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Heritage Ins. Co. v. Phelan

JANUARY 30, 1974.

HERITAGE INSURANCE COMPANY OF AMERICA, PLAINTIFF-APPELLANT,

v.

JAMES PHELAN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Heritage Insurance Company of America filed its complaint for declaratory judgment against the defendants James Phelan, a minor, by William Phelan, his father and next friend and William Phelan individually, asking that the court find that James Phelan was not covered under the "uninsured motorist" provisions of the policy issued to William Phelan. Plaintiff filed its motion for summary judgment. The parties stipulated to relevant facts. The motion was taken on briefs filed by both parties. The court found in favor of the defendant and dismissed the complaint for want of equity.

On appeal, plaintiff raises the following issues:

1. Whether the court erred in denying plaintiff's motion for summary judgment and dismissing its complaint.

2. Whether James Phelan is excluded from the insurance policy of his father by the restrictive endorsement.

3. Whether James Phelan is excluded from the insurance because he was occupying and/or operating his own uninsured motor vehicle within Exclusion (a) Part IV of the policy.

4. Whether James Phelan is excluded from the insurance provided by Part IV of his father's policy because of the existence of a $50,000 public liability policy applicable at the time and place of injury, i.e. the operator of the Enco Service Station, a joint tort-feasor.

5. Whether the Trust Agreement of Part IV is applicable to funds ($6,000) which James Phelan recovered from the Enco Service Station operator, a joint tort-feasor with the motorist who caused the injuries.

6. Whether Exclusion (b) Part IV applies by reason of the settlement of James Phelan with the insurer of the operator of Enco Service Station, a joint tort-feasor.

Heritage Insurance Company issued its automobile liability policy to William Phelan, father of James Phelan, on June 1, 1964. Said policy was in force at the time of the injury complained of. The definition of "insured" under Part IV (a) is "the named insured and any relative." The policy contained the following language in Appendix A. — Restricted Named Operator Endorsement:

"Named Insured: WILLIAM PHELAN 5526 S. Massasoit Chicago, Illinois Effective Date: June 1, 1964 and continuous.

In consideration of the issuance or continuation of the above described policy, it is agreed that the insurance afforded by the policy shall not apply with respect to the following described operator:

James Phelan 5526 S. Massasoit Son, age 17."

On May 28, 1966, the son, James Phelan, drove his own uninsured automobile to work and while en route, stopped for repairs at an Enco Service Station. The attendant frequently interrupted his work on James Phelan's car to wait on other customers. James Phelan was assisting the attendant in performing said work. James Phelan was then struck and injured by a motorist who had no liability insurance. James Phelan, a minor, by his father, filed his demand with the American Arbitration Association under Part IV (Protection Against Uninsured Motorists) of his father's policy with Heritage Insurance Company of America. Heritage denied coverage. Defendant also filed suit for personal injuries (66 L 20145) against Willard Harris, the Enco Service Station operator, who owned and controlled the site of the ...


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