Burcham v. West Bend Mut. Ins. Co., 2–10–1035.

• Decision Date: 21 November 2011
• Docket Number: No. 2–10–1035.,2–10–1035.
• Citation: 961 N.E.2d 453,356 Ill.Dec. 357,2011 IL App (2d) 101035
• Parties: Curtis BURCHAM, Plaintiff–Appellee, v. WEST BEND MUTUAL INSURANCE COMPANY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 101035

356 Ill.Dec. 357

961 N.E.2d 453

Curtis BURCHAM, Plaintiff–Appellee,

v.WEST BEND MUTUAL INSURANCE COMPANY, Defendant–Appellant.

No. 2–10–1035.

Appellate Court of Illinois, Second District.

Nov. 21, 2011.

Bill Porter, Chilton, Yambert & Porter LLP, Geneva, for West Bend Mutual Insurance Company.

Paul G. Krentz, Kinnally, Flaherty, Krentz & Loran, P.C., Aurora, for Curtis Burcham.

OPINION

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

¶ 1 Plaintiff, Curtis Burcham, filed a declaratory judgment action against defendant, West Bend Mutual Insurance Company (West Bend). Plaintiff sought a declaration that certain damages for which he sought uninsured motorist coverage were not precluded under a policy limitation by payments he was entitled to receive through workers' compensation. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment in plaintiff's favor. We affirm in part and reverse in part.

¶ 2 I. BACKGROUND

¶ 3 On October 18, 2007, plaintiff was involved in a motor vehicle accident allegedly caused by an uninsured driver. According to plaintiff, when the accident occurred he was driving a truck owned by his employer, P & M Mercury Mechanical Corporation (P & M), and was acting within the scope of his employment. As a result of the accident, plaintiff underwent several surgeries. P & M had a workers' compensation policy with defendant, as well as a motor vehicle policy providing uninsured and underinsured motorist coverage.

¶ 4 Under the workers' compensation policy, defendant paid $490,879.71 in plaintiff's medical expenses as of January 2, 2010. This amount had been discounted from $679,404.67 in charges from the various medical providers. Under the workers' compensation policy, defendant has also paid plaintiff over $100,000 in temporary total incapacity for work payments, and it continues to pay him $925.11 per week, which represents two-thirds of his prior average weekly wage. At the time of briefing this appeal, the workers' compensation claim was still open because no permanency award had been made.

¶ 5 In addition to workers' compensation coverage, plaintiff sought uninsured motorist coverage from defendant through P & M's motor vehicle policy. The endorsement for uninsured motorist coverage states: “We will pay all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘uninsured motor vehicle.’ The damages must result from ‘bodily injury’ sustained by the ‘insured’ caused by an ‘accident.’ ” Central to this case, the policy also contains the following limitation provision:

“No one will be entitled to receive duplicate payments for the same elements of ‘loss' under this Coverage Form and any Liability Coverage Form, Medical Payments Coverage Endorsement or Underinsured Motorists Coverage Endorsement attached to this Coverage Part.

* * *

We will not pay for any element of ‘loss' if a person is entitled to receive payment for the same element of ‘loss' under any workers' compensation, disability benefits or similar law.” (Emphasis added.)

The policy further requires the arbitration of disputes about the amount of damages. It states, “If we and an ‘insured’ disagree whether the ‘insured’ is legally entitled to recover damages from the owner or driver of an ‘uninsured motor vehicle’ or do not agree as to the amount of damages, then the disagreement will be arbitrated.”

¶ 6 P & M's policy also has an under insured motorist endorsement, with a limitation provision stating that the “Limit of Insurance for this coverage shall be reduced by all sums paid or payable” under “any workers' compensation, disability benefits or similar law.”

¶ 7 On January 14, 2010, plaintiff filed a declaratory judgment action against defendant. He alleged that on February 11, 2008, he demanded arbitration on his uninsured motorist claim, under the policy. Plaintiff cited to the Illinois Pattern Jury Instructions in arguing that, in his uninsured motorist claim, he was eligible to seek compensation for: (1) disfigurement resulting from the injuries; (2) loss of a normal life experienced and reasonably certain to be experienced in the future; (3) increased risk of future harm resulting from the injuries; (4) pain and suffering experienced and reasonably certain to be experienced in the future; (5) the reasonable expense of medical care received and the present cash value of treatment reasonably certain to be received in the future; (6) the value of earnings and benefits lost and the present cash value of those reasonably certain to be lost in the future; and (7) the reasonable expense of necessary help required as a result of the injuries and the cash value of such future expenses. Plaintiff alleged that compensation for these elements of loss would not be duplicative payments for the same elements of loss compensated in his workers' compensation claim, and he sought a declaration to this effect.

[356 Ill.Dec. 360] ¶ 8 On July 1, 2010, plaintiff filed a motion for summary judgment, and defendant filed a cross-motion for summary judgment on August 13, 2010. The trial court entered an order on September 14, 2010, granting plaintiff's motion for summary judgment and denying defendant's motion. It found that plaintiff was entitled to make claims for the following elements of loss in the uninsured motorist arbitration: (1) disfigurement not awarded in his workers' compensation claim; (2) loss of a normal life; (3) increased risk of future harm; (4) pain and suffering; (5) “the discounted amount of the medical expenses totaling $188,524.96,” pursuant to Wills v. Foster, 229 Ill.2d 393, 323 Ill.Dec. 26, 892 N.E.2d 1018 (2008); and (6) loss of earnings in excess of the amount actually paid in his workers' compensation claim. The order further stated that plaintiff had withdrawn his claim for caretaking expenses. Defendant timely appealed.

¶ 9 II. ANALYSIS

¶ 10 On appeal, defendant argues that the trial court erred in entering summary judgment for plaintiff and allowing him to claim damages for disfigurement, loss of a normal life, the discounted amount of medical expenses, and loss of earnings greater than the amount paid from workers' compensation. Defendant does not dispute the trial court's grant of summary judgment for the damage claims for increased risk of future harm or pain and suffering. Summary judgment is appropriate only where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Zekman v. Direct American Marketers, Inc., 182 Ill.2d 359, 374, 231 Ill.Dec. 80, 695 N.E.2d 853 (1998). We review de novo a grant of summary judgment. Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill.2d 550, 556, 310 Ill.Dec. 338, 866 N.E.2d 149 (2007). Also, the construction of an insurance policy is a question of law, to which de novo review applies. Id.

¶ 11 We construe an insurance policy by ascertaining and giving effect to the parties' intent, as expressed in the policy language. West American Insurance Co. v. Yorkville National Bank, 238 Ill.2d 177, 184, 345 Ill.Dec. 445, 939 N.E.2d 288 (2010). We give unambiguous words in the policy their plain, ordinary, and popular meanings. Id. We will read narrowly a policy provision purporting to exclude or limit coverage and apply it only where its terms are clear, definite, and specific. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill.2d 381, 393, 294 Ill.Dec. 163, 830 N.E.2d 575 (2005). Where such a provision is ambiguous, it will be construed liberally in favor of coverage. Founders Insurance Co. v. Munoz, 237 Ill.2d 424, 433, 341 Ill.Dec. 485, 930 N.E.2d 999 (2010).

¶ 12 At issue here is the limitation provision in defendant's uninsured motorist policy, which states: “We will not pay for any element of ‘loss' if a person is entitled to receive payment for the same element of ‘loss' under any workers' compensation, disability benefits or similar law.” “Loss” is defined as “direct and accidental loss or damage.”

¶ 13 A. Disfigurement

¶ 14 Defendant first argues that disfigurement is compensated under section 8(c) of the Workers' Compensation Act (Act) (820 ILCS 305/8(c) (West 2008)), so it is an element of loss excluded by the uninsured motorist policy's limitation provision. However, section 8(c) also provides: “No compensation is payable under this paragraph where compensation is payable under paragraphs (d), (e) or (f) of this Section.” 820 ILCS 305/8(c) (West 2008). Those sections cover compensation for wage loss differential, loss of use of a body part, and permanent disability.

¶ 15 Defendant argues that if, as a result of the same accident, an employee suffers disfigurement to one part of his body, such as his face, and suffers disability to another body part, such as his leg, he will be entitled to recover under both section 8(c) for disfigurement and section 8(e) for specific loss. See Corn Products Co. v. Industrial Comm'n, 51 Ill.2d 338, 342, 282 N.E.2d 445 (1972) (employee could receive compensation for both disfigurement to face and injury to arms). We note that Corn Products relied on a provision of the statute stating: “ ‘When the disfigurement is to the portions of the body designated in this paragraph, as a result of any accident, for which accident compensation is not payable under paragraphs (d), (e) or (f) of this Section, compensation for such disfigurement may be had under this paragraph.’ ” (Emphasis added.) Id. (citing Ill.Rev.Stat.1967, ch. 48, ¶ 138.8(c)). This language is no longer present in the statute (see 820 ILCS 305/8(c) (West 2008)), meaning that any award under section (d), (e), or (f) would negate a disfigurement award. In any event, we agree with plaintiff that he is not...