APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
S. TESCHNER, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 31, 1977.
Plaintiff, Curtis Bandy, brought this action in declaratory judgment in the circuit court of Du Page County for a determination of rights under a policy of insurance sold to him by defendant, State Security Insurance Company. The trial court determined that Bandy had uninsured motorist coverage under the policy and denied Bandy's claim for an award of attorney's fees for alleged vexatious refusal of defendant to arbitrate this dispute.
State Security appeals from the declaration of coverage under its insurance policy and Bandy cross-appeals from the denial of attorney's fees.
In March 1973, Bandy purchased a "Family Combination Automobile Policy" from State Security under which he was the named insured. In May of that year, while the policy was in full force and effect, Bandy received personal injuries while riding as a passenger on the back of a motorcycle being operated by a friend which was struck by a vehicle being operated by an uninsured motorist. Neither Bandy nor any relative of his was an owner of either vehicle involved in the collision.
Bandy's policy contained an uninsured motorist clause and he made a claim under that provision for his personal injuries which was refused by State Security as was Bandy's demand for arbitration. This action followed.
The primary question presented for review is whether Bandy is entitled to uninsured motorist coverage under the insurance policy for the bodily injuries received as a result of the collision.
• 1 Illinois requires, by virtue of section 143a of the Insurance Code (Ill. Rev. Stat. 1973, ch. 73, par. 755a), that every motor vehicle liability insurance policy sold in this state shall contain uninsured motorist coverage in an amount not less than the limits described in the Safety Responsibility Law (Ill. Rev. Stat. 1976, ch. 95 1/2, par. 7-203). The purpose of the statute is "* * * to place the policyholder in substantially the same position he would occupy, so far as his being injured or killed is concerned, if the wrongful driver had had the minimum liability insurance required by the Financial Responsibility Act." Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 4, 269 N.E. 295, 297.
The pertinent portion of the uninsured motorist coverage provision of Bandy's policy states that the company agrees:
"Part IV Family Protection Coverage
Coverage J Family Protection (Damages for Bodily Injury). To pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * * sustained by the insured, caused by accident and arising out of the * * * use of such uninsured automobile * * *."
Bandy would clearly be entitled to coverage on the facts of this case if that were the only pertinent portion of the policy. This obligation of the policy is not limited by its terms to whether the insured is a pedestrian, operating or occupying any type of vehicle or by the ownership of such vehicle when the insured is injured by an uninsured motorist.
State Security, however, contends that the following exclusion provision contained in the policy bars recovery by Bandy:
"Exclusions. This policy does not apply under Part IV: (a) to bodily injury to an insured while occupying an automobile or any motor vehicle (other than an insured automobile) owned by the named insured or a relative, or through being ...