Martin v. Rivera

• Decision Date: 23 October 1989
• Docket Number: No. 56A03-8902-CV-31,56A03-8902-CV-31
• Citation: 545 N.E.2d 32
• Parties: Ollie MARTIN, Jr., Appellant (Plaintiff Below), v. Anthony J. RIVERA and American Ambassador Casualty Company, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 32

545 N.E.2d 32

Ollie MARTIN, Jr., Appellant (Plaintiff Below), v. Anthony J. RIVERA and American Ambassador Casualty Company,

Appellees (Defendants Below).

No. 56A03-8902-CV-31.

Court of Appeals of Indiana,

Third District.

Oct. 23, 1989.

Steven A. Kurowski, Merrillville, for appellant.

Anthony J. Rivera, Gary, pro se.

Robert F. Parker, Beckman, Kelly and Smith, Hammond, for appellee American Ambassador Cas. Co.

HOFFMAN, Judge.

Plaintiff-appellant Ollie Martin, Jr. appeals the trial court's decision granting American Ambassador Casualty Company's motion for summary judgment.

The facts relevant to this appeal disclose that Richard Robinson contracted with American Ambassador for automobile liability insurance covering a 1985 Dodge van.

While Robinson lived in Illinois, the insured van was garaged and maintained in Gary, Indiana by an acquaintance of Robinson, Willy Barbare. Robinson was a maintenance supervisor at Glen Oaks Nursing Home in Northbrook, Illinois. Although Barbare was not an employee at Glen Oaks, he would drive employees of Glen Oaks from Gary, Indiana to Northbrook and back home everyday. He charged $5.00 per round trip, which was paid approximately every two weeks. The number of passengers would vary from four to five on a trip to as many as approximately 15 on a trip. Occasionally more than one round trip would be made. On the days when Barbare was unable to drive, he would obtain another driver. Defendant-appellee Rivera was the driver on the day of the accident.

American Ambassador filed for summary judgment relying on the exclusion in Robinson's policy which reads in relevant part:

"This policy does not apply: ...

2. Under [Bodily Injury Liability and Medical Coverage],

(a) ... (2) to bodily injury to any passenger or passengers carried for hire."

The trial court granted American Ambassador's motion for summary judgment.

Appellant raises one issue for review: whether the trial court erred in granting summary judgment in favor of American Ambassador.

When reviewing the grant of a motion for summary judgment, this Court will stand in the shoes of the trial court and consider the same matters as does the trial court. Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154, 163. Summary judgment will be affirmed if sustainable on any theory or basis found in the record. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 56.

Appellant claims that American Ambassador's exclusionary clause is ambiguous due to the lack of a definition covering passengers for hire within the policy. Appellant also claims that the ambiguity arises from the fact that the Illinois legislature has enacted statutes requiring vehicles carrying passengers for hire to maintain proof of financial responsibility and specifically excepts from those requirements vehicles used in a "ridesharing arrangement." However, Illinois statutory law regarding proof of financial responsibility and American Ambassador's exclusionary clause in its automobile insurance contract with Robinson are mutually exclusive situations. This exclusionary clause in the insurance policy has been held to be plain, unambiguous and reasonable. Laliberte v. Public Service Mutual Casualty Co. (1943) 69 R.I. 431, 34 A.2d 670; Orcutt v. Erie Indemnity Co. (1934) 114 Pa.Super. 493, 174 A. 625.

Illinois case law is scarce on interpretation of this exclusionary clause. In 22 Illinois Law and Practice Insurance Sec. 391 (1956), it reads:

"Carriage of passengers for consideration.

The word 'used,' as employed in an automobile liability policy excepting from coverage automobiles used to carry passengers for a consideration, actual or implied, has been held to mean a continued or business use."

The wording of this exclusionary phrase tends to differ slightly among insurance policies (i.e. carrying for consideration, for hire, for fee, for charge, etc.) but is construed by courts for the same exclusionary purpose.

In Maringer v. Bankers Indemnity Ins. Co. (1973) 288 Ill.App. 335, 6 N.E.2d 307, the court held the exclusionary phrase, which forbid carrying passengers for consideration, not to be applicable to the fact situation. The court found that the owner of a car had allowed his car to be used to drive some personal friends and customers to their homes. No charge was made by the...