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Beek v. Ohio Casualty Insurance Co.

Decided: January 8, 1974.

RONALD BEEK, PLAINTIFF,
v.
OHIO CASUALTY INSURANCE COMPANY, DEFENDANT



Gelman, J.s.c., Temporarily Assigned.

Gelman

Plaintiff Ronald Beek moves for summary judgment directing defendant Ohio Casualty Insurance Company (Ohio) to proceed with arbitration of plaintiff's claim under an uninsured motorist (UM) endorsement.

Beek was the owner of a 1970 Ford automobile on which Ohio issued a liability policy containing UM coverage effective for a one-year term from October 22, 1969. On June 13, 1970 Beek was seriously injured while operating a motorcycle which was involved in an accident with an uninsured motorist. Beek had purchased liability insurance coverage for the motorcycle from Reserve Insurance Company. The Reserve policy also contained a UM endorsement and Reserve paid Beek the full amount of its coverage ($10,000) under its policy.

For the purposes of this motion it is conceded that Beek would be entitled to recover from the uninsured motorist an amount in excess of that which he was paid under the Reserve policy. He claims that Ohio is obligated to pay to him such excess liability of the uninsured motorist up to the limits of the UM coverage afforded by the Ohio policy, for which Ohio charged him and he paid a separate premium.

Ohio contends that its policy does not furnish coverage for Beek's claim because of the following language contained in the exclusions clause of the UM endorsement:

Exclusions

This insurance does not apply:

(b) to bodily injury to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured, any designated insured, or through being struck by such a vehicle, but this exclusion does not apply to the named insured or

his relatives while occupying or if struck by a highway vehicle owned by a designated insured or his relatives.

The above-quoted language excludes coverage if Beek was injured while occupying another vehicle owned by him, but the exclusion is in turn subject to two exceptions: (1) if the second vehicle occupied by the named insured is "an insured highway vehicle," or (2) if the second vehicle occupied by the named insured is owned by a "designated insured or his relatives."

As to the first exception defendant urges that Beek's motorcycle is not an insured highway vehicle by reason of section V, captioned "Additional Definitions" and which provides in part:

Since the motorcycle was owned by Beek, it is not "an insured highway vehicle" as that term is defined in the policy, and the first ...


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