Appeal from the Circuit Court of Will County; the Hon. Thomas
W. Vinson, Judge, presiding.
PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This action for declaratory judgment was commenced by Helen Patrevito as executrix of the estate of James Patrevito seeking a declaration of rights under an insurance policy issued by Country Companies. The circuit court of Will County granted the defendant's motion to dismiss the complaint and this appeal follows.
Count I alleged that uninsured motorist coverage in a policy issued by the defendant was applicable to the death of James Patrevito caused by an unknown hit and run driver. Count II of the complaint sought recovery for vexatious delay in settling the claim. Defendant's motion to dismiss the complaint alleged no uninsured motorist coverage was provided by the policy because the decedent, Patrevito, was not within the terms of the policy at the time he died.
According to the complaint and the numerous exhibits attached to it, on March 18, 1981, James Patrevito was operating a van, traveling northbound on I-57. Because of extremely icy conditions, Patrevito lost control of his vehicle. It spun around and came to rest facing south off the paved travel portion of the road in the area designated as the shoulder. A vehicle operated by Kenneth Weig was caused by Patrevito's spinning vehicle to also run out of control. This vehicle came to rest south of the Patrevito vehicle, also facing south of the area of the road designated as the shoulder.
Both drivers, James Patrevito and Kenneth Weig, alighted from their vehicles, checked their respective vehicles for damage while standing between them and discussed moving the vehicles. While conversing, both Patrevito and Weig were apparently struck by an unidentified motor vehicle.
Injuries suffered by James Patrevito resulted in his death on March 23, 1981. Weig sustained fractured ribs and injuries to his right shoulder and ankles.
Because of the icy conditions and because of the disablement of the Patrevito and Weig vehicles, other vehicles experienced difficulties. The affidavits of two other vehicle operators whose vehicles had left the highway but whose vehicles had not collided with either Patrevito or Weig were included with the complaint. No information was available concerning the vehicle which may have struck Patrevito and Weig or their vehicles, and the driver of such vehicle was also unknown.
The policy of insurance provides in pertinent part that an "uninsured motor vehicle" means:
"* * * a hit and run vehicle and neither the driver nor owner can be identified. The vehicle must hit an insured, a covered auto or a vehicle an insured is occupying. Part VI(A)(3)(d)."
An "insured" is defined as the person or organization shown on the policy as the named insured or:
"Anyone else occupying a covered vehicle * * * Part VI(D)(2)."
The term "occupying" is defined as:
"* * * in, upon, getting in, out or off. Part VI(A)(2)."
The trial court fund Patrevito was not an (insured) (named insured) and was not occupying an insured vehicle at the time of the incident. On this appeal the plaintiff ...