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Mid-central Mut. Cas. Co. v. Spanjer

OCTOBER 31, 1968.

MID-CENTRAL MUTUAL CASUALTY CO., PLAINTIFF AND COUNTER-DEFENDANT, AND APPELLEE,

v.

DIANE SPANJER, ET AL., DEFENDANTS AND COUNTERPLAINTIFFS, AND APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIAN, Judge, presiding. Judgment reversed and remanded with directions.

GOLDENHERSH, J.

Defendants appeal from the decree of the Circuit Court of Cook County entered upon allowance of plaintiff's motion for judgment on the pleadings in its action for a declaratory judgment.

On August 14, 1964, defendant, Sibyl Myers, was driving a station wagon occupied by all of the defendants except David Spanjer, owner of the vehicle. The station wagon was struck by a hit and run driver who remains unidentified.

At the time of the occurrence there was in force a liability policy issued by plaintiff covering the station wagon, with defendant, David Spanjer, as the named insured. There was also in force a liability policy issued by Government Employees' Insurance Company covering a vehicle owned by the husband of defendant, Sibyl Myers. Both policies contained Family Protection Coverage Endorsements providing coverage for damages for bodily injuries caused by uninsured automobiles.

Plaintiff filed this action seeking a declaratory judgment that its policy was not in force, and defendants filed a counterclaim for a declaratory judgment as to certain provisions of the uninsured automobile endorsement. Because of the arbitration agreement hereafter described, many of the issues raised by the pleadings are no longer material and are, therefore, not discussed.

During the pendency of this litigation, defendants made claim against Government Employees' Insurance Company under the uninsured automobile coverage provided in its policy, and were paid sums totaling $6,000.

Following the settlement with Government Employees' Insurance Company, plaintiff and defendants entered into an agreement to submit to arbitration all issues except the "effect of previous payments of settlement made with Government Employees' Insurance Company."

The arbitrators found for defendants and awarded them sums totaling $5,750. Defendants moved for judgments based on the awards, and plaintiff moved for judgment ". . . that the plaintiff is not indebted to the defendants or any of them in any amount. . . ." The trial court allowed plaintiff's motion and entered a decree in which it found that plaintiff is not indebted to defendants, and the award is not collectible. This appeal followed.

The provision of plaintiff's policy pertinent to the controversy is:

"(b) Any amount payable under the terms of this endorsement because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by

"(1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury. . . ."

The parties have briefed and argued a number of contentions which are not material to the issue presented, which simply stated is — under the quoted provision of plaintiff's policy, are the amounts of the awards to be reduced by the sums defendants received from Government Employees' Insurance Company?

In its policy Government Employees' Insurance Company agreed:

"To 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 and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the ...


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