APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
After suffering injuries in an automobile accident while a passenger in an uninsured motorist's vehicle, plaintiff, Eva Jenkins, was denied coverage by her brother's insurer, State Security Insurance Company (hereinafter State Security). Plaintiff then filed an action for declaratory judgment which sought a declaration that she was entitled to uninsured motorist coverage under the family protection provision of her brother's automobile insurance policy. The trial court, after considering stipulated facts and exhibits and after hearing the arguments of counsel, held that the terms of the insurance policy's exclusionary provision did not preclude plaintiff from receiving uninsured motorist coverage for her injuries. However, the court denied plaintiff's request for attorney fees which was made pursuant to section 155 of the Insurance Code. Ill. Rev. Stat. 1975, ch. 73, par. 767.
State Security appeals the finding in plaintiff's favor, contending that it properly excluded Eva Jenkins from uninsured motorist coverage because the express terms of the insurance contract provide that an insured who is injured while riding in an uninsured non-owned automobile that is being driven by someone other than the named insured does not qualify for uninsured motorist protection. Plaintiff cross-appeals from the trial court's order denying her request for attorney fees. She argues that the assessment of reasonable attorney fees against State Security is warranted in this matter because State Security's denial of uninsured motorist coverage was vexatious and without reasonable cause.
State Security issued to Howard Smith, plaintiff's brother, a policy of automobile insurance effective from November 10, 1972, to November 10, 1973. The policy provided bodily injury and property damage liability coverage in addition to uninsured motorist coverage which was entitled "Part IV Family Protection Coverage." The following policy provisions which define the scope of the uninsured motor vehicle coverage are relevant to State Security's appeal:
"COVERAGE J FAMILY PROTECTION (DAMAGES FOR BODILY INJURY).
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 automobile because of bodily injury, * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; * * *."
The following paragraph, entitled "Definitions," sets forth:
"The definitions under Part I, except the definition of `insured,' apply to Part IV, and under Part IV: `insured' means:
(a) the named insured and any relative;
(b) any other person while occupying an insured automobile; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this part applies sustained by insured under (a) or (b) above. * * *
`insured automobile' means:
(a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded.
(d) a non-owned automobile while being operated by the named insured; * * *."
Part I (Liability) of the policy defines "non-owned automobile" as:
"[a]n automobile * * * not owned by or furnished for the regular use of either the named insured or any relative, other than a ...