State Farm Mut. Auto. Ins. Co. v. Morris

• Decision Date: 04 April 1961
• Docket Number: Gen. No. 11448
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. W. Terrill MORRIS; Juanita D. Morris; John Harold Swanson; Nancy Paulson, a minor; Valery Stratton, a minor; Mr. Samuel E. Stratton, Jr.; Mrs. Lorain Stratton; Mrs. Georgia Paulson; Mr. Earl B. Paulson; Public Service Company, division of Commonwealth Edison Company, a corporation, Appellees.
• Court: United States Appellate Court of Illinois

Page 590

173 N.E.2d 590

29 Ill.App.2d 451

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. W. Terrill MORRIS; Juanita D. Morris; John Harold Swanson;

Nancy Paulson, a minor; Valery Stratton, a minor; Mr. Samuel

E. Stratton, Jr.; Mrs. Lorain Stratton; Mrs. Georgia

Paulson; Mr. Earl B. Paulson; Public Service Company,

division of Commonwealth Edison Company, a corporation, Appellees.

Gen. No. 11448.

Appellate Court of Illinois, Second District, Second Division.

April 4, 1961.

Sears, Streit & Tyler, Aurora, for appellant.

Thomas P. O'Malley and Leon J. Weiss, Aurora, Louis E. Neuendorf, Sandwich, for appellees.

CROW, Presiding Justice.

This is a complaint for declaratory judgment by the plaintiff-appellant State Farm Mutual Automobile Insurance Company against the defendants-Appellees W. Terrill Morris, Juanita D. Morris, John H. Swanson, Nancy Paulson, a minor, Valery Stratton, a minor, Samuel E. Stratton, Lorain Stratton, Earl B. Paulson, Georgia Paulson, and Public Service Company. So far as material now, the complaint alleges the plaintiff issued to W. Terrill Morris its automobile liability insurance policies on his Plymouth and Chevrolet automobiles and its comprehensive and deductible collision insurance policy on his Chevrolet, copies thereof being attached as exhibits A, B, and C; the policies were in force August 22, 1959; Juanita Morris is a daughter of W. Terrill Morris and a member of his household; on August 22, 1959 Juanita Morris while driving a Ford Thunderbird automobile owned by John H. Swanson collided with a light pole in Sandwich; Nancy Paulson, a minor, was a passenger in the auto driven by Juanita Morris; Nancy Paulson allegedly sustained injuries, and the Thunderbird was damaged; the light pole owned by Public Service Company was broken and toppled over, carrying with it and breaking electric wires; the wires struck Samuel E. Stratton and Valery Stratton, a minor, allegedly causing injuries; all of the defendants except W. Terrill Morris and Juanita D. Morris claim to have causes of action against Juanita D. Morris for injuries, or for benefits under Coverage C of the two liability policies, or for loss of services of their respective daughters, the minor defendants, or for property damages, or for benefits under Coverage G-50 of the comprehensive and deductible collision policy; the defendants W. Terrill Morris, Juanita D. Morris, and John H. Swanson claim the plaintiff owes the duty to indemnify and defend them under 'Insuring Agreement II--Non-owned automobiles' of the policies against any cause of action brought against them; the plaintiff denies it has a duty to defend, indemnify, or pay anyone except to extend Coverage C (Division 1) of the liability policies to Juanita D. Morris; and the Ford Thunderbird was an automobile furnished for the regular use of Juanita D. Morris by John H. Swanson. The complaint prays that the Court determine the rights and liabilities of the parties under the policies; and enter a declaratory judgment that no obligations are owed by the plaintiff to indemnify or defend the defendants W. Terrill Morris, Juanita D. Morris, or John H. Swanson, that no benefits are payable to any defendants other than medical bills of Juanita Morris under Coverage C. (Division 1) of the liability policies, and that the coverages of the policies do not apply to this collision except Coverage C (Division 1) of the liability policies.

The policies provide:

'Insuring Agreement II--Non-Owned Automobiles'

'Such insurance as is afforded by this policy under coverages A, B, Division 2 of C and M, D, D-50, F, G, and H with respect to the automobile applies to the use of a non-owned automobile by the named insured or a relative, and any other person--legally responsible for the use by the named insured or relative of an automobile not owned or hired by such other person or organization.

'Insuring Agreement II does not apply:

'(1) to a non-owned automobile * * *, (b) * * * furnished to the named insured or a relative for regular use, * * *'

All of the defendants filed answers, admitting or denying various allegations of the complaint, and, in substance, praying that the Court determine the rights and liabilities of the parties under the policies, and enter a declaratory judgment that the plaintiff is obligated to indemnify and defend W. Terrill Morris, Juanita D. Morris, and John H. Swanson, to pay benefits to the named defendants, and that the coverages of the policies are applicable to the collision.

The plaintiff filed a reply to the answers.

The plaintiff then filed a motion for summary judgment, to which were attached an affidavit of George H. Mitchell, an employee of the plaintiff, who had taken a statement from John H. Swanson; a copy of the statement of John H. Swanson; an affidavit of Merle L. Cooper, an employee of the plaintiff, who had taken statements from Dortha M. Morris (mother of Juanita D. Morris), W. Terrill Morris, and Juanita D. Morris; copies of the statements of Dortha M. Morris, W. Terrill Morris, and Juanita D. Morris; an affidavit of Gerald F. McNichols, an employee of an investigation firm engaged by the plaintiff, who interviewed Samuel E. Stratton, Mrs. Earl D. Paulson, Juanita D. Morris, Mrs. Hildred Johnson, and Rev. Chester Wright; an affidavit of Claude W. Youker, the court reporter who was with Mr. McNichols; and parts of the statements of Samuel E. Stratton, Mrs. Earl D. Paulson, Juanita D. Morris, Mrs. Hildred Johnson, and Rev. Chester Wright so taken by Mr. McNichols and Mr. Youker.

In opposition to the plaintiff's motion for summary judgment the defendants filed counter affidavits of John H. Swanson, Juanita D. (Morris) Swanson, W. Terrill Morris, and Mrs. Hildred Johnson.

Certain defendants also filed a motion to strike certain exhibits attached to the plaintiff's motion for summary judgment.

The court denied the defendants' motion to strike certain exhibits to the plaintiff's motion for summary judgment, found that there was a question of fact, and denied the plaintiff's motion for summary judgment.

The defendants except Public Service Company then filed motions to strike the complaint and dismiss the action for these reasons:

'1. A declaratory judgment may not be used as a substitute for garnishment.

'2. The plaintiff, State Farm Mutual Automobile Insurance Company, has an adequate remedy in a garnishment proceeding and can, in a garnishment proceeding, present any so-called policy defenses available to it.

3. The declaratory judgment provision of the Illinois Civil Practice Act, Section 57.1, which was formerly the Declaratory Judgment Act of 1945, is designed to supply deficiencies in legal procedure which existed before enactment of that Statute in 1945, and that an action for declaratory judgment is not intended as a substitute for ample remedies in * * * use before its adoption.'

The Court granted the defendants' motions to strike and dismiss, dismissed the cause with prejudice, and entered a final judgment against the plaintiff and for the defendants. The plaintiff did not request leave to amend the complaint in any respect, and did not object to the defendants' filing of their motions to strike etc. or the procedure by which the matter was presented to and considered by the Court.

The plaintiff thereafter filed a motion for a stay order against certain defendants asking to have stayed further proceedings in certain allegedly pending cases in the same Court,--Valery Stratton et al. v. Juanita Morris et al., No. 59-426, Nancy Paulson et al. v. Juanita D. Morris, No. 60-122; and John H. Swanson v. Juanita D. Morris Swanson, No. 60-121, pending this present case in the Appellate Court. The court denied the plaintiff's motion.

The plaintiff appeals from the order granting the defendants' motion to strike the complaint and dismiss the action and dismissing the cause, and from the order denying the plaintiff's motion for summary judgment.

It is the plaintiff's theory that it has no other adequate remedy to determine whether there is coverage under the policies and whether it has a duty to defend the pending tort actions, and that it was error to dismiss this cause. It is also the plaintiff's theory that by virtue of the pleadings, admissions, affidavits, and counter-affidavits there is no genuine issue of material fact, and, therefore, it was mandatory for the court to grant the plaintiff's motion for summary judgment.

It is the defendants' theory that the plaintiff has a plain, adequate, and complete remedy available to it in a garnishment proceeding; the plaintiff may not arbitrarily substitute a declaratory judgment action for garnishment; and the trial court, in the exercise of a sound judicial discretion, correctly dismissed this action. It is also the defendants' theory that the pleadings, affidavits, counter-affidavits, and admissible exhibits do make out a genuine issue of material fact, namely, the intent of John H. Swanson, and the trial court properly denied the plaintiff's motion for summary judgment.

Both the plaintiff and defendants have in their briefs here made some allusions to alleged matters which are not referred to in the abstracts. We have ignored all such allusions.

The basic question on the merits presented by the complaint for declaratory judgment is this: Juanita D. Morris is a 'relative' of the 'named insured' W. Terrill Morris. The Ford Thunderbird owned by John H. Swanson and which Juanita D. Morris was driving on August 22, 1959 was a 'non-owned automobile'. The insurance afforded by the policies applies generally to the use of a non-owned automobile by Juanita D. Morris, but such insurance does not apply 'to a non-owned automobile * * * furnished to * * * a relative for regular use * * *'. Hence, was the Ford Thunderbird, owned by John H. Swanson, furnished to Juanita D. Morris, its driver, for regular use on August 22, 1959?

Section 57.1, declaratory judgments, of...