APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
A. TRAFELET, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order entered in the court below dismissing the amended complaint of appellant Trinity Universal Insurance Company (hereinafter Trinity) which had been filed against the estate of Frank Mallerdino, deceased. Trinity had filed its claim against the estate, in its own name, contending that it had been subrogated to the rights of one of its insureds against the deceased to the extent of $4,000, which it had paid said insured under uninsured motorist provisions of an applicable policy. On motion of the administrator of the estate, the court below dismissed Trinity's complaint; Trinity's appeal followed.
The pertinent facts are as follows. Trinity had issued to one James Warnken an automobile insurance policy, which included uninsured motorist coverage and which was effective from May 11, 1969, to May 11, 1970. The policy provided, in part, that Trinity would pay all sums which an insured would be legally entitled to recover as damages for injuries caused by accident and arising out of the ownership, maintenance, or use of an uninsured automobile.
On September 4, 1969, Frank Mallerdino, an uninsured motorist, allegedly negligently drove his auto into the rear end of an auto operated by Frances Warnken, wife of James Warnken, which resulted in bodily injury to Frances Warnken, an insured under the Trinity policy. Subsequently, in compliance with the uninsured motorist provisions of the policy, on November 19, 1970, Trinity paid $4,000 to Frances Warnken in settlement of her claim under the policy.
Under the "Family Protection Coverage" section of the Trinity policy, there were these provisions:
"Trust Agreement. In the event of payment to any person under this Part:
(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made;
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this Part;
(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;
(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person; in the event of a recovery, the company shall be reimbursed out of such recovery for expenses, costs and attorneys' fees incurred by it in connection therewith;
(e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision."
On November 19, 1970, James and Frances Warnken executed a "Receipt and Trust Agreement" with Trinity, which provided in part:
"In consideration of the payment of the above amount [$4,000.00] by Trinity Universal Insurance Company, herein called `Beneficiary,' the undersigned, herein called `Trustee':
(1) Hereby releases and forever discharges Beneficiary from any and all liability whatsoever to the undersigned under the Uninsured Motorist provisions of the above policy for bodily injury, sickness or ...