Defendant's (insurance company) Answer in Automobile Accident Case

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Circuit Court of Illinois.
County Department
Chancery Division
Cook County
TERRENCE and Marie Domin, Plaintiffs,
v.
SHELBY INSURANCE COMPANY, a foreign corporation, Defendant.
No. 00CH08224.
2008.
Answer to Complaint for Declaratory Relief

One of the Attorneys for, Shelby Insurance Company, Robert L. Reifenberg, Jennifer A.C. Manning, Clausen Miller P.C., 10 S. LaSalle Street, Chicago, IL 60603, Ph: 312/855-1010.

NOW COMES Defendant Shelby Insurance Company (“Shelby”), by and through its attorneys Robert L. Reifenberg and Clausen Miller P.C., and for its answer to Plaintiffs' complaint for declaratory relief states as follows:

NATURE OF THE ACTION

1. Shelby admits the allegations of paragraph 1.

2. Shelby denies the allegations of paragraph 2.

PARTIES

3. Shelby has insufficient knowledge as to the allegations of paragraph 3, therefore neither admits nor denies same, but demands strict proof thereof.

4. Shelby admits the allegations of paragraph 4.

JURISDICTION

5. Shelby admits the allegations of paragraph 5.

VENUE

6. Shelby admits the allegations of paragraph 6.

UNDERLYING SUIT

7. Shelby admits that Plaintiffs filed the underlying suit in the Circuit Court of Cook County, Illinois, County Department Law Division, and that a copy of Plaintiffs' complaint is attached as Exhibit A.

POLICIES

8. Shelby admits that it issued insurance policy no. IA 8537640 to Plaintiffs and that a copy of the policy is attached to Plaintiffs' complaint as Exhibit B. Answering further, Shelby states that the policy speaks for itself and to the extent the allegations contained in paragraph 8 are inconsistent with the policy, they are denied.

FACTS

9. Shelby states that the underlying complaint attached to Plaintiffs' complaint as Exhibit A speaks for itself, therefore no answer is required. To the extent the allegations of paragraph 9 are inconsistent with the underlying complaint, they are denied.

10. Shelby states that the underlying complaint attached to Plaintiffs' complaint as Exhibit A speaks for itself, therefore no answer is required. To the extent the allegations of paragraph 9 are inconsistent with the underlying complaint, they are denied. Answering further, Shelby states it has insufficient knowledge as to Plaintiffs' allegation that the defendants are uninsured for the underlying suit, and therefore neither admits nor denies same, but demands strict proof thereof.

11. Shelby states that the underlying complaint attached to Plaintiffs' complaint as Exhibit A speaks for itself, A speaks for itself, therefore no answer is required. To the exte_ the allegations of paragraph 11 are inconsistent with the underlying complaint, they are denied.

12. Shelby admits that plaintiffs have requested uninsured/underinsured coverage under the Shelby policy. Shelby denies Plaintiffs' suggestion that Shelby's $100,000 offer constitutes less than the maximum amount available under the policy, and affirmatively states that it has offered Plaintiffs the maximum amount available under the policy for the underlying suit.

POLICY LANGUAGE AND TERMS

13. Shelby states that the Shelby policy attached to Plaintiffs' complaint as Exhibit B speaks for itself, therefore no answer is required. To the extent the allegations of paragraph 13 are inconsistent with the policy, they are denied.

14. Shelby states that the Shelby policy attached to Plaintiffs' complaint as Exhibit B speaks for itself, therefore no answer is required. To the extent the allegations of paragraph 14 are inconsistent with the policy, they are denied.

15. Shelby states that the Shelby policy attached to Plaintiffs' complaint as Exhibit B speaks for itself, therefore no answer is required. To the extent the allegations of paragraph 15 are inconsistent with the policy, they are denied.

COUNT I

16. Shelby repeats and incorporates by reference its answers to paragraphs 1-15 as though fully set forth herein.

17. Shelby states that the Shelby policy attached to Plaintiffs' complaint as Exhibit B speaks for itself, therefore no answer is required. To the extent the allegations of paragraph 17 are inconsistent with the they are denied.

18. Shelby states that the underlying complaint attached to Plaintiffs' complaint as Exhibit A speaks for itself, therefore no answer is required. To the extent the allegations of paragraph 18 are inconsistent with the complaint, they are denied.

19. Shelby states that the underlying complaint attached to Plaintiffs' complaint as Exhibit A and the Shelby policy attached as Exhibit B speak for themselves, therefore no answer is required. To the extent the allegations of paragraph 19 are inconsistent with the underlying complaint or the Shelby policy, they are denied.

20. Shelby denies the allegations of paragraph 20.

21. Shelby denies the allegations of paragraph 21.

WHEREFORE, Defendant Shelby Insurance Company, denies that Plaintiffs are entitled to a judgment against them, and prays for judgment in its favor and against Plaintiffs as to all matters alleged.

AFFIRMATIVE DEFENSES
First Affirmative Defense

1. Plaintiffs' complaint fails to state a claim upon which relief may be granted.

Second Affirmative Defense

1. The insuring agreement of the Shelby policy's Part C - Uninsured Motorists Coverage provides in relevant part:

A. We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. -sustained by an insured; and

2. Caused by an accident.

2. Plaintiffs have not proved that the underlying defendants are uninsured motorists, so as to trigger the Shelby policy's Uninsured Motorists Coverage.

Third Affirmative Defense

1 The Shelby policy defines “bodily injury” as follows:

D. Bodily injury means bodily harm, sickness or disease, including death that results.

2. Marie Domin has not sustained any “bodily injury” as that term is defined. Because Shelby's uninsured motorists coverage is only afforded for “bodily injury”, Mrs. Domin is not entitled to separate coverage and the maximum amount available for Plaintiffs' claim is the policy's $100,000 “per person” liability limits.

Fourth Affirmative Defense

1. The Shelby policy's uninsured motorists coverage (Part C) contains a “Limits of Liability” clause which states:

A. The limit of liability shown in the Schedule or in the Declarations for each person for Uninsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident. This is the most we will pay regardless of the number of

1. Insureas;

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident.

B. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and:

1. Part A or Part B of this policy; or

2. Any Underinsured Motorists Coverage provided by this policy.

C. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.

D. 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 of the following or similar law:

1. Workers' compensation law; or

2. Disability benefits law.

(Emphasis in original. Paragraph A was amended by an endorsement entitled “Split Uninsured Motorists Limits”, form no. PP 04 01 86, attached to the Shelby Policy.)

2. The Limits of Liability clause unambiguously provides that the maximum amount of uninsured coverage available to Plaintiffs here is $100,000. The underlying lawsuit alleges bodily injury to only one person - Mr. Domin - arising out of one auto accident and involving a single insured auto.

3. The Limits of Liability clause also makes clear that Plaintiffs may not seek duplicate payments for the same loss. Both Plaintiffs are seeking coverage for the same elements of loss - Mr. Domin's bodily injuries. Even though Mrs. Domin has characterized her claim as a loss-of-consortium claim, suon claim is derivative of her husband's bo injury claim. Consequently, Plaintiffs may not seek more than the Shelby policy's $100,000 “per person” liability limits.

4. The Limits of Liability clause also makes clear that there will be no coverage under the Shelby policy to the extent Plaintiffs are entitled to receive, or have received, payment for their alleged losses under any workers' compensation, disability benefits or similar law.

Fifth Affirmative Defense

1. The Shelby policy contains two endorsements setting forth the available limits of liability for underinsured motorists coverage. The first endorsement is entitled “Underinsured Motorists Coverage - Illinois” (form no. PP 04 47 08 97). The second endorsement is entitled “Split Underinsured Motorists Coverage” (form no. PP 04 02 04 86), and simply replaces the first paragraph of the first endorsement. When read together, the endorsements provide as follows:

A. The limit of liability shown in the Schedule or in the Declarations for each person for Uninsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one auto accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident. This is the most we will pay regardless of:

1. Insureds;

2. Claims made;

3. ehicles or premiums shown in the Decl,tions; or

4. Vehicles involved in the auto accident.

B. Except in the event of a settlement agreement, the limit of liability for this coverage shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A of this policy.

C. In the event of a settlement agreement, the maximum limit of liability for this coverage shall be the amount by which the limit of liability for this coverage exceeds the limits of bodily injury liability bonds or policies applicable to the owner or operator of the underinsured motor vehicle.

D. The limit of liability for this coverage shall be reduced by all sums:

1. Paid or payable because of the bodily injury under any automobile medical payments coverage. This includes all sums paid under Part B of this policy.

2. Paid or payable because of the bodily injury under any of the following or similar law:

a. Workers' compensation law; or

b. Disability benefits law.

E. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and Part A, Part B or Part C of this policy.

F. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.

G. 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 of the following or similar law:

1. Workers' compensation law; or

2. Disability benefits law.

(Emphasis in original.)

2. The Limits of Liability clause makes clear that the maximum amount of underinsured motorists coverage available to Plaintiffs here is $100,000. The underlying lawsuit alleges bodily injury to only one person - Mr. Domin - arising out of one auto accident and involving a single insured auto.

3. The Limits of Liability clause also makes clear that underinsured motorists coverage will be reduced by all sums paid for Mr. Domin's bodily injuries by the responsible parties, paid or payable under any automobile medical payments coverage, or under any workers' compensation, disability benefits, or similar law. To the extent Plaintiffs have received any such sums, the coverage available under the Shelby policy shall be reduced accordingly.

4. The Limits of Liability clause also makes clear that Plaintiffs may not seek duplicate payments for the same loss or losses. Both Mr. and Mrs. Domin are seeking coverage for the same elements of loss - Mr. Domin's bodily injuries. Even though Mrs. Domin has characterized her claim as a loss-of-consortium claim, such claim is derivative of her husband's bodily injury claim. Consequently, Plaintiffs may not seek more than the Shelby policy's $100,000 “per person” liability limits.

Sixth Affirmative Defense

Shelby has offered Plaintiffs the full $100,000 limits available under its policy. Plaintiffs have refused that offer. In light of their refusal, Plaintiffs may not be heard to argue that Shelby has breached any coverage obligations it may have under the policy.

WHEREFORE, Shel respectfully requests that this Court:

A. Enter judgment in favor of Shelby and against Plaintiffs on Plaintiffs' Complaint;

B. Award Shelby its costs incurred in defending this action; and

C. Grant such other relief as the Court deems just and proper.

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