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Kravis v. Smith-marine

JUNE 11, 1974.

MARK KRAVIS, A MINOR, BY ALLEN KRAVIS, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

SMITH-MARINE, INC., ET AL., DEFENDANTS — (STATE FARM FIRE & CASUALTY COMPANY, GARNISHEE-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DOWNING, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 26, 1974.

This appeal arises from a garnishment proceeding in which the court entered a judgment in the sum of $50,000 in favor of the minor plaintiff, Mark Kravis. Garnishee, State Farm Fire & Casualty Co., appeals from the judgment and contends that (1) the business pursuits exclusion of its insurance policy applies; and (2) covenants not to sue given by plaintiff to certain defendants precludes recovery in the garnishment proceeding.

This cause of action arose from a boating accident which occurred on August 30, 1966, in Lake County, Illinois. A boat owned by William Farrar and operated by Andrew Korpan collided with another boat in which plaintiff, Mark Kravis, was a passenger. As a result of this collision plaintiff was seriously injured.

William Farrer purchased the boat involved in the accident from Smith-Marine, Inc., of Cicero, Illinois, less than 1 year prior to the accident. Thereafter Farrar repeatedly notified Smith-Marine that repairs to the boat were necessary. A few days before the accident, Gerald Meyer, an employee of Smith-Marine, was instructed by his employer to transport the boat from its mooring place at Farrar's summer home to the Smith-Marine shop in Cicero for repairs. Farrar had given Smith-Marine permission to pick up the boat and perform the needed repairs.

Smith-Marine leased one or two slips at Korpan's Landing, a privately-owned pier near the Farrar summer home. Meyer also kept his own private boat at Korpan's Landing. On August 30, 1966, Meyer drove his car and trailer from Smith-Marine Korpan's Landing, parked his car and trailer there, and drove his own boat to the Farrar summer home. He was accompanied by Andrew Korpan, the 14-year-old son of Walter and Anna Korpan, proprietors of Korpan's Landing. Andrew Korpan gratuitously agreed to drive Farrar's boat back to Korpan's Landing where it was to be placed on Meyer's trailer for the trip to Smith-Marine. The accident occurred while Andrew Korpan was operating the Farrar boat.

The Farrar boat was insured by a $50,000 boatowner's policy issued by garnishee State Farm Fire & Casualty Co. (hereinafter State Farm). The pertinent policy provisions are:

"Policy Agreements

To pay all sums which the insured shall become legally obliged to pay as damages because of bodily injury sustained by other persons and property damage, arising out of the ownership, maintenance or use of the owned watercraft.

The unqualified word `insured' includes (1) the named insured, (2) * * * residents of his household * * *, (3) any other person while using the owned watercraft, provided the actual use of such watercraft is with permission of the named insured * * * and is within the scope of such insurance.

`Business' includes trade, profession or occupation.

Exclusions

This policy does not apply:

(r) to an occurrence while the boat to which the insured motor is attached, or the boat insured hereunder, is used as a public livery conveyance for carrying passengers for compensation or rented to others, or used for any other business ...


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