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Skidmore v. Throgmorton
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0249 Rel
Case Date: 06/29/2001
                     NOTICE
Decision filed 06/29/01.  The text of
this decision may be changed or
corrected prior to the filing of a
Petition for Rehearing or the
disposition of the same.

NO. 5-00-0249

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


GREG SKIDMORE,

     Plaintiff-Appellee,

v.

SUSAN THROGMORTON,

     Defendant,

and

SAFECO INSURANCE COMPANY,

     Intervening Defendant-Appellant.

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Appeal from the
Circuit Court of
Jefferson County.

No. 97-L-31







Honorable
James M. Wexstten,
Judge, presiding.


 

JUSTICE KUEHN delivered the opinion of the court:

Intervenor Safeco Insurance Company (Safeco) appeals from the trial court's March29, 2000, order granting Greg Skidmore's motion for the reconsideration of an earlier motioninvolving the stacking of motor vehicle liability insurance policies. We affirm.

Greg Skidmore and Susan Throgmorton were involved in a motor vehicle accident onMay 30, 1995. The vehicle Throgmorton was operating at the time of the accident wasowned by her father, William Spencer. The Spencer-owned vehicle involved in the accidentwas insured by Safeco, with a policy paid for by William Spencer. That Safeco liabilitypolicy also provided coverage for one additional Spencer-owned motor vehicle. Additionally, the driver of the vehicle involved in the accident, Throgmorton, also hadSafeco motor vehicle insurance on two vehicles she owned, plus excess liability coverage. Each of the four motor vehicles had Safeco liability coverage of $100,000 per accident perperson.

Skidmore filed suit for his bodily injuries and damages against Throgmorton. Beforethe trial, Safeco analyzed its own policies and made a determination that $200,000 incoverage was applicable to Skidmore's claim. The $100,000-per-accident-per-person limitsof the Spencer policy, which was limited to the one vehicle by the application of that policy'santistacking clause, was added to $100,000 from the Throgmorton liability policy, which wasalso limited to one vehicle by application of the policy's antistacking clause. Prior to thebeginning of the trial, Skidmore and Throgmorton entered into an agreement wherebySkidmore agreed to collect any judgment only against the available insurance proceeds,absolving Throgmorton from any personal liability for any amount over the availableinsurance.

Following the trial, the jury returned a $300,000 verdict in Skidmore's favor. Pursuantto the pretrial stipulation and in a proposed full satisfaction of the judgment, Safeco issueda check to Skidmore in the amount of $201,813.69.

Thereafter, Skidmore filed a motion with the trial court and sought to have the trialcourt determine the amount of liability coverage applicable to this particular motor vehicleaccident. Specifically, Skidmore was asking the trial court to find that $400,000 in coveragewas available. Skidmore argued that the antistacking clause of each applicable policy shouldbe disregarded. Safeco sought and was granted leave to intervene in this case for the purposeof contesting Skidmore's motion. Safeco filed a motion for declaratory judgment, arguingthat only $200,000 in liability coverage was available-$100,000 from each applicable policy. On November 29, 1999, the trial court entered its order concluding that only $200,000 ininsurance coverage was available for this particular accident.

On December 20, 1999, Skidmore filed a motion for the reconsideration of the earlierorder. On March 29, 2000, the trial court entered an order that reversed its previous order.The court found latent ambiguities in the insurance policy language and concluded that$400,000 in insurance coverage was available.

Safeco appeals. Safeco does not dispute the existence of liability coverage applicableto this case. Additionally, Safeco accepts the jury's verdict. Safeco appeals to challenge thestacking of coverages that the trial court found appropriate, and Safeco contends that thelanguage of its policies is not ambiguous.

The construction of an insurance policy involves a question of law, and therefore, ourreview is de novo. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 480, 687N.E.2d 72, 75 (1997).

In an argument specifically brought up for the first time at oral argument, Safeco notesthat Skidmore is attempting to assert a perceived policy ambiguity about language over whichboth the insurer and the insureds agree. In other words, assuming that he can assert aninsurance policy language ambiguity, Skidmore, the injured party, is in an outside positionsimilar to that of a third-party beneficiary.

Before we even address whether the language at issue is ambiguous, we must decidewhether Skidmore can assert these "ambiguities." Because that issue involves parties to theinsurance contract, which involves policy construction, our review remains de novo.

Initially, Skidmore argues that Safeco waived any argument on this issue by failingto raise the issue in the trial court. See Allstate Insurance Co. v. Tucker, 178 Ill. App. 3d809, 813, 533 N.E.2d 1004, 1007-08 (1989). However, the doctrine of waiver serves as awarning to the parties rather than a limitation on the appellate court's jurisdiction. AmericanFederation of State, County & Municipal Employees, Council 31 v. County of Cook, 145 Ill.2d 475, 480, 584 N.E.2d 116, 118 (1991). We may relax the harsh mandates of the waiverdoctrine if we feel that the particular issue would aid in maintaining a uniform body ofprecedent or if the interests of justice require the issue's consideration. American Federationof State, County & Municipal Employees, Council 31, 145 Ill. 2d at 480, 584 N.E.2d at 118-19. Because the issue presented to us is unique, we will consider it.

As the injured party, Skidmore argues that he should be allowed to raise matters ofinsurance policy ambiguity where that language has a direct impact upon his recovery.

Safeco argues that Skidmore cannot argue that its policy language is vague andambiguous because he is not a party to that contract. Safeco carries the argument one extrastep by arguing that Skidmore certainly cannot argue that the policies in question areambiguous because both of its insureds executed affidavits in which they aver that theyunderstood each of their policies to provide only $100,000 in coverage applicable to theSkidmore claim. In other words, the insurer and the insureds agreed that only $100,000 incoverage (per policy) is applicable to the Skidmore claim.

Generally speaking, an insurer and its insured cannot agree to policy interpretationswith the intent to keep an injured party from recovering under that policy. Reagor v.Travelers Insurance Co., 92 Ill. App. 3d 99, 102, 415 N.E.2d 512, 514 (1980). All of thecases Skidmore cites in his argument of this point are cases where the policy-interpretationagreement at issue sought to completely void coverage for the injured party. See, e.g.,Reagor, 92 Ill. App. 3d at 101, 415 N.E.2d at 513; France v. Citizens Casualty Co., 400 Ill.55, 56, 79 N.E.2d 28, 29 (1948); Pratt v. Protective Insurance Co., 250 Ill. App. 3d 612,614-15, 621 N.E.2d 187, 189 (1993).

Additionally, many cases have held that an injured third party is allowed to bring suitdirectly against an insurer. Many of the authorities Skidmore cites on this issue involve theinjured party's statutory right to bring this direct action in cases where the injured party hasobtained a judgment against a liable party and that liable party has declared bankruptcy orotherwise been declared insolvent. 215 ILCS 5/388 (West 1996); Scott v. Freeport MotorCasualty Co. of Freeport, 392 Ill. 332, 335, 64 N.E.2d 542, 544 (1945); Simmon v. IowaMutual Casualty Co., 3 Ill. 2d 318, 320, 121 N.E.2d 509, 511 (1954); People ex rel. Terryv. Fisher, 12 Ill. 2d 231, 237, 145 N.E.2d 588, 592 (1957). The Illinois public policy behindthese cases is specifically designed "to protect persons injured by the negligent operation ofmotor vehicles[] and *** confer[] rights which cannot be defeated after the accident by theconcerted action of the insured and the insurer." People ex rel. Terry, 12 Ill. 2d at 237, 145N.E.2d at 592 (citing Scott, 392 Ill. 332, 64 N.E.2d 542). Although People ex rel. Terry v.Fisher dealt with a matter of discovery relative to the insurer's policy, the discussion of thisissue was general. In discussing the statute and the public policy it conveyed, our supremecourt explained that this particular statutory enactment served a benevolent purpose and thatdepriving an injured party of his or her rights would "permit insurance companies to avoidtheir statutory obligation." People ex rel. Terry, 12 Ill. 2d at 238, 145 N.E.2d at 593.

All of the other cases Skidmore cites for the proposition that an injured third party cansue the liable party's insurer are declaratory judgment actions. In all of the cited cases, theinsurance company was seeking to have the court declare that they owed no financialresponsibility to the insured regarding the accident or claim involving the injured third party. Gothberg v. Nemerovski, 58 Ill. App. 2d 372, 208 N.E.2d 12 (1965); Reagor, 92 Ill. App. 3d99, 415 N.E.2d 512; Pratt v. Protective Insurance Co., 250 Ill. App. 3d 612, 621 N.E.2d 187(1993); Society of Mount Carmel v. National Ben Franklin Insurance Co. of Illinois, 268 Ill.App. 3d 655, 643 N.E.2d 1280 (1994); Chandler v. Doherty, 299 Ill. App. 3d 797, 702N.E.2d 634 (1998). In a declaratory judgment setting, the injured party is a necessary partyto the suit because he or she has a substantial right in the insurance policy's viability. Chandler, 299 Ill. App. 3d at 805, 702 N.E.2d at 640. The injured party's relationship withthe liability insurer has been further characterized as that of a beneficiary. Reagor, 92 Ill.App. 3d at 102-03, 415 N.E.2d at 514. The public policy consideration at work in suchsituations is that liability insurance policies should operate to afford injured parties coverage. Reagor, 92 Ill. App. 3d at 102, 415 N.E.2d at 514; Society of Mount Carmel, 268 Ill. App.3d at 661, 643 N.E.2d at 1285. A declaration of noncoverage would eliminate a source offunds for the injured party. Society of Mount Carmel, 268 Ill. App. 3d at 661, 643 N.E.2dat 1285. Overall, these cases stand for the proposition that even though an injured party isnot a party to the insurance contract, he or she will always be allowed to file a declaratoryjudgment action in order to determine the liable party's coverage pursuant to that insurancecontract. E.g., Pratt, 250 Ill. App. 3d at 618, 621 N.E.2d at 191.

Generally, Skidmore would be allowed to directly sue Safeco and thus assert policyclaims that an insured could raise, in an effort to ascertain, and potentially obtain, coverage. This case presents a slightly different issue in that Safeco is not completely denyingcoverage. However, the public policy of this State reminds us that insurance is notnecessarily a private matter between an insurer and its insured. See Reagor, 92 Ill. App. 3dat 102-03, 415 N.E.2d at 514. The injured party's rights come into existence at the momentof the accident. Reagor, 92 Ill. App. 3d at 103, 415 N.E.2d at 514. The risk-spreadingtheories of liability insurance policies mandate that affected members of the public shouldbe afforded the maximum protection possible in accord with fairness to the insurer. Reagor,92 Ill. App. 3d at 102, 415 N.E.2d at 514. Even though Safeco is admitting $200,000 incoverage, one-third of the judgment Skidmore obtained would remain unsatisfied ifSkidmore could not pursue his coverage issue against the tortfeasor's liability insurer. Whilethe cases Skidmore cites are more extreme in that the insurer was seeking to deny allcoverage, the underlying rights that our courts have sought to protect and proclaimed aspublic policies remain the same.

In addition, we are troubled with the affidavits that Safeco presents as agreementsbetween it and its insureds as to the coverage amounts available under its applicable policies. While an insurer and its insured can certainly agree to applicable coverages in certaincircumstances, we cannot abide this attempt by Safeco, Throgmorton, and Spencer to do so. This is an agreement with implications reaching beyond the two parties to the contract. Suchan agreement could be contrary to Illinois law if the law is clear that coverage couldotherwise be stacked. The innocent injured third party would be directly impacted by suchan agreement. Sanctioning such an outcome would be unconscionable.

Accordingly, we conclude that despite Throgmorton's and Spencer's agreements withSafeco that only $100,000 in bodily injury liability coverage was available from each policy,Skidmore will be allowed to raise the issue of policy ambiguities.

We now turn to the coverage issue.

The trial court ultimately concluded that the $100,000-per-person-per-accidentliability coverage of each Safeco policy could be stacked, resulting in $400,000 in coverageapplicable to Skidmore's claim. The stacking was authorized because the trial court foundthat there was an ambiguity contained within the policy language.

At issue are a clause detailing the "limits of liability" within the liability coveragesection of the policy (the antistacking clause) and the declaration sheet that is incorporatedinto the antistacking clause. This antistacking clause reads as follows:

"The limit of liability shown in the Declarations for each person for BodilyInjury Liability is our maximum limit of liability for all damages, including damagesfor care and loss of services (including loss of consortium and wrongful death),arising out of bodily injury sustained by any one person in any one auto accident.

Subject to this limit for each person, the limit of liability shown in theDeclarations for each accident for Bodily Injury Liability is our maximum limit ofliability for all damages for bodily injury resulting from any one auto accident.

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This is the most we will pay regardless of the number of:

1. Insureds;

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the auto accident." (Emphasis in original.)

The declarations page, incorporated into the antistacking clause by reference, is divided intofive separate columns. There are columns designated for the available coverages (liability,uninsured and underinsured motorists, comprehensive, collision, towing and labor, and lossof use), one column for the applicable coverages for each vehicle (what coverages theinsured elected to purchase), and one column for the premium associated with the insured-elected coverage for each vehicle.

The coverage at issue is bodily injury liability. The Throgmorton and the Spencerpolicies each had liability bodily injury limits of $100,000 for each person and $300,000 foreach occurrence. For each of the four cars involved, there is a separate premium listed forthat liability bodily injury coverage.

Three fairly recent cases involve virtually identical provisions and declarations pagesetups. All three concluded that the antistacking clause at issue was ambiguous and, thus,that the stacking of the bodily injury coverages for each vehicle was allowable. We brieflyreview this case law.

The insurance at issue in Allen v. Transamerica Insurance Co., 128 F.3d 462 (7th Cir.1997), was underinsured-motorist coverage. Without detailing the precise language utilizedby Transamerica Insurance Company in its antistacking clause, we note that the language isso similar to that used by Safeco in this case as to be virtually indistinguishable. See Allen,128 F.3d at 464. Additionally, the column format for the two vehicles insured under the oneTransamerica Insurance Company policy at issue was the same. Specifically, each of the twocars had two columns-one for the insured-elected coverage and one for the premiumassociated with that coverage. Allen, 128 F.3d at 464. The federal court of appeals statedthat the antistacking language, when read in isolation, was not ambiguous and would clearlypreclude stacking. Allen, 128 F.3d at 464. But the court found that the policy begged thisquestion: "[W]hat is the limit of liability referred to in the [antistacking] provision?" (Emphasis in original.) Allen, 128 F.3d at 464. The Transamerica Insurance Companyantistacking clause referred the reader to the declarations page to determine the amount ofthe limit. Allen, 128 F.3d at 464. Once the reader got to the declarations page, the ambiguitybecame apparent. Allen, 128 F.3d at 464. Citing dicta contained within the Illinois SupremeCourt decision of Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 620 N.E.2d 355(1993), and noting that it was a federal court sitting in diversity and had a duty to predict theactions of the Illinois Supreme Court, the court concluded that the antistacking clause,coupled with the declarations page, was ambiguous and that stacking was allowable. Allen,128 F.3d at 467. The ambiguity was that the "limit of liability" could refer to theunderinsured-motorist limit on motor vehicle number one, to the underinsured-motorist limiton motor vehicle number two, or to the two separate underinsured-motorist limits addedtogether. Allen, 128 F.3d at 464-65.

In Bruder v. Country Mutual Insurance Co., the policy at issue was a businessautomobile policy (the uninsured-motorist coverage), and although the particular policycovered two business trucks, the declarations sheet was set up such that the dollar amountof coverage applicable for each truck was listed in a single column in between the twocovered trucks. Bruder, 156 Ill. 2d at 188, 192, 620 N.E.2d at 360, 362. In other words, the coverages were only listed one time. The supreme court went on to discuss what the effectwould have been if Country Mutual Insurance Company had listed the coverages in twoseparate columns:

"It would not be difficult to find an ambiguity created by such a listing of thebodily injury liability limit for each person insured. It could easily be interpreted thatan insured should enjoy a total limit of $200,000 in coverage because a figure of$100,000 would be shown for each pickup truck. There would be little to suggest insuch a listing that the parties intended that coverage was to be limited to that providedfor only one of the two pickup trucks. It would be more reasonable to assume that theparties intended that, in return for the two premiums, two $100,000 coverage amountswere afforded." Bruder, 156 Ill. 2d at 192, 620 N.E.2d at 362.

As previously stated, the federal appeals court decision in Allen v. TransamericaInsurance Co. was based upon the above-cited dicta from Bruder v. Country MutualInsurance Co. Our court has also followed the Bruder decision on more than one occasionin similar factual contexts. Pekin Insurance Co. v. Estate of Goben, 303 Ill. App. 3d 639,707 N.E.2d 1259 (1999) (underinsured-motorist coverage); Yates v. Farmers AutomobileInsurance Ass'n, 311 Ill. App. 3d 797, 724 N.E.2d 1042 (2000) (underinsured-motoristcoverage).

Accordingly, we conclude that the trial court did not err in its decision to allow thestacking of the liability coverages for all four Safeco-insured motor vehicles. We reach thisdecision on slightly different grounds than the trial court, but as our review is de novo, wecan affirm the trial court's decision on other grounds. See Estate of Johnson v. CondellMemorial Hospital, 119 Ill. 2d 496, 502, 520 N.E.2d 37, 39 (1988).

Safeco argues that this line of cases is distinguishable because they involvedunderinsured- or uninsured-motorist coverages and not liability coverage as in this case. While the difference in coverage is a factual distinction, we note that the insurer employedthe same policy language for both the liability and the uninsured- or underinsured-motoristcoverages. The reasoning of the Illinois Supreme Court in Bruder v. Country MutualInsurance Co. cannot be limited to uninsured- or underinsured-motorist coverage, and it mustbe applied in situations involving the identical policy language, located elsewhere in thepolicy.

Safeco also attempts to distinguish this case from all of the others on the basis that itspolicy contained a separate, more specific antistacking clause in its general-provisionsportion of the policy. That clause reads as follows:

"If this policy insures two or more autos or if any other auto insurance policy issuedto you by us applies to the same accident, the maximum limit of our liability shall notexceed the highest limit applicable to any one auto."

While we agree that this clause could not be any more succinct, we are not swayed in ourdecision, because this is only a general provision, whereas the other antistacking clause,which incorporated the particular declarations sheet, is a more specific provision. When acontract contains both specific and general provisions relating to the same subject, thespecific provision controls. Willison v. Economy Fire & Casualty Co., 294 Ill. App. 3d 793,800, 690 N.E.2d 1073, 1077 (1998).

For the foregoing reasons, the judgment of the circuit court of Jefferson County ishereby affirmed.

Affirmed.

WELCH and HOPKINS, JJ., concur.

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