delivered the opinion of the court:
On Aрril 2, 1996, Stephanie L. Stokes sustained severe injuries as a result of an automobile accident in which she was a passenger in a car owned by Linda Anderson and driven by Geneva E. Rhodes. At the time of the accident, Anderson was insured by defendant, Farmers Automobile Insurance Association, incorrectly sued as Pekin Insuranee Company. The insurance policy issued to Anderson and effective at the time of the accident provides for liability motorist coverage of $100,000 for each person and $300,000 for each accident.
On February 5, 1997, plаintiffs filed a complaint for declaratory judgment seeking a determination as to whether the $100,000-per-person limit or the $300,000-per-accident limit applies. Defendant filed a motion to dismiss arguing that such a determination prior to a judgment of liability is premature. On June 16, 1997, the circuit court granted defendant’s motion to dismiss, and this appeal follows.
We review de novo a decision by the circuit court granting a motion to dismiss. Federal Insurance Co. v. St. Paul Fire & Marine Insurance Co.,
The only issue before us on appeal is whether plaintiffs’ complaint, seeking a determination as to the limits of liability as to the insurance policy issued to the owner of the autоmobile in which Stokes was injured, is premature. Defendant argues that the circuit court acted properly in following the nearly identical case of Batteast v. Argonaut Insurance Co.,
The law surrounding the court’s authority to issue a declaratory judgment is well established. In determining the ripeness of a declaratory action, the court must first determine whether the cоmplaint recites in sufficient detail an actual and legal controversy between the parties which demonstrates that the plaintiff is interested in the controversy. Best v. Taylor Machine Works,
In addition, the complaint must show that the underlying facts and issues of the case are not moot or premature. Pincham v. Cunningham,
The circuit court granted defendant’s motion to dismiss, based on this court’s decisions in Batteast and Weber. In Batteast, the plaintiff brought a personal injury action against St. Bernard’s Hospital, alleging that he suffered permanent brain damage while in their care. The defendant, Argonaut Insurance Company, had issued an insurance policy to the hospital, and the policy was effective at the time of the injury. During the settlement negotiations, a dispute arose as to the amount of coverage available under the insurance policy. Bеcause the dispute hindered negotiations, the plaintiff brought a complaint for declaratory judgment, seeking a judicial determination of the extent of coverage provided by the policy. Batteast,
In affirming the circuit court’s dismissal of the complaint, this court stаted:
“Regardless of their disagreement [as to whether coverage is $1 million or $3 million], the plaintiff’s right to any amount is. contingent upon a finding of liability in the underlying tort action. Even if liability is later established, a resolution of the dispute would remain unnecessary unless the damages awardеd exceeded $1 million. Moreover, if we were to allow this action, there is no reason why every tort claimant would not, upon filing a personal injury action, concomitantly file a declaratory judgment action to determine the maximum amount of coverage to which he would be entitled in the event that liability was subsequently established. We cannot create the right to such premature litigation. The instant fact situation does not present an actual controversy between the parties.” Batteast,118 Ill. App. 3d at 6 .
Although this court in Batteast held that the plaintiff did not have standing to maintain the declaratory judgment action, this has been characterized a misnomer. See Weber,
The other decision cited by the circuit court supporting its decision to dismiss plaintiffs’ complaint was Weber v. St. Paul Fire & Marine Insurance Co.,
In reversing the circuit court’s decision, this court held that the action was not ripe for adjudication as the issue of whether or not the insured has a duty to indemnify does not аrise until an insured becomes legally obligated to pay the damages in the underlying action. Weber,
As stated earlier, plaintiffs do not attempt to distinguish this court’s decision in Batteast or Weber but merely argue that they should not be followed because the fifth district has taken a different approach. Plaintiffs cite two fifth district cases that have granted declaratory judgments when faced with a similar fact pattern. In Stearns v. Millers Mutual Insurance Ass’n,
The second case cited by plaintiffs is Generаl Casualty Co. v. McGowan,
Although plaintiffs cite both Stearns and McCowan for the proposition that the deсlaratory judgment in the instant case is not premature, we point out that in neither Stearns nor McCowan was this issue addressed. It is clear that the circuit court granted a declaratory judgment action regarding the limits of liability prior to a finding of liability, but the issue of ripeness was never discussed. On appeal, this court only addressed whether the circuit court’s grant of the declaratory judgment was an abuse of discretion. Apparently, the issue of ripeness was never raised by the parties. As the issue of ripeness was not discussed or even mentioned in еither Stearns or McCowan, we do not find these cases controlling in the instant action. We will not speculate as to why the decisions did not address the issue of ripeness, but we note that the issue of ripeness is not jurisdictional and may be waived if not raised in the circuit court. In re General Order of October 11, 1990,
Plaintiffs additionally argue that according to language in the supreme court’s decision of Murphy v. Urso,
“Where the issues in an underlying suit and a declaratory judgment action are separable, deciding the question of coverage in a collаteral proceeding prejudices no party. The situation changes when the issues are substantially the same ***.” Murphy,88 Ill. 2d at 455 .
Plaintiffs attempt to utilize this language to allow a declaratory judgment in the instant action.
We do not believe that plaintiffs’ action fits within this exception. Plaintiffs argue that the issue of liability in the underlying suit and the declaratory judgment action are entirely different and unrelated issues and that none of the facts in the one would arise in the trial of the other. We disagree because unless liability is ultimately determined to be greater than $100,000, any declaratory judgment action as to whether the policy limit is above $100,000 is meaningless. Unless liability is determined to be greater than $100,000, the result of the declaratory judgment action is nothing more than an advisory opinion. Therefore, the relevance of the declaratory judgment action is integrally related to the underlying suit of liability. Accordingly, we believe that these issues are inseparable, and therefore, the Murphy exception is inapplicable.
Returning to plaintiffs’ complaint, a declaratory judgment action is ripe if the сomplaint shows an “actual controversy.” However, plaintiffs’ complaint fails to do so. Although plaintiffs argue in a pretrial memorandum and at oral argument that plaintiffs have incurred over $100,000 in medical bills, that defendant has offered $100,000 as a settlement based upon the belief that this is the limit of liability it is permitted to offer, and that the case would probably be resolved within a week after the issuance of a declaratory judgment, none of these details are raised in plaintiffs’ complaint. Plaintiffs’ complaint merely contains the barе allegations that “[i]t is the position of the Defendant that their maximum limit of liability for all damages sustained by all parties is limited by the ‘Each Person’ limit” and that “[t]here is an actual controversy between Plaintiffs and Defendant, the resolution which will aid in the termination of the controversy оr some part thereof.” A complaint must recite in sufficient detail an actual and legal controversy. Plaintiffs’ complaint is insufficient to show an “actual controversy.” If we were to find an “actual controversy” based upon the bare allegations in plaintiffs’ cоmplaint, we must find an “actual controversy” in every complaint which seeks a declaratory judgment as to liability limits, even if there is little chance that liability will ultimately exceed the disputed limits. This court may not issue advisory opinions that are contingent upon the possible happening of a future event. Drayson v. Wolff,
In conclusion, this court in Batteast has addressed the preсise issue we face on appeal. Batteast was decided following the Murphy decision and has not been overturned. Plaintiffs fail to cite any authority where any court has determined that a declaratory judgment action similar to that sought by plaintiffs is ripe for adjudiсation. Although we acknowledge that the declaratory judgment statute must be liberally construed and should not be restricted by unduly technical interpretations, plaintiffs’ complaint simply fails to demonstrate an actual controversy.
Accordingly, we must affirm the decision of the circuit court of Montgomery County.
Affirmed.
MAAG and RARICK, JJ., concur.