Find Legal Information

FIFTH DIVISION

December 29, 2000

No. 1-99-3093

JUSTICE QUINN delivered the opinion of the court:

Plaintiff, Theresa Martin, brought a declaratory judgmentaction seeking to construe the limits of underinsured motoristcoverage contained in insurance policies issued by defendantsIllinois Farmers Insurance Company and Country Mutual InsuranceCompany. The trial court granted defendants' motions to dismissplaintiff's action for declaratory relief pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615(West 1998); 735 ILCS 5/2-619 (West 1998). On appeal, plaintiffcontends that the trial court erred in finding that: 1) theantistacking provisions contained in defendants' respectiveinsurance policies were unambiguous; 2) her loss of society claimis subject to the per person limit of the Illinois FarmersInsurance policy; and 3) she is not entitled to recover damages fordefendants' alleged "vexatious and unreasonable" delay in settlingher claim pursuant to section 155 of the Illinois Insurance Code(210 ILCS 5/155 (West 1998)). For the reasons which follow, weaffirm.

On March 7, 1997, plaintiff's husband, Richard Martin III waskilled while riding as a passenger in a vehicle driven by hisfather, Richard Martin Jr. Richard Martin Jr. had liabilityinsurance with Illinois Farmers Insurance Company (Farmers) thatwas in full force and effect at the time of the accident withunderinsured motorist coverage limits of $100,000 perperson/$300,000 per occurrence.

The Farmers policy contains two clauses that are particularlysignificant to this appeal. Farmer's policy first defines"underinsured motor vehicle" as follows:

"[A] motor vehicle for which the owner or

operator is insured or bonded for bodily injury liabilityat the time of the accident in an amount equal to orgreater than the amount specified by the financialresponsibility laws of Illinois, but less than the limitsof liability shown on the declaration page of this policyfor uninsured motorist coverage."

The next clause of importance in the Farmers policy is the "limitsof liability" clause for uninsured and underinsured motoristcoverage that provides in pertinent part:

"The limits of liability for underinsured

motorist coverage are the same limits shown on thedeclaration page of this policy for uninsured motoristcoverage. The amount of underinsured motorist coveragewe will pay shall be the lesser of:

(1) The limits of liability reduced

by all amounts paid in damages to the insuredperson by or for any person or organizationwho may be legally liable for the bodilyinjury;

(2) The unrecovered amount of

damages established by an agreement,settlement, or judgment with or for thepersons or organizations legally liable forthe bodily injury."

We note that the section quoted above is cited by both Farmers andplaintiff as being a part of the insurance policy. However, athorough review of the record indicates that this section of theinsurance policy was not included in the record. Farmers' motionto dismiss, which is included in the record, is the only referencethe parties' provide as evidence of the existence of this sectionof the policy. As both parties have cited the same section of thepolicy, we find that it is not in dispute and accept it as true.

Plaintiff had two insurance policies with Country MutualInsurance Company (Country Mutual). The Country Mutual insurancepolicies provide a single underinsured motorist coverage limit of$100,000 per person/$300,000 per occurrence. Richard Martin IIIwas named as an additional insured under both of the policies withCountry Mutual.

Country Mutual policies define an "underinsured motor vehicle"as:

"[A]ny type of motor vehicle or trailer for

which the sum of all liability bonds or policies at thetime of an accident are less than the limit of thisinsurance."

The Country Mutual policy also contains an "underinsuredmotorist endorsement" which states in pertinent part:

"The most we will pay under Underinsured

Motorists Coverage, Coverage U, to any one person is thelesser of:

(1) the difference between the 'each person'

limit of this coverage as shown on the declarations pagefor this coverage and the amount paid to the insured byor on behalf of persons or organizations who may belegally responsible for the bodily injury caused by anunderinsured motor vehicle; or

(2) the difference between the amount of the

insured's damages and the amount paid to the insured byor on behalf of persons or organizations who may belegally responsible for the bodily injury caused by anunderinsured motor vehicle.

***[T]he maximum amount we will pay to all

insureds is the difference between the 'each occurrence'limit of this coverage as shown on the declarations pageand the amount paid to the insured by or on behalf ofpersons or organizations who may be legally responsiblefor the bodily injury caused by an underinsured motorvehicle."

Country Mutual's limit of liability clause provides asfollows:

"The Uninsured-Underinsured Motorists limits

of liability shown on the declarations page apply asfollows:

a. The limit of liability for "each person"

is the maximum amount we will pay for all damages arisingout of bodily injury to any one person in any oneaccident. That maximum amount includes any claims ofother persons for damages arising out of that bodilyinjury.

The figure listed is the most we will pay for

any one person in any one accident regardless of thenumber of insureds, claims made, insured vehicles,premiums shown on the declarations page, or uninsured orunderinsured motor vehicles involved in the accident***."

Following the accident, plaintiff made an appropriate claimand Farmers tendered to plaintiff $100,000, the limit of liabilityunder Richard Martin Jr.'s policy with Farmers.

On August 17, 1997, plaintiff executed a "Release in Full ofAll Claims and Rights." The release provided in pertinent part:

"For and in consideration of the sum of ONE

HUNDRED THOUSAND ($100,000) DOLLARS, receipt of which ishereby acknowledged, I, THERESA MARTIN, Individually andas Special Administrator of the Estate of Richard James,Martin, III, Deceased, release and forever dischargeRICHARD MARTIN, JR., his principals, agents,representatives and insurance carriers from any and allrights, claims, demands, and damages of any kind, knownor unknown, existing or arising in the future, resultingfrom or related to personal injuries, death or propertydamage, arising from an accident that occurred on orabout March 7, 1997, ***."

When Farmers and Country Mutual refused plaintiff's demand foradditional benefits, plaintiff filed a complaint for declaratoryjudgment and asserted that Farmers was obligated to pay $100,000 inunderinsured motorist coverage and Country Mutual was obligated topay $200,000 in underinsured motorist coverage. Plaintiff alsoargued that both defendants unreasonably and vexatiously delayedsettlement in violation of section 155 of the Illinois InsuranceCode.

Country Mutual filed a motion to dismiss plaintiff'sdeclaratory judgment action pursuant to section 2-615 of the Codeof Civil Procedure. Country Mutual argued that plaintiff'scomplaint should be dismissed because it failed to allege: 1) thatthe underlying occurrence was caused by an underinsured motorist;2) the existence of and the amount of coverage of any liabilitypolicy covering the alleged underinsured motorist; 3) that anyliability bonds or policies available to an alleged underinsuredmotorist have been exhausted by judgments or payments as requiredby the Country Mutual insurance policy; and 4) that Country Mutualwas guilty of "vexatious and unreasonable" delay.

Farmers also filed a motion to dismiss plaintiff's complaintpursuant to section 2-619 of the Code of Civil Procedure. Farmersargued that: 1) plaintiff is not entitled to underinsured motoristbenefits because the vehicle operated by the tortfeasor, RichardMartin Jr., was not underinsured; 2) plaintiff's loss of societyclaim is subject to per person limits of liability; 3) plaintiffreleased Farmers from all liability and as special administrator ofher husband's estate, signed a release of all claims and rights shemay have had arising from the accident.

Plaintiff subsequently filed an amended complaint fordeclaratory judgment to include the allegation that Richard MartinIII's death was caused by the negligence of his father, who was aninsured motorist with Farmer's and sought damages in the amount of$100,000.

Plaintiff also submitted the affidavit of one her attorneys,who averred that at the time the settlement was entered into andthe release was executed, the parties were still negotiatingplaintiff's claim for additional benefits under the liabilityprovision of the policy Farmers issued to Robert Martin Jr.Therefore, plaintiff did not intend to release her underinsuredmotorist claim.

Brian Morris, a claims representative for Farmers, averredthat he handled plaintiff's bodily injury claim and the executionof the release. Morris stated that the payment of the $100,000 wasintended to resolve all disputes that existed between Farmers andplaintiff. Morris averred that at no time prior to settlement andexecution of the release was he negotiating on behalf of Farmersfor additional coverage under the underinsured motorist coverageportion of the policy.

On March 23, 1999, the trial court granted defendants'respective motions to dismiss plaintiff's action for declaratoryrelief. The court found that there was no gap between the amountof Richard Martin Jr.'s liability coverage and plaintiff'sunderinsured motorist coverage, therefore, plaintiff had no validunderinsured motorist claim against Farmers. The court also foundthat there was no ambiguity in the underinsured motorist provisionsfor either policy, therefore, stacking was prohibited. The courtfurther determined that because there was a bona fide dispute overcoverage, defendants were not liable for "vexatious andunreasonable" delay under section 155 of the Insurance Code. Plaintiff filed a motion for reconsideration which the trial courtdenied. Plaintiff now appeals.

When ruling on a motion to dismiss under either section 2-615or section 2-619 of the Code of Civil Procedure, the circuit courtmust interpret all pleadings and supporting documents in the lightmost favorable to the nonmoving party. The court should grant themotion only if the plaintiff can prove no set of facts that wouldsupport a cause of action. Gouge v. Central Illinois PublicService Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108 (1991). Becausethis process does not require the court to weigh facts or determine

credibility, a reviewing court does not give a circuit court'sjudgment deference, but instead reviews the matter de novo. Toombsv. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50(1993).

We first address whether Richard Martin Jr.'s vehiclesatisfies the definition of an underinsured motor vehicle. Inexamining whether the vehicle is underinsured, we must look toFarmers' insurance policy and the underinsured motor vehicleprovision contained within the Illinois Insurance Code.

Section 143a-2(4) of the Illinois Insurance Code defines anunderinsured motor vehicle as follows:

"For the purpose of this Code the term

'underinsured motor vehicle' means a motor vehicle whoseownership, maintenance or use has resulted in bodilyinjury or death of the insured, as defined in the policy,and for which the sum of the limits of liability underall bodily injury liability insurance polices or underbonds or other security required to be maintained underIllinois law applicable to the driver or to the person ororganization legally responsible for such vehicle andapplicable to the driver or to the person or organizationlegally responsible for such vehicle and applicable tothe vehicle, is less than the limits for underinsuredmotorist coverage provided the insured as defined in thepolicy at the time of the accident. The limits ofliability for an insurer providing underinsured motoristcoverage shall be the limits of such coverage, less thoseamounts actually recovered under the applicable bodilyinjury insurance policies, bonds or other securitymaintained on the underinsured vehicle. However, themaximum amount payable by the underinsured motoristcoverage carrier shall not exceed the amount by which thelimits of the underinsured motorist coverage exceeds thelimits of the bodily injury liability insurance of theowner or operator of the underinsured motor vehicle." 215 ILCS 5/143a-2(4) (West 1998).

The purpose of underinsured coverage is to furnish protection forthe difference between the insured's claim and the amountsavailable from the underinsured driver. Susler v. Country MutualInsurance Co., 147 Ill. 2d 548, 556, 591 N.E.2d 427 (1992). Thus,section 143(a)-2(4) must be construed to allow an insured to "fillthe gap" between the benefits paid by the tortfeasor's insurancecarrier and the limit of underinsurance coverage specified in theinsured's policy. Koperski v. Amica Mutual Insurance Co., 287 Ill.App. 3d 494, 498, 678 N.E.2d 734 (1997).

Richard Martin Jr.'s policy with Farmers states that hisunderinsured motorist coverage is limited to $100,000 per person. However, plaintiff asserts that she is not limited to this amountof liability coverage. Rather, plaintiff argues that coverage isavailable for the margin between that amount received by plaintifffrom the underinsured motorist and the actual damages she isentitled to recover. In support of her contention, plaintiffrelies on McKinney v. American Standard Insurance Co., 296 Ill.App. 3d 97, 694 N.E.2d 200 (1998). In McKinney, the policy limitsof liability provision stated:

"[A]ny amounts payable will be reduced by:

1. A payment made or amount payable

by or on behalf of any person or organizationwhich may be legally liable, or under anycollectible auto liability insurance, for losscaused by an accident with an underinsuredmotor vehicle." McKinney, 296 Ill. App. 3d at99.

The policy also defined an underinsured motor vehicle as one with"a liability *** policy *** which provides bodily injury liabilitylimits less than the damages an uninsured person is legallyentitled to recover." (Emphasis added.)

The issue before the court was whether the term "amountspayable" referred to the total amount of damages legally due theplaintiff or the plaintiff's underinsured policy limits of $50,000. The plaintiff contended that the policy language required thedefendant to pay the full amount of compensatory damages less theamount paid by the tortfeasor and his insurer. The defendantasserted that the policy language did not require compensation forthe full amount of damages. This court held that because thelanguage of the defendant's policy provided that it would pay allcompensable damages, the plaintiff's reasonable expectation wouldbe that "amounts payable" was equivalent to the total damagesincurred. McKinney, 296 Ill. App. 3d at 101. The court went on tohold that because the policy provisions were susceptible to morethan one reasonable interpretation, and the term "amounts payable"was ambiguous, coverage for the underinsured motorist policy wasavailable for the margin between the amount the plaintiff receivedfrom the underinsured and the actual damages the plaintiff wasentitled to recover. McKinney, 296 Ill. App. 3d at 102-103.McKinney is clearly distinguishable from the case at bar.

Here, unlike McKinney, the policy language is very similar tothe language in section 143a-2(4) of the Illinois Insurance Code.As such, there is no ambiguity in the policy. An examination ofthe potential coverage establishes that the gap to be covered wouldbe between the amount of the underinsured motorist coverage($100,000) and the amount of the tortfeasor's policy ($100,000). As plaintiff received $100,000 from Farmers, which was the statedcoverage amount in the Farmers policy and the amount of plaintiff'scoverage in the Country Mutual policy, we hold that there is no gapin coverage and Richard Martin Jr.'s vehicle is not underinsured. Plaintiff next argues that the trial court erred inprohibiting her from stacking the underinsured motorist coverageunder the two policies issued to her by Country Mutual and RichardMartin Jr.'s policy with Farmers.

Plaintiff first asserts that because she and Richard MartinIII maintained separate Country Mutual policies and paid separatepremiums, the reasonable expectation of these parties was that theywould secure payment of underinsured motorist benefits wheredamages in excess of any liability coverage were sustained. Plaintiff argues that under this reasonable expectation, she can"stack" the $100,000 limit of each of the two County Mutualpolicies for a total underinsured motorist limit of $200,000.

Regarding the Farmer's policy, plaintiff asserts that becauseRichard Martin Jr. paid separate premiums for his underinsuredmotorist coverage and his bodily injury coverage, Farmers is notallowed to set off amounts paid under the bodily injury sectionagainst the underinsured motorist section of the same policy.

Antistacking provisions in insurance policies areunenforceable when the language employed is unclear or ambiguous. Grzeszczak v. Illinois Farmers Insurance Co., 168 Ill. 2d 216, 220,659 N.E.2d 952 (1995). If an insurance clause is ambiguous, itmust be construed in favor of the insured. Grzeszczak, 168 Ill. 2dat 223. However, if a clause is unambiguous, there is no need forconstruction, and it must be enforced according to its terms. Grzeszczak, 168 Ill. 2d at 223.

Section 143a-2(5) of the Illinois Insurance Code governsantistacking provisions in insurance policies and provides inpertinent part:

"Nothing herein shall prohibit an insurer from

setting forth policy terms and conditions which providethat if the insured has coverage available under thisSection under more than one policy or provision ofcoverage, any recovery or benefits may be equal to, butmay not exceed, the higher of the applicable limits ofthe respective coverage, and the limits of liabilityunder this Section shall not be increased because ofmultiple motor vehicles covered under the same policy ofinsurance. 215 ILCS 5/143a-2(5) (West 2000).

Country Mutual's policy contains the following antistackingprovision:

"If this policy and any other vehicle

insurance policy issued to you or a relative by one ofour companies apply to the same accident, the maximumamount of our liability under all the policies will notexceed the highest applicable limit of liability underany one policy."

Farmers policy also contains an antistacking provision:

"The limits provided by this policy may not be

stacked or combined with the limits provided by any otherpolicy issued to you or a family member or any member ofthe Farmers Insurance Group of Companies."

Plaintiff argues that when Country Mutual's and Farmer'santistacking provisions are read in conjunction with the insured'sreasonable expectations, a latent ambiguity exists which must beresolved in the insured's favor. Plaintiff relies on several casesto support her contention that the antistacking provisions in eachof the respective insurance policies are ambiguous.

Plaintiff cites Glidden v. Farmers Automobile InsuranceAssociation, 57 Ill. 2d 330, 312 N.E.2d 247 (1974) and Gibbs v.Madison Mutual Insurance Co., 242 Ill. App. 3d 147, 610 N.E.2d 143(1993). Both of these cases are factually distinguishable from thecase at bar. Contrary to the instant case, which concerns anunderinsured motorist claim, Glidden involved an uninsured motoristclaim. Glidden, 57 Ill. 2d at 331. Gibbs involved multipleplaintiffs. The limit of liability clause at issue in Gibbslimited coverage to the highest of two or more policies issued bythe same company which created an ambiguity where two vehicles wereinsured under the same policy. Gibbs, 242 Ill. App. 3d at 152-153. It is unclear from plaintiff's argument where she finds anambiguity in either Farmers' or Country Mutual's policy. Plaintiffargues that under the "premium rule", the reasonable expectationwhen she purchased the underinsured motorist coverage from CountryMutual and paid separate premiums was that she was securingcoverage to meet any discrepancy between the liability coverage ofthe at fault driver and the total damages sustained.

It is well settled that the premium rule is a rule ofconstruction and should not be applied unless an ambiguity existsin the amount of coverage intended. Grzeszczak, 168 Ill. 2d at229. As we find no ambiguity in the Country Mutual clauses atissue, application of the premium rule is unnecessary.

Regarding Farmers policy, as Farmers points out, plaintifffails to explain how Farmers policy is ambiguous. Plaintiff merelyargues that the following policy language, "we will pay all sumswhich an insured person is legally entitled to recover as damagesfrom the owner or operator of an underinsured motor vehicle becauseof bodily injury sustained by the insured person", read inconjunction with the limit of liability clause stated above createsan ambiguity with the result that coverage is treated as if nolimits of liability clause existed in the policy and the claimantswere permitted to stack coverage. As plaintiff fails to allege anyparticular ambiguity in the policy, we find the provisions to beclear. Absent any ambiguity in either Country Mutual's or Farmers'policy, we hold that the antistacking provisions are enforceable

as written.

In light of our holdings that Richard Martin Jr.'s vehicle wasnot underinsured and that plaintiff is prohibited from stackingunderinsured coverage, it is unnecessary to address the effect ofthe release plaintiff executed after receiving the $100,000liability limit of Farmers insurance policy. However, we choose toaddress it and hold that the release was intended to include anyfurther claims, including plaintiff's underinsured motorist claim. Farmers argues that plaintiff executed the written releaseafter accepting the $100,000 per person liability limit of Farmerspolicy with Richard Martin Jr. Farmers asserts that the releaseindicates plaintiff's intent to release Richard Martin Jr. andFarmers from any and all further claims. Plaintiff responds thatthe release she executed was not intended to include theunderinsured motorist claim.

The scope and effect of a release is controlled by theintention of the parties. Carlile v. Snap-on Tools, 271 Ill. App.3d 833, 837, 648 N.E.2d 317 (1995). This intent is "discerned fromthe language used and the circumstances of the transaction." Carona v. Illinois Central Gulf R.R. Co., 203 Ill. App. 3d 947,951, 561 N.E.2d 239 (1990). A release cannot be construed toinclude claims not within the contemplation of the parties. Carona, 203 Ill. App. 3d at 951. Where there are only words of ageneral release, the release will be restricted to the thing orthings intended to be released and will not interpret generalitiesso as to defeat a valid claim not then in the minds of the parties. Beauvoir v. Rush-Presbyterian-St. Luke's Medical Center, 137 Ill.App. 3d 294, 304, 484 N.E.2d 841 (1985).

Here, we hold that the underinsured motorist claim was withinthe scope of the language of the release. The claims to bereleased are described in comprehensive language as "any and allrights, claims, demands, and damages of any kind, known or unknown,existing or arising in the future, resulting from or related topersonal injuries, death or property damage arising from anaccident that occurred on or about March 7, 1997." Plaintiff'sattorney averred that releasing the underinsured motorist claim wasnot within the contemplation of the parties and urges us to rely onthe fact that the release did not expressly enumerate this claim. Regardless of what plaintiff's intent was, as evidenced by herattorney's affidavit, whether the release encompassed theunderinsured motorist claim is determined by the language of therelease.

Plaintiff next contends that her loss of society claimconstitutes a separately compensable injury subject to its own perperson limits of defendant Farmer's uninsured motorist policy. Farmer's policy states the following in pertinent part:

"The uninsured motorist bodily injury limit

for each person is the maximum we will pay for alldamages resulting from bodily injury sustained by oneperson in any one accident or occurrence. Included inthis limit, but not as a separate claim or claims, areall the consequential damages sustained by other persons,such as loss of services, loss of support, loss ofconsortium, wrongful death, grief, sorrow and emotionaldistress."

In support of her contention, plaintiff specifically relies onStearns v. Millers Mutual Insurance Association of Illinois, 278Ill. App. 3d 893, 663 N.E.2d 517 (1996). Plaintiff urges us tofind that our decision in Stearns controls the outcome of this casebecause the provisions in the insurance policy at issue in Stearnswere similar to the provisions in Farmers policy here. Plaintiffasserts that in Stearns, this court construed similar policylanguage and held that the higher per occurrence limit applied tomultiple wrongful death claims arising from the death of theplaintiff's decedent. In so holding, this court further determinedthat the policy language was ambiguous. Stearns, 278 Ill. App. 3dat 897. The language provided that:

"The limit of liability shown in the Schedule

or in the Declarations for each person for UninsuredMotorists Coverage is our maximum limit of liability forall damages including damages for care, loss of servicesor death, arising out of bodily injury sustained by anyone person in any one accident." Stearns, 278 Ill. App.3d at 895.

We find that plaintiff's reliance on Stearns is misplaced. First, Stearns involved uninsured motorist coverage applicable tothree separate insureds. This court found that the insuranceprovisions in Stearns could reasonably be interpreted to mean thatthe insured's mother and sister were each entitled to receive theirown policy limit of $100,000 as "compensatory damages" for the lossof consortium because of the "bodily injury" of the insureddaughter/sister who died in the accident. Stearns, 278 Ill. App.3d at 899.

As Farmers points out, Stearns was expressly overruled byMcKinney v. Allstate Insurance Co., 188 Ill. 2d 493, 722 N.E.2d1125 (1999). McKinney held that Stearns' interpretation of thepolicy language at issue was reached only by editing the languageof the policy to remove all of the language surrounding the term"each person." McKinney, 188 Ill. 2d at 499. McKinney furtherheld the following:

"The policy at issue in Stearns clearly and

unambiguously limited all damages arising out of bodilyinjury to one person in one motor vehicle accident to asingle $100,000 limit of liability and expressly defined'damages' as including 'damages for care and loss ofservices or death.' Because the Stearns court found anambiguity where none existed, we hereby overrule thatdecision." McKinney, 188 Ill. 2d at 499-500.

Here, we hold that the Farmer's policy language is clear andunambiguous. The policy clearly states that the per person limitof liability applies to "all damages." "Included in this limit,but not as a separate claim or claims are all the consequentialdamages sustained by other persons, such as *** loss of society." (Emphasis added). This holding is consistent with previousIllinois cases which hold that loss of consortium is a derivativeclaim to the direct injury that causes it and as a result, isgenerally included and subject to the policy limitations for bodilyinjury to one person. Schweigart v. Standard Mutual Insurance Co.,227 Ill. App. 3d 249, 591 N.E.2d 121 (1992); Berutti v. State FarmMutual Auto Insurance Co., 288 Ill. App. 3d 997, 1001, 682 N.E.2d216 (1997); Economy Preferred Insurance Co. v. Ingold, 302 Ill.App. 3d 360, 362-63, 707 N.E.2d 985 (1998).

Plaintiff lastly contends that she should recover damages fromdefendants for "vexatious and unreasonable" delay in settling herclaims pursuant to section 155 of the Illinois Insurance Code (210ILCS 5/155 (West 1998)). Plaintiff argues that such penalties maynot be determined as a matter of law because the relevant factorscannot be determined on the pleadings. Defendants respond thatsince a legitimate coverage dispute is at issue, plaintiff has notstated a claim for damages under section 155 of the Insurance Code.

Section 155 of the Insurance Code provides in pertinent part:

"*** (1) In any action by or against a company

wherein there is in issue the liability of a company ora policy or policies of insurance or the amount of theloss payable thereunder, or for an unreasonable delay insettling a claim, and it appears to the court that suchaction or delay is vexatious and unreasonable, the courtmay allow as part of the taxable costs in the actionreasonable attorney fees, other costs, plus an amount notto exceed any one of the following amounts:

(a) 25% of the amount which the

court or jury finds such party is entitled torecover against the company, exclusive of allcosts;

(b) $25,000;

(c) the excess of the amount which

the court or jury finds such party is entitledto recover, exclusive of costs, over theamount, if any, which the company offered topay in settlement of the claim prior to theaction." 215 ILCS 5/155 (West 1998).

Section 155 of the Illinois Insurance Code provides a remedy for aninsured who encounters unnecessary difficulties when an insurerwithholds policy benefits. Bedoya v. Illinois Founders InsuranceCo., 293 Ill. App. 3d 668, 679, 688 N.E.2d 757 (1997). However, adefendant cannot be liable for section 155 relief where no benefitsare owed. O'Rourke v. Access Health, Inc., 282 Ill. App. 3d 394,406, 668 N.E.2d 214 (1996).

In the present case, plaintiff's amended complaint fordeclaratory judgment contained no factual allegations other thanthat "defendants be ordered and directed to pay reasonable attorneyfees to plaintiff as a result of the conduct of the defendants infailing to honor the claim of the plaintiff." Plaintiff'scomplaint never alleged that defendants could be liable for section155 relief even if they were not liable under the policy. Asdefendants owed no further benefits to plaintiff under theirrespective policies, defendants could not have committed thevexatious and unreasonable conduct necessary for section 155relief.

Based upon the foregoing reasons, the judgment of the circuitcourt of Cook County granting defendants' motions to dismissplaintiff's amended complaint for declaratory relief is affirmed.

Affirmed.

HARTMAN and THEIS, JJ., concur.