Prosk v. Allstate Ins. Co.

• Decision Date: 24 April 1967
• Docket Number: Gen. No. 51445
• Citation: 226 N.E.2d 498,82 Ill.App.2d 457,25 A.L.R.3d 1294
• Parties: , 25 A.L.R.3d 1294 Max and Anna PROSK, Plaintiffs-Appellants, v. The ALLSTATE INSURANCE CO., a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 498

226 N.E.2d 498

82 Ill.App.2d 457, 25 A.L.R.3d 1294

Max and Anna PROSK, Plaintiffs-Appellants, v. The ALLSTATE INSURANCE CO., a corporation, Defendant-Appellee.

Gen. No. 51445.

Appellate Court of Illinois, First District, First Division.

April 24, 1967.

Block, Levy & Becker, Edward M. Platt, Chicago, for appellants.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago, John M. Moelmann, D. Kendall Griffith, Chicago, of counsel, for appellee.

MURPHY, Presiding Justice.

Plaintiffs seek coverage under the uninsured motorist provision of their insurance policy and a declaration that the policy's definition of 'hit-and-run automobile' is null and void to the extent that it requires physical contact between the unidentified automobile and the automobile which the insured is occupying. The court allowed defendant's motion for judgment on the pleadings and a stipulation. Plaintiffs appeal.

Plaintiffs' policy was dated February 27, 1964, and the complaint alleged that on January 3, 1965, while plaintiff, Max Prosk, was operating his automobile, with his wife, Anna Prosk, as a passenger, the plaintiffs 'were caused and forced to strike' a parked truck 'by an unknown and unidentified driver of an unknown automobile which automobile continued on after causing said collision.' It was stipulated that 'there was no contact between the automobile being operated by Max Prosk and in which Anna Prosk was a passenger, and the unknown automobile operated by an unknown driver, which is referred to in paragraph 8 of the plaintiffs' complaint.'

Plaintiffs' insurance policy included 'Protection Against Bodily Injury By Uninsured Automobiles' and a definition that 'hit-and-run automobile' means 'an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident * * *.'

It is plaintiffs' theory that they sustained injury by a 'hit-and-run' driver within the statutory meaning of the provisions of section 755a, 'Uninsured or hit-and-run motor vehicle coverage' (Ill.Rev.Stat.1963, Ch. 73), and therefore they are entitled to recover damages under their insurance policy, notwithstanding its 'physical contact' proviso.

Plaintiffs argue that a 'hit-and-run' provision which requires a physical contact with the insured's automobile in order to be entitled to coverage 'is an attempt to dilute and diminish the very protection which our legislature has decreed be made available to the motoring public,' and 'when a statute provides that every policy of insurance contain a certain provision and the policy either fails to contain that coverage, or dilutes that coverage, the policy provision will be disregarded and the statute read into its place.'

Plaintiffs' authorities include 22 I.L.P., Insurance, § 156, p. 209:

'The fact that a statute requires inclusion of an omnibus clause in a liability insurance policy makes such inclusion mandatory, and the provisions thereof will be read into the liability policy to broaden the coverage consistent with a clear public policy reflected in the statute.'

In Konrad v. Hartford Accident & Indemnity Co., 11 Ill.App.2d 503, p. 514, 137 N.E.2d 855, p. 860 (1956), the court said:

'The statutory omnibus clause, in any event, must be, under the circumstances here, considered as voluntarily adopted by the insurer and written into this policy, and if there be any real differences between that and the similar clause stated in the policy * * *, the statutory omnibus clause must control.'

We agree with plaintiffs that the foregoing authorities demonstrate that any attempt by defendant to dilute or diminish statutory provisions applicable to its contract of insurance is contrary to public policy, and a conflict between...