Appeal from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding. Judgment vacated and remanded with
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Plaintiff brought this declaratory judgment action for construction of a policy of automobile insurance issued by plaintiff to defendant Frank Holada. The prayer of the complaint was that the court determine that plaintiff owed no coverage to defendants under the provisions of the policy applicable to uninsured motorists. On defendants' motion, the trial court dismissed the cause of action, and plaintiff appeals.
For purposes of this review, the facts are to be taken from the pleadings. On November 23, 1963, defendant Albie Holada, wife of the named insured, Frank Holada, was crossing the street near Kedzie Avenue and 82nd Street when she was struck and injured by a motor scooter operated by one Richard Christ, who was uninsured as to liability. On November 22, 1965, defendants filed a lawsuit against Christ who filed an answer and the suit is still pending. On November 14, 1966, defendants filed a demand for arbitration with the American Arbitration Association naming the instant plaintiff as respondent. On December 30, 1966, plaintiff filed this action.
The pertinent paragraphs of the insurance policy read:
Section III Protection Against Uninsured Motorists
1. Coverage D Uninsured Motorists (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, 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 amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. (Emphasis supplied.)
No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damage to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company. (Emphasis supplied.)
2. Definitions: The definitions under Section I, except the definition of "insured," apply to Section III, and under Section III:
(a) the named insured and any relative;
"uninsured automobile" includes a trailer of any type and means:
(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, 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, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or
(b) a hit-and-run automobile;
but the term "uninsured automobile" shall not include:
(1) an insured automobile or an automobile furnished for the regular use of the named ...