Allstate Prop. & Cas. Ins. Co. v. Trujillo

• Citation: 7 N.E.3d 110,2014 IL App (1st) 123419,379 Ill.Dec. 684
• Decision Date: 28 February 2014
• Docket Number: No. 1–12–3419.,1–12–3419.
• Parties: ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff–Appellee, v. Dolores TRUJILLO, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 123419

7 N.E.3d 110

379 Ill.Dec. 684

ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff–Appellee,

v.Dolores TRUJILLO, Defendant–Appellant.

No. 1–12–3419.

Appellate Court of Illinois, First District, Sixth Division.

Feb. 28, 2014.

Ronald Fishman, Kenneth A. Fishman, Fishman & Fishman, Ltd., Chicago, for appellant.

Peter C. Morse, Cynthia Ramirez, Morse Bolduc & Dinos, LLC, Chicago, for appellee.

OPINION

Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Defendant Dolores Trujillo (Trujillo) appeals an order of the circuit court of Cook County granting judgment on the pleadings to plaintiff Allstate Property and Casualty Insurance Company (Allstate) in a declaratory judgment action. On appeal, Trujillo contends the circuit court erred in ruling Allstate was entitled to set off her claim for underinsured motorist (UDIM) benefits with amounts Allstate paid under the bodily injury coverage of the same insurance policy, relating to an automobile collision involving multiple tortfeasors. For the following reasons, we reverse the judgment of the circuit court and remand the case for further proceedings.

¶ 2 BACKGROUND

¶ 3 On January 20, 2012, Allstate filed a complaint for declaratory judgment in the circuit court containing the following allegations. Allstate is an insurance company duly licensed to sell automobile insurance in Illinois. Allstate issued a policy (Allstate policy) to Adan Delgado (Delgado), which was in full effect on August 20, 2009. A true and accurate copy of the policy was attached to the complaint as an exhibit.

¶ 4 The Allstate policy provided automobile liability insurance including bodily injury coverage with a limit of $100,000 per person and $300,000 per occurrence. In general, pursuant to this coverage, Allstate promised to pay damages when an insured person is legally obligated to pay because of bodily injury sustained by “any person.” The policy states it protects an insured person from liability for damages arising from the ownership, maintenance, use, loading or unloading of an insured automobile.

¶ 5 The Allstate policy also included uninsured motorist (UM) insurance, the bodily injury coverage of which included UDIM protection with a limit of $100,000 per person and $300,000 per accident. An Illinois amendatory endorsement to the Allstate policy stated in part as follows:

“If the accident involves the use of an underinsured motor vehicle, the limits for this coverage will be reduced by:

1. all amounts paid by or on behalf of the owner or operator of the underinsured auto or anyone else responsible. This includes all sums paid under the bodily injury or property damage liability coverage of this or any other auto insurance policy.”

The endorsement also defined “insured persons” as including the named insured, any resident relative and “[a]ny other person while in, on, getting into or out of an insured auto with your permission.”

¶ 6 On or about August 10, 2009, Trujillo was a passenger in an Allstate-insured vehicle driven by Delgado when the vehicle was involved in an accident with a vehicle insured by American Access Insurance Company (American Access). Trujillo settled her claim against the American Access insured in exchange for the $20,000 limit of the American Access policy. Trujillo settled her claim against Delgado in exchange for the $100,000 liability coverage limit of the Allstate policy.

¶ 7 Trujillo also made a claim against Allstate for UDIM benefits in the amount of $80,000, representing the difference between the Allstate policy's $100,000 UDIM coverage limit and the $20,000 received from her settlement with the American Access insured. Allstate informed Trujillo no UDIM benefits were available under the Allstate policy. Allstate explained the limits of the UDIM coverage were reduced to zero by its $100,000 payment to Trujillo on Delgado's behalf under the bodily injury coverage of the Allstate policy's automobile liability insurance.

¶ 8 Accordingly, Allstate filed its declaratory judgment action pursuant to section 2–701 of the Illinois Code of Civil Procedure (Code) ( 735 ILCS 5/2–701 (West 2010)), requesting a declaration Allstate owed Trujillo no UDIM benefits for the August 10, 2009, accident. On March 6, 2012, Trujillo filed a motion to dismiss Allstate's complaint for failure to adequately state a claim, pursuant to section 2–615(b) of the Code (735 ILCS 5/2–615(b) (West 2010)). Following briefing on the motion to dismiss, the circuit court denied the motion to dismiss on July 19, 2012. Trujillo raises no issue in this appeal regarding the denial of her motion to dismiss.

¶ 9 Meanwhile, on May 17, 2012, Trujillo filed a motion for judgment on the pleadings pursuant to section 2–615(e) of the Code (735 ILCS 5/2–615(e) (West 2010)), arguing Allstate's attempt to reduce its UDIM exposure in this case violated public policy.

¶ 10 On August 20, 2012, Trujillo answered Allstate's complaint and asserted affirmative defenses. Trujillo denied the Allstate policy attached to the complaint was in full force and effect on August 10, 2009. According to Trujillo, she was a passenger in the Allstate-insured vehicle, which was owned by Adan Delgado, but driven by Juana Delgado. Trujillo also identified the American Access insured as Marta Zawadska. Trujillo asserted the setoff language in the endorsement of the Allstate policy, if in effect at the time of the accident, was illegal and void.

¶ 11 On August 23, 2012, Allstate filed a motion for judgment on the pleadings pursuant to section 2–615(e) of the Code (735 ILCS 5/2–615(e) (West 2010)). Allstate argued its endorsement expressly reduced its UDIM exposure by any payment made under other provisions of its policy. Allstate also argued the reduction of its UDIM limit was supported by Illinois law, although it asserted no Illinois court had directly addressed the issue.

¶ 12 On September 11, 2012, Trujillo filed a response to Allstate's motion for judgment on the pleadings. In her response, Trujillo initially argued the case could be decided as a matter of law, as both parties had moved for judgment on the pleadings. Trujillo also reiterated her argument that Allstate's attempt to reduce its UDIM limits in this case violated public policy as established by Illinois case law. On September 14, 2012, Allstate filed its response to Trujillo's motion for judgment on the pleadings, substantially reiterating its arguments in support of its own motion for judgment on the pleadings.

¶ 13 On October 31, 2012, the circuit court entered an order granting judgment on the pleadings in favor of Allstate and denying Trujillo's “cross-motion” for judgment on the pleadings, declaring no UDIM benefits are available to Trujillo under the Allstate policy for the August 10, 2009, accident. The order also includes a ruling that the policy provisions upon which Allstate relied are not contrary to public policy. On November 13, 2012, Trujillo filed a timely notice of appeal to this court. On November 15, 2012, Trujillo filed an amended notice of appeal, correcting the name of the appellant.

¶ 14 DISCUSSION

¶ 15 The sole issue on appeal is whether the circuit court erred in granting judgment on the pleadings in favor of Allstate. “Any party may seasonably move for judgment on the pleadings” pursuant to section 2–615(e) of the Code. 735 ILCS 5/2–615(e) (West 2010). Judgment on the pleadings is proper when the pleadings disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill.2d 381, 385, 294 Ill.Dec. 163, 830 N.E.2d 575 (2005). It is similar to a motion for summary judgment, but is limited to the pleadings. Intersport, Inc. v. National Collegiate Athletic Ass'n, 381 Ill.App.3d 312, 318, 319 Ill.Dec. 261, 885 N.E.2d 532 (2008). Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2010). Moreover, “[w]hen parties file cross-motions for summary judgment, they agree that only a question of law is involved and invite the court to decide the issues based on the record.” Pielet v. Pielet, 2012 IL 112064, ¶ 28, 365 Ill.Dec. 497, 978 N.E.2d 1000.

¶ 16 A party moving for a section 2–615(e) judgment on the pleadings concedes the truth of the well-pleaded facts in the nonmovant's pleadings. McCall v. Devine, 334 Ill.App.3d 192, 198, 267 Ill.Dec. 602, 777 N.E.2d 405 (2002). The court must take as true all reasonable inferences from those facts but construe the evidence strictly against the movant and disregard any conclusory allegations and surplusage. Id.; see Gillen, 215 Ill.2d at 385, 294 Ill.Dec. 163, 830 N.E.2d 575. We review a court's order granting or denying a motion for judgment on the pleadings de novo. McCall, 334 Ill.App.3d at 198, 267 Ill.Dec. 602, 777 N.E.2d 405. Accordingly, this court is not required to defer to the circuit court's reasoning. See, e.g., Tilschner v. Spangler, 409 Ill.App.3d 988, 990, 350 Ill.Dec. 896, 949 N.E.2d 688 (2011).

¶ 17 We initially note Trujillo's brief includes a paragraph discussing, without legal argument or citation to authority, the fact that Allstate's complaint does not allege the Allstate policy and its endorsements were mailed to Delgado. The record on appeal discloses Trujillo made similar assertions in her answer, but raised no argument based on these assertions in her motion for judgment on the pleadings or in her response to Allstate's motion for judgment on the pleadings. It is axiomatic that “ ‘an issue not presented to or considered by the circuit court cannot be raised for the first time on review.’ ” Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 536, 215 Ill.Dec. 108, 662 N.E.2d 1248 (1996) (quoting Daniels v. Anderson...