Zimmerman v. STATE FARM MUT. AUTO. INS. CO.

• Decision Date: 14 April 2000
• Docket Number: No. 1-99-0372.,1-99-0372.
• Citation: 246 Ill.Dec. 70,312 Ill. App.3d 1065,729 N.E.2d 70
• Parties: Anthony ZIMMERMAN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Jacoby Battle and Patricia Battle, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

729 N.E.2d 70

312 Ill. App.3d 1065

246 Ill.Dec. 70

Anthony ZIMMERMAN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Jacoby Battle and Patricia Battle, Defendants-Appellees.

No. 1-99-0372.

Appellate Court of Illinois, First District, Fifth Division.

April 14, 2000.

Lawrence H. Hyman & Associates, Chicago (Lawrence H. Hyman, of counsel), for Appellant.

Taylor, Miller, Sprowl, Hoffnagle & Merletti, Chicago (Hugh J. Doyle, of counsel), for (State Farm) Appellee.

Justice HARTMAN delivered the opinion of the court:

An automobile owned by defendants Jacoby and Patricia Battle was repossessed by plaintiff Anthony Zimmerman, who was injured in an accident while driving that vehicle. Zimmerman later sought a declaratory judgment that the Battles' automobile insurance policy, issued by defendant State Farm Mutual Automobile Insurance Company (State Farm), afforded him coverage. The circuit court granted State Farm's motion for summary judgment, finding that Zimmerman did not have "permission" to use the Battles' automobile and, therefore, the policy did not provide coverage for his injuries. Zimmerman appeals.

On or before January 1, 1993, Jacoby and Patricia Battle purchased a 1993 Ford Escort station wagon, which they financed through Ford Motor Credit Company. The retail installment contract provided, in part:

"If you are in default, a creditor may require you to pay at once the unpaid Amount Financed, the earned and unpaid part of the Finance Charge and all other amounts due under this contract. He may also repossess (take back) the vehicle, too. He may also take goods found in the vehicle when repossessed and hold them for you." (Emphasis added.)

After the Battles defaulted on their vehicle loan, Starlight Recovery (Starlight) repossessed their vehicle. Starlight is a small family-run business located in Lake Village, Indiana, and is engaged in the business of repossessing automobiles for Ford Motor Credit Company.

Sometime after midnight, on October 18, 1994, Zimmerman, a Starlight employee, drove from Lake Village with Albert Bond, Starlight's owner, to the Battles' home in Summit, Illinois. Zimmerman and Bond drove in Bond's own vehicle. There, Zimmerman checked the vehicle identification number, cut a new key for the Battles' Escort and drove away in that vehicle, followed by Bond driving his own car. Zimmerman first drove the Battles' vehicle to the Summit police station and Bond notified police of the repossession. Zimmerman then drove the Battles' car to Ford's vehicle storage lot in Alsip, Illinois. Leaving his own automobile at the lot, Bond then drove with Zimmerman in the Battles' vehicle to another location, where they repossessed a van. With Bond following in the van, Zimmerman returned to Starlight in Indiana, where the contents of the Battles' vehicle were inventoried.

The following night, on October 19, 1994, Zimmerman returned to work at Starlight. From there, Zimmerman, with another Starlight employee, drove to Alsip, Illinois in the Battles' Escort; Bond, who was driving the van repossessed the night before, followed Zimmerman. The plan was to leave the van and the Battles' Escort at Ford's storage lot in Alsip; however, Bond decided that he and Zimmerman first would attempt to repossess a Lincoln located nearby. Zimmerman waited in the Battles' Escort as Bond attempted to repossess the Lincoln. The Lincoln's alarm was activated as Bond drove it away, alerting the owner. While driving the Escort, Zimmerman followed Bond in the repossessed Lincoln. Someone in another vehicle then began to chase the Lincoln and the Escort. During the chase, the Battles' Escort, still driven by Zimmerman, was involved in a collision with the other vehicle, driven by an uninsured motorist. Zimmerman suffered severe injuries as a result of the accident.

At the time of Zimmerman's accident, the Battles' 1993 Escort was insured under an automobile insurance policy issued by State Farm to the Battles. The policy provided for uninsured and underinsured motorist coverage. As required under Illinois law, the policy also contained a provision which provided coverage for other persons driving the insured's vehicle with the permission of the insured. That clause specifically provided coverage to:

"1. the first person [, the policy holder,] named in the declarations;

2. his or her spouse;

3. their relatives; and

4. any other person while occupying:

a. your car[.] Such vehicle has to be used within the scope of the consent of you or your spouse."

(Emphasis in original.)

Exercising an abundance of the ancient, but venerable, doctrine of "chutzpah," Zimmerman sought uninsured motorist coverage under the Battles' State Farm policy for injuries he suffered in the accident, based upon the theory that he had the Battles' consent to use their vehicle as it was being employed at the time of his accident. After State Farm denied Zimmerman's demand for coverage, he filed a declaratory judgment action seeking a judicial determination that his injuries were covered under the Battles' State Farm policy. Both parties moved for summary judgment, which the circuit court denied as to Zimmerman and granted as to State Farm. In so ruling, the court held:

"Apparently the Battle's (sic) were in default and Ford decided to `take back' the car. The contract, in my opinion, does not imply permissive use of the vehicle; rather it simply gives Ford the right to repossess the vehicle. I do not view `take back' and `permissive use' as being the same. The sales contract could have easily been written to plainly give Ford the right to repossess and use the vehicle."

Zimmerman appeals the court's order granting summary judgment to State Farm.

Zimmerman contends that he was entitled to coverage under the policy's uninsured motorist provision because he had "permission" to drive the Battles' Escort. He claims that the retail sales contract which the Battles initially signed bestowed that "permission" upon Ford Motor Credit Company to repossess the vehicle in the event of default. Zimmerman equates the language contained in the sales contract, giving Ford the right to repossess the vehicle, with "permission" to use that vehicle in other repossession activities conducted by Starlight.

State Farm counters that repossession of a vehicle, although allowed by law (815 ILCS 5/9-503 (West 1996)) and the retail sales contract, does not automatically occur with the consent or permission of the vehicle's owner. Accordingly, the mere existence of the repossession language contained in the sales contract does not establish that Ford, or its agent, was a permissive user of the vehicle for casualty insurance purposes.

The construction of an insurance...