Appeal from the Circuit Court of LaSalle County; the Hon.
LEONARD HOFFMAN, Judge, presiding. Judgment reversed in part,
modified in part and affirmed as modified.
This is an appeal from an order of the Circuit Court of LaSalle County denying Defendants' motions to vacate and set aside an order directing a verdict for Plaintiff or in the alternative for a new trial.
The facts giving rise to the cause of action in the court below involved an automobile accident occurring on June 27, 1959, in which Appellee, Evelyn Vignali, was injured. The automobile in which she was riding was owned by her brother-in-law to whom a policy of insurance had been issued by Farmer's Equitable, one of the Appellants. Appellee's husband also had a policy in effect at that time issued by the other Appellant, Auto Underwriter's Inc., attorney in fact for the Subscribers at State Automobile Insurance Association.
The automobile in which Appellee was a passenger was struck by an automobile owned by Jerry Penick and being driven by Robert Satterfield. Appellee notified her husband's insurance agent, James Bernardini, of the accident shortly after its occurrence. Bernardini, who wrote insurance for both Appellants, prepared a report which he sent to each company. Shortly thereafter a claim was made by Appellee under the medical payments coverage of the Farmers Equitable policy. This claim was investigated by Farmers Equitable and paid.
In April of 1960, Appellee's attorney learned that Penick did not carry public liability insurance. He immediately called Bernardini and advised him that Appellee would make a claim under the uninsured motorist provisions of both policies and asked Bernardini to furnish forms for proof of loss. These forms were not forthcoming and Bernardini apparently did not notify either company until August 1, 1961, when a loss report was sent to Auto Underwriters.
On May 4, 1960, Appellee filed suit under the Dram Shop Act against certain tavern operators and in July, 1960, filed a negligence action against Satterfield and Penick. Neither company received copies of the complaint, summons and process in either action until October 18, 1961. Country Mutual Insurance Company initially undertook the defense of the action against Satterfield but withdrew after the Circuit Court of La Salle County in a Declaratory Judgment proceeding determined on July 21, 1961, that the Company was not obligated to defend Satterfield. Appellants were not notified by Appellee of the action for Declaratory Judgment, or the order until October, 1961.
The correspondence, discussions and negotiations which followed did not produce any settlement of the claims under the uninsured motorist provisions of the policies. In February, 1962, Appellants approved settlement of the dramshop action for $8,000. On May 1, 1962, Appellee was awarded a judgment in the amount of $23,000 against Satterfield. Thereafter Appellee filed this action against each of the Appellants alleging liability under the uninsured motorist provisions of each policy.
After the conclusion of all the evidence each party moved for a directed verdict and the court granted Appellee's motion for directed verdict against both Appellants and rendered a judgment in favor of Appellee in the amount of $14,858.18 computed as follows: the total damages were assessed at $23,000, each Appellant was held liable for the $10,000 maximum coverage under each policy but allowed to share the net proceeds of the dramshop settlement of $5,141.82 arriving at a judgment against each in the amount of $7,429.09. The total amount of the dramshop settlement was $8,000, the court allowing and deducting $2,858.18 as attorney's fees and expenses in arriving at the net recovery. Appellant, State Auto, appeals from the order directing a verdict against it. Appellant, Farmers Equitable, appeals from the order denying its motion to vacate the judgment or in the alternative for a new trial.
Appellant, State Auto, contends that the Trial Court erred in finding that the provisions of each of the policies with respect to other insurance were mutually repugnant. Appellant argues that such provisions are consistent and should be given effect according to their terms in which event the coverage afforded by its policy is excess only. If this contention is correct, the remainder of the opinion would not apply to this Appellant. We shall therefore, first consider this argument.
In order to determine the effect of the two policies, reference must be had to the provisions in question. Our Supreme Court in New Amsterdam Cas. Co. v. Certain Underwriters at Lloyds, London, 34 Ill.2d 424, 216 N.E.2d 665, has rejected the minority or Oregon rule of the broad application of the doctrine of mutual repugnancy and held that to the extent that such provisions could be consistently applied effect should be given thereto.
Each policy defines insured as meaning the named insured, spouse of such named insured and any other person riding in the automobile described in the policy.
The provisions dealing with other insurance are as follows: "With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any 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 endorsement exceeds the sum of the applicable limits of liability of all such other insurance.
"With respect to bodily injury to an insured . . . through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable under this endorsement for a greater proportion of the applicable limit of liability of this endorsement than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
"Subject to the foregoing paragraphs, if the insured has other similar insurance available to him against a loss covered by this endorsement, the company shall not be liable under this endorsement for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total ...