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Franey v. State Farm Mutual

MAY 9, 1972.

STEVEN FRANEY, A MINOR, BY MARDELL FRANEY, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. JAMES GRAY, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE JONES delivered the amendment to opinion of the court:

Plaintiff appeals from a judgment of the trial court rendered in favor of defendant insurance companies in a declaratory judgment action against the insurance companies and an allegedly negligent driver. The judgment order being appealed contains the requisite finding that there is no just reason for delaying enforcement or appeal. The issues on appeal concern the interpretation of policies of liability insurance issued by defendant companies. We are to determine whether, under the facts presented, a State-owned automobile was a "non-owned automobile furnished for the regular use of," as contended by one of the companies, and also an "insured automobile" within the purview of an uninsured motorist clause, as contended by the other company.

The plaintiff was riding a bicycle when he was involved in a collision with an automobile owned by the State of Illinois and being operated by Edward Mirielli, an employee of the State of Illinois. The accident occurred as Mirielli was returning to work from his lunch break. The plaintiff brought suit against Edward Mirielli, against the Sentry Insurance Company, who had issued a policy of insurance to the defendant Mirielli upon his personal automobile, and against State Farm Mutual Automobile Insurance Company, who had issued a policy of insurance to John Franey, father of the plaintiff. Plaintiff claims coverage under the uninsured motorist provision of the State Farm policy.

For approximately six months prior to the accident the defendant Mirielli was employed by the State of Illinois at Frank Holten State Park, as a watchman or guard. He was furnished a State-owned automobile, equipped with a radio for purposes of contact with the Centreville police. His job was to patrol the park area. He was paid for eight hours work and during the six months he had been on the job he used one of these eight hours for lunch. It was his practice to use the vehicle to go home for lunch, as his predecessors and instructors on the job had done. He lived approximately two blocks from the park, and his supervisor was aware of this use of the vehicle. There was some variance about the period of his lunch hour and the precise time it was to be taken. The occurrence in question happened on the usual route of return to the park and during the regular work hours for which Mirielli was paid. He went to work in his private car, parked it, used the State car during his eight hours, including the lunch period, and returned home after work in his private car. He understood that he could not use the vehicle for his own use.

The Sentry policy, in which Mirielli was the named insured, provided liability coverage "with respect to a non-owned automobile." In the definitions portion of the policy a non-owned automobile was defined as: "non-owned automobile means an automobile not owned by or furnished for the regular use of either the named insured or any resident of the same household, but the term `non-owned automobile' does not include a temporary substitute automobile." The position of the defendant Sentry is that the State vehicle was furnished for the regular use of Mirielli and, therefore, Mirielli was not covered by the Sentry policy. The plaintiff contends that the vehicle was not furnished for the regular use of Mirielli or that this provision of the policy was ambiguous and should be construed against the company.

The only Illinois cases to which we are directed involving the question of what is regular use are Schoenknecht v. Prairie State Farmers Association, 27 Ill. App.2d 83, 169 N.E.2d 148; Rodenkirk for Use of Deitenbach v. State Farm Mutual Insurance Company, 325 Ill. App. 421, 60 N.E.2d 269; and State Farm Mutual Automobile Insurance Company v. Berke, 123 Ill. App.2d 455, 258 N.E.2d 838.

In the Schoenknecht case the named insured was provided an automobile by his employer gas company for use in checking gas leakage, and he was to return the vehicle to the employer's shop at the conclusion of his duty. On the occasion in question he drove the vehicle on his own affairs during the evening hours and was involved in a collision. The court said, "The use of this car at this time was, under the authorities, an isolated, casual, unauthorized use of an automobile other than his own and comes within the insuring agreements of this policy designated `use of other automobiles' * * *. And the fact that the car which was involved in the accident had been furnished appellee by his employer for his regular use during his hours of employment was immaterial under the facts disclosed by this record."

In the Rodenkirk case the fiance of a daughter left his automobile with the daughter for the use of members of her family while he was in the Armed Forces. Her father was involved in the accident in question, which involved a "regular use" provision of the family automobile policy. The Appellate Court affirmed the trial court's finding that this was a regular use as a matter of fact.

In the State Farm case the question of regular use was involved in a declaratory judgment action where the driver struck a pedestrian and motorcyclist with a car which had been rented under a regular lease agreement by her husband. The Appellate Court declined to find any ambiguity and affirmed the finding of the trial court that the wife's use of the rented vehicle was a "regular use."

A close case on the facts, referred to in both the Schoenknecht and Rodenkirk cases, is Farm Bureau Mutual Automobile Insurance v. Boecher, an Ohio Court of Appeals case reported in 48 N.E.2d 895. There, the driver was employed as a salesman by an automobile dealer and was given permission to drive one of many cars belonging to his employer for demonstration rides and trips to and from his home. The collision occurred when the salesman was driving home a used car. This was the first occasion on which the driver had used the specific car, but he frequently and regularly took home other cars and demonstrated them. The decision finding this was a regular use was based upon the frequency of use of automobiles in the same category and under the same circumstances for private, as well as business purposes.

• 1 The circumstances of the particular manner of use, where a vehicle is alleged to have been furnished for regular use, must be examined. In the particular instance involved, the owner of one automobile was provided another automobile which, according to the evidence, he used regularly in his work and regularly for his own purpose in driving the vehicle home for lunch, the latter use occurring at a particular interval of time and within a relatively well defined limit of travel. This falls clearly within the type of situation which has been considered to be a regular use of the named insured. Accordingly, we find that the "non-owned automobile furnished for the regular use of" provision prevented Mirielli from being within the terms of his contract of insurance with Sentry Insurance Company, and in this respect the trial court's judgment was correct.

The State Farm Mutual Automobile Insurance Company policy covered the minor plaintiff if the vehicle being operated by Mirielli was uninsured. The definition of an uninsured automobile ...


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