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Dreher v. Aetna Casualty & Surety Co.

MAY 4, 1967.

GEORGE F. DREHER, PLAINTIFF-APPELLANT,

v.

THE AETNA CASUALTY & SURETY COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of DuPage County; the Hon. WILLIAM C. ATTEN, Judge, presiding. Judgment affirmed.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

Plaintiff was injured in an automobile accident on February 9, 1964. The driver of the other vehicle, Ronald Pettit, was insured with a policy of automobile liability insurance issued by Lake States Casualty Company. Lake States retained an attorney to defend Pettit in a lawsuit filed by plaintiff to recover for his personal injuries and then, on October 19, 1965, the attorney withdrew on the grounds that Lake States was being liquidated by the State of Illinois.

At the time of the accident plaintiff was insured for automobile liability by the defendant, Aetna Casualty & Surety Company. Plaintiff's policy contained a family protection coverage commonly referred to as "uninsured motorist coverage." The term "uninsured automobile" was therein defined as including:

"an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile. . . ." (Emphasis supplied.)

Plaintiff notified Aetna of the insolvency of Lake States and demanded uninsured motorist benefits. Aetna denied liability in writing and plaintiff filed a declaratory judgment proceeding which was dismissed by the Circuit Court on defendant's motion.

The issue squarely presented to this court is whether in Illinois under the present statute and with a definition of an uninsured automobile as is contained in the Aetna policy, the uninsured motorist coverage is applicable where the liability insurance carrier on the automobile in question becomes insolvent subsequent to the day of the accident.

It is urged by the plaintiff-appellant that public policy in this state requires that the uninsured motorist clause be liberally interpreted particularly in light of the numerous insurance company failures in this state.

It is further suggested that an ambiguity exists in the definition of "uninsured automobile" as used in the policy issued by defendant and that this court should resort to an equitable construction of that provision to extend coverage.

The applicable statute, section 755a, chapter 73, Ill Rev Stats, 1963, approved June 4, 1963, provides that no automobile liability policy shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless the policy contains coverage for uninsured and hit and run motor vehicles; provided, however, that the named insured may elect in writing not to carry such coverage.

The statute does not define uninsured motor vehicles and the policy definition referred to above was a standard policy definition used by the insurance industry at the time of the adoption of the statute by the legislature in 1963.

There is now pending before the General Assembly legislation which would extend the uninsured motorist protection to the insolvent insurance company situation but this case must be decided on the basis of the law at the time of the occurrence in question.

It is true that an insurance policy should be liberally construed in favor of the policyholder. However, we find nothing either in the statute or the case law to sustain the contention that the public policy of this State, at the time, required that an insurance company extend coverage beyond the terms of its contract of insurance to include an automobile which was insured at the time of the accident but which subsequently becomes uninsured by reason of the insolvency of the carrier.

Further, we find no ambiguity in the definition of the policy. The definition includes automobiles which are uninsured at the time of the accident and it also includes hit and run vehicles. It does not include uninsured automobiles where coverage is subsequently denied because of lack of cooperation of the insured or where coverage is denied because of the subsequent insolvency of the insurer.

In commenting on the rule of liberal construction in McCann for Use of Osterman v. Continental Cas. Co., 6 Ill. App.2d 527, 128 N.E.2d 624 ...


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