dissenting:
The order appealed from granted defendant’s motion to dismiss under section 2 — 615 (111. Rev. Stat. 1985, ch. 110, par. 2 — 615), for failure to state a cause of action. Such a motion tests only the legal and not the factual sufficiency of the complaint (Interway Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615), and preserves for review only the question as to whether the complaint was legally sufficient (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 504 N.E.2d 193; Henkhaus v. Barton (1977), 56 Ill. App. 3d 767, 371 N.E.2d 1166).
The policies issued by defendant to plaintiffs, which provide for uninsured motorists coverage in Part II thereof, also barred actions by the insureds by requiring that all disputes as to claims under the uninsured motorist coverage be submitted to arbitration. However, section 3 in the conditions clause of those policies provided that “a suit seeking recovery under Part II *** must be filed within two years of the accident.”
Defendant argues that the quoted language in section 3 refers to suits against it, whereas plaintiffs contend that it required them to bring actions within two years against uninsured motorists. Thus, the seminal question presented is whether the language in those provisions created an ambiguity. If it was ambiguous, as contended by plaintiffs, then its determination is a question of fact which is riot properly reached in a section 2 — 615 motion to dismiss (Interway Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615), or properly considered on appeal in this court. Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 504 N.E.2d 193; Henkaus v. Barton (1977), 56 Ill. App. 3d 767, 371 N.E.2d 1166.
The trial court in dismissing the complaint here held, as a matter of law, that it failed to state a cause of action. Implicit in this holding is a finding that the language in question was unambiguous. However, the majority found that the language in question was ambiguous, and because it is reasonably susceptible to more than one meaning, I agree with this finding. See Richards v. Liquid Controls Corp. (1975), 26 Ill. App. 3d 111, 325 N.E.2d 775.
Because, as stated above, an appeal from a dismissal for failure to state a cause of action preserves for review only the legal sufficiency of the complaint and since the resolution of an ambiguity presents a factual question, the majority having found the language ambiguous should have vacated the judgment and remanded for further proceedings to resolve the ambiguity through parol evidence which would be admissible to explain and ascertain the meaning of the language in question. (Interway Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615.) As stated in one of the cases cited by the majority, Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250, “[a]n insurance policy is not to be interpreted in a vacuum; it is issued under given factual circumstances. What at first blush might appear unambiguous in the insurance contract might not be such in the particular factual setting in which the contract issued. Jensen v. New Amsterdam (1965), 65 Ill. App. 2d 407, 415.”
However, instead of vacatur and remandment as suggested above, the majority has resolved the ambiguity, a factual determination, in favor of plaintiffs, and in so doing has improperly predetermined the liability of the defendant without giving it the opportunity to negate allegations in the complaint or to assert possible policy defenses.
Accordingly, I would vacate the finding that the complaint failed to state a cause of action, and remand for further proceedings consistent with the content of this dissent.