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Hartford Accident & Indemnity v. Cummings

OPINION FILED NOVEMBER 27, 1978.

HARTFORD ACCIDENT AND INDEMNITY COMPANY, PLAINTIFF-APPELLEE,

v.

BRUCE CUMMINGS ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Hartford Accident and Indemnity Company (plaintiff) filed a complaint for declaratory judgment against defendants Bruce Cummings and Nicholas Jason for a declaration that Cummings' policy issued by plaintiff on Cummings' private automobile did not provide uninsured motorist coverage for defendants, who were police officers injured by an uninsured motorist while they were on duty riding in a Chicago police car. On cross motions for summary judgment, the circuit court entered judgment for plaintiff. Defendants appeal, arguing that (1) the Cummings' policy should afford coverage under its uninsured motorist provision, (2) the policy provision reducing uninsured motorist coverage by amounts paid by workmen's compensation is void, and (3) summary judgment on the issue of Cummings' regular use of the police car was improper.

For protection against uninsured motorists, the policy provides in pertinent part:

"The company will 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 highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle."

"Insured" for the uninsured motorist protection is defined as "the named insured and any relative" and "any other person while occupying an insured automobile." An "insured automobile" is defined as:

"(a) an owned automobile while being used by or with the permission of the named insured, or

(b) a non-owned automobile while being operated by the named insured with the permission of the owner."

The policy excludes from the definition of a "non-owned automobile" an automobile "furnished or available for the regular use" of the named insured.

With reference to Jason (the police officer passenger in the squad car), the complaint alleged that he was not protected under the uninsured motorist clause because he was neither the insured under Cummings' policy, nor Cummings' relative, and the vehicle in which he was riding was not an insured automobile because it was furnished for the regular use of the named insured (Cummings).

With reference to Cummings, the complaint alleged that Cummings was covered by workmen's compensation insurance at the time of the accident and that the city of Chicago, his employer, is his subrogee. It was further alleged that under these facts Cummings was not entitled to uninsured motorist coverage because of an explicit exclusion that the uninsured motorist coverage does not apply "so as to inure directly or indirectly to the benefit of any workmen's compensation or disability benefits carrier or any person or organization qualifying as a self-insurer under any workmen's compensation or disability benefits law or any similar law."

Jason moved for judgment in his favor on the ground that the squad car was an "insured automobile" because it was being operated by the named insured (Cummings) with the permission of the owner and that he was "any other person while occupying an insured automobile."

Cummings moved for summary judgment in his favor on the ground that he was the "named insured" in the policy issued by plaintiff and that because his employer, the city of Chicago, did not have an uninsured motorist policy in effect he was entitled to coverage under the excess other insurance provision of his policy.

In support of their motions, defendants attached the affidavit of counsel that the city of Chicago was not covered by uninsured motorist insurance on the date of defendants' accident, but was a self-insurer for damages and claims due to the operation and maintenance of its squad cars. Also attached were the affidavits of defendants stating ...


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