Doxtater v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 31 October 1972
• Docket Number: No. 56406,56406
• Citation: 290 N.E.2d 284,8 Ill.App.3d 547
• Parties: Virgil DOXTATER, a Minor, by Ervin Doxtater, his father and next friend, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Defendant- Appellee.
• Court: United States Appellate Court of Illinois

Page 284

290 N.E.2d 284

8 Ill.App.3d 547

Virgil DOXTATER, a Minor, by Ervin Doxtater, his father and next friend, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Defendant- Appellee.

No. 56406.

Appellate Court of Illinois, First District, Second Division.

Oct. 31, 1972.

Raymond P. Concannon, Chicago, for plaintiff-appellant

Querrey, Harrow, Gulanick & Kennedy, Chicago, for defendant-appellee; John T. Kennedy, Chicago, of counsel.

STAMOS, Presiding Justice.

This appeal arises from plaintiff's Action for Declaratory Judgment, which sought a declaration that the uninsured motor vehicle coverage of Ervin Doxtater covered the injuries incurred by Virgil Doxtater. Plaintiff appeals from the order of the trial court sustaining defendant's motion to strike the complaint and dismiss the cause of action.

The facts of the case are not in dispute. Defendant issued to Ervin Doxtater a policy of automobile insurance bearing effective dates of June 30, 1969 to December 30, 1969. The policy provided bodily injury and property damage liability coverage, medical payments coverage, comprehensive physical damage coverage, death, dismemberment and disability coverage and uninsured motor vehicle coverage. The following policy provisions, which delineate the scope of the uninsured motor vehicle coverage, are pertinent to this appeal:

COVERAGE U--DAMAGES FOR BODILY INJURY CAUSED BY UNINSURED MOTOR VEHICLES

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

EXCLUSIONS--SECTION III THIS INSURANCE DOES NOT APPLY:

(b) To bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an owned motor vehicle:

Insured--The unqualified word 'insured' means

(1) the first person named in the declarations and while residents of his household, his spouse and the relatives of either;

(2) any other person while occupying an insured automobile; and

(3) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (1) or (2) above.

Owned Motor Vehicle--means the motor vehicle or trailer described in the declarations and includes a temporary substitute automobile, a newly acquired automobile, and, provided the described motor vehicle is not classified as 'commercial', under coverages A, B, C and M, a trailer (as defined herein) or a detachable living quarters unit owned by the named insured or his spouse, if a resident of the same household.

On August 24, 1969 Virgil Doxtater, the son of Ervin Doxtater, was injured in a collision between the motorcycle which he was operating and an automobile operated by an uninsured motorist. A claim was filed with defendant under the uninsured motor vehicle coverage recited above. Defendant denied coverage on the ground that Exclusion (b) was applicable to the claim. Plaintiff brought this action for a declaration of coverage. On December 23, 1970 defendant filed a motion to strike the complaint and dismiss the cause, again on the theory that Exclusion (b) precluded coverage under the facts alleged in plaintiff's complaint. The motion was allowed on June 14, 1971 in an order which, on July 1, 1971, was both vacated and reinstated. Plaintiff appeals from that final dismissal.

OPINION

For purposes of this appeal, we shall assume that Virgil Doxtater was an 'insured' under the policy of Ervin Doxtater and that the motorcycle which he was operating was not an 'owned motor vehicle.' Neither party has contended otherwise, although the record is inconclusive as to those matters. Under these assumed facts, it is clear that the claim of Virgil Doxtater falls squarely within Exclusion (b) of the policy. The only issue presented on appeal is whether the limitation on Ervin Doxtater's uninsured motor vehicle coverage, as expressed in Exclusion (b), conflicts with provisions of the Illinois Insurance Code, thus rendering said exclusion null and void.

Our consideration of this matter is framed by the following two sections of the Illinois Insurance Code: ^*

755a. Uninsured or hit-and-run motor vehicle coverage. § 143a. (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, 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.

1054. § 442. Validation of Illegally Issued Policies.) Any contract or policy of insurance or any application, endorsement or rider form used in connection therewith issued in violation of any section of this Code requiring certain provisions to be inserted therein or the inclusion of provisions prohibited, or issued without submitting same for approval by the Director in accordance with section 143, shall nevertheless be held valid but shall be construed in accordance with the requirements of the section that the said policy, application, endorsement or rider violates, and when any provision in such contract, application, endorsement or rider is in conflict with any provision of this Code, the rights, and obligations of the company thereunder shall not be less favorable to the holder of the contract and the beneficiary or annuitant thereunder than is required by the provisions of this Code applicable thereto.

It is plaintiff's contention that Section 143a of the Insurance Code requires that uninsured motor vehicle coverage be provided for all 'insureds' under an automobile policy, without qualification as to the location of the insured at the time of injury. It is argued that Exclusion (b) of the policy, by denying coverage for injuries incurred while occupying a vehicle not described in the declarations of the policy, effects such an impermissible limitation of coverage. Plaintiff concludes that the subject policy was thus issued in violation of Section 143a of the Insurance Code, necessitating, according to the dictates of Section 442, that the offending policy exclusion be declared null and void and that coverage be allowed. Defendant replies that Section 143a was not intended to require insurance companies to provide uninsured motor vehicle coverage for named insureds under all circumstances, but only to the extent that the named insureds are exposed to the hazards of uninsured motorists while the insureds occupy the vehicles described and declared in the policy. Defendant suggests that Exclusion (b) is a qualification totally consonant...