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Deterding v. State Farm Mut. Auto. Ins. Co.

DECEMBER 16, 1966.

ARLOU DETERDING, ADMINISTRATOR OF THE ESTATE OF MARVIN J. DETERDING, DECEASED, PLAINTIFF-APPELLANT,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair County; the Hon. QUINTEN SPIVEY, Judge, presiding. Judgment adverse to plaintiff affirmed in part and reversed in part.

TRAPP, P.J.

This is an appeal from a judgment of the Circuit Court of the Fifth Judicial Circuit, St. Clair County, Illinois, denying recovery to plaintiff, Arlou Deterding, Administrator of the estate of Marvin J. Deterding, in a declaratory judgment suit to declare an automobile liability policy, issued by State Farm Mutual Automobile Insurance Company, defendant, to plaintiff's intestate upon an automobile not involved in the accident, applicable to an accident caused by an uninsured motorist.

The defendant insurance company had issued two automobile liability insurance policies to plaintiff's intestate, one, upon a Ford pickup truck, which plaintiff's intestate was driving when it collided with the car of the uninsured motorist, and another, upon a Pontiac automobile owned by plaintiff's intestate, not being driven at the time of the accident.

The trial court awarded plaintiff a balance of $9,000 of the $10,000 limit on the policy covering the pickup truck and denied any benefits under the policy covering the Pontiac automobile, and found that the uninsured motorist provisions of the latter policy were inapplicable.

We interpret the complaint and answer to mean that the "other insurance" provision set forth therein is a subordinate part of the uninsured motorist protection coverage. The policies are not set out in full and the parties do not meet face to face upon the issues.

Plaintiff states that, except for what are termed mutually repugnant escape clauses, it is not in dispute that there is total coverage in the amount of $20,000 under the two policies. Defendant takes the position that the "other insurance" clauses present a false issue and that the only issue before this court is whether plaintiff's intestate is entitled to more than $10,000 under the Illinois uninsured motorist statute.

It would perhaps be most orderly to discuss the statutory issue first because, notwithstanding this was not the basis given by the trial court, the defendant contends that this issue is controlling.

The defendant's theory is that uninsured motorist statutes, including that of Illinois, were designed to afford protection only up to the minimum statutory limits of $10,000 for bodily injury caused by financially irresponsible motorists. Implicit in this argument is that the statute somehow fixes a maximum amount that might be obtained as uninsured motorist protection. We view the statute as requiring a minimum protection, and as being entirely neutral on the matter of protection in excess of the statutory requirements.

The Illinois Statute, chap 73, § 755a (Ill Rev Stats), is as follows:

"Uninsured or hit-and-run motor vehicle coverage. § 143a.

"On and after the effective date of this amendatory Act of 1963, no 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 delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7-203 of the `Illinois Motor Vehicle Law', approved July 11, 1957, as heretofore or hereafter amended, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured shall have the right to reject such coverage, and except that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer."

The section of the Motor Vehicle Law cited and referred to provides that the policy shall be:

". . . of not less than $10,000.00 because of bodily injury to, or death of any one person in any one accident. . . ."

The statute does not require uninsured motorist protection. It permits the insured to reject the coverage. In effect it says this coverage must be offered and must be given unless rejected. The statute does not provide for a maximum protection and, indeed, it is doubtful that a valid statute could be designed to ...


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