That is wherewe shall remain until instructed otherwise.

We hold the trial court erred in not finding the Shelbypolicy's Limit of Liability provision enforceable to preclude theDomins from stacking the uninsured motorist coverage amounts fortheir two vehicles, and in not finding the uninsured motoristcoverage was limited to $100,000 for Terrence Domin's injuries.

We hold summary judgment should be granted in favor ofShelby. Shelby is entitled to a declaratory judgment that only"$100,000 each person" in uninsured motorist coverage isavailable to the Domins under the policy's anti-stackingprovisions, and Terrence is that person.

CONCLUSION

We reverse the summary judgment entered by the trial courtin favor of the Domins and remand the cause with directions toenter summary judgment in favor of Shelby.

Reversed and remanded, with directions.

CERDA, and SOUTH, JJ., concur.

1. We note that on appeal, the Domins do not contend multiplelimits of uninsured motorist coverage are available becauseTerrence and Marie Domin asserted separate causes of action inthe underlying auto accident lawsuit -- the Domins do not disputeMarie Domin's loss of society claim is derivative of herhusband's bodily injury claim. Thus, the sole issue on appeal iswhether the Domins can "stack" the policy's liability limitsbecause Shelby issued the policy to cover two vehicles.