APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant Helen Elkins filed a claim under the uninsured motorist provision of her husband's insurance policy for injuries sustained in an automobile accident caused by her husband's negligent driving. Under the policy, all claims involving the uninsured motorist provision were to be submitted to an arbitrator.
While the arbitration proceeding was pending, plaintiff Allstate Insurance Company filed a suit for declaratory judgment, seeking an adjudication that inter-spousal immunity barred defendant from recovering. The trial court concurred with the arbitrator's decision that had been rendered in the interim, holding that inter-spousal immunity barred defendant from recovering. Defendant's daughter, who was also injured, was allowed to recover, however. Defendant appeals.
On appeal, defendant argues that the trial court erred in holding (1) that defendant is bound by the arbitrator's award for failing to challenge it within 90 days and (2) that inter-spousal immunity precludes defendant from recovering under the uninsured motorist provision of her husband's insurance policy.
We reverse and remand with directions.
On May 5, 1974, defendant Helen Elkins was injured while riding in an automobile driven by her husband, Dorsey Elkins. Also injured was their minor daughter, Beverly. The injuries arose when Dorsey negligently caused his car to collide with an auto driven by Donald Brown, who was also insured.
Dorsey had automobile insurance with plaintiff Allstate Insurance Company. While coverage extended to all members of the Elkins family, Dorsey was the named insured. Contained in the policy was an uninsured motorist provision which provided:
"Allstate will pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile * * * caused by accident and arising out of the * * * use of such uninsured automobile * * *." (Emphasis added.)
However, excluded from liability protection was:
"bodily injury to any person who is related by blood, marriage, or adoption to an insured against whom a claim is made if such person resides in the same household as such insured."
Both parties agree that the effect of this exclusion is to remove liability coverage when the injured person is a member of the insured's family, thus making the insured "uninsured" with respect to family members. This being so, defendant and Beverly Elkins filed a claim under the uninsured motorist provision of the Allstate policy for injuries suffered as a result of the automobile accident.
The policy provided that uninsured motorist claims be submitted to an arbitrator. The case was submitted and while it was still pending, plaintiff Allstate filed a suit for declaratory judgment on October 8, 1975. The suit sought an adjudication that Illinois inter-spousal immunity (Ill. Rev. Stat. 1975, ch. 68, par. 1) precluded defendant from recovering for injuries caused by her husband's negligence.
On October 17, 1975, the arbitrator issued his decision. He found that defendant was injured to the extent of $18,500 and that Beverly Elkins was injured to the extent of $1,300. He then awarded Beverly $1,300 but declined to award defendant anything, believing that inter-spousal immunity precluded her from being "legally entitled" to recover, as required under the uninsured motorist provision.
On January 12, 1976, plaintiff moved the court in which the declaratory judgment was pending, for an order staying the arbitration proceeding on the grounds that those proceedings were attempting to resolve policy and coverage issues reserved for the courts>. The ...