APPEAL from the Circuit Court of Madison County; the Hon.
MICHAEL KINNEY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Circuit Court of Madison County, dismissing a complaint for arbitration filed by the plaintiff, Patricia Rutkowski Tuthill, against the defendant, State Farm Insurance Company.
The facts are not in dispute. The plaintiff was riding as a passenger in a car being driven by one Donald Patrick on May 7, 1966, in a southerly direction on Illinois Route 3, approaching the intersection with West Pontoon Road near Granite City, Illinois. As Donald Patrick approached the intersection, he began to manually operate his directional signals indicating his intention to make a left turn. Manual operation of the directional signal was necessary because it was not operating correctly. A Steve Jackson was operating his vehicle immediately to the rear of the Patrick automobile. Upon observing that the signals of the rear of the Patrick vehicle indicated a right turn at the intersection, Steve Jackson started to pass the Patrick automobile. But instead of turning right, Patrick made a left hand turn in front of Jackson who was passing on the left. A collision occurred and the plaintiff, Patricia R. Tuthill received severe facial injuries which required three operations.
At the time of the accident, Steve Jackson was uninsured. Edgar Patrick, the father of Donald Patrick, was insured with the Allstate Insurance Company. The plaintiff, Patricia R. Tuthill, was residing in the home of her father who was insured by the defendant, State Farm Mutual Automobile Insurance Company.
Plaintiff filed suit in the Circuit Court of Madison County against Donald Patrick, alleging wilful and wanton misconduct, and against Steve Jackson, alleging negligence. Plaintiff also scheduled the evidentiary deposition of Steve Jackson on August 4, 1966, and sent notice to the defendant, State Farm, inviting them to participate in the taking of the deposition. The defendant, State Farm, did not appear.
A dispute arose between Allstate and Edgar Patrick as to coverage of the car being driven by Donald Patrick that was involved in the accident. As a result of this dispute, Allstate filed a suit for declaratory judgment to determine its rights and obligations under the insurance policy issued to Edgar Patrick. On motion by the plaintiff, the Circuit Court of Madison County added, as party defendant, State Farm. Summons was served upon State Farm on July 8, 1969, and State Farm obtained an extension of time to plead until September 6, 1969. However, State Farm did not plead further in the action for declaratory judgment. On September 29, 1970, the Circuit Court of Madison County entered a judgment and opinion in the declaratory judgment suit between Patrick and Allstate, holding that the Patrick auto was insured by Allstate at the time of the accident.
Because of the uncertainty surrounding insurance coverage of the accident, plaintiff served notice of an uninsured-motorist claim upon the defendant State Farm on June 20, 1966, and on March 8, 1968.
Plaintiff's suit against Donald Patrick and Steve Jackson was scheduled for trial several times, but it wasn't until May 1, 1972, that a jury was selected. On May 2, 1972, the plaintiff and Donald Patrick, represented by Allstate, settled their dispute for the sum of $17,000. The cause is still pending against the uninsured Steve Jackson.
The insurance policy issued by the defendant, State Farm, to the plaintiff's father, Michael Rutkowski, contains the following exclusionary provision with respect to uninsured-motorist coverage:
"Insuring Agreement III does not apply: (a) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor * * *."
The policy also contains the following provision with respect to other uninsured-motorist coverage:
With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance."
The Allstate insurance policy insuring the automobile in which the plaintiff was riding and its driver, Donald Patrick, contains the following provision concerning recovery by a person under the bodily injury liability coverage ...