Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
In an action for declaratory judgment, plaintiff's motion for summary judgment was granted with a holding that Frank M. Foster (defendant) was precluded by an "other insurance" clause from recovering under an automobile insurance policy issued to him by plaintiff. In this appeal, defendant contends that he is entitled to both uninsured motorist and medical payments benefits under that policy.
An uninsured motorist struck and injured defendant and Raymond Kaminski (Kaminski) as they stood next to a parked automobile owned by Kaminski and insured by State Farm Insurance Company (State Farm). State Farm refused to extend uninsured motorist coverage to defendant, contending that he was not insured under the terms of its policy. Defendant then made a claim under his own policy issued by plaintiff which refused to honor the claim and then brought this action seeking a declaration of the rights of the parties with respect to the two policies and a finding that State Farm was obligated to provide uninsured motorist benefits to defendant.
The parties filled cross-motions for summary judgment on the issue of coverage under the uninsured motorist provisions of the two policies. State Farm sought a declaration that its policy did not apply because defendant was not in, on, or alighting from Kaminski's vehicle at the time of the accident and therefore was not a defined insured under its policy. Plaintiff asked the court to determine that its policy did not apply on the grounds that defendant had not complied with its notice requirements and that the injury was covered by the State Farm policy. Defendant requested a finding that the uninsured motorist provisions of both policies applied, and his motion also contained an allegation that he was entitled to medical payments benefits under a separate provision of plaintiff's policy. Thereafter, defendant counterclaimed for declaratory judgment against plaintiff and State Farm, seeking a determination that he is entitled to uninsured motorist and medical payments benefits under plaintiff's policy as well as uninsured motorist benefits under the State Farm policy. The record contains no answer by plaintiff to this counterclaim.
The uninsured motorist coverage of plaintiff's policy provides for payment of "all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile * * *." Payment thereunder is limited by an "other insurance" clause, which provides in relevant part:
"With respect to bodily injury to an insured while occupying an automobile not owned by the Subscriber, the insurance under [the uninsured motorist coverage] shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance."
A separate section of plaintiff's policy, entitled "Expenses for Medical Services," provides for payment of "all reasonable expenses incurred within one year from the date of accident * * * to or for the Subscriber * * * who sustains bodily injury * * * caused by accident, * * * through being struck by an automobile * * *." This coverage, too, is limited by an "other insurance" clause, but this clause provides:
"If there is other automobile medical payments insurance against a loss covered by [the medical payments provision] of this policy the Exchange shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible automobile medical payments insurance * * *."
At a hearing on the cross-motions for summary judgment, the trial court noted that the issue to be decided was whether defendant, at the time of the accident, came within the definition of "occupant" contained in the State Farm policy; that is, whether he was "on, upon or alighting from" Kaminski's vehicle when struck by an uninsured motorist. Defendant also argued that he should be allowed to stack coverage under the two uninsured motorist provisions, but no mention was made of the medical payments benefits raised in his motion and sought in his counterclaim as due him under a separate provision of plaintiff's policy.
The trial court, in denying summary judgment to State Farm, found that defendant was an occupant of Kaminski's vehicle at the time in question, and thus that State Farm's policy covered defendant's claim. In granting summary judgment to plaintiff, the court held that its policy does not apply and that the "other insurance" provision contained in plaintiff's policy precluded stacking with the State Farm policy. Defendant appeals only the grant of summary judgment to plaintiff. No other appeals have been taken from this order.
Defendant first contends that he is entitled to recover uninsured motorist benefits under both policies. He acknowledges that the Illinois Supreme Court established a contrary rule in Morelock v. Millers' Mutual Insurance Association (1971), 49 Ill.2d 234, 274 N.E.2d 1, *fn1 and Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill.2d 71, 269 N.E.2d 97, but argues that subsequent decisions of that court mandate reconsideration and overruling of Morelock and Putnam.
In Putnam, the court considered an "other insurance" clause virtually identical to that in the instant action. There, the plaintiffs were passengers in a car owned by a friend and insured by Hartford Accident and Indemnity Company when it was struck by an uninsured motorist. Hartford covered all injuries arising from the accident to the extent of the $20,000 per accident limit of its uninsured motorist coverage, and each plaintiff received a pro rata share of $7,500. Plaintiffs then sought compensation under their own uninsured motorist coverage with New Amsterdam Casualty Company to the extent that their damages exceeded the $7,500 recovered from Hartford. The court, finding that the "excess-escape" limiting clause of the New Amsterdam policy was clear and unambiguous, held that plaintiffs were precluded from recovering under it.
Morelock again considered an "other insurance" clause identical to the one in the instant action and determined that it was not contrary to public policy. The court noted that "[c]onstruing an insurance contract accurately and giving it the effect which its language clearly commands, is not ipso facto a breach of public policy merely because it ...