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Ellis v. Sentry Insurance Co.

OPINION FILED JUNE 13, 1984.

TERRI LYNN ELLIS, PLAINTIFF-APPELLANT,

v.

SENTRY INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Plaintiff, Terri Lynn Ellis, brought this declaratory judgment action to determine whether the uninsured-motorist provision of an automobile insurance policy issued by defendant, Sentry Insurance Co., to her father is applicable to her claims against the uninsured driver of a motorcycle. The circuit court of Cook County granted summary judgment in favor of defendant, finding that the provision was not applicable. Plaintiff appeals from this determination.

The facts are not in dispute. On June 1, 1979, plaintiff sustained injuries while riding as a passenger on a motorcycle operated by Dennis Callahan, who was not insured. Prior to that date, defendant had issued a policy of automobile insurance to plaintiff's father, George Ellis, which was in effect on the day of the occurrence. The insured vehicle, designated on the declaration page of the policy, was a 1975 Ford automobile, and the policy provided uninsured motorist coverage in the amount of $10,000 per person, $20,000 per occurrence. Since plaintiff was a member of the household of her father on that day, she was an insured under the policy.

Defendant denied that the uninsured motorist provision of the policy was applicable to the occurrence, basing its denial on the following language of that provision:

"We promise to pay the damages you're legally entitled to receive from the owner or operator of an uninsured motor vehicle because of bodily injury. We'll pay these damages for bodily injury you suffer in a car accident while occupying a car or, as a pedestrian, as a result of having been struck by an uninsured motor vehicle." (Emphasis in original.)

The policy also contained the following definitions of "car," "car accident," and "motor vehicle":

"A car is a 4 wheel motor vehicle licensed for use on public roads. It includes any motor home that isn't used for business purposes and any utility trailer. A car accident is an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance or use of a car or other motor vehicle.

A motor vehicle is a land motor vehicle designed for use on public roads. It includes cars and trailers. It also includes any other land motor vehicle while used on public roads." (Emphasis in original.)

Subsequently, plaintiff filed this declaratory judgment action, asking the circuit court to determine whether she was entitled to uninsured motorist benefits. Thereafter, defendant moved for summary judgment, contending that the uninsured motorist provision limited uninsured motorist coverage to injuries sustained "in a car accident while occupying a car" or "as a pedestrian, as a result of having been struck by an uninsured motor vehicle." Since plaintiff was occupying a motorcycle rather than a car at the time of the alleged occurrence, defendant contended that the uninsured motorist provision of the policy was not applicable. Plaintiff filed a cross motion for judgment on the pleadings, contending that section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a) required defendant to provide uninsured motorist coverage to persons insured under the insurance policy for injuries sustained in an accident while riding as a passenger on a motorcycle driven by an uninsured motorist, and consequently, that the attempted limitation on coverage as ineffective. The circuit court granted defendant's motion for summary judgment, holding that plaintiff was not entitled to uninsured motorist benefits because the plain, unambiguous terms of the policy excluded coverage under the facts of this case.

• 1 We first look to the policy of insurance to determine whether its language clearly excludes uninsured motorist coverage to an insured such as plaintiff, who was injured while a passenger on an uninsured motorcycle. The general rule in Illinois is that "[i]n the absence of ambiguity, words in an insurance policy are to be given their plain, ordinary and popular meaning." (Weiss v. Bituminous Casualty Corp. (1974), 59 Ill.2d 165, 170-71, 319 N.E.2d 491; State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App.3d 453, 456, 365 N.E.2d 290.) Ambiguous or equivocal provisions of an insurance policy, however, will be construed most strongly against the insurer and liberally in favor of the insured. State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App.3d 453, 456; Lumbermen's Mutual Casualty Co. v. Norris (1973), 15 Ill. App.3d 95, 97, 303 N.E.2d 505.

The quoted portion of the uninsured motorist provision of the policy consists of two sentences. The first is a promise to pay damages that the insured is legally entitled to receive from the owner or operator of an uninsured motor vehicle. The second, according to defendant, limits this promise to pay to bodily injury suffered either (1) in a car accident while occupying a car, or (2) as a pedestrian, as a result of having been struck by an uninsured motor vehicle. Although some doubt was raised at the oral argument in this case as to the ability of the second sentence to limit the scope of the first, assuming that it does, we think that the language of the provision clearly would not provide coverage for this occurrence. Plaintiff was injured while a passenger on a motorcycle, and thus her injuries fell into neither category of the second sentence. This conclusion is consistent with Illinois case law, which recognizes that "the word `automobile' means one thing, and the word `motorcycle' means something essentially different." Home Indemnity Co. v. Hunter (1972), 7 Ill. App.3d 786, 790, 288 N.E.2d 879; see also State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App.3d 453, 457.

• 2 Even assuming the language of the uninsured motorist provision excludes coverage for the occurrence, we must determine whether the exclusionary language violates section 143a of the Illinois Insurance Code and therefore was rendered unenforceable by section 442 of that Code (Ill. Rev. Stat. 1979, ch. 73, par. 1054).

Section 143a(1) of the Illinois Insurance Code provides:

"On or after July 1, 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7-203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor ...


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