Barnes v. Powell

• Decision Date: 11 September 1970
• Docket Number: Gen. No. 69--86
• Citation: 129 Ill.App.2d 16,262 N.E.2d 334
• Parties: Agatha BARNES, Plaintiff-Appellant, v. William POWELL, Defendant-Appellee. LA SALLE NATIONAL INSURANCE COMPANY, a corporation, Intervenor-Appellee, v. Agatha BARNES and William Powell, Respondents-Appellants.
• Court: United States Appellate Court of Illinois

Page 334

262 N.E.2d 334

129 Ill.App.2d 16

Agatha BARNES, Plaintiff-Appellant, v. William POWELL, Defendant-Appellee.

LA SALLE NATIONAL INSURANCE COMPANY, a corporation, Intervenor-Appellee, v. Agatha BARNES and William Powell, Respondents-Appellants.

Gen. No. 69--86.

Appellate Court of Illinois, Third District.

Sept. 11, 1970.

John D. Hayes, John B. Cashion and Martin Smith, Chicago, for plaintiff-appellant.

Robson, Masters, Ryan, Brumund & Belom, Joliet, Sidney Z. Karasik, Chicago, for defendant-appellee.

ALLOY, Justice.

Plaintiff Agatha Barnes was injured while riding as a passenger in an automobile owned by her and her husband and driven by a friend to whom she had given permission to drive the automobile. The driver had no automobile insurance of his own. Plaintiff asserts a right to recover against the insurance company which insured the automobile (her husband's insurance company) on the theory that the driver to whom she had loaned the automobile was an uninsured motorist.

The record discloses that plaintiff was riding in an automobile driven by William Powell which was involved in a one-car accident when it ran off the road striking a large rock. On the date of the accident, the certificate of title to the automobile was in the name of Ernest Barnes, although the bill of sale for the automobile contained the names of both Ernest Barnes and Agatha Barnes and the automobile was also licensed in both names. Ernest Barnes, husband of plaintiff, was named an insured on the automobile insurance policy of LaSalle National Insurance Company. Mrs. Barnes and her husband were separated in October, 1964. William Powell, the defendant, was a tenant in an upstairs apartment rented to him by plaintiff Mrs. Barnes. She had given defendant William Powell permission to drive the automobile, and was riding in the automobile owned by her and her husband as a passenger at the time of the accident.

After Mrs. Barnes filed an action against William Powell, LaSalle National Insurance Company (which insured the automobile) intervened and asked for a declaratory judgment determining whether LaSalle National Insurance Company was responsible under its policy to defend William Powell and pay up to the policy limits in the event Powell was found liable for the accident. Plaintiff answered and counterclaimed for declaratory judgment requesting a determination as to whether she had any coverage for her injuries under the 'Uninsured Motorists Coverage' section of the LaSalle National Insurance Company policy. The pleadings admitted that William Powell had no insurance policy of his own. It was also admitted at a hearing that plaintiff Mrs. Barnes was not entitled to any coverage under the liability section of the LaSalle policy which was in the amount of $20,000--$40,000. The policy contained a $1,000 medical coverage provision and the LaSalle Company admitted that this amount was due Mrs. Barnes. The policy also contained a $10,000--$20,000 uninsured motorists coverage provision. This provision specified that the company would pay all sums which the insured or his legal representative would 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'. It also contained an arbitration clause. The policy identified persons 'insured' as the named insured and any relative and any other person while occupying an insured automobile. An insured automobile is defined as an owned automobile used by the insured or 'by any other person to whom the named insured has given permission to use such automobile'. An 'uninsured automobile' is defined in the policy as an automobile in which there is 'no bodily injury or liability bond or insurance policy applicable * * * for the use of such automobile'. There is also an express provision that 'uninsured automobile' shall not include 'an insured automobile'. The 'named' insured was specifically designated to mean the individual or husband and wife named in the declaration.

On May 13, 1969, the trial court entered an order finding that there was no coverage for plaintiff under either the 'liability' or 'uninsured motorists' coverages of the LaSalle policy. On appeal in this Court, plaintiff specifically contends that the 'uninsured motorists' coverage should be made available to plaintiff; that such coverage was not reduced by the $1,000 medical pay provision; and, that the arbitration clause of the policy was invalid.

At least in a factual sense we are dealing with a novel question, since there are no cases which have been called to our attention or that we have discovered any cases which dealt with the problem of a single car accident involving an automobile owned by a plaintiff, where the driver is selected or approved by plaintiff and the owner as a passenger is injured in the accident. Under the wording contained in the LaSalle insurance policy, it is made reasonably clear that the uninsured motorists coverage was not designed to be available to plaintiff. The policy refers to damages from the owner or operator of 'an uninsured automobile'. Obviously the automobile in the case before us was not an 'uninsured automobile' since there was a policy of insurance covering it. The policy likewise specifically provides that an 'uninsured automobile' could not be an 'insured automobile' such as the automobile in the case before us. Counsel for the parties substantially agreed that under the policy terms there was no uninsured motorists coverage specifically provided for. It is contended, however, that the policy must be regarded as providing uninsured motorists coverage irrespective of the policy language in view of the public policy of this state and the statute providing for uninsured motorists coverage (1969 Illinois Revised Statutes, Ch. 73 § 755a).

The argument of plaintiff is based principally on the language of the court in the case of Smiley v. Estate of Toney, 44 Ill.2d 127, 254 N.E.2d 440. In the Smiley case, two cars were involved in an accident where the driver of the car causing the accident had liability insurance with $20,000--$40,000 limits. Plaintiffs recovered a judgment for more than defendant's liability limits and sought to recover from their own insurance company for the difference, on the theory that the driver of the other automobile was 'uninsured' to the extent that their damages exceeded the proceeds of the other driver's liability insurance. It was argued in that case...