U.S. Fidelity & Guaranty Co. v. McManus
| Decision Date | 01 October 1976 |
| Docket Number | No. 48016,48016 |
| Citation | 356 N.E.2d 78,1 Ill.Dec. 78,64 Ill.2d 239 |
| Parties | , 1 Ill.Dec. 78 UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. John McMANUS et al., Appellees. |
| Court | Illinois Supreme Court |
Kralovec, Sweeney, Marquard & Doyle, Chicago (Henry J. Marquard and Edward V. Scoby, Chicago, of counsel), for appellant.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (John L. Kirkland, D. Kendall Griffith, and Stanley J. Davidson, Chicago, of counsel), for appellees.
This appeal involves a dispute between the plaintiff, United States Fidelity and Guaranty Company, and one of the defendants, Allstate Insurance Company (hereinafter referred to as 'the defendant'), as to whether a liability policy issued by the plaintiff to the owner of an automobile covers an accident which occurred while the car was being driven by a person who was covered under a liability policy issued by the defendant.
The plaintiff's policy had been issued to Joyce Martin, the owner of the car. The policy covered the use of the car by the named insured and 'any other person using such automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.'
In January of 1971, when Joyce Martin went to Florida for two weeks with her parents, she left her car with a friend, Sheila McManus, who, together with her brother, John, resided with their parents. While the car was in Miss McManus' custody her brother, on an occasion when his sister was not at home, took the car in order to keep a doctor's appointment, and in the course of the trip he struck Helen Kalmus, a pedestrian, who thereafter filed an action against him to recover damages for personal injuries.
The policy issued by the defendant to the father of John McManus provided coverage for any relative of the named insured with respect to a nonowned automobile. There is no question but that this policy covered John McManus.
The defendant Allstate undertook the defense of the personal injury action, but advised the plaintiff that in its opinion the policy issued by the plaintiff also applied and constituted the primary insurance, with the defendant's policy furnishing only excess coverage.
In order to resolve this controversy the plaintiff filed the present action in the circuit court of Cook County for a declaratory judgment against the defendant, as well as Helen Kalmus and John McManus, who are the plaintiff and defendant in the basic action, out of which this subsidiary controversy between the two insurance companies arose. That basic action still awaits trial. The present case does not involve any controversy between the original plaintiff and the original defendant. It relates solely to the apportionment of liability between the two insurance companies.
Motions for summary judgment supported by affidavits were filed on behalf of the plaintiff and the defendant John McManus. The circuit court denied the plaintiff's motion, granted the motion of the defendant McManus, and entered judgment in his favor. The Appellate Court for the First District affirmed (32 Ill.App.3d 370, 336 N.E.2d 252), and we granted leave to appeal.
The parties agree that if the policy issued by the plaintiff covers the accident then it constitutes the primary insurance, with that issued by the defendant providing excess coverage only. It is also agreed that the owner of the vehicle, Joyce Martin, did give permission to Sheila McManus to drive it, but that Miss Martin did not tell either Miss McManus or her brother that the latter also had such permission.
The affidavits of Sheila and John McManus, which were attached to the motions for summary judgment, disclose that on the day preceding the accident, John had requested and received permission from his sister to use the car for a household errand. It does not appear that anything was said between the two as to whether he did or did not have...
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