Williams v. Calumet Ins. Co.
Decision Date | 08 May 1987 |
Docket Number | No. 83-2610,83-2610 |
Citation | 108 Ill.Dec. 263,508 N.E.2d 424,155 Ill.App.3d 621 |
Parties | , 108 Ill.Dec. 263 Jessie WILLIAMS, Plaintiff-Appellee, v. CALUMET INSURANCE COMPANY, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Jesmer and Harris, Chicago (Jay L. Hammerman, Charles E. Tannen, of counsel), for defendant-appellant.
Kenneth J. Fleischer, Larry L. Fleischer & Associates, Ltd., Chicago (Allen L. Ray, Ray & Rizowy, of counsel), for plaintiff-appellee.
Plaintiff, Jessie Williams ("Williams"), a cab driver, leased a cab from the Yellow Cab Company on Friday, December 12, 1980. The cab was to be returned to the Yellow Cab Company on Monday, December 15, 1980. Williams did not return the cab on Monday, December 15, 1980 and on Tuesday, December 16, 1980, while driving the leased cab, Williams had an accident in Chicago with another motorist.
Defendant, Calumet Insurance Company, is the insurer of the Yellow Cab Company. Williams filed a complaint for declaratory judgment against defendant in the circuit court of Cook County to determine whether he was covered by defendant's insurance policy. When defendant's motion to dismiss was denied, plaintiff filed a motion for summary judgment and an affidavit as follows:
"JESSIE L. WILLIAMS, being duly sworn on oath, deposes and states as follows:
1. That I am the Plaintiff in the above titled cause.
2. That on December 12, 1980, I leased a cab from YELLOW CAB COMPANY which was to be returned to YELLOW CAB COMPANY on December 15, 1980.
3. That on December 16, 1980, while driving the cab, I was injured from an accident with an uninsured driver.
4. That I did not return the cab to YELLOW CAB COMPANY from the time I had leased it on December 12, 1980 until the time of that accident.
5. That if I were called to testify, I would competently testify to the above.
Williams' motion for summary judgment was granted. Defendant appeals.
Defendant contends that Williams' motion for summary judgment should not have been granted because a genuine issue of material fact existed under the terms of defendant's insurance policy with the Yellow Cab Company, i.e., whether Williams was operating the cab with the permission of the cab company on December 16, 1980. We agree. A motion for summary judgment should be granted if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. (Ill.Rev.Stat.1985, ch 110, par. 2-1005(c); Futurevision, Inc. v. Dahl (1985), 139 Ill.App.3d 61, 65, 93 Ill.Dec. 683, 487 N.E.2d 127.) The evidence must be strictly construed against the moving party and the reasonable inferences therefrom construed in favor of the party who opposes summary judgment. (Eakins v. New England Mutual Life Insurance Co. (1984), 130 Ill.App.3d 65, 68, 85 Ill.Dec. 71, 473 N.E.2d 439.) If the court is presented with disputed facts or conflicting inferences, entry of summary judgment is inappropriate. Johnson v. Figgie International, Inc. (1985), 132 Ill.App.3d 922, 928, 87 Ill.Dec. 669, 477 N.E.2d 795.
In the case before us, when the evidence is viewed in a light most favorable to defendant, the nonmovant of the motion to dismiss, a genuine issue of material fact existed. The evidence before the trial court included a copy of several pages of defendant's automobile liability policy with the Yellow Cab Company which stated that defendant agrees to the following:
"Coverage A. Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
Coverage B. Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile.
Coverage C. Automobile Medical Payments. To pay all reasonable expenses incurred within one year from the date of [the] accident for necessary medical, surgical and dental services * * *.
Division 1. To or for each person who sustains bodily...
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...issue as to a material fact and the movant is entitled to judgment as a matter of law. (Williams v. Calumet Insurance Co. (1987), 155 Ill.App.3d 621, 622, 108 Ill.Dec. 263, 508 N.E.2d 424; Ill.Rev.Stat.1985, ch. 110, par. 2-1005(c).) The right of the moving party must be clear and free from......