Appeal from the Circuit Court of DuPage County; the Hon.
WILLIAM GUILD, Judge, presiding. Judgment affirmed.
PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 3, 1969.
In this case, the trial court allowed the defendant's motion to dismiss the complaint and the plaintiff appeals.
The complaint alleges that on February 24, 1967, the plaintiff was insured by the defendant under a "Family Combination Automobile Policy" containing uninsured motorist coverage and that he fully complied with the terms and agreements set forth therein. It further alleges, that on the above date, the plaintiff was involved in a motor vehicle collision with an auto operated by one Ed G. Lienhardt who was negligent and failed to comply with the Financial Responsibility Law (Ill Rev Stats 1965, c 95 1/2, § 7-101 et seq.). Because Lienhardt was not insured, the plaintiff contends that the "uninsured automobile" provision of his policy should be effective. It is also alleged that plaintiff attempted to commence arbitration proceedings by naming an arbitrator but that the defendant had failed to name an arbitrator. The complaint prays that the court select an arbitrator to determine the rights of the plaintiff and the defendant and assess attorney's fees and costs. A copy of the policy was attached to the complaint.
The defendant filed a motion to dismiss alleging that the uninsured motorist provision of its policy did not apply while the plaintiff was driving his employer's truck. This motion was allowed. A subsequent motion to vacate the allowance was denied. It appears that at the time of the accident, the plaintiff, who was employed by the United States Post Office Department, was driving a mail truck furnished to him by his employer for use during his daily route.
The question presented by the appeal is whether or not the insured, under the policy provisions in this case, was afforded uninsured motorist coverage while operating his employer's vehicle which was regularly furnished to him.
Plaintiff maintains that this injury is clearly covered by the terms of the language of the policy and not precluded by the exclusionary clause. Defendant maintains that there is no coverage because the plaintiff was not operating a non-owned automobile at the time of this occurrence and, therefore, coverage is excluded.
To understand the issues it is necessary to set out some portions of the policy in question.
Part IV contains six separate divisions, each with many subdivisions which, inter alia, contain the following:
"Coverage J Family Protection (Damages for Bodily Injury). 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, . . . sustained by the insured, . . . ."
The following paragraph, entitled "Definitions," provides:
"The definitions under Part I, except the definition of `insured' apply to Part IV, and under Part IV:
"`insured automobile' means:
"(d) a non-owned automobile while being operated by the named ...