{
  "id": 3408829,
  "name": "JANET BOHNEN SALERNO, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant",
  "name_abbreviation": "Salerno v. State Farm Mutual Automobile Insurance",
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  "last_updated": "2023-07-14T21:20:02.730807+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "JANET BOHNEN SALERNO, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nPlaintiff, Janet Bohnen Salerno, filed a complaint for declaratory judgment seeking an aggregation of uninsured motorist coverage under three automobile insurance policies issued by defendant, State Farm Mutual Automobile Insurance Company, to her and her father. Defendant moved for a judgment on the pleadings, or alternatively, summary judgment. The trial judge denied defendant\u2019s motions, found there was no issue of material fact, and entered a declaratory judgment for plaintiff. Defendant does not dispute that part of the trial court\u2019s order, allowing coverage under plaintiff\u2019s policy. However, on appeal, defendant contends that the trial, court erred in allowing uninsured motorist coverage under more than one policy since the \u201cother insurance\u201d provision in the father\u2019s two policies operated to prevent multiple recovery.\nWe affirm the trial court\u2019s judgment.\nOn December 30, 1973, plaintiff was a passenger in an uninsured automobile owned and operated by her brother, James Bohnen. A collision occurred between James\u2019 automobile and an automobile driven by Richard Wingried, also an uninsured motorist. As a result of the collision plaintiff sustained various injuries.\nOn the date of the accident, plaintiff was insured under a policy issued by defendant covering her 1969 Camaro convertible. As required by statute (Ill. Rev. Stat. 1971, ch. 73, par. 755a(l)), the policy contained a provision for Family Protection Coverage in the event of an accident with a vehicle operated by an uninsured motorist. In consideration of a premium of $3, the limits of liability were delineated as *10,000 per person and *20,000 per accident. Janet had purchased the policy while living in her father\u2019s home where she was still living on the date of the automobile collision.\nHoward Bohnen, plaintiff\u2019s father, purchased two similar policies from defendant, and by paying the *3 premium, received identical limits of Family Protection Coverage of *10,000 per person, *20,000 per accident in connection with each of his cars, a 1970 Montego automobile and a 1971 Vega station wagon.\nIn addition, Howard Bohnen\u2019s two policies each included an \u201cother insurance\u201d clause which provided that its coverage would apply only as excess insurance if other insurance was available, and then only in the amount by which its limits of liability exceeded the limits of liability of the other insurance.\nThe sole issue presented in this appeal is whether the coverage under Howard Bohnen\u2019s two policies may be \u201cstacked\u201d with Janet\u2019s so as to allow a *30,000 per person or *60,000 per accident recovery. Defendant maintains that plaintiff is restricted to a maximum recovery of up to *10,000 per person and *20,000 per accident under Janet\u2019s policy. Defendant contends that the \u201cother insurance\u201d clauses present in Howard Bohnen\u2019s policies are clear and unambiguous on their face and preclude any additional coverage under the facts of this case.\nThe identical issue was recently presented to this court in Kaufmann v. Economy Fire & Casualty Co. (1977), 52 Ill. App. 3d 940, 368 N.E.2d 371.\nIn Kaufmann, the four plaintiffs were members of the same family who were injured in a collision due to the alleged negligence of an uninsured motorist. Daniel Kaufmann was the named insured under one policy issued by the defendant. His parents, Justin and Geraldine, were the named insureds under a second policy issued by the defendant. The policies of Daniel, Justin and Geraldine each contained Family Protection Coverage, identical in its limits to that in the instant case. Furthermore, the parents\u2019 policy contained an \u201cother insurance\u201d clause similar to that present in Howard Bohnen\u2019s policies. Defendant sought to limit plaintiff\u2019s coverage to Daniel\u2019s policy alone.\nThe majority in Kaufmann adopted the rationale of our supreme court\u2019s decision in Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247, and held \u201c[w]hen the same company issued the policies and the policies are issued to members of the same family, living in the same household, who have paid separate premiums, an ambiguity arises as to the \u2018other insurance\u2019 clause, which should be resolved in favor of the insureds.\u201d (Kaufmann v. Economy Fire & Casualty Co. (1977), 52 Ill. App. 3d 940, 947, 368 N.E.2d 371, 376.) Consequently, the court held that the coverage under the two policies could be stacked.\nThe majority decision in Kaufman compels the finding that, Janet and Howard paid premiums on three insurance policies to one insurance company in the expectation that they would receive multiple coverage. Under all three policies \u201cinsured\u201d is defined as the \u201cnamed insured,\u201d and \u201cif residents of the same household, the relatives of the first person named in the declarations * 0\nBoth Janet and her father qualified as \u201cinsureds\u201d under each other\u2019s policies. Janet lived in her father\u2019s household at the time her policy was purchased and at the time of the accident. In Kaufmann, the son did not live with his parents at the time he purchased the policy. The court felt, however, that the fact that he lived with his parents at the time of the accident was sufficient to consider the Kaufmanns as being a family of insureds. The instant case presents a more compelling factual situation since it was stipulated that Janet was at all relevant periods a member of her father\u2019s household.\nThis same factor also distinguishes the present case from our supreme court\u2019s decison in Morelock v. Millers\u2019 Mutual Insurance Association (1971), 49 Ill. 2d 234, 274 N.E.2d 1. In Morelock, plaintiff, while driving an automobile owned by her father, was struck by an automobile driven by an uninsured motorist. Plaintiff was the named insured under a policy issued by the defendant, and her father was the named insured in another policy issued by the defendant. Both policies contained identical Family Protection Coverage. Further, plaintiff\u2019s policy contained an \u201cother insurance\u201d clause similar in wording to that in the case at bar. The court in Morelock held that the father\u2019s policy covered the accident, but that the \u201cother insurance\u201d provision in plaintiff\u2019s policy did not offend the public-policy embodied in our insurance code and was thus enforceable.\nIn Morelock, there were no facts before the court which raised any ambiguity and thus the court was compelled to enforce the contract of insurance as it was written. In the instant case, we believe an ambiguity is present. Here, Janet was a member of her father\u2019s household at the time she purchased the policy which raises the presumption that she and her father, in paying triple premiums, contemplated that all three policies would cover the members of their household.\nFurthermore, in Morelock, plaintiff was driving her father\u2019s automobile when the accident occurred. The insurance company conceded, and the court held that the father\u2019s (owner\u2019s)policy covered the accident. In the instant case, the owner of the automobile had no policy covering the accident. Therefore, it is unclear whether Janet\u2019s policy or her father\u2019s two policies or all policies should have applied to cover the accident. We choose to resolve this ambiguity in favor of the insured, and thus hold that the coverage under all three policies may be stacked. (See Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247.) We realize that our resolution of this ambiguity may put plaintiff in a better financial position by virtue of having been involved in an accident while a passenger in another\u2019s uninsured car than if she were in her own or her father\u2019s car. However, as stated by our supreme court in Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247, 251: \u201cIf there is to be a \u2018windfall\u2019 in this situation, it should be to the insured, who paid the several premiums, rather than to the insurer, which collected them.\u201d\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nDIERINGER, P. J., and JOHNSON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE LINN"
      }
    ],
    "attorneys": [
      "Taylor, Miller, Magner, Sprowl & Hutchings, of Chicago (James J. Hoffnagle, of counsel), for appellant.",
      "Mahoney and McArdle, Chartered, of Chicago (Donald R. Crowe, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "JANET BOHNEN SALERNO, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.\nFirst District (4th Division)\nNo. 77-316\nOpinion filed December 15, 1977.\nTaylor, Miller, Magner, Sprowl & Hutchings, of Chicago (James J. Hoffnagle, of counsel), for appellant.\nMahoney and McArdle, Chartered, of Chicago (Donald R. Crowe, of counsel), for appellee."
  },
  "file_name": "0735-01",
  "first_page_order": 757,
  "last_page_order": 760
}