No. 3--03--0882

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The plaintiff, Prudential Property & Casualty InsuranceCompany (Prudential), issued an automobile insurance policy tothe defendants, Patricia and Edward Kelly (the Kellys). Thepolicy provided underinsured-motorist (UIM) coverage for fourvehicles. After Patricia Kelly suffered injuries in an accident,the Kellys claimed that the policy allowed them to aggregate or"stack" the UIM coverage for the four vehicles. Prudential fileda complaint for declaratory judgment, seeking a finding that thepolicy did not permit stacking of the coverage. The trial courtgranted Prudential's motion for summary judgment on thecomplaint. The Kellys appeal, contending that the declarationspage of their policy creates an ambiguity as to whether stackingis permitted, and that ambiguity must be resolved in their favor. We affirm.

A motor vehicle driven by Patricia Kelly collided with avehicle driven by Richard Brown on August 22, 2001. PatriciaKelly and her husband, Edward Kelly, filed a lawsuit againstBrown. The lawsuit was settled for the liability limits inBrown's insurance policy of $100,000.

The Kellys then asserted a claim under the UIM coverage intheir insurance policy. The Kellys claimed that their policypermitted stacking of the UIM coverage on their four vehicles.

The Prudential policy provides that UIM coverage is payableonly when the bodily injury liability limits of the driverresponsible for the accident are lower than the limits of the UIMcoverage. In this case, Brown's bodily injury liability limitswere $100,000, which was equal to the UIM limits on each car inthe Prudential policy. Therefore, Prudential denied the Kellys'claim for UIM coverage. Prudential then filed a complaint fordeclaratory judgment, seeking a finding that the insurance policydid not provide for UIM coverage in these circumstances.

The Kellys filed a counter-complaint for declaratoryjudgment, asserting that the policy allows them to stack the UIMcoverage on each of the four vehicles insured under the policy. Thus, the Kellys sought an order declaring that the available UIMcoverage provided under the policy totaled $400,000.

The parties filed cross motions for summary judgment. Following a hearing, the trial court found that the policy wasnot ambiguous, and it did not allow for stacking of the UIMcoverage on the vehicles. Therefore, the court grantedPrudential's motion for summary judgment and denied the Kellys'motion. The court subsequently dismissed the Kellys' counter-complaint.

On appeal, the Kellys contend that the trial court erred ingranting Prudential's motion for summary judgment. Relyingprimarily on Hall v. General Casualty Company of Illinois, 328Ill. App. 3d 655, 766 N.E.2d 680 (2002), the Kellys assert thatthe declarations page of the policy creates an ambiguity withregard to whether the UIM coverage limits on the four vehiclesmay be stacked. The Kellys assert that the ambiguous policyshould be construed against Prudential as the drafter, thusproviding for total UIM coverage of $400,000. Prudentialcontends that the language contained in the declarations page andthe anti-stacking provision of the policy unambiguously prohibitsstacking of the UIM coverage limits.

Summary judgment is appropriate when the pleadings,depositions and admissions on file, together with any affidavits,show that there is no genuine issue of material fact and themoving party is entitled to judgment as a matter of law. 735ILCS 5/2--1005(c) (West 2002). The construction of an insurancepolicy and the coverage provided are questions of law that areappropriate subjects for summary judgment. Crum & ForsterManagers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 620N.E.2d 1073 (1993).

In construing an insurance policy, a court must ascertainthe intent of the parties as expressed by the language used inthe policy. American States Insurance Co. v. Koloms, 177 Ill. 2d473, 687 N.E.2d 72 (1997). If the policy is clear andunambiguous, a court will give the language its plain meaning. Koloms, 177 Ill. 2d 473, 687 N.E.2d 72. If the terms areambiguous, they will be construed against the insurer as thedrafter of the policy. Koloms, 177 Ill. 2d 473, 687 N.E.2d 72. The touchstone in determining whether an ambiguity exists iswhether the relevant portion of the policy is subject to morethan one reasonable interpretation, not whether creativepossibilities can be suggested. Bruder v. Country MutualInsurance Co., 156 Ill. 2d 179, 620 N.E.2d 355 (1993).

The declarations page of the Prudential policy states "[i]fa premium charge does not appear, that coverage is not provided." The UIM liability limits of $100,000 per person and $300,000 peraccident are listed once on the declarations page. A separatepremium is listed for each of the four vehicles for thiscoverage.

The Prudential policy also contains a "limit of coverage"clause that provides:

"If you or any other person insured under this policy is inan accident:

1. In a car that is insured by this policy--We willnot pay more than the limit of coverages for thatparticular car.

2. In a car that is not insured by this policy orwhile a pedestrian--We will not pay more than thelimit of coverages which you have on any one ofyour cars.

This limit of coverage applies regardless of the number ofpolicies, insureds, insured cars, claims made, or carsinvolved in the accident or loss. Coverages on other carsinsured by us cannot be added to or stacked on the coverageof the particular car involved."

Initially, we note that Illinois courts have held anambiguity concerning whether stacking is permitted is not createdby the arrangement of a declarations page that is similar to theone involved in this case--that is, where the UIM coverage limitsare listed once and a separate premium for that coverage islisted for each vehicle. See Bruder, 156 Ill. 2d 179, 620 N.E.2d355; Domin v. Shelby Insurance Co., 326 Ill. App. 3d 688, 761N.E.2d 746 (2001). Further, it has been held that listing UIMcoverage limits more than once on a declarations page does notcreate an ambiguity given a clear antistacking provision in thepolicy. See In re Estate of Striplin, 347 Ill. App. 3d 700, 807N.E.2d 1255 (2004); Pekin Insurance Co. v. Estate of Ritter, 322Ill. App. 3d 1004, 750 N.E.2d 1285 (2001). Based on this caselaw, we conclude that listing the coverage limits once along witha separate premium for each of the four vehicles does not createany ambiguity with regard to whether the coverages may bestacked.

Therefore, the critical issue in this case is whether thelanguage "[i]f a premium charge does not appear, that coverage isnot provided" creates an ambiguity concerning whether stacking ispermitted. In Hall, the declarations page of the policy statedthat "INSURANCE IS PROVIDED WHERE A PREMIUM IS SHOWN." Hall, 328Ill. App. 3d 655, 766 N.E.2d 680. The court held this languagein conjunction with the separate premiums for each of thevehicles shown on the declarations page created an ambiguity asto whether the UIM limits for each vehicle could be stacked. Hall, 328 Ill. App. 3d 655, 766 N.E.2d 680. The court construedthis ambiguity in favor of the insured, and found that theinsurance policy permitted stacking. Hall, 328 Ill. App. 3d 655,766 N.E.2d 680.

We find that the language contained in the declarations pagein Hall is distinguishable from the language used in this case. The phrase "[i]f a premium charge does not appear, that coverageis not provided" means only what it says--that coverage is notprovided when a premium for the coverage does not appear on thedeclarations page. This is different than the statement in Hallthat insurance is provided where a premium is shown. Moreimportantly, the language in the Prudential declarations pagedoes not explicitly state or imply that the UIM coverage on allfour vehicles may be stacked if one of the vehicles is involvedin an accident. The language only informs the insured thatcoverage is not provided if a premium does not appear on thedeclarations page.

Moreover, any possible confusion with regard to whether thecoverage can be stacked is clarified by the antistackingprovision in the policy. That provision is abundantly clear thatstacking the UIM coverage on the vehicles is not allowed in thesecircumstances. In sum, we find that the policy clearly does notallow stacking of the UIM limits. Accordingly, the trial courtdid not err in granting Prudential's motion for summary judgment.

For the foregoing reasons, the judgment of the circuit courtof Will County is affirmed.

Affirmed.

McDADE and SCHMIDT, JJ., concurring.