APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This appeal arises from plaintiff's Action for Declaratory Judgment, which sought a declaration that the uninsured motor vehicle coverage of Ervin Doxtater covered the injuries incurred by Virgil Doxtater. Plaintiff appeals from the order of the trial court sustaining defendant's motion to strike the complaint and dismiss the cause of action.
The facts of the case are not in dispute. Defendant issued to Ervin Doxtater a policy of automobile insurance bearing effective dates of June 30, 1969, to December 30, 1969. The policy provided bodily injury and property damage liability coverage, medical payments coverage, comprehensive physical damage coverage, death, dismemberment and disability coverage and uninsured motor vehicle coverage. The following policy provisions, which delineate the scope of the uninsured motor vehicle coverage, are pertinent to this appeal:
"COVERAGE U DAMAGES FOR BODILY INJURY CAUSED BY UNINSURED MOTOR VEHICLES
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 motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle 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.
EXCLUSIONS SECTION III THIS INSURANCE DOES NOT APPLY:
(b) To bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an owned motor vehicle:
Insured The unqualified word "insured" means
(1) the first person named in the declarations and while residents of his household, his spouse and the relatives of either;
(2) any other person while occupying an insured automobile; and
(3) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (1) or (2) above.
Owned Motor Vehicle means the motor vehicle or trailer described in the declarations and includes a temporary substitute automobile, a newly acquired automobile, and, provided the described motor vehicle is not classified as `commercial', under coverages A, B, C and M, a trailer (as defined herein) or a detachable living quarters unit owned by the named insured or his spouse, if a resident of the same household."
On August 24, 1969, Virgil Doxtater, the son of Ervin Doxtater, was injured in a collision between the motorcycle which he was operating and an automobile operated by an uninsured motorist. A claim was filed with defendant under the uninsured motor vehicle coverage recited above. Defendant denied coverage on the ground that Exclusion (b) was applicable to the claim. Plaintiff brought this action for a declaration of coverage. On December 23, 1970, defendant filed a motion to strike the complaint and dismiss the cause, again on the theory that Exclusion (b) precluded coverage under the facts alleged in plaintiff's complaint. The motion was allowed on June 14, 1971, in an order which, on July 1, 1971, was both vacated and reinstated. Plaintiff appeals from that final dismissal.
For purposes of this appeal, we shall assume that Virgil Doxtater was an "insured" under the policy of Ervin Doxtater and that the motorcycle which he was operating was not an "owned motor vehicle." Neither party has contended otherwise, although the record is inconclusive as to those matters. Under these assumed facts, it is clear that the claim of Virgil Doxtater falls squarely within Exclusion (b) of the policy. The only issue presented on appeal is whether the limitation on Ervin Doxtater's uninsured motor vehicle ...