Roby v. Illinois Founders Ins. Co.

• Decision Date: 02 February 1978
• Docket Number: No. 76-900,76-900
• Citation: 57 Ill.App.3d 89,372 N.E.2d 1097,14 Ill.Dec. 818
• Parties: , 14 Ill.Dec. 818 George C. ROBY, Plaintiff-Appellant, v. ILLINOIS FOUNDERS INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1097

372 N.E.2d 1097

57 Ill.App.3d 89, 14 Ill.Dec. 818

George C. ROBY, Plaintiff-Appellant, v. ILLINOIS FOUNDERS INSURANCE COMPANY, Defendant-Appellee.

No. 76-900.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 2, 1978.

[14 Ill.Dec. 819] Edward R. Vrdolyak, Ltd., Chicago (William J. McGann, Chicago, of counsel), for plaintiff-appellant

Brody, Gore & Fineberg, Ltd., Chicago (Leon M. Fineberg, Chicago, of counsel), for defendant-appellee.

JOHNSON, Presiding Justice:

The plaintiff, George C. Roby, filed a complaint for declaratory judgment to determine and adjudicate his rights under the uninsured motorists provisions of an insurance policy issued by the defendant, Illinois Founders Insurance Company. The trial court, following a bench trial, entered judgment for the defendant finding that defendant's insurance policy did not apply and did not provide coverage to the plaintiff under the uninsured motorists coverage endorsement of said policy. This appeal followed.

We reverse.

The issue presented for review is whether the trial court properly ruled in finding that the plaintiff was not afforded coverage under the uninsured motorists coverage endorsement of his family combination auto insurance policy issued by defendant, as the policy excluded an insured from coverage while occupying or driving an automobile regularly furnished to the plaintiff insured in his employment.

On July 23, 1973, plaintiff, George C. Roby, was employed by the Chicago Police Department as a police officer, and was assigned to patrol a certain area of the city in a one-man squad car. The car was owned by the city of Chicago, was operated, maintained, and used by the Chicago Police Department, and was furnished for the regular use of the plaintiff. On that same date at approximately 11:30 a. m., plaintiff was traveling eastbound on 61st Street, and at or near its intersection with Kimbark Avenue, a vehicle being driven by Melvin Boswell, an uninsured motorist, came into contact with the squad car being driven by the plaintiff. As a result of this collision, the plaintiff was injured. Mr. Boswell was the owner of the vehicle he was driving, and neither he nor the automobile were covered by any policy of automobile liability insurance at the time of this collision.

The plaintiff had purchased a family combination automobile policy for his private automobile from the defendant under which he was the named insured, such policy being in full force and effect at the time of the collision. The policy contained uninsured motorists coverage. The plaintiff notified the defendant of his intention to make a claim for his injuries under the uninsured motorists provision of his insurance policy, which claim was subsequently denied by the defendant.

The plaintiff filed a complaint for declaratory judgment, asking the court to determine his right to pursue an uninsured motorist claim under the policy issued by the defendant. The pertinent part of defendant's insurance policy provides as follows:

"UNINSURED MOTORISTS COVERAGE (Automobile Bodily Injury Liability) ENDORSEMENT

Coverage K Uninsured Motorists (Damages for Bodily Injury)

1. 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 The plaintiff further asked the court to define his rights as an insured under the uninsured motorists provision of his policy and order his claim to be set for immediate arbitration with the defendant pursuant to the provisions of his policy. The defendant filed a motion to dismiss which was denied. It then filed an answer and affirmative defense to the complaint alleging that the plaintiff was not driving "an insured automobile" under his policy on July 23, 1973 (date of collision), as he was driving a Chicago Police Department automobile furnished for his regular use. Under the uninsured motorists coverage endorsement, the policy further provided in part:

[14 Ill.Dec. 820] and arising out of the ownership, maintenance or use of such uninsured automobile; * * *."

"II. Definitions:

(b) 'insured automobile' means an automobile:

(1) described in the schedule as an insured automobile to which the bodily injury liability coverage of the policy applies;

(2) while temporarily used as a substitute for an insured automobile as described in subparagraph (1) above, when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;

(3) while being operated by a named insured or by his spouse if a resident of the same household;

but the term 'insured automobile' shall not include:

(iv) under subparagraphs (2) and (3) above, an automobile furnished for the regular use of the principal named insured or any resident of the same household.

EXCLUSIONS

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, 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; * * *."

Defendant concluded that plaintiff was not entitled to coverage under the uninsured motorists provisions of his policy.

Following a bench trial, the trial court entered an order providing that the plaintiff's policy did not apply or provide coverage for his uninsured motorist claim as "the policy exclusion excluded an insured driving an automobile regularly furnished to him in his employment." Plaintiff appeals.

The plaintiff contends that the exclusionary provision of the automobile insurance policy in question should be declared null and void under section 442 of the Illinois Insurance Code (Ill.Rev.Stat.1971, ch. 73, par. 1054) (hereinafter referred to as section 442), as it seeks to deprive the insured of uninsured motorists coverage required by section 143a of the Illinois Insurance Code (Ill.Rev.Stat.1971, ch. 73, par. 755a) (hereinafter referred to as section 143a). Plaintiff urges this court to disregard the Second District Illinois Appellate Court case of Fletcher v. State Security Insurance Co. (1969), 114 Ill.App.2d 91, 254 N.E.2d 650, wherein the court found that the mail truck furnished plaintiff for his regular use was not a non-owned automobile as defined by his family insurance policy (similar to the policy in the instant case), and, therefore, the plaintiff was excluded from coverage under the uninsured motorists provisions of the policy. Plaintiff argues that Fletcher should not be followed because (1) it is inherently contradictory, inconsistent, and poorly reasoned, and (2) since 1969, the Illinois Supreme Court has given an expansive interpretation to section 143a which would render the exclusionary provision in the instant case null and void by virtue of section 442.

Defendant maintains that Fletcher is controlling and, therefore, plaintiff should be denied coverage. Defendant further argues that section 143a does not specify that parties to an insurance contract cannot limit the coverage, and since the parties herein limited the coverage, such limitations should control.

Specifically, section 143a(1) of the Illinois Insurance Code (Ill.Rev.Stat.1971, ch. 73, par. 755a(1)) provides that no automobile liability insurance policy shall be issued in this State unless coverage is provided therein in limits set forth in section 7-203 of the Illinois Vehicle Code (Ill.Rev.Stat.1971, ch. 95 1/2, par. 7-203) ($10,000 per person, $20,000 per accident) against damages caused by uninsured motorists. Public policy expressed by this statute is that the insured be provided coverage which would compensate him in the event of injury by an uninsured motorist, to at least the same extent as had he been injured by a motorist who was insured, in compliance with the Illinois Safety Responsibility Law (Ill.Rev.Stat.1971, ch. 95 1/2, par. 7-100 et seq.), formerly Financial Responsibility Law (Ill.Rev.Stat.1969, ch. 95 1/2, par. 7A-101 et seq.). Barnes v. Powell (1971), 49 Ill.2d 449, 452-53, 275 N.E.2d 377, 379; Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 4...