Illinois courts have not passed on the precise issue before
this court. The only cases cited to the court which involved
the form of exclusion here found reached diametrically
opposite conclusions. See, Northern Assurance Company of
America v. Truck Insurance Exchange, 439 P.2d 760(Mont. 1968),
and Dumas v. Hartford Accident & Indemnity Company,
181 So.2d 841 (La. 1965). It is incumbent upon this court, therefore, to
determine what position the courts of Illinois would take if
confronted with the precise facts as set out hereinabove.
Plaintiff argues that contracts of insurance are to be
construed most strongly against the insurer; therefore, by the
proper construction favoring the insured, this court should
hold the exclusion inapplicable. This rule of construction,
however, is founded upon the premise of existent ambiguity and
has no application when the language is clear, Colonial Coach
Manufacturing Corporation v. Home Insurance Company,
260 F.2d 532 (7th Cir. 1958); Ancateau v. Commercial Casualty Insurance
Company, 318 Ill.App. 553, 48 N.E.2d 440 (2d Dist. 1943).
Applying the law of Illinois, which is applicable here, the
rule of construction favoring the insured must yield to the
requirement of a reasonable construction. Thompson v. Fidelity
& Casualty Company, 16 Ill.App.2d 159, 148 N.E.2d 9 (2d Dist.
1958), cert. denied, 358 U.S. 837, 79 S.Ct. 62, 3 L.Ed.2d 74
(1958). A contract of insurance must be construed according to
the sense and meaning of the terms, and, if they are
unambiguous, the terms are to be taken in their plain,
ordinary, and popular sense. Walsh v. State Farm Mutual
Automobile Insurance Company, 91 Ill.App.2d 156,
234 N.E.2d 394 (1st Dist. 1968); Thompson v. Fidelity & Casualty Company,
The language in defendant's policy is quite clear: there is
to be no coverage while the automobile is being used by a
person while that person is "employed or otherwise engaged" in
the automobile business, such business being defined in the
policy as including the repairing or servicing of automobiles.
It can hardly be persuasively argued that Mr. Bradford was not
so engaged at the time of the collision here. The language of
an insurance policy cannot be distorted in order to create an
ambiguity where none exists. Smiley v. Estate of Toney,
100 Ill. App.2d 271, 241 N.E.2d 116 (2d Dist. 1968). There are no
grounds, therefore, for disregarding the plain terms and
conditions of the policy. See, Snyder v. Continental Casualty
Company, 26 Ill.App.2d 430, 168 N.E.2d 563 (1st Dist. 1960).
Howe Motor Sales was clearly engaged in the "automobile
business" and it is equally clear that Gale Bradford was
"employed" therein. In delivering the automobile to Dr.
Franck's residence as requested, the operator, Gale Bradford,
was pursuing an integral part of the business of Howe Motor
Sales by providing a service of convenience to engender good
will. This court is fully satisfied, therefore, that the
occurrence was within the clear meaning of the exclusion in
defendant's policy. Thus, the defendant does have a valid
affirmative defense to the relief sought. This construction is
consistent with the law of Illinois that once an automobile is
delivered to a garage for repair, a bailment relationship is
created, and until the automobile is returned to the owner,
the owner and his insurer are not liable for the acts of
negligence of the bailee or his employee. Sanders v. Liberty
Mutual Insurance Company, 354 F.2d 777 (5th Cir. 1965); Woods
v. Bowman, 200 Ill.App. 612 (3d Dist. 1915).
Accordingly, the relief sought by the complaint here is
denied and the case is dismissed with prejudice.
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