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Allstate Ins. Co. v. Skawinski

FEBRUARY 21, 1963.

ALLSTATE INSURANCE COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,

v.

PAUL SKAWINSKI AND ROLAND GORDON, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. Affirmed. MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 26, 1963.

This is a suit for a declaratory judgment brought by the Allstate Insurance Company to determine whether or not it is liable on a policy of insurance issued to the defendant, Paul Skawinski, for injuries sustained by one Roland Gordon as a direct result of the alleged negligence of the insured, Paul Skawinski.

The policy involved was an automobile insurance policy covering Skawinski's 1955 Plymouth automobile. So far as is pertinent here, Section 1, Part 1 of the policy provided:

"Allstate will pay for an insured all damages which the insured shall be legally obligated to pay because of:

A. bodily injury sustained by any person, and

B. injury to or destruction of property, arising out of the ownership, maintenance or use, including loading and unloading, of the owned automobile or a non-owned automobile."

Definition 2 (e) of words used in Part 1 provides that:

"`non-owned automobile' means an automobile, including a trailer, not owned by the named insured or any relative, other than a temporary substitute automobile."

Definition 2 (d) of words used in Part 1 provides that:

"`temporary substitute automobile' means any automobile, including a trailer, while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction."

The accident occurred in the following manner. On August 31, 1959, Skawinski, who owned an automobile repair and maintenance business, went to the place of business of Roland Gordon for the purpose of repairing the latter's automobile. In the past, Skawinski had frequently been retained to repair the trucks used in Gordon's produce business. After driving Gordon's car around the block with Gordon sitting beside him, Skawinski parked the car, with the motor running, facing Gordon's building. He then opened the hood and proceeded to adjust the carburetor. While he was so engaged, Gordon got out of the car and began to walk between the car and the building. When he was directly in front of the car, Skawinski raced the engine and the car leapt forward, crushing Gordon between the car and the building.

Subsequently, Gordon brought suit against Skawinski and the latter tendered his defense to the Allstate Insurance Company, which refused to maintain same. It is Allstate's contention that it is not liable for the accident in question because of Exclusion 3, set forth in Section 1, Part 1 of the policy in question. Exclusion 3 provides:

"This Part 1 does not apply to:

3. a non-owned automobile while used (a) in an automobile business by the insured, or (b) in any other business or ...


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