Uhwat v. Country Mut. Ins. Co.
| Decision Date | 21 June 1984 |
| Docket Number | No. 2-83-0526,2-83-0526 |
| Citation | 80 Ill.Dec. 618,465 N.E.2d 964,125 Ill.App.3d 295 |
| Parties | , 80 Ill.Dec. 618 Garth UHWAT, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE CO., Defendant-Appellant, and Cheryl Illg and Safeco Insurance Co., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Snyder, Clarke, Dalziel & Johnson, Julian Johnson, Waukegan, for defendant-appellant.
Rosing, Magee & Applehans, Charles W. Smith, Waukegan, for plaintiff-appellee.
Defendant, Country Mutual Insurance Co. (Country Mutual) appeals from a judgment entered in favor of plaintiff, Garth Uhwat, after a jury trial in a declaratory judgment action which plaintiff brought to determine whether his 1976 Ford pickup truck was covered as a "newly-acquired vehicle" under the terms of a personal vehicle policy that he had with Country Mutual.
Country Mutual raises the following issues on appeal: (1) whether the trial court erred in failing to strike and dismiss plaintiff's amended complaint for failure to allege a good cause of action; (2) whether the Ford pickup truck was a "vehicle" within the definitions in Section I of the policy and whether that was a question of law to be decided by the court; (3) whether the pickup truck was acquired for the same use within the meaning of the policy as the insured vehicle, a 1974 Chevrolet four-door sedan, and whether that was a question of law to be decided by the court; (4) whether the trial court erred in admitting into evidence 1978 and 1979 partnership income tax returns; and (5) whether plaintiff's counsel engaged in prejudicial final argument.
Plaintiff filed an amended complaint for declaratory judgment alleging, inter alia, that Country Mutual issued a policy of personal vehicle liability insurance which was in full force and effect on October 4, 1979, and provided for payment of claims for bodily injury and property damage caused by accident arising out of ownership, maintenance, or use of a vehicle and for defense of any suit alleging such bodily injury or property damage; that on or about September 15, 1979, plaintiff acquired ownership of a pickup truck; that on or about October 4, 1979, plaintiff, while driving the pickup truck, was involved in an accident with Cheryl Illg; that the policy provided in part:
The insurance coverage of this policy with respect to the vehicle described in the Declarations shall also apply to an additional vehicle of which the Named Insured or spouse acquired ownership evidenced by certificate of title thereto. If the vehicle acquired is a motor vehicle as defined in Section I this paragraph shall apply if the newly acquired motor vehicle was acquired for the same use as a motor vehicle described in the Declarations and, provided further the Company insures all vehicles and automobiles owned by and titled to the Named Insured or spouse.
The terms of the two preceding paragraphs apply provided notice of delivery of such vehicle to the Named Insured or spouse is given to the Company within the policy period then current, or if delivery is less than thirty (30) days prior to the end of such period, then within thirty (30) days after delivery. This General Condition 5 shall not extend or affect the expiration provisions of this policy. The Named Insured shall pay any additional premium required for such insurance afforded from date of delivery of such vehicle";
that Illg had filed a complaint against plaintiff seeking property damages and plaintiff believed he would be sued by Illg for personal injuries; that plaintiff made demand upon Country Mutual to assume his defense and to afford liability coverage by reason of the contract of insurance, but Country Mutual refused to undertake plaintiff's defense. Plaintiff asked the court to declare the rights of the parties, declare that Country Mutual was obligated to defend plaintiff and to reimburse plaintiff for amounts spent in his defense, and construe the insurance policy as including the vehicle which plaintiff was operating on October 4, 1979, as an additional vehicle.
Attached to the amended complaint were a copy of the personal vehicle policy, the complaint filed by Illg against plaintiff, and the letter from Country Mutual, signed by Phillip Collins, to plaintiff denying coverage. The definitions under Section I of the policy provided in pertinent part:
Country Mutual filed a motion to strike and dismiss the amended complaint, arguing that it failed to state a good cause of action. The trial court denied the motion.
The following evidence was adduced at trial: plaintiff and Peter Ratajczyk were partners in the Joe Meyer Tree Service. The 1976 Ford pickup truck was originally purchased in 1977 and was paid for by trading in a truck owned by the Joe Meyer Tree Service and with a loan procured by plaintiff. Although title to the truck was taken in plaintiff's name, the partnership made payments on the truck and the license plates were acquired in the name of the Joe Meyer Tree Service. While being used in the partnership business, the pickup was used for travelling to and from one job to the next and for hauling tools, power saws, ladders, ropes, and pulleys.
Plaintiff testified that he acquired ownership of the truck on September 9th or 10th of 1979 in a dissolution of the partnership. After that dissolution, the truck was used for transportation, and he did not haul anything in it except for perhaps firewood for his fireplace. Plaintiff owned a 1974 Chevrolet and a snowmobile which were insured by Country Mutual. The Chevrolet was used for personal transportation. Plaintiff stated that on October 4, 1979, while driving the pickup truck, he was involved in an accident with Cheryl Illg. Illg sued him, and he asked Country Mutual to defend him, but the company refused.
Plaintiff's wife, Bonnie Uhwat, testified that she tried to call their insurance agent with Country Mutual, LeRoy Gallagher, several times at the end of September, prior to the accident, but she could not get in touch with him. After the accident, she called Country Mutual and talked to a Mr. Phillips and told him they had gotten a truck recently and that it had been in an accident and asked if they had insurance. She stated that Mr. Phillips said there was no problem; as soon as she brought in the check for the insurance premium, the truck would be covered and they would process the claim. Mrs. Uhwat further stated that she had her sister-in-law take the premium in. About a month later, after receiving a letter from Country Mutual, Mrs. Uhwat called Mr. Phillips who said the Uhwats were not covered because it was a truck and not a car.
Mary Soder, office manager for Country Mutual, identified a personal vehicle insurance application for the pickup truck and stated that no one named Mr. Phillips was an agent in their office but admitted that a Phillip Collins had worked there. Peter Carrigan, an agent for Country Mutual identified his handwriting on the application which was in black ink, but he did not know who filled out the parts written in blue ink. He said he spoke with one of the applicants but denied telling Mrs. Uhwat that coverage would extend to the October 4, 1979, accident.
Pursuant to a motion to produce, Peter Ratajczyk, plaintiff's former partner, brought in copies of the partnership tax returns for 1978 and 1979. Ratajczyk testified that he had looked for other documents requested by defense counsel in his subpoena but was unable to find the bill of sale for the pickup truck, the check used for its purchase, or the receipt for payment. He also stated that he did not bring insurance policies for the pickup truck in the name of Joe Meyer Tree Service.
Leonard Dam, accountant for the Joe Meyer Tree Service, testified that a 1976 pickup truck was listed on the depreciation schedules for the 1978 and 1979 tax returns. Country Mutual objected, arguing that documents requested by the notice to produce had not been produced so that it was unable to intelligently examine the witness, and moved that the witness' testimony be stricken and the tax forms not be admitted into evidence. The trial court admitted the tax forms into evidence. On cross-examination, Dam testified that charges were made against the individual partner's account and those records were retained by the client. Defendant again objected because those records had not been produced.
Country Mutual moved for a directed verdict, arguing that the pickup truck was not a "vehicle" as defined in the policy and was not acquired for the same use as the 1974 Chevrolet. The motion was denied. The jury found for plainti...
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