SUE E. MYERSCOUGH, District Judge:
On October 25, 2011, Plaintiff Deanne Berrey filed a Complaint in the Sangamon County Circuit Court. The two-count Complaint alleges state law claims for breach of insurance contract (Count I) and violation of the Illinois Insurance Code (Count II). In November 2011, Defendant, the Travelers Indemnity Company of America (Travelers), removed the case to federal court. The matter is now before the Court on the cross motions for summary judgment filed by Travelers (d/e 9) and Plaintiff (d/e 11). Because Traveler's has fulfilled its obligations under the insurance policy at issue, Traveler's motion for summary judgment is granted and Plaintiff's motion for summary judgment is denied.
On March 26, 2009, Plaintiff suffered injuries in an automobile accident that occurred while operating a vehicle within the scope of her employment with Curry Ice & Coal, Incorporated (Curry Ice & Coal). Sheri Campbell, the other driver, caused the accident. Plaintiff made a claim for workers' compensation benefits and received $103,224.02 in benefits as follows: (1) $26,106.25 in temporary total disability benefit payments; (2) $51,535.27 for medical bills; and (3) $25,582.50 in permanent partial disability benefit payments. Plaintiff also made a liability claim against Campbell, the at-fault driver of the vehicle that hit Plaintiff. Campbell's policy had a $100,000 limit. Finally, Plaintiff submitted a claim under the underinsured motorist (UIM) coverage of policy number P-810-932K4769-TIA-08 (Policy) that Travelers had issued to Curry Ice & Coal.
On July 26, 2011, a binding arbitration hearing took place pursuant to an agreement between Plaintiff and Curry Ice & Coal. Two days later the arbitration panel issued its "Decision of Arbitration" that found "an appropriate and just award to the Plaintiff for all elements of the damages presented in this matter is the amount of $310,000. This amount is inclusive of all medical expenses that were incurred and paid." In coming to this conclusion, the arbitration panel considered all of Plaintiff's relevant medical records and a summary of her medical bills incurred because of the accident. The panel also considered Plaintiff's scars, information from the crash report, photographs of the vehicles involved in the accident, the information on Plaintiff's W-2 forms for 2007, 2008, and 2009, and a document summarizing Plaintiff's lost income.
Plaintiff has received two checks from Travelers totaling $210,000 (one for $181,346.31 and a second for $28,653.69) and $103,223.02 in workers' compensation benefits from the workers' compensation carrier. Additionally, the other driver Campbell's liability insurer paid $100,000, which was paid directly to the worker's
Plaintiff claims Travelers still owes her money pursuant to the UIM coverage of the Policy. In Count I, Plaintiff seeks the $100,000 she claims Travelers still owes her pursuant to the UIM provision of the Policy.
This case involves the interpretation of the Policy issued by Travelers to Curry Ice & Coal. The Policy was in effect from August 1, 2008 through August 1, 2009 and covered vehicles owned by Curry Ice & Coal. The Policy provides UIM coverage up to $1 million per accident. The Policy also contains the following provisions relevant to Travelers' UIM exposure to Plaintiff:
See d/e 9-1 at p. 36 (Exhibit D, p. 1)
See d/e 9-1 at p. 37 (Exhibit D, p. 2).
Also, near the top of the first page of the UIM endorsement, the Policy states:
See d/e 9-1 at p. 36 (Exhibit D, p. 1). Form "CAT 030" (really CA TO 30 11 06 (d/e 9-1, p. 9; Exhibit A, p. 1) shows the Limit of Insurance for UIM coverage is $1,000,000 for each "accident."
The UIM provision also contains an arbitration provision that provides in pertinent part:
See d/e 9-1 at p. 38-39 (Exhibit D, p. 3-4).
Plaintiff is a resident of Macoupin County, Illinois. Travelers is a corporation based in Connecticut. Because complete diversity exists, and the amount in controversy exceeds $75,000, this Court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1). Venue is proper in this judicial district because a substantial part of the events or omissions giving rise to the claim occurred here. See 28 U.S.C. § 1391(a)(2).
"Summary judgment is appropriate when the pleadings and submissions in the record indicate the absence of any genuine issues of material fact, such that the moving party is entitled to judgment as a matter of law." Mercatus Group, LLC v. Lake Forest Hospital, 641 F.3d 834, 839 (7th Cir.2011). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The movant bears the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets this burden, the non-movant must set forth specific facts demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
In deciding a motion for summary judgment, a court can only consider sworn statements based on personal knowledge and other evidence that would be admissible at trial under the Federal Rules of Evidence. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir.2002). The evidence is viewed in the light most favorable to the non-movant, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Summary judgment is inappropriate when alternate inferences can be drawn from the evidence, as the choice between reasonable inferences from facts is a jury function. Id.; Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir.2004). However, conclusory allegations do not create issues of fact which forestall summary judgment. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir.2006) (internal citation omitted) ("[I]t is ... axiomatic that a plaintiff's conclusory statements do not create an issue of fact").
"In a suit where the federal court's subject matter jurisdiction is based on diversity, such as this one, the forum state's choice of law rules determine the applicable substantive law." Sound of Music Co. v. Minnesota Min. & Mfg. Co., 477 F.3d 910, 915 (7th Cir.2007). The Parties do not dispute that Illinois substantive law applies to this dispute.
Count I of the Complaint alleges breach of an insurance contract. "An insurance policy is a contract, and the general rules governing the interpretation of other types of contracts also govern the interpretation of insurance policies." Hobbs v. Hartford Ins. Co. of the Midwest, 214 Ill.2d 11, 17, 291 Ill.Dec. 269, 823 N.E.2d 561, 564 (2005). Therefore, the court's primary objective is to determine and give effect to the intent of the parties as expressed in the language of the policy. Id. "To determine `the meaning of the policy's words and the intent of the parties, the court must construe the policy as
"Although `creative possibilities' may be suggested, only reasonable interpretations will be considered. Thus, [a court] will not strain to find an ambiguity where none exists. Although policy terms that limit an insurer's liability will be liberally construed in favor of coverage, this rule of construction only comes into play when the policy is ambiguous." Hobbs, 214 Ill.2d at 17, 291 Ill.Dec. 269, 823 N.E.2d at 564 (citations omitted).
This case involves the interpretation of the Policy's UIM endorsement. The Illinois Insurance Code defines an underinsured motor vehicle as follows:
215 ILCS 5/143a-2(4). The legislative purpose of underinsured motorist coverage is to "`place the insured in the same position he would have occupied if the tortfeasor had carried adequate insurance.'" Phoenix Insurance Co. v. Rosen, 242 Ill.2d 48, 57, 350 Ill.Dec. 847, 949 N.E.2d 639, 646 (2011), quoting Sulser v. Country Mutual Insurance Co., 147 Ill.2d 548, 555, 169 Ill.Dec. 254, 591 N.E.2d 427, 429 (1992).
Here, the Policy's definition of underinsured motor vehicle is substantially similar to the Illinois Insurance Code's definition of the term. The Parties do not dispute that the tortfeasor Campbell was an underinsured motorist because the limit of Campbell's insurance was less than the limits for UIM coverage available to Plaintiff under the Policy. See d/e 9-1 Exhibit D, p. 4 (containing the Policy's definition of "underinsured motor vehicle"); see also 215 ILCS 5/143a-2(4) (containing statutory definition of "underinsured motor vehicle"). The Parties, however, dispute whether the terms of the Policy's UIM endorsement require Travelers to pay Plaintiff the $100,000 she seeks.
Plaintiff argues that "in order for Defendant to claim a setoff the issue had to be addressed in the Decision of Arbitration," citing Zimmerman v. Illinois Farmers Ins. Co., 317 Ill.App.3d 360, 251 Ill.Dec. 57, 739 N.E.2d 990 (Ill.App.Ct.2000), to support her argument. In Zimmerman, the court held that where the arbitrator ordered "payment" of $149,233, the defendant could not unilaterally set off the plaintiff's recovery from that award. Zimmerman, 317 Ill.App.3d at 368, 251 Ill.Dec. 57, 739 N.E.2d at 996.
However, Zimmerman is distinguishable. The outcome in Zimmerman hinged on the particular language of the arbitration provision. That language is different from the language of the arbitration provision in this case.
The language of the arbitration provision at issue in Zimmerman stated as follows:
Zimmerman, 317 Ill.App.3d at 363, 251 Ill.Dec. 57, 739 N.E.2d at 993. The arbitrator ordered the defendant to pay Zimmerman "the sum of ONE HUNDRED FORTY-NINE THOUSAND TWO HUNDRED THIRTY-THREE ($149,233.00) DOLLARS." This Award was "in full settlement of all claims submitted to this arbitration." Id.
On appeal, the defendant argued that the arbitrator was required to hear the evidence and determine the plaintiff's total damages. Additionally, the defendant argued that the plaintiff's total damages were "the amount due under this part" that was subject to arbitration and that the arbitrator's decision was subject to setoff. Zimmerman, 317 Ill.App.3d at 366, 251 Ill.Dec. 57, 739 N.E.2d at 995. The Zimmerman court disagreed with the defendant and in doing so distinguished the concepts of "damages" and "payment." See Zimmerman, 317 Ill.App.3d at 366, 251 Ill.Dec. 57, 739 N.E.2d at 995 (defining "damages" as "a pecuniary compensation that may be recovered in the courts by a person who has suffered loss, detriment, or injury" and "payment" as "the fulfillment of a promise or the performance of an agreement"). The court stated that "although an insured may be entitled to `damages' from the tortfeasor as compensation for her or his injuries, she or he is entitled to a `payment' from her or his insurer in fulfillment of the insurer's contractual obligation" to place the insured in the same position that he or she would have been in had the underinsured motorist carried liability insurance in the same amount as the policyholder. Zimmerman, 317 Ill.App.3d at 366-67, 251 Ill.Dec. 57, 739 N.E.2d at 995. The court acknowledged that "the amount of payment due under an insurance contract cannot be determined without considering the amount of damages", but the court noted that "this interrelationship does not eliminate the distinction." Zimmerman, 317 Ill.App.3d at 367, 251 Ill.Dec. 57, 739 N.E.2d at 996. The Zimmerman court determined that the plain
However, the Seventh Circuit Court of Appeals distinguished Zimmerman in Mullaney v. St. Paul Fire & Marine Ins. Co., 184 Fed.Appx. 577 (7th Cir.2006). Mullaney involved an arbitration provision that contained similar language to that present in this case. In Mullaney, the plaintiff was involved in an accident where the UIM provision of a policy provided by St. Paul Fire & Marine Insurance Company (St. Paul) had a $1,500,000 limit. Id. at 578. St. Paul paid the plaintiff the $250,000 limit of the at-fault driver's insurance policy in order to preserve its subrogation rights. Id. Later, an arbitration panel convened to determine the full extent of the plaintiff's damages and decided that figure was $1,500,000. St. Paul subtracted the $250,000 it had already paid the plaintiff and gave the plaintiff an additional $1,250,000. Id. The plaintiff sued the St. Paul arguing it was obligated to pay the entire $1,500,000. St. Paul moved for and was granted summary judgment. On appeal, the plaintiff relied on Zimmerman and argued that if the defendant wished to apply the $250,000 as a setoff, the defendant should have made that request to the arbitration panel. Id.
The Seventh Circuit noted that the outcome in Zimmerman hinged on the particular language of the arbitration clause that instructed the arbitrator to determine the "payment" owed to the claimant. Id. The Mullaney court also noted that in reaching its conclusion the Zimmerman court distinguished "payment" from "damages" and broadly construed "payment" to include the determination of any applicable setoff. Id. Because the arbitration provision in Mullaney made no mention of "payment", the court concluded that the arbitration panel was only authorized to determine the amount of damages sustained by the claimant. Id. Moreover, because the insurance policy in Mullaney prohibited double payments by stating "[i]n no event will a protected person be allowed to receive duplicate payments for the same loss," the court concluded that St. Paul was entitled to deduct the earlier payment from the arbitration panels's assessment of damages. Id.
As in Mullaney, the arbitration clause in this case makes no mention of "payment." Instead, it only authorizes the arbitration panel to determine whether the insured is legally entitled to recover damages from the owner or driver of an underinsured motor vehicle and the amount of damages that are recoverable by the insured. Accordingly, Travelers was not required to submit the issue of setoff to the arbitration panel. Moreover, the Policy in this case is similar to the policy in Mullaney in that the Policy also prohibits double recovery for the same element of loss ("No one will be entitled to receive duplicate payments for the same elements of `loss' under this Coverage Form and any Liability Coverage Form").
Next, Plaintiff maintains that Travelers still owes her $100,000 because
Plaintiff interprets Section D.2 of the UIM endorsement to mean that the Policy limit is affected by any workers' compensation benefits received while the amount of benefit due is not affected. Section D.2 of the UIM endorsement, states as follows: "Except in the event of a `settlement agreement', the Limit of Insurance for this coverage shall be reduced by all sums paid or payable ... [u]nder any workers' compensation, disability benefits or similar law." Under Plaintiff's interpretation, the amount of money she received in workers' compensation benefits would only reduce the $1,000,000 limit of UIM insurance available to her. According to Plaintiff, this language does not allow Travelers to set off the amount of workers' compensation benefits Plaintiff received. However, Section D.4 of the UIM Endorsement states that "[n]o one will be entitled to receive duplicate payments for the same elements of `loss' under this Coverage Form and any Liability Coverage Form." When read together, Sections D.2 and D.4 of the UIM endorsement clearly are meant to allow a setoff of any amounts recovered in workers' compensation benefits by the insured and to prevent a double recovery by the insured. In any event, even if the Court were to accept Plaintiff's interpretation of Section D.2, Section D.4 still prevents Plaintiff from receiving duplicate payments for the same element of loss.
To avoid Section D.4's ban on double recovery, Plaintiff only argues that she did not receive the $100,000 from Campbell's insurer. Instead, the money went directly to pay the workers' compensation lien. Plaintiff cites Roberts v. Northland Insurance Co., 291 Ill.App.3d 727, 226 Ill.Dec. 268, 685 N.E.2d 371 (Ill.App.Ct.1997), affirmed in part and reversed in part by Roberts v. Northland Insurance Co., 185 Ill.2d 262, 235 Ill.Dec. 579, 705 N.E.2d 762 (1998), as support for this argument. In Roberts, the injured plaintiff received: (1) the $50,000 limit from the at-fault driver's policy, and (2) $246,114.26 in workers' compensation benefits, which was reduced by the $50,000 the plaintiff received from the at-fault driver's policy, for a net workers' compensation benefit of $196,114.26. Roberts, 291 Ill.App.3d at 728, 226 Ill.Dec. 268, 685 N.E.2d at 372.
Plaintiff relies on the portion of the Roberts decision in which the court addressed the defendants' argument that they should be allowed to set off the $50,000 paid by the at-fault driver's insurance by stating as follows:
Roberts, 291 Ill.App.3d at 730-31, 226 Ill.Dec. 268, 685 N.E.2d at 374.
Roberts, however, is distinguishable from Plaintiff's case. The Roberts court did not discuss any policy language that
Moreover, Plaintiff's reliance on Roberts is misplaced. As noted above, the Roberts court rejected the defendants' argument that the trial court erred in denying a set-off of the $50,000 paid by the at-fault driver's insurance carrier and reasoned that a carrier may not claim a set-off which is greater than the amount actually received by a plaintiff. In Roberts, the plaintiff was entitled to $246,114.26 in workers' compensation benefits but actually received only $196,114.26 after $50,000 the plaintiff already received from the at-fault party's insurance provider was deducted. In essence, the $50,000 was set off before paying out the plaintiff's workers' compensation benefits. To allow the defendant to set off another $50,000 would have allowed a double set-off.
Here, the Plaintiff was entitled to receive a total of $310,000 and appears to have actually received $313,223.02, including $210,000 from Travelers and $103,223.02 in workers' compensation benefits. Additionally, $100,000 from Campbell's insurer was used to pay the workers' compensation lien. Like in Roberts, the set-off in this case was limited to the amount actually received by Plaintiff. Therefore, Travelers is not claiming a set-off which is greater than the amount actually received by Plaintiff.
In sum, Plaintiff's total damages were determined to be $310,000. Plaintiff actually received $103,223.02 in workers' compensation benefits. After deducting the $103,223.02 in workers' compensation benefits received from the $310,000 in damages Plaintiff suffered, $206,776.98 in damages remains. Travelers has paid Plaintiff $210,000. Travelers has fulfilled its obligations under the Policy.
Therefore, Travelers' motion for summary judgment on Count I will be granted and Plaintiff's motion for summary judgment with respect to that Count will be denied.
Because the Court has granted summary judgment in favor of Travelers on Plaintiff's breach of insurance contract claim, Plaintiff cannot prevail on Count II — which is based on Travelers' alleged wrongful and vexatious refusal to pay Plaintiff the money that she claimed Travelers still owed her and was the basis of Count I. Therefore, summary judgment will be granted in favor of Travelers, and against Plaintiff, on Count II.
THEREFORE, Travelers' Motion for Summary Judgment (d/e 9) is GRANTED and Plaintiff's Motion for Summary Judgment (d/e/11) is DENIED. Judgment on Counts I and II is entered in favor of
IT IS SO ORDERED.