Allstate Ins. Co. v. Panzica

• Decision Date: 16 November 1987
• Docket Number: Nos. 3-87-0059,3-87-0091,s. 3-87-0059
• Citation: 515 N.E.2d 1299,162 Ill.App.3d 589,114 Ill.Dec. 28
• Parties: , 114 Ill.Dec. 28 ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. Ronald PANZICA, Martha A. Panzica, Mateo Panzica and Aldo Nicolazzi, as Special Administrator of the Estate of Dino Nicolazzi, Deceased, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1299

515 N.E.2d 1299

162 Ill.App.3d 589, 114 Ill.Dec. 28

ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. Ronald PANZICA, Martha A. Panzica, Mateo Panzica and Aldo Nicolazzi, as Special Administrator of the Estate of Dino Nicolazzi, Deceased Defendants-Appellants.

Nos. 3-87-0059, 3-87-0091.

Appellate Court of Illinois Third District.

Nov. 16, 1987.

Joseph C. Polito, David R. Kozlowski, Kozlowski, Polito & Feeley, Joliet, for Aldo Nicolazzi.

Louis E. Siciliano, Olympia Fields, for Ronald Panzica, Martha Panzica and Mateo Panzica.

Kathryn A. Spalding, argued, Peter C. Morse, Stephen R. Swofford, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Allstate Ins. Co.

Justice WOMBACHER delivered the opinion of the court:

In April 1984 Dino Nicolazzi, 13 years old, was a passenger on a dirt bike driven by Mateo Panzica, also 13 years old. The bike was owned by Mateo's brother, Paul Panzica. Nicolazzi was killed when the bike collided with a vehicle driven by Raul Gonzales. The accident occurred on a public roadway, four miles from the Panzica's property.

Aldo Nicolazzi, Nino Nicolazzi's representative, brought suit against Panzica and his parents, Ronald and Martha. The complaint sought recovery against Mateo Panzica for his negligent operation of the bike; it also sought recovery against Ronald and Martha Panzica based upon negligent entrustment of the dirt bike to their son and violation of the Parental Responsibility Act. Ill.Rev.Stat.1985, ch. 70, par. 53 et seq.

Allstate Insurance Company filed a declaratory judgment action against Ronald, Martha and Mateo Panzica and Aldo Nicolazzi. The complaint sought a judicial declaration that the homeowner's and automobile insurance policies issued to Ronald and Martha Panzica did not provide liability coverage for the accident in question. Allstate also filed a motion for summary judgment seeking a declaration that neither policy covered the accident at issue.

Aldo Nicolazzi conceded that the automobile policy did not provide coverage for the accident. He filed a response to the motion for summary judgment supported by an affidavit of Susan Roach. Roach, an English professor, opined that the homeowner's insurance policy was ambiguous and required construction.

The trial court struck Roach's affidavit and granted Allstate's motion for summary judgment.

Nicolazzi appeals the trial court's decision to strike the affidavit of Susan Roach and the grant of summary judgment in Allstate's favor.

The Allstate homeowner's policy at issue excludes coverage for bodily injury arising under the ownership, maintenance or use of any motorized land vehicle. The exclusion provides:

"Exclusions--Losses We Do Not Cover

(5) We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any motorized land vehicle or trailer. However, this exclusion does not apply to:

(a) a motorized land vehicle in dead storage or used exclusively on the residence premises;

(b) a motorized land vehicle not owned by an insured person when used off the residence premises and which is designed principally for recreational use off public roads; "

Thus, the plain language of the policy provides liability coverage for an owned motorized land vehicle involved in an accident occurring on the insured premises. It does not provide liability coverage if the motorized vehicle is used off the insured premises. The accident at issue occurred at the intersection of two public streets miles away from the insured premises. Clearly, no coverage is provided.

Nicolazzi also contends that since the bike was not owned by Mr. or Mrs. Panzica, but rather by their son, Paul, the exclusion exception pertaining to uninsured persons applies. This assertion is without merit inasmuch as the policy defines insured persons to be the named insured under the policy and "if a resident of your household, any relative." Quite obviously, Paul Panzica, as the insureds' son and household member, is covered by the homeowner's policy.

Additionally, Professor Roach's affidavit was properly struck. Affidavits not supported by allegations of fact are not sufficient to defeat a motion for summary judgment. (Kosten v. St. Anne's Hospital (1985), 132 Ill.App.3d 1073, 88 Ill.Dec. 149, 478 N.E.2d 464.) Furthermore, the application of contract language is a question of law and not one of fact. (Joseph v. Lake Michigan Mortgage Company (1982), 106 Ill.App.3d 988, 62 Ill.Dec. 637, 436 N.E.2d 663) A motion for summary judgment is the appropriate means to have the terms of a contract construed. Bates v. Select Lake City Theater Operating Co., Inc. (1979), 78 Ill.App.3d 153, 33 Ill.Dec. 742, 397 N.E.2d 75.

In interpreting a contract of insurance the general rule is that where the provisions of the policy are clear and unambiguous, it is the duty of the court to enforce them according to their plain meaning. (Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill.2d 365, 49 Ill.Dec. 724, 418 N.E.2d 744.) A trial court's grant of summary judgment will not be reversed absent a showing of abuse of discretion such that plaintiff's right to fundamental justice is violated. (Fearon v. Mobil Joliet Ref. Corp. (1984), 131 Ill.App.3d 1, 86 Ill.Dec. 335, 475 N.E.2d 549.) The insurance policy in the instant case is clear and unambiguous. Its terms specifically exclude coverage for the accident at issue. The trial court properly struck the affidavit and granted summary judgment for Allstate.

Next, we consider whether the court should have dismissed the negligent entrustment and Parental Responsibility counts upon the motion for summary judgment.

The defendant contends that the case of United States Fidelity and Guaranty Company v. State Farm Mutual Automobile Insurance Company (1982), 107 Ill.App.3d 190, 63 Ill.Dec. 14, 437 N.E.2d 663, supports the...