Bruder v. Country Mut. Ins. Co.

• Decision Date: 17 July 1992
• Docket Number: No. 5-90-0329,5-90-0329
• Citation: 232 Ill.App.3d 221,596 N.E.2d 875
• Parties: , 173 Ill.Dec. 251 Ruth BRUDER and Halie Bruder, a Minor, by Ruth and John Bruder, Her Mother and Father and Next Friends, Plaintiffs-Appellees and Cross-Appellants, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 875

596 N.E.2d 875

232 Ill.App.3d 221, 173 Ill.Dec. 251

Ruth BRUDER and Halie Bruder, a Minor, by Ruth and John Bruder, Her Mother and Father and Next FriendsPlaintiffs-Appellees and Cross-Appellants, v.COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.

No. 5-90-0329.

Appellate Court of Illinois Fifth District.

July 17, 1992.

Donald V. Ferrell, Jelliffe, Ferrell & Morris, Harrisburg, for appellant.

Gordon Lambert, Harris and Lambert, Marion, for appellees.

Presiding Justice GOLDENHERSHdelivered the opinion of the court:

Defendant, Country Mutual Insurance Company, appeals from a declaratory judgment of the circuit court of Williamson County allowing plaintiffs, Ruth Bruder and Halie Bruder, a minor, by Ruth and John Bruder, her mother and father and next friends, to stack two uninsured motorist policies, namely, a business auto policy and a personal vehicle policy, making a total of $200,000 available for each plaintiff.The judgment also found plaintiffs' choice of arbitrator permissible, a decision which defendant also appeals.Plaintiffs have appealed that portion of the judgment which disallowed stacking of two coverages found under the business auto policy.In this cause, there are three issues we must address: (1) whether plaintiffs are entitled to stack insurance coverage under the personal vehicle policy and the business auto policy, (2) whether plaintiffs are entitled to stack the two separate coverages under the business auto policy, and (3) whether defendant's selection for arbitrator in this case is unfair to plaintiff and, as such, requires defendant's arbitrator's dismissal.We affirm in part and reverse and remand in part.

The parties submitted a stipulated statement of facts to the trial court which we adopt as our own.The following is a recitation of most of those facts with a few additions and deletions.

John Bruder and Ruth Bruder are husband and wife and live together as such in Carmi.Prior to February 21, 1986, defendant issued personal vehicle insurance policy number A12A1615926 on a 1985 Chevrolet motor vehicle, serial number 146053, to John and Ruth Bruder, with John and Ruth Bruder as the named insureds.That policy was renewed on February 21, 1986, for a semi-annual policy.Prior to November 9, 1985, defendant also issued business auto policy number AV1080210 on two vehicles, the first being a 1980 GMC motor vehicle, serial number 519187, and the second being a 1983 Chevrolet motor vehicle, serial number 110700, to John Bruder, with John Bruder as the named insured.That policy was renewed on November 9, 1985, and a policy change was effected on December 3, 1985.John Bruder operated a business in Carmi.At all times in question, both policies of insurance were in full force and effect.

On May 5, 1986, Ruth Bruder was driving the above-described 1985 Chevrolet motor vehicle, serial number 146053, insured under policy number A12A1615926, on Main Street in Carmi.As she was stopped at an intersection waiting for a red light to change, she was rear-ended by a motor vehicle driven by Angelia Carter, which was immediately behind the vehicle driven by Ruth Bruder and which, in turn, had been rear-ended by a motor vehicle driven by Eddie Crawford.Either Angelia Carter or Eddie Crawford or both were legally at fault in the collision.Both the vehicles driven by Angelia Carter and Eddie Crawford were uninsured.Both Ms. Carter and Mr. Crawford have testified in their discovery depositions that neither had liability insurance at the time of the occurrence.

As a result of the collision, Ruth Bruder sustained personal injuries and medical expenses.At the time of the collision, she was pregnant in her third trimester of pregnancy.Subsequent to the collision, she went into premature labor, and a female child, Halie Bruder, was born.Plaintiffs claim that because of her premature birth, Halie Bruder has sustained personal injuries and medical expense, which is denied by defendant.Both plaintiffs made demands to settle with defendant under the uninsured motorist provisions of the two policies of insurance in question.In the event plaintiffs were rejected, plaintiffs designated their arbitrator, attorney John Womick, of Carbondale.Defendant rejected plaintiffs' offers, advising plaintiffs that it was the position of defendant that certain language in the personal vehicle policy precluded the personal vehicle policy from providing cumulative coverage with any other policy issued by defendant to Ruth Bruder or John Bruder.

Defendant appointed attorney James Bleyer of Bleyer & Bleyer of Marion as its arbitrator for arbitration under the terms of the personal vehicle policy only.Attorney Bleyer has handled many cases for defendant over the past 25 years.He does primarily defense work with defendant being a valued client to him.At the time of the hearing, Bleyer had approximately 15 cases pending in his office in which he had been retained by defendant to represent insureds of defendant and in which he would be paid by defendant for doing so.Attorney Womick, plaintiffs' chosen arbitrator, has handled cases against defendant for many years.At the time of trial, he had claims pending against defendant, and/or its insureds for which he expected to be compensated on a contingent fee basis.

The personal vehicle policy which insured the vehicle driven by Ruth Bruder at the time of the accident had uninsured motorist coverage limits of $100,000 per person and $300,000 per accident.The business auto policy covering both the 1983 Chevrolet pickup truck and a 1980 GMC pickup truck had identical limits.The declarations page of the business auto policy showed a separate premium for uninsured motorist coverage on each vehicle.

The amended judgment issued by the trial court in the instant case found that the uninsured motorist coverage of $100,000 to Halie Bruder and the $100,000 to Ruth Bruder under the personal vehicle insurance policy number A12A1615926 could be stacked with the uninsured motorist coverage under the business auto policy number AV1080210 for a total of $200,000 per plaintiff.The trial court found that the antistacking provision in the personal vehicle policy was ambiguous.On the other hand, the trial court found that an antistacking provision in the business auto policy entitled "Our Limit of Liability" was not ambiguous and that such provision precluded the stacking of uninsured motorist coverage within the business auto policy.

I

Defendant contends that plaintiffs should not be allowed to stack any policies or coverages involved, whereas plaintiffs argue that they should be allowed to stack not only the personal vehicle policy and the business auto policy, but also the two coverages in the business auto policy.We will first consider whether plaintiffs are entitled to stack insurance coverage under the personal vehicle policy and the business auto policy.The trial court allowed such stacking, finding the antistacking provision in the personal vehicle policy ambiguous because such provision was found only in the personal vehicle insurance policy and not in the business auto policy.We agree with the trial court and adopt its reasoning on this issue.

When construing insurance policies, the agreement is to be enforced as written so long as it is unambiguous and only to the extent that it does not contravene public policy.(Menke v. Country Mutual Insurance Co.(1980), 78 Ill.2d 420, 36 Ill.Dec. 698, 401 N.E.2d 539.)However, if any provision of the policy is ambiguous, such ambiguity must be construed in favor of the insured.(Squire v. Economy Fire & Casualty Co.(1977), 69 Ill.2d 167, 180, 13 Ill.Dec. 17, 22, 370 N.E.2d 1044, 1049;Glidden v. Farmers Automobile Insurance Association(1974), 57 Ill.2d 330, 336, 312 N.E.2d 247, 250.)In determining whether there is an ambiguity, the provision must be read in its factual context and not in isolation.(57 Ill.2d at 336, 312 N.E.2d at 250.)An examination of the clause at issue reveals an ambiguity.

As previously pointed out, the antistacking provision is found only in the personal vehicle policy.It reads:

"7.Other Vehicle Insurance in the Company.If this policy and any other vehicle insurance policy issued to you by this Company apply to the same accident, the maximum limit of our liability under all the policies will not exceed the highest applicable limit of liability under any one policy."

Under the policy definition section, "you" is defined as "the person named on the declarations page of this policy and that person's spouse if a resident of the same household."The persons named on the declarations page of the personal vehicle insurance policy are John W. Bruder and Ruth A. Bruder.The person named on the declarations page of the business auto policy is limited to John Bruder.Ruth Bruder's name does not appear anywhere in the business auto policy.Because the named persons on the declarations pages of the two policies are different, the antistacking provision does not take effect.

Defendant argues that the case at bar is analogous to Menke v. Country Mutual Insurance Co.(1980), 78 Ill.2d 420, 36 Ill.Dec. 698, 401 N.E.2d 539, in which our supreme court found that an antistacking clause was unambiguous and not contrary to public policy and, as such, defeated the insured's contention that he was entitled to stack coverage in three uninsured motorist coverages he had purchased.We, however, find Menke distinguishable from the instant case.

The Menke case is similar in some respects.For example, in Menke, two separate policies had been issued.The first policy contained two uninsured motorist provisions covering two vehicles, much like the business auto policy here in question.The second policy covered only one vehicle, similar to the personal vehicle policy in the instant case.However, in Menke, both policies had been issued to the same named insureds, while...