{ "id": 3625946, "name": "INTER-INSURANCE EXCHANGE OF THE CHICAGO MOTOR CLUB, Plaintiff-Appellee, v. STATE FARM INSURANCE COMPANY et al., Defendants.-(Frank M. Foster, Defendant-Appellant.)", "name_abbreviation": "Inter-Insurance Exchange v. State Farm Insurance", "decision_date": "1983-03-04", "docket_number": "No. 82-1891", "first_page": "157", "last_page": "164", "citations": [ { "type": "official", "cite": "113 Ill. App. 3d 157" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "389 N.E.2d 1286", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 383", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581931 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0383-01" ] }, { "cite": "391 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 718", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582044 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0718-01" ] }, { "cite": "404 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 693", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553325 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0693-01" ] }, { "cite": "424 N.E.2d 911", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499892 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0786-01" ] }, { "cite": "428 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "1141" } ], "opinion_index": 0 }, { "cite": "101 Ill. App., 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3086356 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "1067" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/1065-01" ] }, { "cite": "377 N.E.2d 62", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "65" } ], "opinion_index": 0 }, { "cite": "60 Ill. App., 3d 894", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3351567 ], "pin_cites": [ { "page": "899" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0894-01" ] }, { "cite": "389 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "76 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984010 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0011-01" ] }, { "cite": "370 N.E.2d 1044", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "69 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5454381 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/69/0167-01" ] }, { "cite": "401 N.E.2d 539", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "78 Ill. 2d 420", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3075623 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ill-2d/78/0420-01" ] }, { "cite": "312 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "57 Ill. 2d 330", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405907 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0330-01" ] }, { "cite": "361 N.E.3d 91", "category": "reporters:state_regional", "reporter": "N.E.3d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2970275 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0521-01" ] }, { "cite": "388 N.E.2d 906", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 889", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575804 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0889-01" ] }, { "cite": "408 N.E.2d 1112", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 400", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178362 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0400-01" ] }, { "cite": "274 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "3" } ], "opinion_index": 0 }, { "cite": "269 N.E.2d 97", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 71", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906633 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0071-01" ] }, { "cite": "49 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2910123 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0234-01" ] } ], "analysis": { "cardinality": 705, "char_count": 17495, "ocr_confidence": 0.755, "pagerank": { "raw": 9.247511869890379e-08, "percentile": 0.5110935039069845 }, "sha256": "13a5b8801b5c2da83f6819f7c4a2eb4a2999151b99abc830ee108b29add38dbb", "simhash": "1:36d5badb2bd6810a", "word_count": 2779 }, "last_updated": "2023-07-14T20:40:35.449940+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INTER-INSURANCE EXCHANGE OF THE CHICAGO MOTOR CLUB, Plaintiff-Appellee, v. STATE FARM INSURANCE COMPANY et al., Defendants.\u2014(Frank M. Foster, Defendant-Appellant.)" ], "opinions": [ { "text": "JUSTICE SULLIVAN\ndelivered the opinion of the court:\nIn an action for declaratory judgment, plaintiff\u2019s motion for summary judgment was granted with a holding that Frank M. Foster (defendant) was precluded by an \u201cother insurance\u201d clause from recovering under an automobile insurance policy issued to him by plaintiff. In this appeal, defendant contends that he is entitled to both uninsured motorist and medical payments benefits under that policy.\nAn uninsured motorist struck and injured defendant and Raymond Kaminski (Kaminski) as they stood next to a parked automobile owned by Kaminski and insured by State Farm Insurance Company (State Farm). State Farm refused to extend uninsured motorist coverage to defendant, contending that he was not insured under the terms of its policy. Defendant then made a claim under his own policy issued by plaintiff which refused to honor the claim and then brought this action seeking a declaration of the rights of the parties with respect to the two policies and a finding that State Farm was obligated to provide uninsured motorist benefits to defendant.\nThe parties filled cross-motions for summary judgment on the issue of coverage under the uninsured motorist provisions of the two policies. State Farm sought a declaration that its policy did not apply because defendant was not in, on, or alighting from Kaminski\u2019s vehicle at the time of the accident and therefore was not a defined insured under its policy. Plaintiff asked the court to determine that its policy did not apply on the grounds that defendant had not complied with its notice requirements and that the injury was covered by the State Farm policy. Defendant requested a finding that the uninsured motorist provisions of both policies applied, and his motion also contained an allegation that he was entitled to medical payments benefits under a separate provision of plaintiff\u2019s policy. Thereafter, defendant counterclaimed for declaratory judgment against plaintiff and State Farm, seeking a determination that he is entitled to uninsured motorist and medical payments benefits under plaintiff\u2019s policy as- well as uninsured motorist benefits under the State Farm policy. The record contains no answer by plaintiff to this counterclaim.\nThe uninsured motorist coverage of plaintiff\u2019s policy provides for payment of \u201call sums which the insured *** shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury *** sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile ***.\u201d Payment thereunder is limited by an \u201cother insurance\u201d clause, which provides in relevant part:\n\u201cWith respect to bodily injury to an insured while occupying an automobile not owned by the Subscriber, the insurance under [the uninsured motorist coverage] shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.\u201d\nA separate section of plaintiff\u2019s policy, entitled \u201cExpenses for Medical Services,\u201d provides for payment of \u201call reasonable expenses incurred within one year from the date of accident *** to or for the Subscriber *** who sustains bodily injury *** caused by accident, *** through being struck by an automobile ***.\u201d This coverage, too, is limited by an \u201cother insurance\u201d clause, but this clause provides:\n\u201cIf there is other automobile medical payments insurance against a loss covered by [the medical payments provision] of this policy the Exchange shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible automobile medical payments insurance ***.\u201d\nAt a hearing on the cross-motions for summary judgment, the trial court noted that the issue to be decided was whether defendant, at the time of the accident, came within the definition of \u201coccupant\u201d contained in the State Farm policy; that is, whether he was \u201con, upon or alighting from\u201d Kaminski\u2019s vehicle when struck by an uninsured motorist. Defendant also argued that he should be allowed to stack coverage under the two uninsured motorist provisions, but no mention was made of the medical payments benefits raised in his motion and sought in his counterclaim as due him under a separate provision of plaintiffs policy.\nThe trial court, in denying summary judgment to State Farm, found that defendant was an occupant of Kaminski\u2019s vehicle at the time in question, and thus that State Farm\u2019s policy covered defendant\u2019s claim. In granting summary judgment to plaintiff, the court held that its policy does not apply and that the \u201cother insurance\u201d provision contained in plaintiff\u2019s policy precluded stacking with the State Farm policy. Defendant appeals only the grant of summary judgment to plaintiff. No other appeals have been taken from this order.\nOpinion\nDefendant first contends that he is entitled to recover uninsured motorist benefits under both policies. He acknowledges that the Illinois Supreme Court established a contrary rule in Morelock v. Millers\u2019 Mutual Insurance Association (1971), 49 Ill. 2d 234, 274 N.E.2d l, and Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 269 N.E.2d 97, but argues that subsequent decisions of that court mandate reconsideration and overruling of Morelock and Putnam.\nIn Putnam, the court considered an \u201cother insurance\u201d clause virtually identical to that in the instant action. There, the plaintiffs were passengers in a car owned by a friend and insured by Hartford Accident and Indemnity Company when it was struck by an uninsured motorist. Hartford covered all injuries arising from the accident to the extent of the $20,000 per accident limit of its uninsured motorist coverage, and each plaintiff received a pro rata share of $7,500. Plaintiffs then sought compensation under their own uninsured motorist coverage with New Amsterdam Casualty Company to the extent that their damages exceeded the $7,500 recovered from Hartford. The court, finding that the \u201cexcess-escape\u201d limiting clause of the New Amsterdam policy was clear and unambiguous, held that plaintiffs were precluded from recovering under it.\nMorelock again considered an \u201cother insurance\u201d clause identical to the one in the instant action and determined that it was not contrary to public policy. The court noted that \u201c[construing an insurance contract accurately and giving it the effect which its language clearly commands, is not ipso facto a breach of public policy merely because it disappoints the innocent victim of an uninsured motorist.\u201d 49 Ill. 2d 234, 238, 274 N.E.2d 1, 3.\nDefendant maintains that the court in Morelock and Putnam was using a \u201cStrict textual\u201d approach in deciding that the clause in question was not ambiguous and did not contravene public policy. He argues that the court should have considered the factual context or the reasonable expectations of the policyholders, an approach he insists was adopted by the court in subsequent decisions.\nInitially, we note that once our supreme court has declared the law on a point, we are bound by that decision (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112), and it can be overruled only by a subsequent decision of the supreme court (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906; Benza v. Shulman Air Freight (1977), 46 Ill. App. 3d 521, 361 N.E.3d 91). In Putnam, the supreme court confronted the same issue raised here by defendant, involving the same limitation clause and the same factual situation, and decided that the clause at issue was not ambiguous and did not contravene public policy. Subsequent supreme court decisions, far from overruling Putnam, as argued by defendant, have either distinguished it (Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247), or cited it extensively (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539). Therefore, we are bound by the Putnam decision, which is dispositive of the issue before us.\nFurthermore, the cases defendant relies on in asserting that subsequent decisions require a reexamination of Putnam involve different factual situations. The supreme court has found a limiting clause ambiguous where multiple policies were issued by the same insurer to one insured (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247) or to members of the same household (Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 389 N.E.2d 1150). However, we have distinguished these cases and adhered to the rule established in Putnam where the policies in question, as here, were issued by different insurers \u201cto insureds who were entirely different from each other, with no common connection other than the fact that each policy covered [the injured person] as an insured\u201d at the time of the accident. Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App., 3d 894, 899, 377 N.E.2d 62, 65.\nDefendant also argues that we must consider the reasonable expectations of the parties and the so-called \u201cpremium rule\u201d which states- that \u201cwhen premiums have been paid for separate policies, it seems both equitable and desirable to- permit recovery under more than one policy until the claimant is fully indemnified.\u201d (Maid. v. Illinois Farmers Insurance Co. (1981), 101 Ill. App., 3d 1065, 1067, 428 N.E.2d 1139, 1141.) However, as recent cases have noted, these considerations are appropriate only where the language of the clause is ambiguous, for they are rules of construction. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539; Maid v. Illinois Farmers Insurance Co. (1981), 101 Ill. App. 3d 1065, 428. N.E.2d 1139.\nFinally, we note that the rule- established in Putnam was recently considered by the supreme court in Menke v. Country. Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539. There, the court was asked to construe an \u201cother insurance\u201d clause in an uninsured motorist provision which limited an insured\u2019s recovery under multiple policies issued by the same insurer. The clause considered was worded similarly to the clause in the instant action, and the court held that it was to be applied as written because it was neither ambiguous nor contrary to public policy. In the light of this most recent reaffirmation of the principles established in Putnam, we do not believe that any reconsideration of the law is mandated.\nDefendant next contends that the court\u2019s order denying him any recovery under plaintiff\u2019s policy is erroneous. He maintains that, even if recovery is precluded under the uninsured motorist provisions of that policy, he is still entitled to recover under the medical payments provision, since the \u201cother insurance\u201d clause therein does not contain the same limitations. Plaintiff argues that this issue is not properly before us, since it was never presented to nor considered by the trial court. It maintains that even if the issue was raised by the pleadings, defendant\u2019s failure to pursue that issue before the trial court precludes our review.\nThe parties are not in agreement on the question whether defendant\u2019s recovery under the medical payments provision of plaintiff\u2019s policy was decided by the trial court in these cross-motions for summary judgment. It is apparently defendant\u2019s position that the issue was considered, but decided adversely to him, while plaintiff contends that the issue was not before the trial court. Therefore, we must first determine what issue was presented by the various motions for summary judgment.\nState Farm\u2019s motion for summary judgment sought a declaration \u201cthat there is no coverage afforded to [defendant] under the Uninsured Motorist provisions\u201d of its policy. Plaintiff\u2019s motion asked for a ruling \u201cthat [State Farm] provides Uninsured Motorist Coverage to [defendant] and that [plaintiff! provides no [uninsured motorist coverage] in this instance to [defendant] ***.\u201d Paragraph 7 of defendant\u2019s motion for summary judgment recites that a claim was made against plaintiff for uninsured motorist and medical payments benefits, and paragraph 9 sets forth a portion of the medical payments provision of plaintiff\u2019s policy. However, defendant asks the court to declare only \u201cthat there is coverage afforded to [defendant] under the Uninsured Motorist Provisions of the pertinent insurance policies of Plaintiff *** and [State Farm] ***.\u201d\nThus, it appears that the sole issue raised in the cross-motions for summary judgment concerned the uninsured motorist provisions of the two policies. This conclusion is supported by the trial court\u2019s statement, at the hearing on these motions, that \u201c[t]he issue in the case is *** a question of whether or not the applicable provision of the insurance policy which provided for insurance coverage for accidents suffered when an insured is on, upon or alighting from his motor vehicle applies in this case.\u201d None of the parties objected to this characterization of the motions, or sought to argue the applicability of any provision other than the uninsured motorist benefits. Therefore, we believe that the single issue before the court on these motions was recovery of uninsured motorist benefits.\nWhile we do not agree with defendant that the medical payments issue has been decided by the trial court, neither do we accept plaintiff\u2019s contention that defendant waived this issue by not raising it in the trial court. This contention assumes that the court\u2019s order was a final adjudication of all matters pending before the court \u2014 an assumption with which we are not in accord. In this regard, we initially note that orders must be interpreted within the context of the motions which accompany them (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911), and because the sole question before the trial court concerned the uninsured motorist provisions, the court\u2019s order precludes defendant\u2019s recovery only under those provisions of plaintiff\u2019s policy. Furthermore, defendant filed a counterclaim seeking a declaratory judgment of his rights under the uninsured motorist provisions of both policies and under the medical payments provisions of plaintiff\u2019s policy. While aspects of that counterclaim have been adjudicated on the motions for summary judgment, that portion dealing with the medical payments provisions is still pending. The court could not have granted summary judgment on that issue for either party, since it could not grant a motion which was never made by any of the parties. Crooks Terminal Warehouses, Inc. v. American National Bank & Trust Co. (1980), 83 Ill. App. 3d 693, 404 N.E.2d 889.\nFinally, we do not believe that defendant\u2019s failure to raise the issue of medical payments benefits in its motion for summary judgment was fatal to its rights of recovery thereunder, as plaintiff seems to imply, for section 2 \u2014 1005 of the Code of Civil Procedure (HI. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1005), formerly section 57 of the Illinois Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 57) specifically provides that either party may move \u201cfor a summary judgment in his or her favor as to all or any fart of the relief sought.\u201d (Emphasis added.) Therefore, defendant\u2019s motion here should be treated as being for partial summary judgment, and it is immaterial that there are other claims before the court upon which defendant might obtain relief. (Brewer v. Daubert Chemical Co. (1979), 72 Ill. App. 3d 718, 391 N.E.2d 110.) Moreover, a partial summary judgment is a final order which is appealable where, as here, there is a finding under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) of \u201cno just reason for delaying enforcement or appeal.\u201d Bloom v. Landy (1979), 72 Ill. App. 3d 383, 389 N.E.2d 1286.\nFor the foregoing reasons, the summary judgment for plaintiff is affirmed and the cause remanded for further proceedings.\nAffirmed and remanded.\nWILSON, P.J., and LORENZ, J., concur.\nWe note that Morelock was subsequently overruled to the extent that it is in conflict with Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 389 N.E.2d 1150. Kaufmann did not address the issue for which defendant cites Morelock; i.e., whether an \u201cother insurance\u201d .clause contravenes the public policy reflected in the uninsured motorist provisions of section 143a of the Illinois Insurance Code (111. Rev. Stat. 1979, ch. 73, par. 755a). Furthermore, the supreme court recently reached the same conclusion on the public policy question that it stated in Morelock, albeit without citation thereto. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.", "type": "majority", "author": "JUSTICE SULLIVAN" } ], "attorneys": [ "Eileen Kavanagh, of Chicago (J. Dillon Hoey and H. Thomas Lenz, of counsel), for appellant.", "Christie E. Smith and John J. O\u2019Connor, both of Chicago, for appellee." ], "corrections": "", "head_matter": "INTER-INSURANCE EXCHANGE OF THE CHICAGO MOTOR CLUB, Plaintiff-Appellee, v. STATE FARM INSURANCE COMPANY et al., Defendants.\u2014(Frank M. Foster, Defendant-Appellant.)\nFirst District (5th Division)\nNo. 82\u20141891\nOpinion filed March 4, 1983.\nEileen Kavanagh, of Chicago (J. Dillon Hoey and H. Thomas Lenz, of counsel), for appellant.\nChristie E. Smith and John J. O\u2019Connor, both of Chicago, for appellee." }, "file_name": "0157-01", "first_page_order": 179, "last_page_order": 186 }