{ "id": 2512331, "name": "MICHAEL SALAZAR, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Salazar v. State Farm Mutual Automobile Insurance", "decision_date": "1989-11-20", "docket_number": "No. 1\u201488\u20142977", "first_page": "871", "last_page": "876", "citations": [ { "type": "official", "cite": "191 Ill. App. 3d 871" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "485 N.E.2d 1230", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499007 ], "year": 1979, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0346-01" ] }, { "cite": "398 N.E.2d 628", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5608707 ], "weight": 2, "pin_cites": [ { "page": "438" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0435-01" ] }, { "cite": "209 A.2d 27", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "205 Pa. Super. 389", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 771352 ], "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/pa-super/205/0389-01" ] }, { "cite": "280 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "pin_cites": [ { "page": "69" } ], "opinion_index": 0 }, { "cite": "151 Ind. App. 433", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1542465 ], "year": 1965, "pin_cites": [ { "page": "434-35" } ], "opinion_index": 0, "case_paths": [ "/ind-app/151/0433-01" ] }, { "cite": "497 N.E.2d 1170", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173202 ], "weight": 3, "pin_cites": [ { "page": "330" }, { "page": "331-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0327-01" ] }, { "cite": "176 N.E.2d 678", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 2d 487", "category": "reporters:state", "reporter": "Ill. App. 2d", "weight": 3, "pin_cites": [ { "page": "439" }, { "page": "445, 449" } ], "opinion_index": 0 }, { "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": 3, "pin_cites": [ { "page": "336" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0330-01" ] }, { "cite": "389 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "76 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984010 ], "year": 1974, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0011-01" ] } ], "analysis": { "cardinality": 552, "char_count": 11202, "ocr_confidence": 0.758, "pagerank": { "raw": 6.011112711018113e-08, "percentile": 0.3729267613671685 }, "sha256": "c17ca9981b41d04f26b6a2d67f39121a470a27fdbc5c6ebf01ed07eada4d3a9d", "simhash": "1:5bd8fea24b4e96eb", "word_count": 1795 }, "last_updated": "2023-07-14T16:26:25.592248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL SALAZAR, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nThis is an appeal from a summary judgment for defendant in an action brought by plaintiff to recover medical payment benefits under certain policies of automobile insurance issued by defendant.\nThe plaintiff, Michael Salazar, while a pedestrian, was struck by a car and injured. As a result of his injuries, he incurred $28,418.15 in medical expenses. Defendant, State Farm Mutual Automobile Insurance Company (State Farm), had issued three policies of automobile liability insurance to members of plaintiff\u2019s family, each of which provided medical payments coverage with limits of $25,000.\nAll three policies in issue contain the following provisions:\n\u201c(1). If There Are Other Medical Payments Coverages\n* * *\n4. If other vehicle medical payments coverage applies to bodily injury sustained by a pedestrian, this coverage is excess.\n(2). Medical Expenses\nWe will pay reasonable medical expenses, for bodily injury caused by accident, for services furnished within one year of the date of the accident. These expenses are for necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and funeral services, eyeglasses, hearing aids and prosthetic devices.\u201d\nState Farm paid the entire amount of plaintiff\u2019s medical expenses, totalling $28,418.15. Of this sum, $25,000 was paid under policy No. 8333 896\u201413, issued to plaintiff\u2019s sister, and $3,418.15 was paid under policy No. 8419 237\u201413, issued to plaintiff\u2019s father. Defendant declined to pay the remainder of $21,581.85 under policy No. 8419 237\u201413 and the sum of $25,000 under policy No. 8498 043\u201413.\nPlaintiff then brought this action seeking payment of the remaining $21,581.85 of medical coverage available under policy No. 8419 237\u201413 and $25,000 of medical coverage available under policy No. 8498 043\u201413 issued to plaintiff\u2019s father. The parties filed cross-motions for summary judgment, and following a hearing, summary judgment was entered in favor of defendant and against plaintiff. Plaintiff now brings this appeal.\nPlaintiff\u2019s principal argument is that as the premiums had been paid on each of the three policies issued to members of his family, he was entitled to recover the full amount of the medical payments coverage under all three policies. He asserts that by retaining premiums on three separate policies while refusing to pay valid claims under the policies, State Farm has, in effect, been unjustly enriched. Plaintiff argues that as a named insured under each of the policies, he is entitled to \u201cstack\u201d the coverages under each policy, thereby recovering the full amount under each policy.\nWith respect to the exclusionary clause, plaintiff argues that the language is ambiguous and, therefore, under Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 17, 389 N.E.2d 1150, and Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247, the clause must be construed in his favor so as to \u201cstack\u201d the primary coverage under each of the three policies. Plaintiff maintains that in other portions of the policy, State Farm explicitly limited its liability for multiple coverage, and if State Farm had desired to limit its liability to actual loss suffered or medical expenses incurred, it could have done so by the use of proper limiting language.\nPlaintiff makes specific reference to section 3 of the policy, related to \u201cother underinsured motor vehicle coverage,\u201d in which the language of the policy differentiates between coverage available on \u201cpolicies issued by us to you\u201d and coverage available \u201cfrom other sources.\u201d He claims that defendant\u2019s failure to similarly differentiate which policy provides primary coverage for medical payments where there are multiple policies held by the insured is what creates an ambiguity here.\nWe have reviewed the provision to which plaintiff refers and disagree with plaintiff\u2019s assertion that the exclusionary clause in the three policies is ambiguous. While State Farm chose to differentiate between other coverage available from the same insurer and coverage available from other sources with respect to uninsured motor vehicle coverage, it chose not to use similar language with respect to medical expense payments. Defendant instead chose to provide a complete exclusion under each policy if other medical payments coverage was available under any other policies. It makes no difference, in fact, which of the three policies is regarded as the primary policy, because under the policies, all of plaintiff\u2019s medical bills would be covered up to the maximum coverage of $75,000. We do not believe that the medical payments limitation here is ambiguous, and therefore, plaintiff is not entitled to multiple recovery under the three policies.\nThe issue raised by the instant appeal was first addressed by Illinois courts in Laurie v. Holland America Insurance Co. (1961), 31 Ill. App. 2d 487, 176 N.E.2d 678. The plaintiff in Laurie had two policies of automobile liability insurance with the defendant insurance carrier. Both policies had medical payments coverage and a provision whereby the insurer agreed to pay all reasonable medical expenses incurred within a year of an accident. Both policies also contained a clause providing that \u201c \u2018the insurance shall be excess over any other valid and collectible automobile medical payments insurance available to an insured under any other policy.\u2019 \u201d Laurie, 31 Ill. App. 2d at 439.\nThe court in Laurie held that the insured was not entitled to be paid twice for the medical bills incurred, the basis for the court\u2019s opinion being that the policy was a contract of indemnity under which the insured was entitled to only one recovery. (Laurie, 31 Ill. App. 2d at 445, 449.) Plaintiff here contends, however, that the rationale of Laurie is no longer applicable in light of Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1986), 113 Ill. 2d 327, 497 N.E.2d 1170.\nWhile it is true that the court in Strzelczyk rejected the indemnity analysis of Laurie (Strzelczyk, 113 Ill. 2d at 330), Strzelczyk is factually distinguishable from the instant appeal. In Strzelczyk, the two claimants were injured on a CTA bus which did not have medical payments coverage for its occupants. The mother and daughter claimants resided in the same household and each had a policy of insurance with State Farm. Each claimant made a claim under her own and the other person\u2019s policy.\nThe clause intended to prevent double payment of medical bills provided:\n\u201c2. *** If a temporary substitute car, a non-owned car or a trailer has other medical payments coverage on it this coverage is excess.\u201d\nThe supreme court held that the claimants were entitled to the second recovery as neither policy contained a provision excluding or limiting full payments of any medical expenses incurred. Strzelczyk, 113 Ill. 2d at 331-32.\nUnlike the policies involved in Strzelczyk, however, the policies involved here do contain an applicable limitation. The plaintiff was a pedestrian when he was hit by a car, and all three policies provide that if other vehicle medical payments coverage applies to the injuries sustained by a pedestrian, their respective medical payments coverage is excess. At the trial court observed, the clause in Strzelczyk focused upon coverage which would be afforded by the nonowned vehicle in which an insured was injured, whereas the clause in issue here focuses upon coverage available to an insured in his capacity as a pedestrian. Since the plaintiff was a pedestrian and since he has received full medical payment under one of the policies, we concur with the trial court\u2019s conclusion that defendant was liable only for the excess under the other two policies.\nPlaintiff\u2019s argument that denial of the full amount under each of the three policies disregards his right to \u201cstack\u201d his medical coverage is not well taken. Plaintiff\u2019s policies clearly do \u201cstack\u201d in that he received $25,000 under policy No. 8333 896\u201413 and the remaining $3,418.15 under policy No. 8419 237\u201413. The issue here is not whether the policies stack, but whether they entitle plaintiff to duplicate payment of his medical expenses.\nThis issue was addressed in Glidden v. Farmers Automobile In surance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247. The court in Glidden considered whether medical payments coverage of $2,000 under each of three policies could be stacked to provide coverage of $6,000 and held that it could be stacked, but \u201cnot to exceed, however, the total damages sustained.\u201d (Glidden, 57 Ill. 2d at 337.) The view that stacking, while permissible, is limited to the recovery of actual damages is also supported by numerous cases from foreign jurisdictions. (See, e.g., Ruder v. West American Insurance Co. (1972), 151 Ind. App. 433, 434-35, 280 N.E.2d 68, 69; Burns v. Employers\u2019 Liability Assurance Corp. (1965), 205 Pa. Super. 389, 395, 209 A.2d 27, 31.) Glidden makes it clear that plaintiff\u2019s policies here can be stacked to the extent that they cover any medical expenses he may have incurred, up to the collective policy limits of $75,000, but not to the extent that they provide duplicate payments.\nPlaintiff also contends that State Farm failed to plead the affirmative defense of an excess policy clause in its answer, thereby waiving the defense. Plaintiff cites section 2\u2014613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014613(d)), which provides that any affirmative defense must be plainly set forth in the answer. The purpose of this provision is to prevent unfair surprise at trial; however, it does not place a restriction on motions for summary judgment. (Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 438, 398 N.E.2d 628.) Under Illinois law, a defendant may file a motion for summary judgment at any time, even prior to filing an answer, and numerous cases have held that an affirmative defense raised in such a motion is timely and may be considered even if not raised in defendant\u2019s answer. See, e.g., Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1985), 138 Ill. App. 3d 346, 349, 485 N.E.2d 1230; Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 438, 398 N.E.2d 628.\nPlaintiff also seeks attorney fees and costs pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767), which provides such relief upon a finding of vexatious and unreasonable delay in settling an insurance claim. On the record before us, we decline to award fees and costs, as we are not persuaded that defendant\u2019s defense of this matter in any way constituted vexatious and unreasonable conduct.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County.\nJudgment affirmed.\nMANNING, P.J., and BUCKLEY, J., concur.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Murphy & Murphy, of Chicago (Jerome T. Murphy, of counsel), for appellant.", "Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (James J. Hoffnagle, of counsel), for appellee." ], "corrections": "", "head_matter": "MICHAEL SALAZAR, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201488\u20142977\nOpinion filed November 20, 1989.\nRehearing denied December 18, 1989.\nMurphy & Murphy, of Chicago (Jerome T. Murphy, of counsel), for appellant.\nTaylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (James J. Hoffnagle, of counsel), for appellee." }, "file_name": "0871-01", "first_page_order": 893, "last_page_order": 898 }