Tuthill v. State Farm Ins. Co., 73--56

• Decision Date: 14 May 1974
• Docket Number: No. 73--56,73--56
• Citation: 19 Ill.App.3d 491,311 N.E.2d 770
• Parties: Patricia Rutkowski TUTHILL, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 770

311 N.E.2d 770

19 Ill.App.3d 491

Patricia Rutkowski TUTHILL, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANY, Defendant-Appellee.

No. 73--56.

Appellate Court of Illinois, Fifth District.

May 14, 1974.

Schooley & Hartman, Granite City, for plaintiff-appellant; William W. Schooley, Granite City, of counsel.

Reed, Armstrong, Gorman & Coffey, Edwardsville, for defendant-appellee; James E. Gorman, Edwardsville, of counsel.

EBERSPACHER, Justice.

This is an appeal from an order of the Circuit Court of Madison County, dismissing a complaint for arbitration filed by the plaintiff, Patricia Rutkowski Tuthill, against the defendant, State Farm Insurance Company.

The facts are not in dispute. The plaintiff was riding as a passenger in a car being driven by one Donald Patrick on May 7, 1966, in a southerly direction on Illinois Route 3, approaching the intersection with West Pontoon Road near Granite City, Illinois. As Donald Patrick approached the intersection, he began to manually operate his directional signals indicating his intention to make a left turn. Manual operation of the directional signal was necessary because it was not operating correctly. A Steve Jackson was operating his vehicle immediately to the rear of the Patrick automobile. Upon observing that the signals on the rear of the Patrick vehicle indicated a right turn at the intersection, Steve Jackson started to pass the Patrick automobile. But instead of turning right, Patrick made a left hand turn in front of Jackson who was passing on the left. A collision occurred and the plaintiff, Patricia R. Tuthill received severe facial injuries which required three operations.

At the time of the accident, Steve Jackson was uninsured. Edgar Patrick, the fathre of Donald Patrick, was insured with the Allstate Insurance Company. The plaintiff, Patricia R. Tuthill, was residing in the home of her father who was insured by the defendant, State Farm Mutual Automobile Insurance Company.

Plaintiff filed suit in the Circuit Court of Madison County against Donald Patrick, alleging wilful and wanton misconduct, and against Steve Jackson, alleging negligence. Plaintiff also scheduled the evidentiary deposition of Steve Jackson on August 4, 1966, and sent notice to the defendant, State Farm, inviting them to participate in the taking of the deposition. The defendant, State Farm, did not appear.

A dispute arose between Allstate and Edgar Patrick as to coverage of the car being driven by Donald Patrick that was involved in the accident. As a result of this dispute, Allstate filed a suit for declaratory judgment to determine its rights and obligations under the insurance policy issued to Edgar Patrick. On motion by the plaintiff, the Circuit Court of Madison County added, as party defendant, State Farm. Summons was served upon State Farm on July 8, 1969, and State Farm obtained an extension of time to plead until September 6, 1969. However, State Farm did not plead further in the action for declaratory judgment. On September 29, 1970, the Circuit Court of Madison County entered a judgment and opinion in the declaratory judgment suit between Patrick and Allstate, holding that the Patrick auto Was insured by Allstate at the time of the accident.

Because of the uncertainty surrounding insurance coverage of the accident, plaintiff served notice of an uninsured motorist claim upon the defendant State Farm on June 20, 1966, and on March 8, 1968.

Plaintiff's suit against Donald Patrick and Steve Jackson was scheduled for trial several times, but it wasn't until May 1, 1972 that a jury was selected. On May 2, 1972 the plaintiff and Donald Patrick, represented by Allstate, settled their dispute for the sum of 17,000. The cause is still pending against the uninsured Steve Jackson.

The insurance policy issued by the defendant, State Farm, to the plaintiff's father, Michael Rutkowski, contains the following exclusionary provision with respect to uninsured motorist coverage:

'Insuring Agreement III does not apply: (a) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor * * *.'

The policy also contains the following provision with respect to other uninsured motorist coverage:

'14. Other insurance.

With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.'

The Allstate insurance policy insuring the automobile in which the plaintiff was riding and its driver, Donald Patrick, contains the following provision concerning recovery by a person under the Bodily Injury Liability Coverage (Coverage A) and the uninsured motorist coverage (Section II):

'If claim is made under this Section II and claim is also made against any person who is an insured under Coverage A of the policy on account of bodily injury sustained in an accident by a person who is an insured under this Section II:'

'2. any payment made under Coverage A to any claimant who is an insured hereunder shall be applied in reduction of any amount which he may be entitled to recover under this Section II.'

The plaintiff then filed a complaint for Arbitration in the Circuit Court of Madison County seeking to have the court enter an order determining the rights of the parties under the State Farm policy and, further, requesting that the court require the defendant to appoint an arbitrator, or, in the alternative, to appoint an arbitrator on behalf of the defendant. Subsequently, the defendant filed a motion to dismiss and, after both parties filed various exhibits in support of their contentions, the circuit court entered an order granting defendant's motion on each of two separate grounds:

First, the plaintiff settled two indepentent claims which she had without the consent of the defendant and to the defendant's prejudice; and,

Second, Condition 14 precludes the further processing of an uninsured motorist claim against State Farm because State Farm's uninsured motorist coverage is excess to Allstate and because the State Farm uninsured motorist coverage limits do not exceed the applicable limits of the similar Allstate uninsured motorist coverage.

It is from this order that the present appeal is taken.

Plaintiff-appellant, Patricia R. Tuthill, first contends that an application of the exclusionary provision of the State Farm uninsured motorist coverage to tort feasors other than the uninsured motorist places a limitation upon the statutory requirement for uninsured motorist coverage in effect at the time of the accident. (Ill.Rev.Stat.1969, ch. 73, par. 755a) and therefore is void. Paragraph 755a(1) provides in part as follows:

'* * * (N)o 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 * * * unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7--203 of The Illinois Vehicle Code (ch. 95 1/2, § 7--203) for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * because of bodily injury * * * resulting therefrom * * *.'

The purpose of this statutory provision requiring that every automobile liability policy shall contain uninsured motorist vehicle coverage, to at least the same extent compensation was available for injury by a motorist who was insured in compliance with the Financial Responsibility Law (Ill.Rev.Stat.1969, ch. 95 1/2, par. 7A--101 et seq.), was

'to place the policyholder in substantially the same position he would occupy, so far as his being injured or killed was concerned, if the wrongful driver had had the minimum liability insurance required by the Financial Responsibility Act.' Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 269 N.E.2d 295; Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill.2d 71, 269 N.E.2d 97; Barnes v. Powell (1971), 49 Ill.2d 449, 275 N.E.2d 377.

The Illinois Supreme Court has also determined that the legislature's intent in requiring uninsured motorist insurance is satisfied by coverage which meets the minimum standards specified by the Financial Responsibility Laws. (Morelock v. Millers' Mutual Ins. Assoc. (1971), 49 Ill.2d 234, 274 N.E.2d 1.) Appellant argues that the policy of insurance issued by the defendant-appellee State Farm attempts to limit the protection provided, by requiring the policy holder to obtain the company's permission before settlement by the insured with all persons, not merely the uninsured motorist. Citing Prosk v. Allstate Insurance Co. (1967), 82 Ill.App.2d 457, 226 N.E.2d 498, appellant concludes that this provision places a limitation upon the plain meaning of the statute and is therefore void as it applies to persons other than the uninsured motorist, because any attempt by the insurer to dilute or diminish uninsured motorist protection is contrary to public policy. However, a reading of Prosk indicates that it does not support appellant's conclusion. In Prosk, the plaintiff argued that the policy provision requiring 'physical contact' for the 'hit- and-run' coverage to be effective was void as tending to dilute coverage and, therefore, in conflict with public policy as expressed in section 755a of the Insurance Code. The court in Pro...