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Mcelyea v. Safeway Insurance Co.

NOVEMBER 18, 1970.

HOBERT E. MCELYEA, PLAINTIFF-APPELLANT,

v.

SAFEWAY INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. LIONEL J. BERC, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Hobert E. McElyea, appeals from the order striking his complaint and dismissing the cause of action.

For purposes of review, the facts are to be taken from the pleadings. Defendant, Safeway Insurance Company, issued an automobile liability policy to plaintiff for the period from October 11, 1966 to October 11, 1967. The policy listed plaintiff's "1965 Chevrolet 1/2 Ton Pick Up" as the insured motor vehicle. The schedule of coverage also provided that defendant was affording plaintiff its "Family Protection Coverage" endorsement for an additional premium. This endorsement provided in part:

"I. Damages for Bodily Injury Caused by Uninsured Automobiles:

The company will 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 endorsement, 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."

The endorsement contained the following exclusion which provided in part:

"This endorsement does not apply:

(b) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by a named insured or any relative resident in the same household, or through being struck by such an automobile, but this exclusion does not apply to the principal named insured or his relatives while occupying or if struck by an automobile owned by the insured named in the schedule or his relatives."

On July 19, 1967, the plaintiff was struck by a hit-and-run vehicle while riding a motorcycle he owned. As a result of the accident plaintiff sustained severe injury and on January 30, 1968, plaintiff filed an application for arbitration of the injuries sustained with the American Arbitration Association. However, defendant notified the Association that they rejected the demand to arbitrate, since defendant did not belong to the Association and did not desire to arbitrate the claim with them.

On May 26, 1969, plaintiff filed his complaint alleging the foregoing and praying for judgment in the amount of $10,000. Upon defendant's motion, the trial court struck plaintiff's complaint and dismissed the cause of action. Plaintiff appeals and requests a reversal of the court's order dismissing the complaint and that the cause be remanded for a trial on the merits.

On appeal plaintiff contends:

1. The uninsured motorist endorsement is clear that plaintiff is covered in the instant proceeding.

2. In the alternative, the second exclusion contained in the endorsement makes the policy ambiguous so that interpretation of the coverage must be construed most strongly against defendant.

3. The statute and public policy require that plaintiff be found within the coverage of the uninsured motorist endorsement.

4. The trial court erred in not requiring defendant to ...


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