Simioni by Cagney v. Continental Ins. Companies

• Decision Date: 16 August 1985
• Docket Number: No. 84-1890,84-1890
• Parties: , 90 Ill.Dec. 615 Kristine SIMIONI, a minor, by her mother and next friend, Charlene Simioni CAGNEY, Plaintiff-Appellant, v. The CONTINENTAL INSURANCE COMPANIES, individually, and doing business as National Ben Franklin Insurance Company, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 434

482 N.E.2d 434

135 Ill.App.3d 916, 90 Ill.Dec. 615

Kristine SIMIONI, a minor, by her mother and next friend, Charlene Simioni CAGNEY, Plaintiff-Appellant, v. The CONTINENTAL INSURANCE COMPANIES, individually, and doing

business as National Ben Franklin Insurance

Company, Defendant-Appellee.

No. 84-1890.

Appellate Court of Illinois,

First District, Fifth Division.

Aug. 16, 1985.

[90 Ill.Dec. 616] Anthony J. Basile of counsel; Heller & Morris and Assoc., Ltd., Chicago, for plaintiff-appellant.

James T. Ferrini, Margaret J. Orbon, of counsel; Clausen Miller Gorman Caffrey & Witous, P.C., Chicago, for defendant-appellee.

MEJDA, Presiding Justice:

Plaintiff, Kristine Simioni ("plaintiff"), appeals from the summary judgment entered in favor of defendant, Continental Insurance Companies, individually and doing business as National Ben Franklin Insurance Company ("National Ben"). ¹ In August of 1980, plaintiff was injured in an automobile accident involving Martin Garofalo ("Martin"). At the time of the accident, Martin was driving his own car, insured under his name with National Ben under a policy issued to him as the named insured. Martin's father, Dominick P. Garofalo ("Dominick"), concurrently carried insurance for his own car with National Ben under a separate policy issued to Dominick as the named insured. Martin's car was not listed as an insured vehicle under Dominick's policy.

Following the August 1980 accident, plaintiff brought suit against Martin for injuries received in the accident. In 1983, plaintiff initiated the present action against National Ben for declaratory judgment that Dominick's policy with National Ben affords plaintiff additional coverage for Martin's liabilities. Plaintiff asserted that Martin, as a member of Dominick's household, was an insured party under Dominick's policy, and that Martin's car was insured under the "non-owned automobile" clause of the same policy. National Ben subsequently moved for summary judgment, alleging that Martin was not insured under Dominick's policy at the time of the accident since he was driving a car which was neither his father Dominick's nor a "non-owned" vehicle under the terms of Dominick's policy. The court granted National Ben's motion, and plaintiff moved for a rehearing. Following the rehearing, summary judgment was again granted in favor of National Ben. This appeal followed.

OPINION

The central issue before us is whether the policy insuring Dominick's car provided coverage for the car owned and operated by his son Martin at the time of the accident. Dominick's policy provides coverage for bodily injuries and property damage which become the legal obligation of insured persons. Persons insured under the policy are defined as follows:

"(a) with respect to the owned automobile, (1) the named insured and any resident of the same household, * * * " "(b) with respect to a non-owned automobile, (1) the named insured, (2) any relative, * * * "

As stated, the policy covers Dominick or any person residing in the same household while driving the "owned automobile," Dominick's car. Since Martin resided in Dominick's house at the time of the accident, he would have been covered under Dominick's policy had he been driving Dominick's car at the time.

The policy further states that coverage is provided for Dominick or "any relative" when driving a "non-owned automobile." The relationship between Dominick and Martin is undisputed. Thus, the question before us is whether Martin's car qualifies as a "non-owned automobile" under Dominick's policy.

Dominick's policy defines a "non-owned automobile" as "an automobile or trailer not owned by or furnished for regular use of either the named insured or any relative, other than a temporary substitute automobile." The car driven by Martin at the time of the accident was both owned by him and insured in his name. Thus, Martin's car is clearly outside the scope of the "non-owned automobile" provision in...