McElyea v. Safeway Ins. Co.

• Decision Date: 18 November 1970
• Docket Number: Gen. No. 54342
• Parties: Hobert E. McELYEA, Plaintiff-Appellant, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 146

266 N.E.2d 146

131 Ill.App.2d 452

Hobert E. McELYEA, Plaintiff-Appellant, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellee.

Gen. No. 54342.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 18, 1970.

Paulson & Ketchem, Chicago, James R. Madler, Chicago, of counsel, for appellant

Garbutt & Jacobson, Associated, Chicago, Jerome J. Jacobson, Edward Wolfe, Chicago, of counsel, for appellee.

STAMOS, Presiding Justice.

Plaintiff, Hobert E. McElyea, appeals from the order striking his complaint and dismissing the cause of action.

For purposes of review, the facts are to be taken from the pleadings. Defendant, Safeway Insurance Company, issued an automobile liability policy to plaintiff for the period from October 11, 1966 to October 11, 1967. The policy listed plaintiff's '1965 Chevrolet 1/2 Ton Pick Up' as the insured motor vehicle. The schedule of coverage also provided that defendant was affording plaintiff is 'Family Protection Coverage' endorsement for an additional premium. This endorsement provided in part:

'I. Damages for Bodily Injury Caused by Uninsured Automobiles: The company will 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 automobile because of bodily injury, sickness, or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, 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.'

The endorsement contained the following exclusion which provided in part:

'This endorsement does not apply:

(b) to bodily injury to an insured while occupying an automobile (other than an On July 19, 1967, the plaintiff was struck by a hit-and-run vehicle while riding a motorcycle he owned. As a result of the accident plaintiff sustained severe injury and on January 30, 1968, plaintiff filed an application for arbitration of the injuries sustained with the American Arbitration Association. However, defendant notified the Association that they rejected the demand to arbitrate, since defendant did not belong to the Association and did not desire to arbitrate the claim with them.

insured automobile) owned by a named insured or any relative resident in the same household, or through being struck by such an automobile, but this exclusion does not apply to the principal named insured or his relatives while occupying or if struck by an automobile owned by the insured named in the schedule or his relatives.'

On May 26, 1969, plaintiff filed his complaint alleging the foregoing and praying for judgment in the amount of $10,000. Upon defendant's motion, the trial court struck plaintiff's complaint and dismissed the cause of action. Plaintiff appeals and requests a reversal of the court's order dismissing the complaint and that the cause be remanded for a trial on the merits.

On appeal plaintiff contends:

1. The uninsured motorist endorsement is clear that plaintiff is covered in the instant proceeding.

2. In the alternative, the second exclusion contained in the endorsement makes the policy ambiguous so that interpretation of the coverage must be construed most strongly against defendant.

3. The statute and public policy require that plaintiff be found within the coverage of the uninsured motorist endorsement.

4. The trial court erred in not requiring defendant to file an answer.

5. Plaintiff's constitutional rights are affected.

OPINION

Plaintiff initially contends that the 'Family Protection Coverage' (uninsured motorist endorsement) clearly covers him for the accident that occurred on July 19, 1967. Plaintiff's reasoning is based upon the defendant's failure to describe the insured automobile in the endorsement and the express language of the endorsement itself.

A review of the insurance policy in question reveals that the schedule of coverage on the first page describes the amount and type of coverage afforded. The uninsured motorist coverage is included in the schedule as 'Family Protection' and an additional five dollar premium is charged. The Family Protection coverage is a separate endorsement to be attached to the policy. However, plaintiff was not afforded a copy of this endorsement, as referred to in his schedule of coverage, until defendant was ordered to so produce by the trial court. The endorsement as produced by defendant provided for a description of the insured automobiles. The following four categories of automobiles were listed:

'1. Any automobile owned by the principal named insured.

2. Any private passenger type automobile owned by the principal named insured.

3. Any automobile to which are attached Dealer's Automobile Registration Plates issued in the name of the principal named insured.

4. Any automobile designated in the declarations of the policy by the letters 'UM' and an automobile ownership of which is acquired during the policy period by the principal named insured as a replacement therefor.'

Before each of the above categories an empty box was provided with directions to check the appropriate category, but none of these boxes were checked. Plaintiff contends that defendant's failure to check the appropriate box was an agreement by defendant to insure any automobile owned by the plaintiff. However, defendant contends that the uninsured motorist endorsement it provided pursuant to court order was merely a sample copy of the endorsement and not a copy of the original and that therefore, it cannot be bound by it.

We find that the endorsement in question was merely a sample of the standard endorsement provided by defendant and was not a copy of the original. The endorsement provided by defendant left blank all information as to policy number, named insured, and limits of liability in addition to the description of the insured automobile. Therefore, this sample could not be deemed to have bound defendant as to the information not supplied.

Plaintiff argues that the express language of the uninsured motorist endorsement itself provides coverage for him for the accident in question. That portion of the endorsement in question is paragraph (b) of the exclusion. Paragraph (b) initially provides:

'This endorsement does not apply:

(b) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by a named insured or any relative resident in the same household, or through being struck by such an automobile. * * *'

The second part of the paragraph then provides:

'* * * but this exclusion does not apply to the Principal named insured or his relatives While occupying or if struck by an Automobile owned by an insured named in the schedule or his relatives.' (Emphasis supplied.)

The first part of paragraph (b) excludes from coverage an insured while occupying an automobile owned by a named insured but not listed in the policy as an insured automobile. Both parties to the instant proceeding acknowledge that plaintiff is the principal named insured, that he owned the vehicle in question and that vehicle was not a listed insured automobile. Therefore, the first part...