Barnes v. Powell

• Decision Date: 04 October 1971
• Docket Number: No. 43742,43742
• Citation: 275 N.E.2d 377,49 Ill.2d 449
• Parties: Agatha BARNES, Appellant, v. William POWELL (LaSalle National Insurance Company, Intervenor-Appellee.)
• Court: Illinois Supreme Court

Page 377

275 N.E.2d 377

49 Ill.2d 449

Agatha BARNES, Appellant, v. William POWELL (LaSalle National Insurance Company Intervenor-Appellee.)

No. 43742.

Supreme Court of Illinois.

Oct. 4, 1971.

Rehearing Denied Nov. 24, 1971.

John B. Cashion, Chicago, for appellant.

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

KLUCZYNSKI, Justice:

Plaintiff, Agatha Barnes, co-owner of an automobile, sued for personal injuries suffered by her while riding as a passenger in said car and driven by defendant William Powell. The one-car accident occurred when the driver failed to make a turn in the highway causing the car to leave the road and strike a large rock. Plaintiff claimed that the driver who was uninsured at the time was guilty of wilful and wanton conduct.

LaSalle National Insurance Company (LaSalle) insurer of the vehicle, filed an intervening complaint for declaratory judgment to declare that its policy did not cover the accident, that the driver of the car was not an 'uninsured motorist' within the uninsured motorist provision of the policy and that certain express exclusions therein barred any liability of the insurer. The trial court found for the intervenor-insurer, the appellate court affirmed (129 Ill.App.2d 16, 262 N.E.2d 334) and we granted leave to appeal.

The automobile insurance policy, issued by LaSalle to Ernest Barnes, husband of the plaintiff, and co-owner of the automobile, contained liability coverage in the amount of $20,000--$40,000. Parties admit that due to a policy provision she is not entitled to recover under the liability portion of the policy, except that she is entitled to coverage under the $1,000 medical provision. The policy also contained a $10,000--$20,000 uninsured motorist provision. The only issue to be decided is whether the uninsured motorist coverage of the policy is applicable to the claim for the personal injuries sustained by plaintiff.

The uninsured motorist provision of the policy provided that the company would pay all sums which the insured 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. The persons insured under this provision included the named insured and any relative and any other person while occupying an insured automobile. An 'insured automobile' was 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' and an 'uninsured automobile' was defined in the policy as an automobile in which there is 'no bodily injury or liability bond or insurance applicable * * * for the use of such automobile.' An express provision prescribed that 'uninsured automobile' shall not include 'an insured automobile'.

Determination of the issue involves an interpretation of legislation (Ill.Rev.Stat.1969, ch. 73, par. 755a) upon which the uninsured motorist provision is based. Section 143a of the Illinois Insurance Code (par. 755a) provided in part: '(1) On or after the effective date of this amendatory Act of 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7--203 of the 'Illinois Motor Vehicle Law', approved July 11, 1957, as heretofore and hereafter amended (Financial Responsibility Law), for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured shall have the right to reject such coverage only on policies delivered, renewed or issued for delivery prior to July 1, 1967.'

LaSalle argues that according to the policy plaintiff is not covered by the uninsured motorist provision because at the time of the accident she was riding in an insured automobile and the term 'uninsured automobile' specifically excludes an insured automobile. Plaintiff argues that defendant had no insurance of his own, that because of specific exclusions in the liability portion of her policy, there was no liability coverage for the defendant as to the plaintiff and that, therefore, as to her, defendant was an uninsured motorist.

In Ullman v. Wolverine Insurance Co., 48 Ill.2d 1, 269 N.E.2d 295 this court stated: 'It would appear that the purpose of the provision in our Insurance Code requiring that every automobile liability policy shall contain uninsured motorist vehicle coverage in an amount not less than the limits described in the Financial Responsibility Law (Ill.Rev.Stat.1969, ch. 95 1/2, par. 7A-101 et seq.) was intended to place the policyholder in substantially the same position he would occupy, so far as his being injured or killed is concerned, if the wrongful driver had had the minimum liability insurance required by the Financial Responsibility Act. See Peterson v. State Farm Mutual Automobile Ins. Co. (1964), 238 Or. 106, 393 P.2d 651, 653; Durant v. Motor Vehicle Accident Indem. Corp., 15 N.Y.2d 408, 260 N.Y.S.2d 1, 207 N.E.2d 600, 601, dissenting opinion; Long, The Law of Liability Insurance, sec. 24.03.' (48 Ill.2d at 4, 269 N.E.2d at 297) And in Putnam v. New Amsterdam Casualty Co., 48 Ill.2d 71, 269 N.E.2d 97, this court commented: '* * * we believe the reasonable purpose of the statutory uninsured motorist provisions is to assure that compensation will be available to policyholders, in the event of injury by an uninsured motorist, to at least the same extent compensation is available for injury by a motorist who is insured in compliance with the Financial Responsibility Law.' 48 Ill.2d at 89, 269 N.E.2d at 106.

It is clear that there is an inconsistency between the liability coverage provision and the uninsured motorist provision of plaintiff's policy. On the one hand plaintiff is excluded from the liability coverage for the driver, and on the other, the driver does not qualify as an uninsured motorist even though there is no insurance available. So LaSalle would have us designate the automobile as insured, even though in fact as to the plaintiff it is uninsured. As stated by the court in Smiley v. Estate of Toney, 44 Ill.2d 127, at 130--131, 254 N.E.2d 440, at 441--442: 'We are not persuaded that the policy definition of an 'uninsured vehicle,' if it is unambiguous, must always control the application of the statute. The statutory coverage is mandatory, and it may not be whittled away by an unduly restrictive definition. Indeed, the defendant concedes as much, pointing out that 'research of the case law' indicates that before the uninsured motorist provisions of a policy come into operation it is necessary 'that the tortfeasor does in fact constitute an uninsured motorist, either being insured for less than the Financial Responsibility Law of the state in which the accident occurred, or by his insurance company denying coverage due to a variety of reasons.' And indeed, it is generally recognized, for example, that despite a contrary policy definition,...