Allstate Ins. Co. v. Skawinski

• Decision Date: 21 February 1963
• Docket Number: Gen. No. 48738
• Citation: 40 Ill.App.2d 136,189 N.E.2d 365
• Parties: ALLSTATE INSURANCE COMPANY, a corporation, Plaintiff-Appellant, v. Paul SKAWINSKI and Roland Gordon, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 365

189 N.E.2d 365

40 Ill.App.2d 136

ALLSTATE INSURANCE COMPANY, a corporation, Plaintiff-Appellant, v. Paul SKAWINSKI and Roland Gordon, Defendants-Appellees.

Gen. No. 48738.

Appellate Court of Illinois, First District, Second Division.

Feb. 21, 1963.

Rehearing Denied March 26, 1963.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago, John M. Moelmann and D. Kendall Griffith, Chicago, of counsel, for appellant.

Burton H. Young and Lawrence P. Hickey, Chicago, for appellees.

BRYANT, Presiding Justice.

This is a suit for a declaratory judgment brought by the Allstate Insurance Company to determine whether or not it is liable on a policy of insurance issued to the defendant, Paul Skawinski, for injuries sustained by one Roland Gordon as a direct result of the alleged negligence of the insured, Paul Skawinski.

The policy involved was an automobile insurance policy covering Skawinski's 1955 Plymouth automobile. So far as is pertinent here, Section 1, Part 1 of the policy provided:

'Allstate will pay for an insured all damages which the insured shall be legally obligated to pay because of:

'A. bodily injury sustained by any person, and

'B. injury to or destruction of property, arising out of the ownership, maintenance or use, including loading and unloading, of the owned automobile or a non-owned automobile.'

Definition 2(e) of words used in Part 1 provides that: "non-owned automobile' means an automobile, including a trailer, not owned by the named insured or any relative, other than a temporary substitute automobile.'

Definition 2(d) of words used in Part 1 provides that "temporary substitute automobile' means any automobile, including a trailer, while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.'

The accident occurred in the following manner. On August 31, 1959, Skawinski, who owned an automobile repair and maintenance business, went to the place of business of Roland Gordon for the purpose of repairing the latter's automobile. In the past, Skawinski had frequently been retained to repair the trucks used in Gordon's produce business. After driving Gordon's car around the block with Gordon sitting beside him, Skawinski parked the car, with the motor running, facing Gordon's building. He then opened the hood and proceeded to adjust the carburetor. While he was so engaged, Gordon got out of the car and began to walk between the car and the building. When he was directly in front of the car, Skawinski raced the engine and the car leapt forward, crushing Gordon between the car and the building.

Subsequently, Gordon brought suit against Skawinski and the latter tendered his defense to the Allstate Insurance Company, which refused to maintain same. It is Allstate's contention that it is not liable for the accident in question because of Exclusion 3, set forth in Section 1, Part 1 of the policy in question.

Exclusion 3 provides:

'This Part 1 does not apply to:

'3. a non-owned automobile while used (a) in an automobile business by the insured, or (b) in any other business or occupation of the insured. * * *'

Definition 3(c) of words used in Part 1 provides that: "automobile business' means the business of selling, repairing, servicing, storing, or parking of automobiles.'

The trial court held that the exclusion cited by Allstate was not applicable to the case at bar and ruled in favor of the defendant. It is from this judgment that the plaintiff appeals.

In support of his proposition that Exclusion 3 of Section 1, Part 1 is applicable to the case at bar, plaintiff has gone to great lengths to establish the alleged fact that Gordon's automobile was being used by Skawinski in the course of his automobile business. In support of this proposition he has cited eight cases dealing with the breadth and the scope of the word 'use'. Red Ball Motor Freight v. Employers Mut. Liability Ins. Co., 5 Cir. 189 F.2d 374; Federal Insurance Co. v. Michigan Mut. Liability Co., 3 Cir., 277 F.2d 442; Oklahoma Farm Bureau Mutual Ins. Co. v. Mouse, Okl., 268 P.2d 886; Woodrich Construction Co. v. Indemnity Ins. Co. of N. A., 252 Minn. 86, 89 N.W.2d 412; Panhandle Steel Products Co. v. Fidelity Union Cas. Co., Tex.Civ.App., 23 S.W.2d 799; Christian v. Royal Ins. Co., 185 Minn. 180, 240 N.W. 365; Merchants Co. v. Hartford Accident & Indemnity Co., 187 Miss. 301, 188 So. 571; Wiebel v. American Farmers Mut. Ins. Co., Del.Super., 140 A.2d 712. In each of these cases an injury was sustained while the vehicle in question was in use, although not actually being operated by the defendant or the defendants' servants. Thus, it was held that injuries resulting from pushing or pulling a vehicle, fueling, loading or unloading a vehicle, rearranging a load already on a vehicle, leaving poles in a precarious position which were used to extricate a vehicle from a ditch, replacing a wheel and directing the movements of a vehicle have all been the result of the use of a vehicle. However, in each of those cases the vehicle at those times was held to have been in the use of the owner or of some other person who had engaged the use of the vehicle in the course of his employment. We fail to see how this aids the plaintiff's case. If anything, these cases merely demonstrate that while Skawinski was repairing Gordon's automobile, said automobile was being used by Gordon.

Exclusion 3, cited above, precludes coverage on behalf of Skawinski while using a non-owned automobile in an automobile business. If the accident had occurred while Skawinski was employing the automobile to obtain parts, or for delivery purposes or as a 'courtesy car' for the benefit of his customers, then he would indeed have been using this non-owned automobile in his business. However, this automobile was not being utilized or employed as an incident of his service or as a means, tool or adjunct for or on behalf of his auto repair business. This automobile, while being repaired, was the object of the defendant's business and not an incident or a tool being used therein.

It is our opinion that Exclusion 3 of Part 1, Section 1 is not applicable to the case at bar and that the defendant should be indemnified pursuant to the liability protection afforded in Section 1, Part 1, to wit: 'Allstate will pay for an insured all damages * * * because of: * * * bodily injury * * * arising out of the * * * maintenance * * * of a non-owned automobile.'

When the accident occurred, defendant was clearly engaged in the maintenance of a non-owned automobile and we are not persuaded that while so engaged he was using the automobile in the course of his business so as to exempt him from coverage pursuant to Exclusion 3.

In construing this contract, we are mindful of the long line of Illinois cases to the effect that insurance policies are to be construed strictly against the insurer and liberally in favor of the insured. Freeport Motor Casualty Co. v. Tharp, 338 Ill.App. 593, 88 N.E.2d 449; Brookson Distillers, Inc. v. United States Casualty Co., 315 Ill.App. 235, 42 N.E.2d 870; Barr for Use of Senft v. Country Mutual Cas. Co., 345 Ill.App. 199, 102 N.E.2d 656.

Even more germane to the issue in the case at bar is the oft cited proposition that 'ambiguous or equivocal expressions whereby the insurer seeks to limit its liability will be construed most strongly against the insurer since the insurer is the party which prepares the contract.' Mosby v. Mutual Life Ins. Co. of N. Y., 405 Ill. 599, 92 N.E.2d 103, 18 A.L.R.2d 1054; Pioneer Life Ins. Co. v. Alliance Life Ins. Co., 374 Ill. 576, 30 N.E.2d 66; Canadian Radium Corp. v. Indemnity Insurance Co., 411 Ill. 325, 104 N.E.2d 250; Lenkutis v. N. Y. Life Ins. Co., 374 Ill. 136, 28 N.E.2d 86; Wolf v. American Casualty Co., 2 Ill.App.2d 124, 118 N.E.2d 777; Craig v. Central Nat. Life Ins. Co., 16 Ill.App.2d 344, 148 N.E.2d 31. As stated by Mr. Justice Schwartz of this court in Wolf v. American Casualty Co., 2 Ill.App.2d 124, 126, 118 N.E.2d 777, 778: 'This is a sound rule. It recognizes the realities of the transaction, that is, that the provisions of an insurance policy are not the product of negotiations between insurer and insured but are written by the insurance company and out of necessity, perhaps, submitted for acceptance without change.'

For the above cited reasons, we find that the trial court properly construed the contract in favor of the defendant. The judgment is affirmed.

Affirmed.

FRIEND, J., concurs.

BURKE, Justice (dissenting).

The defendants ignore that...