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Kern v. Michigan Mut. Liability Co.

OCTOBER 8, 1970.

JOHNIE R. KERN, FOR THE USE OF LILLIAN A. RUSSELL, AS CONSERVATOR, PLAINTIFF,

v.

MICHIGAN MUTUAL LIABILITY COMPANY, DEFENDANT-APPELLANT, AND ILLINOIS NATIONAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jersey County; the Hon. HOWARD LEE WHITE, Judge, presiding. Reversed and remanded with directions.

TRAPP, J.

This is an appeal from an order of the circuit court granting a summary judgment in favor of Illinois National Insurance Company (Illinois National) against Michigan Mutual Liability Company (Michigan Mutual), and denying a motion of Michigan Mutual for summary judgment against Illinois National. The appeal presents the question whether Michigan Mutual is alone required to satisfy a $50,000 personal injury judgment recovered by Lillian Russell as Conservator of the Estate and Person of Harold Russell against Johnie R. Kern, as determined by the trial court, or is entitled to pro rata contribution from Illinois National. Kern, an employee of Hoover Brothers, a partnership, was driving a truck owned by Hoover Brothers, Inc., and loaned to the partnership at the time of the motor vehicle accident which injured Harold Russell. Kern brought suit in garnishment against Michigan Mutual, who insured Hoover Brothers, Inc., and Illinois National, who insured Hoover Brothers, a partnership.

In a prior declaratory judgment action in the Circuit Court of Cook County, Illinois, it was determined that both Michigan Mutual and Illinois National policies covered the risk. That judgment was appealed to the Appellate Court of Illinois, First District, and was there affirmed. No determination was made as to the priority of payment by the companies of any judgment in the suit of Lillian Russell as Conservator of Harold Russell against Johnie Kern. That Court held that by reason of correspondence with the insurance company prior to the issuance of the policy to Hoover Brothers, Inc., an implement dealership, concerning occasional cartage work done by the insured, the loss was covered under the Michigan Mutual policy on trucks owned by Hoover Brothers, Inc. It also held that the Illinois National policy issued to Hoover Brothers, a partnership, engaged in livestock and general hauling, covered the accident by virtue of its Truckmen's endorsement which made it responsible for use of a "hired" vehicle in its business by an employee. That Court decided that the vehicle was a "hired" vehicle. Michigan Mut. Liability Co. v. Hoover Brothers, Inc., 96 Ill. App.2d 238, 237 N.E.2d 754.

The Illinois National policy also contained the required endorsement of the Illinois Commerce Commission required of certificated carriers which provided in part, as follows:

"In consideration of the premium stated in the policy to which this endorsement is attached and regardless of anything stated in the policy or elsewhere to the contrary, . . . the Company hereby agrees to pay, within the limits of liability hereinafter provided, any final judgment rendered and recovered against the insured for bodily injury to or death of any person, or loss of or damage to property of others . . . resulting from the operation, maintenance or use of motor vehicles by virtue of a certificate of public convenience and necessity or a permit issued to the insured by the Illinois Commerce Commission. . . . regardless of whether such motor vehicles are specifically described in the policy or not."

The Appellate Court did not then pass upon the effect of the required Illinois Commerce Commission endorsement, but we think it is material in reference to public policy contentions made by Illinois National.

The portion of the Illinois National Policy which the First District, Appellate Court, held covered the accident in question is as follows:

"TRUCKMEN

"(Interests Covered)

"Such insurance as is afforded by the policy for an owned automobile or a hired automobile shall apply to the named insured and to any other person including any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and with respect to the use of a non-owned automobile shall apply to the named insured and to any executive officer of the named insured.

"Definitions

"`Owned Automobile' means an automobile owned by the name insured.

"`Hired Automobile' means an automobile used under contract in behalf of, or loaned to, the named insured except (1) an automobile owned by or registered in the name of the named insured or (2) an automobile classified and rated as a private passenger automobile owned by or registered in the name of an agent or employee of the ...


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