Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Arthur L. Dunne, Judge, presiding.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1979.
Defendant, Helen F. Elkins, appealed from the judgment of the circuit court of Cook County entered upon allowance of the motion for summary judgment of plaintiff, Allstate Insurance Company, in its action for declaratory judgment. The appellate court reversed and remanded (63 Ill. App.3d 62), and we allowed plaintiff's petition for leave to appeal.
Defendant and her minor daughter, Beverly, were injured while riding in an automobile being driven by defendant's husband, Dorsey Elkins, which collided with another automobile. In force at that time was an automobile liability insurance policy issued by plaintiff to Dorsey Elkins as the named insured, under the terms of which defendant was also an "insured." The uninsured motorist coverage portion of the policy 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 * * *."
The liability provisions of the policy contained the following exclusion:
"bodily injury to any person who is related by blood, marriage, or adoption to an insured against whom claim is made if such person resides in the same household as such insured."
The parties are in agreement that by reason of this exclusion Dorsey Elkins was "uninsured" with respect to his wife and daughter. Defendant and Beverly filed claims under the uninsured motorist coverage, plaintiff refused payment, and the claims were submitted to arbitration. It cannot be determined from the record the extent, if any, to which plaintiff participated in the arbitration proceedings. Prior to the time that the arbitrator rendered his decision, plaintiff filed this action for declaratory judgment. The arbitrator awarded Beverly $1,300, and found that the value of defendant's injury was $18,500. The arbitrator held, however, that because Dorsey Elkins was immune from suit by defendant (Ill. Rev. Stat. 1973, ch. 68, par. 1), she was not "legally entitled to recover" damages from him. There was no action taken to vacate or modify the arbitrator's decision. The circuit court held that because of the inter-spousal immunity provisions of the statute (Ill. Rev. Stat. 1973, ch. 68, par. 1), defendant was not legally entitled to recover for injuries caused in the collision, and that her failure to file a timely proceeding to vacate the arbitrator's decision rendered it final and binding on the parties.
The appellate court reversed and remanded, holding that the question whether inter-spousal immunity precluded defendant from recovering under the uninsured motorist provision was beyond the authority of the arbitrator to decide and that the defense of inter-spousal immunity could not be raised by a third party. The appellate court interpreted the words "legally entitled to recover" "to mean that the plaintiff must be able to establish fault on the part of the uninsured motorist which gives rise to damages." 63 Ill. App.3d 62, 66.
Plaintiff contends that because of the statutory inter-spousal tort immunity created by section 1 of "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1973, ch. 68, par. 1), which provided that "neither husband nor wife may sue the other for a tort to the person committed during coverture," defendant is not a person "legally entitled to recover damages" within the meaning of the policy provisions. Plaintiff contends, too, that because defendant failed to file an application to vacate the decision of the arbitrator pursuant to the provisions of section 12(b) of the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, par. 112(b)) within 90 days after the decision was rendered (Ill. Rev. Stat. 1977, ch. 10, par. 112 (b)) the decision of the arbitrator in favor of plaintiff was final and binding on defendant.
It is defendant's position that the inter-spousal immunity provision of the statute applies only to situations where one spouse attempts to recover in tort from the other and is not applicable to a claim based upon a contractual right against a third party, her spouse's insurer. Defendant argues, too, that the failure to seek to vacate the decision of the arbitrator within 90 days was excused by the fact that plaintiff had initiated this action in declaratory judgment while the arbitration was pending, and that the arbitrator's decision was void because he exceeded his jurisdiction in deciding a coverage dispute which was not a matter subject to arbitration, but a question of law to be decided by the courts>.
The precise question presented has not previously been decided in this jurisdiction and the parties have cited a number of authorities from other jurisdictions. An analysis of the cases shows that recovery has been permitted when the claimant shows conduct on the part of the tortfeasor spouse which would entitle the claimant to recover damages even though a defense available to the tortfeasor would defeat actual recovery. Thus in Guillot v. Travelers Indemnity Co. (La. App. 1976), 338 So.2d 334, it was held that the doctrine of inter-spousal immunity did not bar the wife's recovery under an uninsured motorist endorsement because the defense was personal to the tortfeasor spouse and was not available to his insurer. In De Luca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76, 215 N.E.2d 482, and Sahloff v. Western Casualty & Surety Co. (1969), 45 Wis.2d 60, 171 N.W.2d 914, it was held that although the uninsured motorist, in an action against him, could have availed himself of a defense based upon the statute of limitations, that defense was not available to his insurer.
In order to prevail the claimant must be able to show her right to recover. Thus in Markham v. State Farm Mutual Automobile Insurance Co. (10th Cir. 1972), 464 F.2d 703, the court held that plaintiff, injured as the result of the operation of an automobile by her daughter, was not "legally entitled to recover damages" from the operator of the automobile for the reason that under Oklahoma law a parent has no cause of action based upon tort against an unemancipated child. In Country Mutual Insurance Co. v. National Bank (1969), 109 Ill. App.2d 133, and Bocek v. Inter-Insurance Exchange of the Chicago Motor Club (1977), ___ Ind. App. ___, 369 N.E.2d 1093, it was held that bringing an action for wrongful death within the two-year statute of limitations was a condition of the cause of action and failure to seek arbitration within that period served to bar uninsured motorist claims. Plaintiff has cited Nolan v. Farmers Insurance Exchange (Mo. App. 1967), 413 S.W.2d 530, which involved an insurance policy which provided that the insurer would pay all sums "which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injuries sustained by the insured caused by the accident * * *." The Missouri Court of Appeals, holding that neither spouse may maintain a civil action against the other based upon tort occurring during coverture, denied the wife's claim. Whether the inability to recover results from a holding that ...