Desaga v. West Bend Mut. Ins. Co.

Decision Date15 June 2009
Docket NumberNo. 3-08-0645.,3-08-0645.
Citation910 N.E.2d 159,391 Ill. App. 3d 1062
PartiesDebbie DESAGA, Individually and as Administrator of the Estate of Felix DeSaga, Deceased, Plaintiff and Counterdefendant-Appellant, v. WEST BEND MUTUAL INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee.
CourtUnited States Appellate Court of Illinois

Jerry A. Esrig (argued), Robert J. Zaideman, Zaideman & Esrig, P.C., Chicago, IL, for Appellant.

Francis A. Spina (argued), James B. Walton, Cremer, Shaughnessy, Spina, Jansen, & Siegert, LLC, Chicago, IL, for Appellee.

Justice CARTER delivered the opinion of the court:

Decedent, Felix De Saga, was hit by a car and killed after he went into the roadway to remove some pieces of angle iron that had fallen off of his truck. Plaintiff, Debbie DeSaga, decedent's widow and the administrator of his estate, sought insurance benefits related to the accident under the underinsured motorist (UIM) endorsement of the insurance policy issued to decedent's employer by defendant, West Bend Mutual Insurance Company. Defendant denied coverage claiming that decedent was not "occupying" the covered vehicle at the time of the accident as required under the policy to trigger UIM coverage. Plaintiff brought the instant action seeking a declaratory judgment that decedent was entitled to UIM coverage at the time of the accident. Defendant counterclaimed for a declaratory judgment to the contrary. Both sides moved for summary judgment. The trial court granted summary judgment for defendant, finding that decedent was not entitled to UIM coverage under the policy because he was not "occupying" the covered vehicle at the time of the accident. Plaintiff appeals. We reverse the trial court's grant of summary judgment in favor of defendant, enter summary judgment in favor of plaintiff, and remand this case for further proceedings in the trial court.

FACTS

The accident in question occurred on October 6, 2006, at about 6:30 a.m. at the intersection of Wilmington-Peotone Road and Old Chicago Road in Will County, Illinois. Wilmington-Peotone Road runs east and west and has one lane in each direction at that location. Old Chicago Road runs north and south and also has one lane in each direction at that location.

The facts leading up to the accident are not in dispute. At about 6 a.m., decedent was working and was driving a truck owned by his employer eastbound on Wilmington-Peotone Road, carrying a load of angle iron. When decedent turned left onto Old Chicago Road, some of the pieces of angle iron fell from the back of his truck onto the roadway, blocking the intersection to some extent. Each piece of angle iron was about 10 to 20 feet long.

Decedent completed his turn, pulled his truck over onto the east shoulder of Old Chicago Road north of the intersection, and got out of his truck to clear the angle iron off of the roadway. He left his truck running with the flashing emergency lights on. Steven Dreiling was traveling behind decedent and stopped to help. Decedent and Dreiling moved a couple of the pieces of angle iron to the side of the road and then went back out into the roadway to clear off another piece that was located in the northeast quadrant of the intersection, the portion of the intersection that was the closest to where decedent's truck was parked. As they were bending down to pick up the piece of angle iron, an underinsured motorist driving westbound on Wilmington-Peotone Road drove through the intersection and struck both decedent and Dreiling with his vehicle. Decedent was killed. Dreiling was injured. At the time that he was hit by the underinsured motorist, decedent was standing on the roadway in the northeast quadrant of the intersection near the yellow center line of Wilmington-Peotone Road. The record does not indicate exactly how far decedent was from his own work truck when he was hit or the exact amount of time that passed from when decedent got out of his truck until he was hit.

Decedent's employer had a business automobile insurance policy (the policy) that had been issued by defendant and was in effect at the time of the accident. The truck that decedent was using that morning was a covered vehicle under the policy. In the liability-coverage section of the policy, the term "insured" was defined as the named insured for any covered vehicle, anyone using a covered vehicle with the permission of the named insured (with some exceptions not relevant to this appeal), and anyone liable for the conduct of an "insured" (as described in the previous two categories). The policy contained an Illinois UIM endorsement, which provided a definition of the term "insured" that was more narrow than the definition provided in the liability-coverage section of the policy. For the purpose of UIM coverage, the term "insured" was defined as anyone "occupying" a covered vehicle and anyone with regard to damages he or she was entitled to recover because of bodily injury sustained by another "insured." "Occupying" was defined in the endorsement as "in, upon, getting in, on, out or off."

Plaintiff filed with defendant a request for UIM benefits under the policy. Defendant denied coverage, claiming that decedent was not "occupying" the covered vehicle at the time of accident as required under the policy to trigger UIM coverage.

After coverage was denied, plaintiff brought the instant lawsuit seeking a declaratory judgment that decedent was entitled to coverage under the UIM portion of the policy. Defendant filed a counterclaim for declaratory judgment to the contrary. The only issue before the trial court was whether decedent was "occupying" the covered vehicle at the time of the injury. Both sides filed motions for summary judgment on that issue. The trial court granted summary judgment for defendant finding that decedent was not "occupying" the covered vehicle when the accident occurred. Plaintiff brought the instant appeal, challenging the trial court's grant of summary judgment for defendant. Just prior to the date of oral argument in this case, plaintiff filed a motion to add authority, citing the First District Appellate Court case of Schultz v. Illinois Farmers Insurance Co., 387 Ill.App.3d 622, 327 Ill. Dec. 224, 901 N.E.2d 957 (2009). The decision in Schultz had not been issued until after the briefs on appeal in the instant case had been filed. In her motion to add authority, plaintiff sought to add a new assertion in support of her argument that summary judgment should not have been granted in defendant's favor—that defendant could not define "insured" more narrowly in the UIM endorsement than it did in the liability-coverage section of the policy. We allowed the motion to add authority and gave the parties additional time to file supplemental briefs on the new assertion raised by plaintiff in the motion to add authority.

ANALYSIS

As noted above, plaintiff argues on appeal that the trial court erred in granting summary judgment for defendant. In support of that argument, plaintiff asserts first that summary judgment should not have been granted for defendant, and should have instead been granted for plaintiff, because Illinois law prohibits an insurer from defining the term "insured" more narrowly for UIM coverage than it does for liability coverage (raised by plaintiff in the motion to add authority). Thus, plaintiff contends that since decedent is an "insured" as defined in the liability-coverage section of the policy, Illinois law requires that he be deemed to be an "insured" for UIM coverage under the policy as well.

Defendant argues that the trial court's grant of summary judgment is proper and should be affirmed. Defendant contends that although Illinois law prohibits an insurer from defining the term "insured" differently for uninsured motorist (UM) coverage than it does for UIM coverage, it does not prohibit an insurer from defining the term "insured" differently for liability coverage than it does for UM or UIM coverage. Defendant contends further that such a difference is allowed under the law because liability coverage, which applies when the insured is sued for injuries caused to a third party (third-party coverage), has a different and broader purpose than UM or UIM coverage, which applies when the insured is injured and is trying to recover for those injuries under the policy (first-party coverage).

The purpose of summary judgment is not to try a question of fact, but to determine if one exists. Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 42-43, 284 Ill.Dec. 302, 809 N.E.2d 1248, 1256 (2004). Summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is clearly entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006); Adams, 211 Ill.2d at 43, 284 Ill.Dec. 302, 809 N.E.2d at 1256. In appeals from summary judgment rulings, the standard of review is de novo. Adams, 211 Ill.2d at 43, 284 Ill.Dec. 302, 809 N.E.2d at 1256.

The interpretation of an insurance policy is a question of law that may properly be decided on a motion for summary judgment. Schultz, 387 Ill.App.3d at 625, 327 Ill.Dec. 224, 901 N.E.2d at 960. When interpreting an insurance policy or any other contract, the primary goal is to give effect to the intent of the parties as expressed in the agreement. Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill.2d 407, 416, 307 Ill. Dec. 626, 860 N.E.2d 280, 286 (2006). If the terms of an insurance policy are clear and unambiguous, they must be given their plain and ordinary meaning and enforced as written, unless to do so would violate public policy. Nicor, Inc., 223 Ill.2d at 416-17, 307 Ill.Dec. 626, 860 N.E.2d at 286; Abrell v. Employers Insurance of Wausau, 343 Ill.App.3d 260, 262 277 Ill.Dec. 557, 796 N.E.2d 643, 645 (2003). ...

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