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We have before us the consolidated appeal of case Nos. 5-01-0077 and 5-01-0196. Diane Halverson (plaintiff) is the plaintiff-appellant in each case. Her daughter, AmieStamm is the defendant-appellee in case No. 5-01-0077, and Allstate Insurance Company(Allstate) is the defendant-appellee in case No. 5-01-0196. Both cases arise from anautomobile accident involving plaintiff and Stamm wherein plaintiff was injured in theaccident. In case No. 5-01-0077, plaintiff sued Stamm in the circuit court of JacksonCounty, alleging negligence. In case No. 5-01-0196, plaintiff sued Allstate in the circuitcourt of Saline County, seeking to recover medical expenses allegedly covered under aninsurance policy purchased from Allstate. The facts giving rise to both cases are as follow.

On September 8, 1997, plaintiff, Stamm, and Stamm's son were nearing the end ofa 10-hour drive from Oklahoma to Illinois when Stamm, who was driving the car, ran a stopsign and collided with a truck. It was nearly 5 o'clock in the morning when the accidentoccurred. Stamm was driving plaintiff's automobile, while plaintiff was asleep in thepassenger seat and Stamm's son was asleep in the backseat. Plaintiff was injured in theaccident and taken to a hospital, where doctors discovered that a bone in her foot had beenshattered. A cast was placed on her foot and she was eventually sent home on crutches. Tendays after the accident, plaintiff was visiting friends when one of her crutches slipped outfrom under her and she sustained injuries to her shoulder.

In effect at the time of the accident was an automobile insurance policy that plaintiffhad purchased from Allstate. The policy provided plaintiff with several areas of insurancecoverage, including automobile liability insurance (covering bodily injury and propertydamage), uninsured-motorists insurance, auto collision insurance, auto comprehensiveinsurance, and "Automobile Medical Payments" insurance. Separate premiums were paidfor each of these areas of coverage.

According to the terms of the "Automobile Medical Payments" (Medpay) area ofcoverage, Allstate agreed to "pay to or on behalf of an insured person all reasonableexpenses actually incurred for necessary medical treatment, medical services[,] or medicalproducts" when "bodily injury is caused by an accident involving an auto." The descriptionof the Medpay coverage further provided: "[Medpay] benefits, other than funeral serviceexpenses benefits, will be reduced by *** amounts received from others, including theirinsurers, who may be legally responsible for the injuries. This reduction applies only toamounts that are a duplication of payment for the same loss." (Emphasis added.) Finally,the description of the Medpay coverage contained a subrogation clause providing: "Whenwe pay, an insured person's rights of recovery from anyone else become ours up to theamount we have paid. The insured person must protect these rights and help us enforcethem."

On December 31, 1998, plaintiff sued Stamm in the circuit court of Jackson County (case No. 5-01-0077). Plaintiff alleged that Stamm was negligent, and plaintiff soughtdamages for injuries sustained to her foot and shoulder. Allstate acknowledged that Stammwas an insured person under the provisions of the automobile liability insurance coveragepurchased by plaintiff from Allstate. Allstate provided Stamm with an attorney.

On August 9, 2000, the attorney provided by Allstate and representing Stamm filedan amended affirmative defense denying any negligence of Stamm. Stamm's attorneyclaimed that plaintiff was more negligent than defendant or that plaintiff's negligence wasthe proximate cause of plaintiff's injuries because plaintiff allowed Stamm "to drive theplaintiff's car when she knew or should have known that [Stamm] had been driving forseveral hours late at night on an unfamiliar roadway" and because plaintiff "failed to assist[Stamm] in watching for road signs and navigation when she knew that [Stamm] wasdriving late at night on an unfamiliar roadway." The affirmative defense also sought a setoffof $5,429.61 against any judgment for plaintiff. The arguments in support of the affirmativedefense claimed that plaintiff had already been paid $5,429.61 on behalf of Stamm formedical bills incurred as a result of the accident.

The trial began on August 9, 2000. At the trial, Stamm testified that she ran a stopsign during the early morning hours of September 8, 1997, and collided with a truck. Stammtestified that when this occurred, plaintiff was asleep. Stamm stated that the accident wasnot plaintiff's fault and that Stamm was entirely responsible for the accident. Stamm furthertestified that the attorney representing her was not speaking for her when during openingstatement he said that the accident was not her fault. After Stamm testified, plaintiff movedfor a directed verdict on the issue of liability. The circuit court granted plaintiff's motion fora directed verdict, and the trial continued on the issue of damages.

After hearing evidence of damages, the jury returned a verdict awarding plaintiff$51,500 in damages. The jury award consisted of $30,000 for "[t]he reasonable expense ofnecessary medical care, treatment, and services received and the present cash value of thereasonable expenses of medical care, treatment[,] and services reasonably certain to bereceived in the future," $5,000 for disability, $1,500 for disfigurement, and $15,000 for painand suffering.

On August 25, 2000, Stamm's attorney filed a "motion for a setoff" against anyjudgment, in the amount of $5,429.61, "represent[ing] payments made by Allstate InsuranceCompany on behalf of [Stamm] for medical bills incurred by the plaintiff." Plaintiff fileda response claiming that defendant was not entitled to a setoff because none of the $5,429.61paid by Allstate was paid on behalf of Stamm. Plaintiff claimed that the $5,429.61 was paidpursuant to plaintiff's Medpay coverage in the insurance policy plaintiff purchased fromAllstate. Plaintiff suggested that the court enter a judgment without a setoff and then "therewould likely be a contractual obligation by [plaintiff] to reimburse Allstate for moneyreceived by way of judgment." However, plaintiff argued, because the $5,429.61 was notpaid on behalf of Stamm but was paid pursuant to plaintiff's own Medpay policy, a setoffwould be inappropriate.

On September 22, 2000, while Stamm's motion for a setoff was pending in the circuitcourt of Jackson County, plaintiff filed a complaint against Allstate in the circuit court ofSaline County (case No. 5-01-0196). Plaintiff sought reimbursement for medical expensesin the amount of $24,948.01 (less the $5,429.61 that had already been paid) for injuries thatoccurred in the automobile accident involving Stamm. Plaintiff was seeking these expensespursuant to her Medpay coverage of the policy. Plaintiff also claimed that Allstate's refusalto pay her medical expenses under the policy was vexatious and unreasonable.

On October 19, 2000, the circuit court of Jackson County (case No. 5-01-0077)granted Stamm's motion for a setoff and entered a judgment on the jury's verdict less a setoffof $5,429.61 for "payments made to plaintiff." Plaintiff filed a posttrial motion arguing thatthe setoff was inappropriate. That motion was denied. The sole issue plaintiff raises onappeal in this case is whether the circuit court of Jackson County erred in granting Stamm'smotion for a setoff.

On December 13, 2000, in the circuit court of Saline County (case No. 5-01-0196),Allstate filed a motion to dismiss plaintiff's complaint pursuant to subsections (a)(3), (a)(4),and (a)(9) of section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(a)(3), (a)(4),(a)(9) (West 2000)), claiming that the issue raised by plaintiff as to "the extent of medicalbills incurred as a proximate result of the automobile accident of September 8, 1997," hadbeen litigated in the Jackson County lawsuit. Allstate claimed that plaintiff was attemptingto circumvent the Jackson County court and relitigate the same issue before the SalineCounty court.

On March 21, 2001, the circuit court of Saline County granted Allstate's motion todismiss. Plaintiff now appeals this decision. Plaintiff's appeals of the Jackson County caseand the Saline County case have been consolidated in this court. We turn first to plaintiff'sappeal of the circuit court of Jackson County's decision to grant Stamm's motion for a setoff.

On appeal, plaintiff claims that the circuit court of Jackson County erred in grantingStamm's motion for a setoff, because the $5,429.61 received by plaintiff was from a"collateral source" and therefore was not subject to a setoff. Plaintiff argues that the$5,429.61 came directly from Allstate under the Medpay portion of the policy and that,therefore, because the payment made by Allstate to plaintiff was not made by or on behalfof Stamm, Stamm was not entitled to the setoff. Although plaintiff acknowledges that notallowing a setoff amounts to a double recovery for her injuries, plaintiff contends that sheis entitled to the double recovery because she paid for the benefit of the Medpay coverage. Plaintiff argues that the description of the Medpay coverage contains no language regardingreimbursement or a setoff. Furthermore, plaintiff contends that although the policy doescontain a subrogation clause, because Stamm is an insured under the policy, the clausecannot be enforced.

In response⁽¹⁾, Allstate turns to the language of the Medpay coverage that states asfollows: "Medical Payments benefits will be reduced by *** amounts received from others*** who may be legally responsible for the injuries. This reduction applies only to amountsthat are a duplication of payment for the same loss." Allstate argues that this language alonejustifies the circuit court's decision to grant a setoff. In addition, Allstate points to asubrogation clause in the Medpay coverage that provides, "[A]n insured person's rights ofrecovery from anyone else become [Allstate's] up to the amount [Allstate] *** paid." Although Allstate acknowledges that an insurance company generally may not subrogateagainst its own insured, Allstate argues that we should not apply this general rule becauseplaintiff would be receiving a double recovery if subrogation is not allowed. In conclusion,Allstate suggests that we affirm the decision of the circuit court of Jackson County byconstruing the language of the insurance policy by its plain and ordinary meaning andprevent plaintiff from receiving a double recovery.

There is essentially no dispute as to the facts relevant to this appeal. Plaintiff agreesthat medical expenses of $5,429.61 paid by Allstate are included in the $30,000 jury award,and Allstate essentially concedes that the $5,429.61 was paid under the Medpay portion ofthe policy, even though Allstate argued at times that this money was paid "on behalf ofStamm." In addition, there is no dispute as to the language of the insurance policy or thatthe policy was in effect at the time of the accident. Accordingly, because there is no factualdispute in this case, the issue before us is one of law, and our review of the circuit court'sdecision is conducted de novo. See Bank of Chicago-Garfield Ridge v. Park National Bank,237 Ill. App. 3d 1085, 1090 (1992).

We begin our resolution of this appeal by addressing the issue of subrogation. As oursupreme court pointed out in Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314,319 (1992): "The doctrine of subrogation is a creature of chancery. It is a method wherebyone who has involuntarily paid a debt or claim of another succeeds to the rights of the otherwith respect to the claim or debt so paid." Our supreme court noted that the doctrine ofsubrogation rests on the principle that substantial justice should be attained by placingultimate responsibility for the loss upon the one against whom in good conscience it oughtto fall. Dix Mutual Insurance Co., 149 Ill. 2d at 319.

This court has noted, "Under [the] doctrine [of subrogation,] a person who, pursuantto a legal liability, has paid for a loss or injury resulting from the negligence or wrongful actof another will be subrogated to the rights of the injured person against such a wrongdoer." Reich v. Tharp, 167 Ill. App. 3d 496, 501 (1987). However, we have pointed out that forsuch a right to exist, the subrogor must possess a right that he could enforce against a thirdparty. Reich, 167 Ill. App. 3d at 501. Accordingly, no right of subrogation can arise infavor of an insurer against its own insured because, by definition, subrogation arises onlywith respect to rights of the insured against third persons to whom the insurer has no duty. Reich, 167 Ill. App. 3d at 501.

In Dix Mutual Insurance Co., a tenant, with the landlord's approval, attempted toremove some paint from the house he was leasing. A fire resulted and the house wasdamaged. Dix Mutual Insurance Co., 149 Ill. 2d at 318. The landlord's insurance companypaid the landlord for the damage but then brought a subrogation action against the tenant. The lease between the landlord and the tenant did not contain any specific languageregarding fire insurance. However, in interpreting the lease as a whole, our supreme courtconcluded that the lease did not reflect any intent that, during the course of the term of thelease, the tenant would be responsible for any fire damage to the realty. Dix MutualInsurance Co., 149 Ill. 2d at 321. The court then concluded that the tenant, by his paymentof rent, had contributed to the payment of the insurance premium, thereby gaining the statusof a coinsured under the insurance policy, and that therefore the insurance company couldnot maintain a subrogation action against the tenant, as a coinsured, based upon the facts ofthe case. Dix Mutual Insurance Co., 149 Ill. 2d at 323.

We believe that this principle expounded in Dix Mutual Insurance Co. applies to thecase at bar. Like the tenant in Dix Mutual Insurance Co., Stamm is an insured underplaintiff's insurance policy. This is not disputed by Allstate, because Allstate has providedStamm with legal representation at the trial and on appeal and has apparently agreed to paythe damages awarded against Stamm. However, because Stamm is an insured under thesame policy, Allstate cannot maintain an action in subrogation against Stamm. When thecircuit court granted a setoff against the judgment, it essentially allowed Allstate tosubrogate against its own insured. This was held to be an inappropriate action in Dix MutualInsurance Co., and we believe that it is an inappropriate action in the instant case. It is clearunder Dix Mutual Insurance Co. that no right of subrogation can arise in favor of an insureragainst its own insured because, by definition, subrogation arises only with respect to rightsof the insured against third persons to whom the insured owes no duty. Dix MutualInsurance Co., 149 Ill. 2d at 323; Reich, 167 Ill. App. 3d at 501. Accordingly, because webelieve that no right to subrogation exists in the instant case and that allowing a setoff isessentially allowing Allstate to subrogate against its own insured, we believe that the circuitcourt's decision to grant a setoff was in error.

Before continuing, however, we must take up Allstate's argument that if a setoff isnot allowed, then a double recovery in violation of Illinois public policy results to the benefitof plaintiff. There is no dispute that the $5,429.61 paid by Allstate to plaintiff for medicalexpenses is also included in the jury award to plaintiff against Stamm. Accordingly, thereis no dispute that if a setoff is not allowed, plaintiff will receive a double recovery. However, although Illinois generally disfavors a double recovery, a double recovery isappropriate in some situations. See Muranyi v. Turn Verein Frisch-Auf, 308 Ill. App. 3d213, 215 (1999). Under the facts of the instant case, we believe that this is a situation wherea double recovery is appropriate. This is so because plaintiff bargained for such a doublerecovery when she purchased her insurance policy from Allstate. We now turn to thelanguage of the insurance policy supporting this bargain.

As we noted earlier, the language of the Medpay coverage provides that medicalexpenses will be reduced by "amounts received from others *** who may be legallyresponsible for the injuries." (Emphasis added.) When construing the language of aninsurance policy, a court must give effect to the intention of the parties as expressed in theiragreement. State Farm Mutual Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436, 441(1998). The court must read the policy as a whole and consider the type of insurancepurchased, the nature of the risks involved, and the overall purpose of the contracts. Villicana, 181 Ill. 2d at 442. Words in an insurance policy are to be given their plain andordinary meaning. Roberts v. Country Mutual Insurance Co., 231 Ill. App. 3d 713, 716(1992). According to Webster's Third New International Dictionary 1598 (1993), the word"others" is defined as "the ones distinct from the one or those first mentioned or understood." Therefore, when the words in this provision are construed according to their plain andordinary meaning, it is clear that the parties intended that this provision does not apply to areimbursement from Stamm. Stamm is clearly not an "other" in this case but is an insuredunder the policy. This is because "others" must be construed as "the ones distinct from theone or those first mentioned or understood," and those first mentioned or understood arethose insured under the policy. Accordingly, "others" must apply only to those who are notinsured under the policy. Therefore, because Stamm cannot be considered to fall under thecategory of "others" under the policy, the "reduction" provision is not applicable. By theterms of Allstate's own insurance contract, it is clear that plaintiff bargained for a doublerecovery in the factual circumstances of the case before us, and we do not believe thatallowing plaintiff a double recovery, a recovery for which she bargained when shepurchased insurance from defendant, is against Illinois public policy.

For the foregoing reasons, we believe that the circuit court erred in granting themotion for a setoff. We find it unnecessary to remand this matter to the circuit court, andunder the powers given to us by Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)),we reverse the circuit court's decision with regard to the setoff.

We now turn to case No. 5-01-0196, in which plaintiff appeals the circuit court ofSaline County's decision to grant Allstate's motion to dismiss plaintiff's complaint. In thiscase, plaintiff sued Allstate, seeking reimbursement for medical expenses in the amount of$24,948.01. Plaintiff also claimed that Allstate's refusal to pay these expenses has beenvexatious and unreasonable. The circuit court of Saline County dismissed plaintiff'scomplaint pursuant to section 2-619(a)(3) ("there is another action pending between thesame parties for the same cause") and section 2-619(a)(4) ("the cause of action is barred bya prior judgment") of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(3), (a)(4)(West 2000)). The circuit court provided no specific reasons for its dismissal. We believethat the circuit court's decision was in error.

Section 2-619(a)(4) of the Code permits a court to dismiss an action on the groundthat it is " 'barred by a prior judgment.' " Marvel of Illinois, Inc. v. Marvel ContaminantControl Industries, Inc., 318 Ill. App. 3d 856, 863 (2001) (quoting 735 ILCS 5/2-619(a)(4)(West 1998)). This section incorporates the doctrine of res judicata, which has threeessential elements: (1) a final judgment on the merits rendered by a court of competentjurisdiction, (2) an identity of causes of action, and (3) an identity of parties or their privies. Marvel of Illinois, Inc., 318 Ill. App. 3d at 863. Our review of a circuit court's decision todismiss a complaint pursuant to section 2-619(a)(4) is de novo. American National Bank& Trust Co. v. Village of Libertyville, 269 Ill. App. 3d 400, 403 (1995). Because the secondelement is missing from this case and the case adjudicated in Jackson County, we believethat the circuit court erred in dismissing plaintiff's complaint under section 2-619(a)(4).

Although the cause of action in each case arose from the same motor vehicle accident,the defendant in each case and the theory of liability in each case are distinct. In the JacksonCounty case, plaintiff sued Stamm for negligence. In the Saline County case, plaintiff suedAllstate for breach of contract. Our holding above makes it clear that plaintiff is entitled torecover medical expenses from both parties even though it will result in a double recovery. As is clear from the complaints filed, the theories of recovery are premised on differenttheories and evidence. The evidence in the Jackson County case involved Stamm'snegligence. The evidence in the Saline County case involved a contractual dispute. Thesame evidence does not sustain both causes (see Mendelson v. Lillard, 83 Ill. App. 3d 1088,1094 (1980)), and because the Saline County case requires essential facts to sustain its causeof action that are different from those in the case filed in Jackson County, we believe thatthe circuit court of Saline County erred in dismissing plaintiff's complaint under section 2-619(a)(4).

In addition, we believe that the circuit court erred in dismissing plaintiff's complaintunder section 2-619(a)(3) of the Code. This section provides for the involuntary dismissalof a case if there is "another" action pending between the same parties for the same cause. 735 ILCS 5/2-619(a)(3) (West 2000). Generally, we review a circuit court's decision todismiss pursuant to section 2-619(a)(3) under an abuse-of-discretion standard. Crowell v.Golz, 319 Ill. App. 3d 184, 191 (2001). As we have just stated above, not only are theparties different but the cause of action is also different in each case. Accordingly, thecircuit court abused its discretion in dismissing plaintiff's complaint under section 2-619(a)(3).

Wherefore, the circuit court of Saline County's decision to grant Allstate's motion todismiss is hereby reversed, and we remand the cause for further proceedings on plaintiff'scomplaint.

No. 5-01-0077: Affirmed in part and reversed in part.

No. 5-01-0196: Reversed; cause remanded.

KUEHN and RARICK, JJ., concur.

1. We point out that the same attorney represents both Stamm and Allstate on appeal. Only one brief was filed on behalf of the defendants, and there is no effort in the brief todistinguish between Stamm's claims and Allstate's claims. Therefore, we shall refer toStamm and Allstate collectively as Allstate.