Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Farmers Insurance Group (Farmers) brought a declaratory judgment action seeking a determination that Brenda Nudi (Brenda) was not entitled to uninsured motorist benefits under the insurance policy owned by her husband, Raymond Nudi (Raymond). Brenda responded, and both parties then moved for judgment on the pleadings pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45). Brenda prevailed, and Farmers appealed. The sole issue presented for our review is whether inter-spousal tort immunity precludes Brenda's claim against Farmers for uninsured motorist benefits under Raymond's policy.
For the reasons which follow, we affirm.
On August 20, 1978, Brenda sustained injuries when a motorcycle operated by Raymond on which she was a passenger left the road. On October 17, 1979, Brenda sued Raymond alleging that his negligent operation of the motorcycle caused her injuries. This lawsuit was subsequently dismissed with prejudice, the court holding that inter-spousal tort immunity barred Brenda's action against Raymond. Ill. Rev. Stat. 1979, ch. 40, par. 1001.
Following the dismissal of her lawsuit Brenda brought a claim against Farmers for uninsured motorist benefits under Raymond's policy. Under the uninsured motorist clause in the policy, Farmers agreed:
"To 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 injury sustained by the insured caused by accident, and arising out of the ownership, maintenance, or use of such uninsured motor vehicle." (Emphasis added.)
Farmers conceded that because of a household exclusion provision in the policy, Raymond was considered an uninsured motorist as to any accident which injured a family member. Nevertheless, Farmers denied Brenda's claim for uninsured motorist benefits and filed a declaratory judgment action. The company contended that the uninsured motorist benefits under Raymond's policy were not payable unless the owner-operator of the vehicle (Raymond) was "legally responsible to pay" damages to the claimant (Brenda); that inter-spousal tort immunity barred Brenda's action against Raymond; and that because inter-spousal immunity barred Brenda's lawsuit against Raymond, Raymond was not legally responsible to pay damages to her and, consequently, neither was Farmers. The trial court rejected Farmers' argument, and Farmers now presents the same argument to this court.
At issue in the instant case is the nature of the interplay of inter-spousal tort immunity and uninsured motorist insurance. A brief historical review of the inter-spousal tort immunity doctrine as it has developed in Illinois appears to be in order.
In 1953 the Illinois legislature amended "An Act to revise the law in relation to husband and wife" to provide that "neither husband nor wife may sue the other for a tort to the person committed during coverture." (Now codified at Ill. Rev. Stat. 1979, ch. 40, par. 1001.) The effect of the amendment was to re-establish what had been the common law rule of inter-spousal tort immunity. In interpreting the amendment the Illinois Supreme Court construed the immunity as a substantive bar to personal injury litigation between spouses. (See Wartell v. Formusa (1966), 34 Ill.2d 57, 60, 213 N.E.2d 544; Heckendorn v. First National Bank (1960), 19 Ill.2d 190, 193, 166 N.E.2d 571.) In Heckendorn the court found that the intent of the amendment was to "prevent a cause of action" for torts committed during coverture "from coming into being."
Recently, in a case similar to the one before us, the Illinois Supreme Court held that a third-party insurance company cannot rely upon inter-spousal tort immunity as a defense to an action brought by one spouse seeking to recover for injuries under the other spouse's uninsured motorist provision. (Allstate Insurance Co. v. Elkins (1979), 77 Ill.2d 384, 396 N.E.2d 528.) The court stated that "the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse." (Allstate Insurance Co. v. Elkins (1979), 77 Ill.2d 384, 390.) Allstate represents a departure from the way in which the court previously construed the inter-spousal tort immunity doctrine. The immunity is now seen as a procedural, not a substantive, bar to actions between spouses. Wirth v. City of Highland Park (1981), 102 Ill. App.3d 1074, 430 N.E.2d 236.
• 1 The import of the procedural/substantive distinction is that where the immunity is regarded as a substantive bar, it prevents a cause of action from accruing. A third party may therefore invoke the immunity as a defense to an action by the injured party. (See Markham v. State Farm Mutual Automobile Insurance Co. (10th Cir. 1972), 464 F.2d 703 (applying Oklahoma law); Guillot v. Travelers Indemnity Co. (La. App. 1976), 338 So.2d 334.) Where, as in Illinois, the immunity is regarded as a procedural bar, it merely precludes enforcement of a remedy. Procedural immunity is personal to the spouse and does not inure to the benefit of third parties. Hettel v. Rye (1972), 251 Ark. 868, 475 S.W.2d 536; DeLuca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482; Annot., 73 A.L.R.3d 632, 651-53 (1976), and cases cited therein.
In Allstate the wife and daughter of the insured were injured as a result of the insured husband's negligent operation of his automobile. The wife sued the insurer directly for uninsured motorist benefits. The uninsured motorist provision in Allstate stated that:
"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 * * *." (Emphasis added.)
Allstate's position parallelled the position taken by Farmers in the instant case. Allstate argued that the language of its policy denied uninsured motorist benefits to claimants who were not "legally entitled to recover" from the insured. Since inter-spousal tort immunity barred the wife's tort claim against her husband (the insured), Allstate contended that she was not "legally entitled to recover" ...