(dissenting) — I dissent. The only question before us is whether or not uninsured motorist coverage should be extended to the insured plaintiffs who were injured by a tort-feasor whose own liability coverage lapsed as a result of his insurance carrier’s insolvency after the date of the accident.
Whether or not plaintiffs are entitled to uninsured motorist coverage must be determined solely from their contract of insurance with the defendant. That contract provides that defendant will pay to insured plaintiffs
all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile . . .
An “uninsured automobile” is then defined in the contract as
an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability *586bond or insurance policy applicable at the time of the accident . . .
I agree with the majority when they say that in considering the insurance contract before them, they must interpret it to give effect to the intent of the parties and that such intention normally is ascertained largely from the language employed by the parties. That is exactly what I would do.
The majority here considers the policy definition of an “uninsured automobile”, finds it to be an 'ambiguous term, and then invokes the rule that insurance policy language reasonably susceptible to more than one interpretation shall be interpreted in a manner most beneficial to the insured. I do not argue the validity of that rule. I do, however, say that it has no application to the case at hand.
The languáge of the policy is clear and free from ambiguity. It defines an uninsured automobile as one upon which there is no bodily injury liability insurance applicable at the time of the accident. When the accident which gave rise to this lawsuit occurred, the tort-feasor carried liability insurance with the Midwest Mutual Casualty Company, a then solvent, operating company. No subsequent event, be it insolvency, bankruptcy or otherwise, could alter the fact that the tort-feasor carried liability insurance at the critical time, i.e., at the time of the accident. That being so, the uninsured motorist provision in his own insurance policy was not applicable to the accident.
My examination of decisions from other jurisdictions fails to disclose a single holding that agrees with the decision reached by the majority in this case. For decisions in harmony with this dissent, see Dreher v. The Aetna Cas. & Sur. Co., 83 Ill. App. 2d 141, 226 N.E.2d 287 (1967); Michigan Mut. Liab. Co. v. Pokerwinski, 8 Mich. App. 475, 154 N.W.2d 609 (1967); Apotas v. Allstate Ins. Co., 246 A.2d 923 (Del. 1968).
For the reasons stated, I would affirm.
Neill, J., and Donworth, J. Pro Tern., concur with McGovern, J.
April 6,1970. Petition for rehearing denied.