Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Preferred Risk Mut. Ins. Co. v. Hites

JUNE 24, 1970.

PREFERRED RISK MUTUAL INSURANCE COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,

v.

KENNETH JACOB HITES, KENNETH JOHN HITES, ROCK ISLAND BANK AND TRUST COMPANY, AS ADMINISTRATOR OF THE ESTATE OF JAMES HASKINS, DECEASED, ROCK ISLAND BANK AND TRUST COMPANY, AS ADMINISTRATOR OF THE ESTATE OF ODIE DOWDY, DECEASED, CLARENCE KEMP, PATSY KEMP, BILL JOE BOX, CONNIE BOX, GEORGIA CARTER, PAUL BRANDT, GARY ARCHER, RUTH CASEL, GIBRALTAR INSURANCE COMPANY, A CORPORATION, DONALD BARR, MOLINE NATIONAL BANK AS TRUSTEE UNDER TRUST NO. 893 FOR THE BENEFIT OF ANNIE O'KLOCK, DAN O'KLOCK, MAX O'KLOCK AND ROSE MARIE O'KLOCK SKALADANY, HOMER WILSON, D/B/A KEG TAVERN, THOMAS A. LUNDEEN, MISSOURI GRAVEL COMPANY, A CORPORATION, FLOYD R. HULBERT, D/B/A CRYSTAL INN OF HAMPTON, ILLINOIS, AND GARNETT HARDEN, D/B/A LA CHATEAU LOUNGE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Rock Island County; the Hon. CONWAY L. SPANTON, Judge, presiding. Affirmed. ALLOY, J.

Rehearing denied July 22, 1970.

Plaintiff, Preferred Risk Mutual Insurance Company, filed a complaint for declaratory judgment in which it sought a declaration as to whether it insured Kenneth John Hites under an automobile insurance policy issued to his father, Kenneth Jacob Hites. Plaintiff alleged that the failure to notify the plaintiff-company of a driver's license suspension of Kenneth John Hites relieves the company from responsible coverage of an automobile accident involving Kenneth John Hites. When plaintiff's third amended complaint was dismissed upon motion of defendants, plaintiff elected to stand on the complaint.

No evidence was presented in the trial court and the decision of the trial judge was based entirely upon pleadings and exhibits attached to pleadings. The pleadings disclosed that plaintiff originally issued a policy of insurance to defendant Kenneth Jacob Hites based upon an application for the policy dated May 4, 1957. In that application was the following recital:

"No automobile license or permit to drive of mine or anyone in my household has been revoked, suspended or refused, except as specified hereon. All drivers listed above now have valid operator's licenses."

At that time Kenneth John Hites, son of defendant Kenneth Jacob Hites, was a member of the household of Kenneth Jacob Hites and was insured under the policy. After 1957, various intervening declarations prior to December 3, 1967, included a statement:

"No operator's license or permit to drive issued to the named insured or any member of his household has been cancelled, revoked or suspended."

It is disclosed that on July 31, 1967, plaintiff issued to Kenneth Jacob Hites, the father of Kenneth John Hites, an automobile policy which was attached to the complaint and which insured a certain automobile and extended liability coverage to members of the Kenneth Jacob Hites household, including Kenneth John Hites, his son. The complaint also disclosed that prior to December 3, 1967, defendant Kenneth John Hites had been guilty of three traffic violations occurring within one year which appeared on his record in the Secretary of State's office and that he had received a warning letter from the Secretary of State. Effective August 18, 1967, the driver's license of Kenneth John Hites was suspended until November 18, 1967. On October 4, 1967, an amended declaration changed the policy term from July 31, 1967, to a period commencing August 1, 1967, and extending to January 31, 1968. The amended declaration sheet covering the period from August 1, 1967, to January 31, 1968, contained the language "No operator's license or permit to drive issued to the named insured or any member of his household had been cancelled, revoked (or) suspended." On October 20, 1967, there was issued a notice of change of agent with a premium notice. On November 9, 1967, there was a further amended declaration showing premium reduction and a new policy term for the period July 31, 1967, to November 29, 1967. The declaration sheet also contained the language with respect to members of the household not having had any operator's license cancelled, revoked or suspended.

On December 3, 1967, defendant Kenneth John Hites was involved in an automobile collision, as a result of which a number of claims were made against Kenneth John Hites.

Plaintiff in the complaint alleges that there was a duty upon defendant Kenneth Jacob Hites to disclose and reveal to plaintiff the existence of the suspension of the driver's license of defendant Kenneth John Hites (during the period from August 18, 1967 to November 18, 1967), on October 4, 1967, and on November 9, 1967, when the amended declaration sheets which have been referred to were issued to defendant Kenneth Jacob Hites. It is asserted that said defendant had a duty to refrain from concealing any such change or changes in the representation contained in the application for insurance to the effect that no automobile license or permit to drive of any member of the household had been cancelled, revoked or suspended. It is expressly asserted that defendant Kenneth Jacob Hites failed to advise plaintiff of the license suspension of his son, Kenneth John Hites, even though he knew of such suspension.

As a result thereof, plaintiff asserted that it did not cover Kenneth John Hites in the accident referred to and had no duty to defend Kenneth John Hites or pay any damages. Claims had also been made by numerous defendants as against several taverns alleged to have served liquor to Kenneth John Hites and such defendants are seeking reimbursement from Kenneth John Hites and they claim he is insured by plaintiff insurance company. Plaintiff accordingly prayed for declaratory judgment finding the policy did not cover the collision referred to in the complaint and that plaintiff had no obligation to defend Kenneth John Hites or pay any damages. A number of exhibits are attached to the complaint including the policy, the various declarations and notices sent to the defendant Kenneth Jacob Hites and, also, there is a driver's license record of Kenneth John Hites. The exhibits also disclose that the declaration dated October 4, 1967, was to be effective August 1, 1967, and the declaration issued November 9, 1967, was to be effective July 31, 1967. Motions to dismiss the complaint were filed by defendants and after consideration by the trial court, such court entered an order dismissing plaintiff's complaint.

The issues before this Court are whether the trial judge had the power to enter an order dismissing plaintiff's complaint for declaratory judgment without hearing evidence as to the facts alleged, and, also, whether the trial court was correct in determining that plaintiff's declaratory judgment complaint did not state a cause of action.

It has been clearly established that if a complaint for declaratory judgment does not state a cause of action, the trial court may grant a motion to dismiss the complaint. While the courts of this State have emphasized that the declaratory judgment statute should be construed broadly (Illinois Power Co. v. Miller, 11 Ill. App.2d 296, 137 N.E.2d 78), the courts have emphasized that a complaint is still required to state a cause of action. This was clearly specified in the case of Gouker v. Winnebago County Board of Sup'rs, 37 Ill.2d 473, at 478-9, 228 N.E.2d 881, where the court states:

"Plaintiff argues that defendants' motion to dismiss admitted all well-pleaded facts and that dismissal under section 48 of the Practice Act, (Ill Rev Stats 1965, chap 110, par 48,) was not justified. `Motions to dismiss or strike a pleading admit facts well pleaded, but not conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest.' (Pierce v. Carpentier, 20 Ill.2d 526, 531.) As noted in Berk, a number of separate grounds were alleged, many of which were neither specific nor complete and were almost the exact objections urged in the Adamowski case, and this court affirmed the dismissal. The allegations of this complaint are in turn practically identical with those in Berk. The complaint is largely in terms of abstract conclusions of law; and where facts are alleged, they are not sufficiently specific to support the conclusions. Under these circumstances the trial court was justified in granting the motion to strike."

As stated in LaSalle Cas. Co. v. Lobono, 93 Ill. App.2d 114, at 119, 236 N.E.2d 405, when the trial court considers a motion to dismiss the complaint, the court has no discretion in ruling on the motion, where the complaint states a cause of action. Where the plaintiff is entitled to no relief on the facts alleged, however, the complaint should be dismissed. To the same effect is Goldberg v. Valve Corp. of America, 89 Ill. App.2d 383, 233 N.E.2d 85. As a consequence, it is clearly established that the trial judge may properly ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.