Hall v. Country Cas. Ins. Co.

• Decision Date: 24 October 1990
• Docket Number: No. 2-89-1072,2-89-1072
• Citation: 150 Ill.Dec. 110,204 Ill.App.3d 765,562 N.E.2d 640
• Parties: , 150 Ill.Dec. 110 Hiram C. HALL, Plaintiff, v. COUNTRY CASUALTY INSURANCE COMPANY Defendant-Appellee and Cross-Appellant (Ansvar America Insurance Company, Defendant-Appellant and Cross-Appellee; Dennis A. Shaw, Defendant).
• Court: United States Appellate Court of Illinois

Page 640

562 N.E.2d 640

204 Ill.App.3d 765, 150 Ill.Dec. 110

Hiram C. HALL, Plaintiff, v. COUNTRY CASUALTY INSURANCE COMPANY Defendant-Appellee and Cross-Appellant (Ansvar America Insurance Company, Defendant-Appellant and Cross-Appellee Dennis A. Shaw, Defendant).

No. 2-89-1072.

Appellate Court of Illinois Second District.

Oct. 24, 1990.

Martin D. Hoke, Jay S. Judge, Judge & Knight, Ltd., Park Ridge, for Ansvar America Ins. Co.

Tuite, Shaw, Gesmer, Finnegan & Tuite, David J. Brown, Rockford, Stoecker & Stoecker, Wilson D. Burnell, Aurora, Joseph P. Condon, Condon & Zopp, Ltd., Crystal Lake, for Hiram C. Hall, and Country Cas. Ins. Co.

Presiding Justice UNVERZAGT delivered the opinion of the court:

The defendants, Ansvar America Insurance Company (Ansvar) and Country Casualty Insurance Company (Country Casualty), appeal and cross-appeal, respectively, from the summary judgment entered by the circuit court of McHenry County upon the plaintiff's, Hiram Hall's, and Country Casualty's cross-motions for summary judgment in Hall's complaint for declaratory judgment. In light of the pendency of a counterclaim for declaratory judgment filed by Ansvar against defendants Country Casualty, Hall and Shaw, the court modified its summary judgment to include its finding pursuant to Supreme Court Rule 304 that there was no reason to delay enforcement or appeal of the judgment. 107 Ill.2d R. 304(a).

Ansvar insured a 1972 Chevrolet Monte Carlo and a 1976 American Motors Pacer for its named insured, defendant Dennis Shaw. Country Casualty Insurance Company insured a 1977 Oldsmobile station wagon belonging to its named insured, Evelyn Walters. On September 11, 1984, Shaw was driving Walters' Oldsmobile while towing an inoperable 1965 Ford Mustang which he had recently purchased as a repair project for his son. The plaintiff, Hiram Hall, was riding in and steering the Mustang. On a curve in rural McHenry County, the Mustang broke loose from the Oldsmobile, crossed over the center line, and was struck by an oncoming car driven by Robert Nebel. Hiram Hall was injured in this accident. There was no damage to the Oldsmobile.

Hall subsequently filed the instant declaratory judgment action against Ansvar, Country Casualty and Dennis Shaw seeking a determination as to the coverage available for Shaw while driving Walters' 1977 Oldsmobile and towing the 1965 Ford Mustang. Specifically, Hall asked the court to find that Walters' Country Casualty policy provided medical payment coverage and liability coverage for and on behalf of Hall and Shaw, respectively; that Shaw's newly acquired Mustang either fell within Shaw's Ansvar policy's newly acquired vehicle provision or the insured vehicle provision of Walters' Country Casualty policy; and that Shaw's Ansvar policy provided medical payment coverage and liability coverage for and on behalf of Hall and Shaw, respectively.

In answer to Hall's second amended complaint for declaratory judgment, each insurer asked the court to determine that no coverage for the incident was owed under its policy.

After depositions were taken, Hall moved for summary judgment against Country Casualty. Supported by excerpts of the deposition testimony of Walters and Shaw, Hall contended there was no genuine issue of material fact regarding Shaw's status at the time of the accident as a permissive user of the 1977 Oldsmobile. Consequently, he asserted, there was no issue of fact regarding Country Casualty's coverage for Shaw's use of the vehicle.

Country Casualty responded by filing a cross-motion for summary judgment. Although the motion purported to incorporate therein "a summary of the relevant facts supported by excerpts from the discovery depositions of Evelyn Walters and Dennis Shaw and other documents," we have been unable to locate such summary or excerpts in the record. We note Shaw's complete discovery deposition and excerpts of Walters' deposition appear otherwise in the record, however. Country Casualty contended in its motion that Shaw, not Walters, was the owner of the Oldsmobile on the date of the accident; that the towed Mustang was not a "trailer" entitled to coverage under Walters' policy with it; and that Ansvar had insurance coverage on both the Oldsmobile and Mustang as either additional or replacement vehicles in lieu of Shaw's 1976 Pacer which, it is undisputed, was disposed of by Shaw prior to the accident. Country Casualty requested a summary determination of the insurance coverages available for both vehicles and of the "rights, duties, and obligations" of both itself and Ansvar under their respective policies.

After reviewing the parties' memoranda of law and hearing oral arguments, the trial court found that Evelyn Walters did not make a gift of the 1977 Oldsmobile to Dennis Shaw until after the accident and that Shaw was a permitted user of the Oldsmobile at the time of the accident. Consequently, coverage under Walters' Country Casualty auto policy followed the vehicle. The court also found that the 1965 Ford Mustang was not a covered auto under Walters' Country Casualty policy and did not qualify for coverage under that policy as a trailer. Without further explanation, the court concluded, "Ansvar America Insurance Company must provide primary coverage for the damages caused by the Mustang." It ordered that:

"1. Defendant Country Casualty Insurance Company provide coverage for those damages occasioned by the involvement of the 1977 Oldsmobile station wagon in the accident on September 11, 1984; and

2. Defendant Ansvar America Insurance Company provide the coverage contained in its policy for those damages occasioned by the involvement of the 1965 Ford Mustang in the accident on September 11, 1984."

Ansvar contends the court erred in determining that Shaw's 1965 Ford Mustang was a covered automobile under the terms of its "Advantage Auto Policy" because the Mustang was neither a "replacement" vehicle entitled to automatic coverage, nor was it entitled to coverage as an "additional" vehicle where Shaw did not request Ansvar to insure it within 30 days of its acquisition. Country Casualty responds that the Mustang was automatically covered under the "replacement" or "additional" covered auto provisions of Shaw's Ansvar policy and, in its cross-appeal, contends the court erred in its determination that Evelyn Walters did not make a gift of the 1977 Oldsmobile station wagon to Dennis Shaw prior to the date of the accident.

At the outset, we consider Ansvar's motion, taken with the case, to strike those portions of Country Casualty's brief which support affirmance of the court's order that Ansvar must provide coverage under Shaw's policy for those damages occasioned by the involvement of the 1965 Ford Mustang. Ansvar contends Country Casualty is not a proper appellee in its appeal since Country Casualty has no interest which is adverse to a setting aside or reversal on appeal of the court's judgment against Ansvar with respect to the Mustang. See Hoffman v. Nustra (1986), 143 Ill.App.3d 259, 264, 97 Ill.Dec. 322, 492 N.E.2d 981 (defining "appellee").

Country Casualty filed its objections to Ansvar's motion to strike, arguing it does have an interest adverse to a setting aside or reversal of the court's judgment as to the Mustang inasmuch as both insurers' policies contain similar "Other Insurance" provisions, to wit:

"OTHER INSURANCE

If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance."

In light of these reciprocal "other insurance" provisions, Country Casualty argues its right to contribution from Ansvar in the event it is required to pay for any injuries or damages incurred by the plaintiff is " 'adverse to setting aside, or reversing the judgment.' " Country Casualty cites no authority in support of its contention concerning its right to contribution under the "Other Insurance" provisions.

This court requested Ansvar's reply to Country Casualty's objections pursuant to Supreme Court Rule 361. (107 Ill.2d R. 361(b)(2).) Therein, Ansvar argues Country Casualty's objections should be rejected inasmuch as they are premised improperly on the fact the Mustang was a covered automobile under Shaw's Ansvar policy which "fact" is the ultimate issue presented in Ansvar's appeal. Ansvar contends the only parties with interests adverse to a setting aside of the court's judgment are its insured, Dennis Shaw, and the plaintiff, Hiram Hall. Neither of those parties has filed an appellee's brief. In contrast, Country Casualty has no direct interest in Ansvar's appeal since the court's judgment against it was only "for those damages occasioned by the involvement of the 1977 Oldsmobile station wagon." The damages, if any, occasioned by the involvement of the Oldsmobile have yet to be determined. Whatever the result of such determination, Ansvar argues, a determination by this court that coverage for the Mustang does not exist under the Ansvar policy is not tantamount to a finding that coverage for that automobile must be provided under the Country Casualty policy.

As to Country Casualty's "right to contribution," Ansvar asserts such a right under the Illinois Contribution Act (Ill.Rev.Stat.1987, ch. 70, par. 301 et seq.) exists only as to Dennis Shaw; that is, Country Casualty "stands in the shoes of its insured, Evelyn Walters, and seeks to recover contribution from Shaw for any damages it might have to pay because of the involvement of Shaw's automobile (the 1965 Mustang)." Ansvar argues a reversal of the court's judgment regarding the Mustang would not affect Country Casualty's right to contribution from Shaw. Rather, it would simply eliminate one source of funds Shaw could turn to in the event a contribution judgment...