Madison - St. Clair Record

Sunday, September 22, 2019

Flack affirmed in uninsured motorist dispute; Dissent: Court should not 'strain to find ambiguity where none exists'

By Ann Maher | Apr 18, 2017

The Fifth District Appellate Court has sided with a Country Mutual policy holder who sought limits of two uninsured motorist policies following the hit and run death of her daughter four years ago near downtown St. Louis.

In a split 2-1 decision entered April 13, justices affirmed Madison County Associate Judge Donald Flack who entered summary judgment for Georgie Busch of St. Louis and against Country Mutual in 2014.

At age 23, Busch's daughter Amber Wood was killed while crossing the street in front of Broadway Oyster Bar on April 27, 2012. According to news reports, the person responsible for striking Wood has never been found.

In July 2014, Country Mutual settled one of two policies Busch held - the one in her name only which carried a higher uninsured limit of $250,000. But the insurer denied payment of a policy in Busch's and Wood's names which had a limit of $100,000.

After Busch sued, the parties filed cross motions for summary judgment on the coverage issue.

Country Mutual argued that it already paid the maximum amount it was obligated to in relation to Wood's accident under both policies, pursuant to the provisions of both.

Busch, however, claimed she was entitled to $100,000 as special administrator of her daughter's estate in addition to the $250,000 she received individually under her own policy because Wood paid a separate premium on a separate policy, and because it was stipulated that the total amount of damages met or exceeded $350,000, the ruling states.

In siding with Busch, Flack found ambiguity in the policies' language related to "other insurance," where the company provides that it will pay its proportionate share of a loss when there is "other applicable uninsured-underinsured motorists insurance that covers a loss."

On appeal, Country Mutual argued that Flack erred in refusing to enforce the "unambiguous antistacking clauses" of the two policies.

For the majority, Justices Richard Goldenhersh and Judy Cates held that "the insurance company's payment to plaintiff on the uninsured limits of plaintiff's individual policy did not negate liability on a separate policy issued to plaintiff and plaintiff's deceased daughter."

Goldenhersh wrote that policy provisions are considered ambiguous "if they are subject to more than one reasonable interpretation."

The ruling held that the "plain reading" of the portion of the policies related to "other" insurance and payment on claims "indicates Country Mutual contemplated situations in which more than one insurance policy may apply to a single occurrence."

"The antistacking clause on which Country Mutual relies creates an ambiguity that must be resolved in favor of the insured," Goldenhersh wrote.

But the court's presiding justice, newly elected James "Randy" Moore, issued a sharp dissent, saying the court should not "strain to find an ambiguity where none exists."

Moore wrote that ambiguity exists in an insurance contract only if the language is subject to more than one reasonable interpretation.

He found the terms of Busch's policies to be unambiguous, and should be enforced.

Moore wrote that the circuit court refused to apply a general policy condition addressing "other vehicle insurance with us" under Busch's policy, a provision dealing with the "same accident." It states, "the maximum limit of our liability under all the policies will not exceed the highest applicable limit of liability under any one policy."

"Our Illinois Supreme Court has held that an antistacking provision nearly identical to the one at issue was unambiguous and did not violate public policy," he wrote.

"I would reverse the circuit court's summary judgment in favor of the plaintiff and would remand with directions that a summary judgment be entered in favor of Country Mutual."

Cates wrote a special concurrence, indicating she would vacate the portion of Flack's order granting summary judgment to Busch individually.

She wrote to clarify the legal posture of the party requesting benefits, stating that in essence there are two "distinct legal persons" acting as plaintiffs - Busch individually and as administrator of Wood's estate.

The $250,000 payment to Busch individually did not prevent her from seeking $100,000 in uninsured benefits from a second policy as special administrator of Wood's estate, she wrote, but Busch's individual claim under the second policy would constitute impermissible stacking.

"...Busch's individual claim is separate and distinct from the claim brought by the special administrator of the estate under the Wrongful Death Act...," she wrote. "As such, stacking is not implicated in the special administrator's claim because there has been no payment to the estate by Country Mutual."

"I would vacate that portion of the trial court's order granting summary judgment in favor of Georgie Busch, individually, and affirm that portion of the trial court's order granting summary judgment in favor of Georgie Busch, as special administrator of the estate of Amber Wood."

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