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Harhen v. State Farm Mutual Auto. Co.

OPINION FILED JUNE 9, 1978.

JOHN HARHEN, ADM'R OF THE ESTATE OF MILTON HARHEN, DECEASED, PLAINTIFF-APPELLANT,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR DUNNE, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff brought suit for declaratory judgment and to compel arbitration, asking that the coverage under the uninsured motorist provisions in each of the four policies issued by defendant to the deceased, be held to apply to an automobile accident, thus entitling decedent's estate to a maximum recovery of $40,000. Defendant answered that due to an exclusionary clause contained in each policy, uninsured motorist coverage was limited to the amount recoverable under the one policy specifically covering the car decedent was occupying, and therefore plaintiff could assert a claim of a maximum of $10,000. Both parties filed motions for summary judgment and briefs in support thereof. After arguments, the trial judge granted summary judgment in favor of defendant. On appeal, plaintiff contends that the trial judge erred in allowing recovery under only one policy instead of all four, since the exclusionary language, as applied to this case, violates the public policy expressed by sections 143a and 442 of our Insurance Code (Ill. Rev. Stat. 1975, ch. 73, pars. 755a, 1054).

We reverse the judgment of the trial court.

Milton Harhen was killed on December 21, 1974, when the 1969 Ford station wagon he was operating was struck head on by another vehicle driven by an uninsured motorist. In effect at the time were four automobile liability policies previously purchased by decedent from defendant, covering each of his four automobiles. In consideration of a premium of $2.20 for three of the policies (semiannual) and $3.30 for the fourth (annual), each policy provided for uninsured motorist coverage of $10,000 per person and $20,000 per accident. In addition each policy contained the following exclusion and definitions:

"This insurance does not apply:

* * * (b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an owned motor vehicle;

"Insured" was defined in the policy as "the first person named in the declarations * * *."

"Owned motor vehicle" was defined as "the motor vehicle * * * described in the declarations * * *."

Finding that the deceased fit the definition of "insured" and that only the 1969 Ford station wagon involved in the accident fit the policy definition of an "owned motor vehicle," the court held that due to the exclusionary provision contained in all of the policies, only the uninsured motorist coverage for the 1969 Ford applied to the accident.

OPINION

The sole issue on this appeal is whether exclusion (b) is effective to bar recovery by plaintiff under the three remaining policies issued to decedent. We agree with defendant that the instant situation is one to which exclusion (b) was intended to apply, that is, where the insured is riding in a vehicle which he owns, on which he already has uninsured motorist coverage. Thus, literally read, exclusion (b) would bar aggregation of coverage, requiring affirmance of the trial judge's ruling that only the policy covering the 1969 Ford station wagon was available. However, we find the reasoning in myriad cases examining similar exclusionary provisions in light of the policy expressed by our Insurance Code, as well as those involving "other insurance" clauses, persuasive grounds for our holding that exclusion (b), as applied to the instant case, is ineffective to bar further coverage.

Sections 143a and 442 of our Insurance Code (Ill. Rev. Stat. 1975, ch. 73, pars. 755a, 1054) provide in pertinent part:

"(1) * * * [N]o policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered * * * unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death [of $10,000 per individual and $20,000 per accident] * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom * * *.

Any contract or policy of insurance * * * issued in violation of any section of this Code requiring certain provisions to be inserted therein * * * shall nevertheless be held valid but shall be construed in accordance with the requirements of the section that the said policy * * * violates, and when any provision in such contract * * * is in conflict with any provision of this Code, the rights, and obligations of the company thereunder shall not be less favorable to the holder of ...


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