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03/30/87 Rebecca Hettenhausen, Ex'r v. Economy Fire & Casualty

March 30, 1987

HETTENHAUSEN, DECEASED, PLAINTIFF-APPELLEE

v.

ECONOMY FIRE & CASUALTY COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

REBECCA HETTENHAUSEN, Ex'r of the Estate of Ronald

507 N.E.2d 121, 154 Ill. App. 3d 488, 107 Ill. Dec. 457 1987.IL.385

Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This appeal arises out of a declaratory judgment action instituted by plaintiff, Rebecca Hettenhausen, executor of the decedent's estate, to determine whether the decedent is entitled to underinsured-motorist benefits under an insurance policy issued by defendant, Economy Fire & Casualty Company. The circuit court granted summary judgment in favor of plaintiff with respect to count I of her complaint and declared, at plaintiff's request, that she had a right to settle with the underinsured motorist while defendant waived its subrogation rights. For the following reasons, we affirm the summary judgment order, but reverse the court's declaratory ruling.

The facts of this case are undisputed. On October 6, 1983, the decedent, Ronald Hettenhausen, was driving his motorcycle south on Old Route 158 in St. Clair County, Illinois, when, at the intersection of routes 158 and 161, he collided with a vehicle operated by Julie Keenan. As a result, the decedent was fatally injured. At the time of the collision, Julie Keenan was carrying automobile bodily injury liability coverage with Aetna Life & Casualty containing limits of $25,000 per person and $50,000 per accident.

The decedent had an automobile liability insurance policy issued by defendant which was effective July 18, 1983, through October 18, 1983, and provided uninsured- and underinsured-motorist coverage, each in limits of $100,000 per person and $300,000 per occurrence. This policy included an endorsement entitled "Extended Family Protection Coverage/Underinsured Motorists" under which section III - conditions, subsection A - policy provisions provided:

"The Conditions, Exclusions, and General Provisions of the policy applicable to Family Protection Coverage/Uninsured Motorists Coverage shall apply to this endorsement except the 'Limits of Liability' provision."

The "Family Protection Coverage/Uninsured Motorists Coverage" referred to in section III contained exclusion A-1, which stated:

"A. We do not provide Uninsured Motorists Coverage for bodily injury sustained by a person:

(1) While occupying, or when struck by, any motor vehicle or trailer of any type owned by you or any family member which is not insured ...


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