Western States Mut. Ins. Co. v. Verucchi

• Decision Date: 20 May 1977
• Docket Number: No. 48576,48576
• Citation: 66 Ill.2d 527,6 Ill.Dec. 879,363 N.E.2d 826
• Parties: , 6 Ill.Dec. 879 WESTERN STATES MUTUAL INSURANCE COMPANY, Appellant, v. John VERUCCHI et al., Appellees.
• Court: Illinois Supreme Court

Page 826

363 N.E.2d 826

66 Ill.2d 527, 6 Ill.Dec. 879

WESTERN STATES MUTUAL INSURANCE COMPANY, Appellant, v. John VERUCCHI et al., Appellees.

No. 48576.

Supreme Court of Illinois.

May 20, 1977.

Johnson, Martin & Russell, Princeton (Daniel K. Russell, Princeton, of counsel), for appellant Western States Mutual Ins. Co.

Berry & O'Conor, Ottawa (Andrew J. O'Conor, Ottawa, of counsel), for Pekin Farmers Ins. Co.

Perona & Perona, Spring Valley (Paul D. Perona, Jr., Spring Valley, of counsel), for appellees.

UNDERWOOD, Justice:

Plaintiff, Western States Mutual Insurance Company, brought this declaratory judgment action in the circuit court of Bureau County pursuant to section 57.1 of the Civil Practice Act (Ill.Rev.Stat.1971, ch. 110, par. 57.1), naming as defendants seven individuals, Pekin Farmers Insurance Company (hereinafter referred to as the defendant), and State Farm Insurance Company. Plaintiff sought a determination of the rights and obligations of all of the parties arising out of a collision occurring on March 29, 1970, including issues of coverage and duties to defend under the three automobile liability insurance policies involved in this case. The circuit court ruled that defendant's policy issued to William Elmendorf, the owner of the automobile, provided primary coverage; that plaintiff's policy issued to Arthur Verucchi, the father of the driver, provided excess coverage, and that State Farm incurred no obligations under the uninsured motorist clause in its policy issued to Gaylord Murphy. The defendant appealed, and the Appellate Court for the Third District reversed in part (38 Ill.App.3d 266, 347 N.E.2d 63), holding that defendant is not liable under the Elmendorf policy, that plaintiff is liable under the Verucchi policy, and that plaintiff's coverage is primary, not excess only. We allowed plaintiff's petition for leave to appeal.

The defendant's policy covered the use of William Elmendorf's 1969 Plymouth automobile. Robert Elmendorf, William's 16-year-old son, was using that car on the night of March 29, 1970, with his father's express permission. John Verucchi and Raymond Marenda accompanied Robert in the car. The three boys had been close friends and classmates for years, and they frequently went out together on social outings. Robert parked the car at about 11 p.m. in a laundromat parking lot across the street from the Igloo Drive-In, a restaurant in Peru, Illinois, shut off the engine, removed the keys from the ignition, and left them either on or in the console next to the driver's seat. The boys then entered the Igloo Drive-In, which apparently was a popular teenage gathering place. Later, at about 11:30 p.m., John and Raymond told Robert it was time to go, and Robert, sitting with other friends at the time, said he would be along shortly. John and Raymond went out to the car, where they waited for a few minutes. Then John found the car keys and decided to start the car so he could drive across the street into the Igloo parking lot, where they would wait for Robert. Heavy traffic prevented John from making a left turn into the Igloo lot, and he proceeded down the street, intending to drive around the block and return from the opposite direction. At a location about three or four blocks from the Igloo, John collided with a car driven by Gayle Murphy and owned by his father, Gaylord. After briefly assisting Gayle, John could not find Ray, and he left the scene immediately prior to the arrival of the police. John returned to the Igloo but did not speak to Robert, and the Elmendorfs did not learn until the following day that John had been driving the automobile at the time of the accident.

William Elmendorf had instructed his son never to permit anyone else to drive the car. John engaged in no discussion with Robert concerning driving the car, and neither William Elmendorf nor Robert had told John that he could or could not drive the automobile. Robert testified that he had never permitted anyone else to drive the car. Gayle Murphy testified that Robert let him drive it once shortly after his father purchased it. There was no evidence that John was aware of this instance. No members of John's and Robert's social group had ever driven a vehicle owned by someone else's father. At the time of the accident, John was 15 years old and not a licensed driver, but he had driven his father's van without permission on prior occasions.

Dispositive of this case, in our judgment, are the opinions of this court in two recent cases. In Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill.2d 333, 297 N.E.2d 163, the initial permission rule was applied to a situation where a father had told his son not to let anyone else drive the father's car. It was held that 'once the initial permission has been given by the named insured, coverage is fixed, barring theft or the like.' (54 Ill.2d 333, 342, 297 N.E.2d 163, 168.) Subsequent to the decision of the appellate court in this case, this court decided United States Fidelity and Guaranty Co. v. McManus (1976), 64 Ill.2d 239, 1 Ill.Dec. 78...