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                                                                                                                                                                                                SIXTH DIVISION
                                                                                                                                                                                                October 28, 2005

In a declaratory action dispute over the limits of underinsured motorist (UIM) coverage,defendants Urszula Marchwiany, individually and as administrator of the estate of BoguslawMarchwiany, Mirsoslaw Boguslaw Marchwiany, and Stanley Mark Marchwiany (collectively,defendants)⁽¹⁾ appeal the order entered by the circuit court on cross-motions for summaryjudgment. The court denied defendants' motion, but granted plaintiff Illinois Farmers InsuranceCompany's (Farmers) motion, in which Farmers sought a declaration that the per-person UIMcoverage limit applied to defendants' claims. On appeal, defendants' primary contention is that thecourt improperly failed to find the $300,000 per-occurrence UIM coverage limit applicable totheir claims. For the reasons that follow, we affirm.

BACKGROUND

On September 28, 2000, Boguslaw Marchwiany was operating a vehicle that was insuredunder a policy issued by American Family Insurance Company (American Family). He wasdriving south on Mannheim Road, as was Peter Gonzalez. Kashonda Milliner was driving northon Mannheim. Gonzalez made a left turn in front of Milliner; Milliner's car struck the rear of theGonzalez vehicle, then traveled into the southbound lanes of Mannheim, striking Boguslaw'svehicle. Boguslaw died from the injuries he sustained in that accident.

Boguslaw's wife Urzsula, who is the administrator of his estate, and sons, MiroslawBoguslaw and Stanley Mark, are the defendants in this action.

Boguslaw had an automobile liability policy (No. 22-14754-62-67) issued by Farmers (theFarmers policy) with UIM coverage limits of $100,000 per person and $300,000 per occurrence(referred to as $100,000/$300,000 coverage) that was effective on the date of his fatal accident. The American Family policy on the vehicle Boguslaw drove that day had the same UIM coveragelimits of $100,000/$300,000.

Boguslaw's estate filed legal action against Gonzalez and Millliner. In settlement of theclaims, Gonzalez paid his liability limit of $100,000 and Milliner paid $19,000 of her $20,000liability limit. Defendants then made UIM claims for Boguslaw's personal injuries and forwrongful death to Farmers, which Farmers contends are not applicable for this occurrence. American Family paid defendants $80,000 in UIM coverage for which defendants releasedAmerican Family from further liability.

In April 2003, Farmers filed its complaint for declaratory relief pursuant to section 2-701of the Code of Civil Procedure. 735 ILCS 5/2-701 (West 2002). In its complaint, Farmersalleged that: Boguslaw was the only person to sustain bodily injury; defendants seek UIMbenefits due to their consequential damages; and defendants' claims are subject to the UIM per-person limit of $100,000. Farmers further alleged that: Gonzalez had liability limits of $100,000,which he paid in settlement of defendants' claim; Gonzalez does not qualify as an underinsuredmotorist under the UIM provision of the Farmers policy; the American Family policy provided thesame amount of coverage ($100,000/ $300,000) as the Farmers policy; the Farmers policy isexcess to the American Family policy; and Farmers is only required to pay UIM coverage to theextent its limits exceed those of the American Family policy, but the limits of the Farmers andAmerican Family policies are the same. Farmers sought a declaration that, among other things,the per-person, $100,000 limit applies to defendants' claims and that it has no obligation toprovide UIM coverage to defendants.

In January 2004, defendants filed a countercomplaint for declaratory judgment in whichthey alleged that: there are two potential tortfeasors; the $300,000 per-occurrence limit applies tothe liability of each of the underinsured tortfeasors for a total of $600,000 in coverage because"more than one claimant exists"; both Milliner and Gonzalez were underinsured drivers; and underan opinion of the Fifth District Appellate Court, Roth v. Illinois Farmers Insurance Co., 324 Ill.App. 3d 293, 754 N.E.2d 439 (2001), the per-occurrence limit is applicable to their claimsbecause more than one claimant exists. Defendants also alleged that on September 28, 2000, theyhad a second automobile liability policy (No. 22-14754-62-68) issued by Farmers⁽²⁾ and that theymade claims under both Farmers policies for Boguslaw's personal injuries and for theirconsequential damages, but Farmers denied that any further coverage applies. Defendants soughta declaration that the per-occurrence UIM limit of $300,000 applies to each of two tortfeasors,for a total of $600,000 in UIM coverage, and such limit applies to the gross amount of damagesof all claims.

In February 2004, Farmers filed a motion for summary judgment. In the motion, Farmersargued that the per-occurrence UIM coverage limit does not apply to defendants' claims becausedefendants' consequential damages do not constitute a separate "bodily injury" under the policyand, therefore, the per-person limit of $100,000 applies. Farmers also argued that: Gonzalez wasnot an underinsured motorist because his UIM liability limits were the same as those indefendants' policy, leaving no gap between the limits; the "other insurance" language (i.e., theexcess escape clause) precluded coverage of defendants' claims because the coverage limits of theAmerican Family policy were the same as the limits of the Farmers policy; the maximum amountof potential coverage available to defendants in any event would be $80,000 because theexhaustion clause in the policy requires a setoff for amounts received; and finally, that, if the per-occurrence limit applied, defendants would be required to submit their derivative claims toarbitration.

Defendants subsequently filed a combined response to Farmers' motion and a cross-motionfor summary judgment. Defendants' primary contention was that the per-occurrence UIM limitapplies to their claims. Defendants also argued that Gonzalez was an underinsured motorist andthat the excess exhaustion clause does not preclude coverage of their claims.

In an order entered on October 7, 2004, the court granted Farmers' motion for summaryjudgment and denied defendants' motion for the same. The court's written order does not indicatethe basis for its decision. The record provided this court does not include any transcripts ofproceedings, including the hearing on the cross-motions, so we do not know what oral rulings thecourt may have made. However, Farmers asserts, and defendants do not dispute, that the courtfound that the per-person limit applied to defendants' claims but did not rule on the other issues. This appeal followed.

ANALYSIS

On appeal, defendants contend, primarily, as they did in seeking summary judgment, thatthe per-occurrence UIM coverage limit of $300,000 applies to their claims. Defendants againbase their position almost entirely upon Roth v. Illinois Farmers Insurance Co., 324 Ill. App. 3d293, 754 N.E.2d 439 (2001), which, they assert, supports the application of the per-occurrencecoverage limit because more than one claimant exists. The central dispute over the application ofper-person or per-occurrence UIM limits is framed, essentially, as a question of whether Roth orMartin v. Illinois Farmers Insurance, 318 Ill. App. 3d 751, 742 N.E.2d 848 (2000), upon whichFarmers relies, controls the result here. Farmers contends that, under Martin, the per-personcoverage limit applies. We agree.

Summary judgment is appropriate where the pleadings, depositions, affidavits, admissions,and exhibits on file, when viewed in the light most favorable to the nonmovant, show that there isno genuine issue as to any material fact and that the moving party is entitled to judgment as amatter of law. 735 ILCS 5/2-1005(c) (West 2002).

The construction of an insurance policy is a question of law that is reviewed, like anappeal from a grant of summary judgment, de novo. McKinney v. Allstate Insurance Co., 188 Ill.2d 493, 497, 722 N.E.2d 1125 (1999); Thurman v. Grinnell Mutual Reinsurance Co., 327 Ill.App. 3d 920, 923, 764 N.E.2d 130 (2002). In construing the language of an insurance policy, acourt must ascertain and give effect to the intentions of the parties as expressed in the agreement. McKinney, 188 Ill. 2d at 497; de los Reyes v. Travelers Insurance Cos., 135 Ill. 2d 353, 358, 553N.E.2d 301 (1990). An insurance policy should be construed as a whole and all its provisionsshould be read together, rather than as isolated parts, to determine whether an ambiguity exists. de los Reyes, 135 Ill. 2d at 358; General Insurance Co. of America v. Robert B. McManus, Inc.,272 Ill. App. 3d 510, 514, 650 N.E.2d 1080 (1995). If the policy's words are unambiguous, thereis no need for construction; the words must be given their plain and ordinary meaning and theprovisions of the policy will be applied as written. McKinney, 188 Ill. 2d at 497; McManus, 272Ill. App. 3d at 514.

In Martin v. Illinois Farmers Insurance, 318 Ill. App. 3d 751 (2000), the court consideredwhether a derivative claim for UIM coverage, for loss of society, was subject to the per-personlimit and determined that it was. Martin, 318 Ill. App. 3d at 763. There, the plaintiff's husbandwas killed while riding as a passenger in a vehicle driven by his father, who was insured by one ofthe defendant insurance companies, Illinois Farmers. The plaintiff made a claim for the $100,000UIM limit of liability against that defendant, which the defendant paid, and for which the plaintiffreleased that defendant from further liability. The plaintiff sought a declaratory judgment for anadditional $100,000 under UIM coverage from that defendant, i.e., Illinois Farmers, as well as$200,000 in UIM coverage from the other defendant insurance company, which had issued twopolicies to the plaintiff. The trial court granted the defendants' motions to dismiss, finding therewas no gap between the driver-tortfeasor's liability coverage and the plaintiff's UIM coverage, andthat, therefore, the plaintiff did not have a valid UIM claim against Illinois Farmers. Martin, 318Ill. App. 3d at 757. On review, the court affirmed, finding that the driver's vehicle did not satisfythe definition of an underinsured motor vehicle because there was no gap in coverage between theplaintiff's UIM coverage and the amount of the tortfeasor's policy. Martin, 318 Ill. App. 3d at759.

In considering the plaintiff's contention that her loss of society claim was a separatelycompensable injury subject to its own per-person UIM limits, the court examined the language ofthe driver-tortfeasor's policy. Martin, 318 Ill. App. 3d at 762-63. The Martin court held that thepolicy language at issue--which is essentially identical to the language in the Farmers policy in theinstant case--was clear and unambiguous. Martin, 318 Ill. App. 3d at 763. That policy languagestated:

"'The uninsured motorist bodily injury limit for each personis the maximum we will pay for all damages resulting from bodilyinjury sustained by one person in any one accident or occurrence. Included in this limit, but not as a separate claim or claims, are allthe consequential damages sustained by other persons, such as lossof services, loss of support, loss of consortium, wrongful death,grief, sorrow and emotional distress.'" Martin, 318 Ill. App. 3d at762.

The court concluded that the policy clearly stated that the per-person limit of liability applied toall damages, and the limit included all the consequential damages sustained by other persons, suchas loss of society. Martin, 318 Ill. App. 3d at 763. Further, the court found such holdingconsistent with an entire line of Illinois cases which have held that loss of consortium is aderivative claim to the direct injury that causes it and such claim is generally included and subjectto the policy limitations for bodily injury to one person. Martin, 318 Ill. App. 3d at 763, citingSchweighart v. Standard Mutual Insurance Co., 227 Ill. App. 3d 249, 591 N.E.2d 121 (1992);Berutti v. State Farm Mutual Automobile Insurance Co., 288 Ill. App. 3d 997, 682 N.E.2d 216(1997); Economy Preferred Insurance Co. v. Ingold, 302 Ill. App. 3d 360, 707 N.E.2d 983(1998).

In Roth, the plaintiff, the estate of a decedent insured, made separate claims for UIMcoverage for the decedent's personal injuries and for wrongful death. There, the Fifth Districtrejected the defendant insurance company's contention that the per-person limitation of coverageincluded the consequential damages sustained by other persons, thus making any purportedambiguity in the per-occurrence limit irrelevant. Roth, 324 Ill. App. 3d at 297-98. Rather, thecourt found the policy language ambiguous and, therefore, to be construed against the defendant. Roth, 324 Ill. App. 3d at 299. On that basis, the Fifth District affirmed the lower court's award of$200,000 for the plaintiff. Roth, 324 Ill. App. 3d at 299.

Contrary to defendants' contention that Roth should control the result here based onpurported factual similarities, it is, rather, Martin that controls the instant case.

As previously noted, the policy language in the instant case is essentially identical to thelanguage considered in Martin. Here, a separate endorsement for underinsured motorist coveragethat is part of the policy issued by plaintiff states that "[a]ll of the terms and conditions of Part II-Uninsured Motorist Coverage C - apply to UNDERinsured Motorist Coverage C-1 in addition tothe provisions of this endorsement." The "Part II- Uninsured Motorist Limits of Coverage"provide:

"The amounts shown in the Declarations are the limits of liabilityfor Uninsured Motorist which apply subject to the following:

1. The uninsured motorist bodily injury limit for 'each person' is themaximum we will pay for all damages resulting from bodily injurysustained by one person in any one accident or occurrence. Included in this limit, but not as a separate claim or claims, are allthe consequential damages sustained by other persons, such as lossof services, loss of support, loss of consortium, wrongful death,grief, sorrow and emotional distress."

Because the policy language at issue here is identical to that in Martin, it, too, like thelanguage in Martin, is clear and unambiguous. Martin, 318 Ill. App. 3d at 763. The policy issuedby plaintiff clearly states, as in Martin, that the per-person limit of liability applies to all damages,and the limit includes, " 'not as a separate claim or claims all the consequential damages sustainedby other persons.' " (Emphasis in original.) Martin, 318 Ill. App. 3d at 763. Following theholding in Martin, the per-person UIM coverage limit applies here as well: defendants' claims forconsequential damages are, therefore, not separate claims, but are included in the $100,000 per-person limit. Martin, 318 Ill. App. 3d at 763.

Although defendants concede that the per-person limit could apply here, they assert apossible ambiguity in the policy and rely heavily on similarities between this case and Roth. However, such similarities are not dispositive. In addition to factual similarities with Roth thatare asserted by defendants, there are also factual similarities with Martin. For example,defendants here were paid the $100,000 liability limit by Gonzalez, similar to the payment of$100,000 from the tortfeasor's insurer to the plaintiff in Martin. More significantly, in terms ofsimilarities in policy language, as already noted, the language at issue in Martin is identical to thelanguage here. That language is, again, clear and unambiguous. Martin, 318 Ill. App. 3d at 763. Therefore, similarities of policy language would not compel us to follow Roth instead of Martin. Further, we acknowledge, as defendants point out, that Roth was decided after Martin. However,Roth did not directly address Martin, and, in any event, we are not bound to follow Roth. See,e.g., Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 392 n. 2, 830N.E.2d 575 (2005); see also Schiffner v. Motorola, Inc., 297 Ill. App. 3d 1099, 1102, 697 N.E.2d868 (1998) (decisions of equal courts are not binding on other equal courts under principle ofstare decisis).

Moreover, our supreme court has held that, where one person received bodily injuries, inone motor vehicle accident, claims for wrongful death fell within the ambit of the policy's UIMcoverage limits of $100,000. McKinney, 188 Ill. 2d at 498. In so deciding, the supreme courtnoted that the same conclusion has been reached by the appellate court "in virtually everypublished case in which similar policy language was construed." McKinney, 188 Ill. 2d at 498,citing Ingold, 302 Ill. App. 3d 360; Berutti, 288 Ill. App. 3d 997; Cross v. Country Cos., 188 Ill.App. 3d 847, 544 N.E.2d 1246 (1989); Creamer v. State Farm Mutual Automobile Insurance Co.,161 Ill. App. 3d 223, 514 N.E.2d 214 (1987). Furthermore, the court acknowledged that theFifth District had reached the opposite result in Stearns v. Millers Mutual Insurance Ass'n ofIllinois, 278 Ill. App. 3d 893, 663 N.E.2d 517 (1996), and overruled Stearns. McKinney, 188 Ill.2d at 500 (overruling Stearns because the court "found an ambiguity where none existed").

Again, based on Martin, the policy language clearly and unambiguously provides that theper-person UIM coverage limit applies and that defendants' claims for consequential damages areincluded in the per-person limit. See Martin, 318 Ill. App. 3d at 763. Therefore, the circuit courtproperly granted summary judgment in favor of Farmers. Having determined that the per-personcoverage limit applies to defendants' claims, we do not reach defendants' additional issues that arebased on an application of the per-occurrence limit. Accordingly, for the above-stated reasons,we affirm the judgment of the circuit court.

TULLY and O'MARA FROSSARD, JJ., concur.

1. Defendants' last name also appears in the record as Marchiwiany.

2. Defendants failed to attach a copy of this policy to their complaint and Farmers deniedthat there was more than one policy in effect on the date of the accident. Nothing in the recordestablishes the existence of a second policy issued to defendants by Farmers.