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SIXTH DIVISION

June 28, 2002

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiff, Jozef Maka, appeals from a grant of summary judgment in favor of defendant,Illinois Farmers Insurance Company (Farmers). Maka's motion to reconsider the trial court'sruling was denied, and this appeal followed. On appeal, Maka contends the trial court shouldhave allowed him to stack the coverages under two policies due to ambiguity in the provisions.

Maka purchased two insurance policies from Farmers that provided insurance coverage tohim and his family for bodily injury or death resulting from an automobile accident. Each policycovered one automobile. In addition to uninsured coverage, the endorsement to both policiesincluded underinsured insurance coverage. The limits of the liability of the underinsuredcoverage are $100,000 in one policy (Policy 15) and $50,000 in another (Policy 16), for a total of$150,000 in underinsured coverage.

On December 25, 1998, Maka's daughter, Edyta Maka, was involved in a fatal automobileaccident while she was a passenger in a vehicle. The driver of the automobile, David Kierner,had insurance coverage with limits of liability of $20,000. As a result of the accident, $20,000was paid to Edyta Maka's estate by Equitable Insurance Company (Equitable), Kierner'sinsurance provider. Maka made a demand to Farmers for underinsured motorist benefits underhis two policies.

In response to Maka's demand, Farmers paid Maka $80,000. This payment represents the$100,000 underinsured limit of liability for Policy 15, minus the $20,000 payment received fromEquitable. Farmers made no payment on Policy 16. Farmers' refusal to pay the liability amounton Policy 16 led Maka to file an action in the circuit court on May 24, 2000, seeking adeclaratory judgment that would entitle him to the $50,000 of additional underinsured coverageprovided through Policy 16.

Both policies contained the following antistacking provision:

"Part II -UNINSURED MOTORIST

Limits of Coverage

The amounts shown in the Declaration are the limits of liability forUninsured Motorist which apply subject to the following:

* * *

4. We will pay no more than the limits shown in the Declarations of thispolicy regardless of the number of vehicles insured, insured persons, claims,claimants, policies or vehicles involved in the occurrence. The limits providedby this policy may not be stacked or combined with the limits provided by anyother policy issued to you or a family member by any member company of theFarmers Insurance Group of Companies." (Emphasis in original.)

The endorsements to both policies state:

"Coverage C-1 - UNDERinsured Motorist Coverage

For an additional premium it is agreed that UNDERinsured Motorist Coverage C-1 is added to Part II of your policy. All of the terms and conditions of Part II -Uninsured Motorist Coverage C - apply to UNDERinsured Motorist Coverage C-1 in addition to the provisions of this endorsement." (Emphasis in original.)

The underinsured coverage endorsement also contains the following "other insurance"clause:

"Additional Other Insurance Provisions:

The UNDERinsured Motorist coverage provided by this endorsement is excessover any other collectible automobile underinsured motorist insurance that coversthe same accident or occurrence and applies only to the extent the limits ofliability of this policy exceed the limits of liability of the other UNDERinsuredmotorist insurance. The limits of liability of all other UNDERinsured motoristcoverage available to you and any family member must be exhausted before thecoverage provided by this policy applies." (Emphasis in original.)

Farmers filed a counterclaim for declaratory relief seeking a release from any furtherobligation to the estate of Edyta Maka following the $80,000 payment from Policy 15. Farmersfiled a motion for summary judgment. According to Farmers, under the antistacking provisionand the "other insurance" provision, Maka was entitled to only $80,000 after he received the$20,000 from Equitable. Since the $50,000 limit of liability for Policy 16 did not exceed thelimits of Policy 15, i.e., the $100,000 limit of liability, Farmers argued that it had no obligation tomake any payment to Maka under Policy 15.

The trial court found no ambiguity in the antistacking provisions of Policy 15 and Policy16. Despite the fact that the antistacking provision is located only in the uninsured portion of thepolicies, the court concluded that the language of the endorsements providing underinsuredcoverage clearly incorporated Part II and the limits of coverage of the uninsured portion of thepolicy. Thus, the court decided that those limits were applicable to the underinsured coverage. Additionally, the court concluded that there was no requirement that the antistacking provision bein boldface type or capital letters, as Maka argued. Finally, the court determined that the fact thatMaka paid separate premiums for the two policies bore no impact upon the applicability of theantistacking provisions. To the contrary, the court found the antistacking provisions in bothpolicies reflected the intent of the insurance company and the manifest intent of the insured andthereby prevented Maka from recovering under both policies. The court granted Farmers' motionfor summary judgment. This timely appeal followed.

Maka presents one issue on appeal: whether the circuit court erred in deciding thatFarmers' insurance policies unambiguously prohibit stacking of underinsured motorist coverage.

In construing the language of an insurance policy, a court must ascertain and give effect to theintention of the parties as expressed in their agreement. State Farm Mutual AutomobileInsurance Co. v. Villicana, 181 Ill. 2d 436, 441, 692 N.E.2d 1196, 1199. Any terms used in apolicy should be given their plain and ordinary meaning and applied as written unless suchapplication contravenes public policy. State Farm, 181 Ill. 2d at 441-42, 692 N.E.2d at 1199. In construing an insurance policy, a court must read the policy as a whole and consider thetype of insurance purchased, the nature of the risks involved, and the intent of the parties withthe overall purpose of the contract. American States Insurance Co. v. Koloms, 177 Ill. 2d 473,479, 687 N.E.2d 72, 75 (1997). Provisions that limit or exclude coverage are to be construedliberally in favor of the insured and against the insurer. American States Insurance Co., 177Ill. 2d at 479, 687 N.E.2d at 75. Additionally, the existence of an ambiguity in an insurancecontract will cause a court to adopt a liberal construction of the language used in favor of theinsured. Yates v. Farmers Automobile Insurance Ass'n, 311 Ill. App. 3d 797, 800, 724 N.E.2d1042, 1045 (2000). This is because the words used in the policy were chosen by the insurer. Yates, 311 Ill. App. 3d at 800, 724 N.E.2d at 1045.

Our review of a circuit court order granting summary judgment is de novo. Harrisonv. Harden County Community Unit School District No. 1, 197 Ill. 2d 466, 470-71, 758 N.E.2d853 (2001). Further, the construction of an insurance policy is a question of law subject to denovo review. State Farm Mutual Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436, 441,692 N.E.2d 1196, 1199 (1998).

The parties do not dispute that Maka's case involves the underinsured coverage. Makaargues that ambiguity exists in some of the crucial provisions of the policy and that theambiguity allows Maka to stack the liability from the two policies. He argues that two factualaspects of the policies create ambiguity. First, Maka states that, because there is an explicitantistacking clause in the uninsured portion of the policies, but no such antistacking clause inthe underinsured endorsement to the policy, the language of the liability provision in theuninsured portion conflicts with and is superseded by the language in the endorsement, whichdoes not include similar limits to liability. Second, Maka asserts that the law in Illinoisrequires that Farmers explicitly set forth every limitation on coverage in each portion of thepolicy which Farmers intended to limit.

Initially, we note that Maka does not argue that the antistacking clause itself isambiguous. The clause states quite clearly, "the limits provided by this policy may not bestacked or combined with the limits provided by any other policy issued *** by any membercompany of the Farmers Insurance Group of Companies." (Emphasis added.) Indeed,language that is virtually identical to that present in this policy has been deemed clear andunambiguous by this court. Martin v. Illinois Farmers Insurance, 318 Ill. App. 3d 751, 760-61, 742 N.E.2d 848, 855 (2000).

The problem, according to Maka, is the inclusion of the clause in some areas and itsexclusion elsewhere in the policy. Maka argues that, in the manner that the policy is drafted,the insured is led to believe that the limitations applied only in the portion of the policy wherethose limitations are clearly present. In support of his argument, Maka cites authority whichholds that where there is a conflict between the language of the endorsement and other parts ofthe policy, the endorsement language controls. In J.M. Corbett Co. v. Insurance Co. of NorthAmerica, 43 Ill. App. 3d 624, 627, 357 N.E.2d 125, 128 (1976), for example, the courtdetermined that the terms of the rider or endorsement to the policy controlled over the terms ofthe actual policy because important exclusions that were found in the policy were not referredto in the rider.

J.M. Corbett involved an agreement between Corbett, the main contractor, and RobertSchreiber, a subcontractor, for work to be performed at a navigation project. Pursuant to theagreement, Schreiber procured insurance for the job and submitted a certificate of insurance toCorbett. J.M. Corbett, 43 Ill. App. 3d at 625, 357 N.E.2d at 126. The certificate of insurancecontained an indemnity provision which provided that the subcontractor (Schreiber), throughthe insurance company, would indemnify Corbett from any claims for injury or death topersons or damage to property connected with performance under the contract. J.M. Corbett.,43 Ill. App. 3d at 625, 357 N.E.2d at 126.

While performing the work for Corbett, a truck rented by Schreiber was involved in anaccident and the truck's owner sued Corbett for property damage. J.M.Corbett, 43 Ill. App. 3dat 626, 357 N.E.2d at 127. In response to the indemnification provision within the certificate,Corbett demanded that the insurer defend the lawsuit. J.M. Corbett, 43 Ill. App. 3d at 626,357 N.E.2d at 127. The terms of the policy, however, excluded coverage under the policy forwork performed while using a rented vehicle, and when the insurer refused to defend the suitdue to this exclusion, Corbett filed a declaratory judgment action. J.M. Corbett, 43 Ill. App.3d at 626, 357 N.E.2d at 127.

In reviewing the certificate with the policy, this court found a genuine conflict whenthe two provisions were read together. J.M. Corbett, 43 Ill. App. 3d at 627, 357 N.E.2d at128. The certificate indicated that Corbett could anticipate full indemnification, while thepolicy created an exclusion for rental vehicles. Additionally, the actual policy was never seenby Corbett, and the certificate made no reference to exclusions or limitations. Therefore, thecourt decided the extent of the actual coverage was ambiguous and concluded that the termsset forth in the endorsement superseded those in the policy. J.M. Corbett, 43 Ill. App. 3d at627, 357 N.E.2d at 128. In reaching this decision, however, the court recognized that where acontract of insurance consists of the policy and other accompanying papers which areincorporated or referred to therein, all of the documents must be construed together todetermine the effect and meaning of the contract. J.M. Corbett, 43 Ill. App. 3d at 626, 357N.E.2d at 128.

While it is true that the endorsement section issued by Farmers to Maka providingunderinsured motorist coverage does not include the exact limitation language found in theuninsured portion of the policy, we do not see how, upon reading the endorsement with thepolicy, the insured would be misled as to whether the same exclusions apply. Theendorsement that sets forth the terms of the underinsured coverage affirms that: "All of theterms and conditions of Part II - Uninsured Motorist Coverage C - apply to UNDERinsuredMotorist Coverage C-1 in addition to the provisions of this endorsement." As statedpreviously, one of the terms and conditions of the uninsured motorist coverage is that thelimits provided by that policy may not be stacked with any other policy. It is thus clear thatany limitations of coverage in Part II are applicable to the endorsement and the underinsuredcoverage available. In other words, the coverage from either portion of the policies may notbe combined and the insured may not collect from both policies from one accident oroccurrence.

While in J.M. Corbett no reference of the relevant exclusions was made in thecertificate that Corbett received, and Corbett never actually saw the policy, the same is nottrue in this case. Rather, the terms of the policy in this case are more analogous to theprovisions set forth in the policies at issue in Lezak & Levy Wholesale Meats, Inc. v. IllinoisEmployers Insurance Co. of Wausau, 121 Ill. App. 3d 954, 460 N.E.2d 475 (1984), and PekinInsurance Co. v. American Country Insurance Co., 213 Ill. App. 3d 543, 572 N.E.2d 1112(1991). In Lezak, the court found no conflict or ambiguity when reading the certificate and thepolicy because the certificate referred to the policy, which enunciated certain exclusions. Lezak & Levy Wholesale Meats, Inc., 121 Ill. App. 3d at 957, 460 N.E.2d at 477. Similarly,in Pekin, the language found within the policy controlled when the certificate specificallystated that it was subject to all of the terms, exclusions and conditions of the policy. Thisstatement thereby instructed the insured to refer to the policy to ascertain the extent of thecoverage. Pekin, 213 Ill. App. 3d at 547, 572 N.E.2d at 1115. The same reference toapplicable limitations and exclusions can be found in the underinsured motorist coverageendorsement to Maka's policy with Farmers. Upon a complete reading of the policy, Makawould have realized the limitations of the two types of coverage . Further, there is no conflictbetween the language of the uninsured coverage and the underinsured endorsement. Consequently, the limitations found in the uninsured policy section and referred to in theunderinsured endorsement, which clearly prohibit stacking or combining of policies, control.

The second assertion made by Maka is that, if Farmers intended to preclude stacking ofthe two policies, there is authority in Illinois which requires it to state such limitationexplicitly in that section of the policy so as to avoid ambiguity. While Maka suggests that thetrial court misinterpreted or misapplied the holdings of Squire v. Economy Fire & CasualtyCo., 69 Ill. 2d 167, 370 N.E.2d 1044 (1977), and Jones v. State Farm Mutual AutomobileInsurance Co., 289 Ill. App. 3d 903, 682 N.E.3d 338 (1997), we concur with the trial courtthat neither these cases nor other cases proffered by the appellant have any relevance withrespect to the issue of ambiguity within Maka's policies. Squire reiterated the importance ofclearly stating any limitations that the insurer intends to impose upon the insured because anyambiguity must be resolved in favor of the insured. Squire, 69 Ill. 2d at 179, 370 N.E.2d at1050. Jones reached a similar holding, based specifically on the circumstances surrounding aparticular policy. In Jones, the court held that the antistacking language was, on its face,ambiguous, because it could not be read to have one meaning. Jones, 289 Ill. App. 3d at 916,682 N.E.2d at 248.

In Squire, the insurer sought a declaration that a provision within a policy whichlimited recovery to $10,000 per person was clear in stating that two uninsured policies, eachwith $10,000 limits of liability, could not be stacked. Squire, 69 Ill. 2d at 174, 370 N.E.2d at1046. Because there were two policies with two declaration pages and two limits of liabilityfound on each page, the court held that the insurer should have been more explicit in itslimitation language. Squire, 69 Ill. 2d at 178-79, 370 N.E.2d at 1049. An antistacking clausewas present in the basic personal injury protection coverage, but in the uninsured portion,there was no language that incorporated this antistacking clause with the uninsured coverage. Squire, 69 Ill. 2d at 173, 370 N.E.2d at 1046.

Squire and Jones do not conflict with our decision herein because there is noambiguity in the antistacking clause or its applicability to the underinsured endorsement to thepolicy. Maka argues that when an insured refers to the underinsured motorist coverageendorsement to determine his coverage and limits thereunder, the insurer should have includedthe antistacking clause within the endorsement so as to avoid any potential ambiguity. Thiswas done, however, with the incorporation of the terms and conditions of Part II. In fact,when an insured refers to the underinsured motorist coverage endorsement to determine hiscoverage and limits, it is directly indicated that the Part II - Uninsured limitations apply,including the antistacking provisions.

Maka next relies on Yates v. Farmers Automobile Insurance Ass'n, 311 Ill. App. 3d 797,724 N.E.2d 1042 (2000), and Pekin Insurance Co. v. Goben, 303 Ill. App. 3d 639, 707 N.E.2d1259 (1999). In Yates and Pekin, the issue was whether the declarations page and the policies'antistacking provisions were inconsistent so as to create an ambiguity and thereby nullify theapplicability of the antistacking clause. Yates, 311 Ill. App. 3d at 800, 724 N.E.2d at 1045; Pekin,303 Ill. App. 3d at 648, 707 N.E.2d at 1265.

In both cases, the decision by the court to allow the two coverages to be stacked rested onthe fact that the declarations page was for one policy which provided coverage for two vehicleswith two premiums. Yates, 311 Ill. App. 3d at 800, 724 N.E.2d at 1045, and Pekin, 303 Ill. App.3d at 648, 707 N.E.2d at 1265. Therefore, when the insured referred to the declarations page todetermine the limits of coverage, there were two amounts listed, one for each vehicle. As stated inPekin, there were two possible interpretations of these provisions: 1) the insured had $500,000 inunderinsured motorist coverage available from one vehicle, and an additional $500,000 inunderinsured motorist coverage from the second vehicle; or 2) the insured had only $500,000 inunderinsured motorist coverage, the coverage set forth under one of the two vehicles. Pekin, 303Ill. App. 3d at 648, 707 N.E.2d at 1265. Because the policy was subject to two interpretations, anambiguity was created, and the policy would be construed in a manner most favorable to theinsured. Yates, 311 Ill. App. 3d at 800, 724 N.E.2d at 1045; Pekin, 303 Ill. App. 3d at 649, 707N.E.2d at 1266. The court in Pekin fully explained that its finding of ambiguity hinged solely onthe fact that the declarations page to which the clause referred listed two vehicles with separatecoverages and separate premiums. Pekin, 303 Ill. App. 3d at 649, 707 N.E.2d at 1266.

This determinative factor is not present in Maka's policy. First, Maka has two separatepolicies, one for each vehicle. The limits of coverage, liability amounts and premiums aretherefore on separate declarations pages. Second, the declarations page clearly states, "It is subjectto all the other terms of the policy." This statement is another way of alerting the insured to referto the policy to obtain the applicable limitations. Because none of the circumstances that led thecourts in Yates and Pekin to find ambiguity are found in Maka's policy, we do not find these casespersuasive. Additionally, the recent case of Hall v. General Casualty Co. of Illinois, 328 Ill.App. 3d 655, 766 N.E.2d 680 (2002), does not change our conclusion. As stated in Hall, the casewas nearly identical to Yates in the respect that the declarations page could reasonably be construedto provide for additional liability coverage where a premium was shown for a second vehicle. Hall, 328 Ill. App. 3d at 658-59, 766 N.E.2d at 684. The decision to allow stacking rested on thepresence of language on the declarations page: "Insurance is provided where a premium is shown." This language was directly contradictory to the antistacking clause. Hall, 328 Ill. App. 3d at 659,766 N.E.2d at 684. Similar language is not present on Maka's declaration page.

When faced with interpreting antistacking clauses, such clauses will be enforced as writtenif the clause is unambiguous and does not violate public policy. Allstate Insurance Co. v.Gonzalez-Loya, 226 Ill. App. 3d 446, 449, 589 N.E.2d 882, 885 (1992). In determining whetherthere is an ambiguity, the clause must be read in its factual context and not in isolation. Glidden v.Farmers Automobile Insurance Assn., 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250 (1974). As wehave already stated, we do not find ambiguity in Farmers' antistacking provision, or in itsincorporation of the endorsement of underinsured coverage.

Further, the antistacking clause does not raise any public policy considerations. While Makadoes not directly raise this issue, we are mindful that the Illinois Insurance Code now expresslyauthorizes the use of antistacking provisions in automobile policies. 215 ILCS 5/143a-2(5) (West1992). In fact, the clause used by Farmers applies some of the statutorily authorized languagefrom section 143a-2(5), which permits an insurer to limit recovery to the higher of the applicablelimits of coverage, if the insured has coverage under more than one policy. 215 ILCS 5/143a-2(5)(West 1992).

The antistacking provision found in the policies clearly and unequivocally specifies that theliability limits of two policies may not be stacked. Additionally, the "other insurance" clause in theunderinsured endorsement for both Policy 15 and Policy 16 informs the insured that the coverageunder Policy 16 is excess coverage over Policy 15 and applies only if the limits of liability ofPolicy 16 exceed the limits of liability of the other underinsured coverage. Under these policies,there would be no additional coverage under Policy 16 when the liability limit of $50,000 is lessthan that present in Policy 15. Farmers' denial of coverage under Policy 16 was in accordance withthe terms of the policy into which Maka entered. Therefore, the terms of the policies should beenforced as written. Accordingly, we affirm the trial court's decision to grant summary judgmentin favor of Farmers.

Affirmed.

BUCKLEY and O'MARA FROSSARD, JJ. concur.