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United States Fire Ins. Co. v. Kendle

NOVEMBER 1, 1974.




APPEAL from the Circuit Court of Stephenson County; the Hon. WESLEY A. EBERLE, Judge, presiding.


This action for declaratory judgment was brought by the United States Fire Insurance Company (hereinafter referred to as U.S.F.I.) as plaintiff, and by General Casualty Company of Wisconsin (hereinafter referred to as General Casualty) and United States Fidelity and Guaranty Company (hereinafter referred to as U.S.F. & G.) as intervening petitioners, in the circuit court of Stephenson County under the provisions of section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57.1). The insurance companies sought to determine whether any or all insurance policies issued by these companies provided insurance coverage for the defendant, Lee Kendle, in connection with claims for personal injuries made against him by the defendant, Ann Godber. After a trial on the merits the trial court, sitting without a jury and relying upon the Illinois Supreme Court Decision in Hays v. Country Mutual Insurance Co. (1963), 28 Ill.2d 601, 192 N.E.2d 855, found that none of the insurance policies provided coverage for Lee Kendle. The defendants appeal from this decision and the order of the court denying the post-trial motions to set aside the declaratory judgment.

Subsequent to the trial court's decision in this case and subsequent to the filing of the briefs on appeal, the Illinois Supreme Court issued its opinion in Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill.2d 333, 297 N.E.2d 163, which re-examined the Hays decision. Thus, the question before us now is whether, under the facts of this case, the Illinois Supreme Court decision in Maryland Casualty requires us to reverse the trial court's decision.

On November 4, 1966, 15-year-old Lee Kendle, an unlicensed driver, drove a 1962 Chevy II Nova convertible into a utility pole, severely injuring a passenger, defendant Ann Godber. Fortunately for Ann, the car came to rest in the driveway of a hospital and she was thus able to survive the accident.

The car was owned by one William C. Abbott, who was enroute to Kentucky with his wife in his family's other automobile at the time of the accident. Before William C. Abbott went on his trip he left the keys to the automobile in the possession of his 16-year-old son, Ronald. Ronald, who along with his mother was a primary driver of the car, had his father's permission to drive the automobile. His father, however, expressly prohibited Ronald from allowing anyone else to drive the car.

While his parents were away on their trip, Ronald had a party at his parent's house. His girl friend, Ann Godber, whom he later married, and his friend, Lee Kendle, attended the party. During the course of the party Ann had a quarrel with Ronald and wanted to go home. Unfortunately, Ronald was too drunk to drive her home. Lee Kendle, being a good friend, offered to take Ann home. Ronald was a little hesitant about this arrangement but somehow Lee obtained the keys from the inebriated Ronald. On his way home, Lee, who also was under the influence of intoxicating beverages, ran into the utility pole while attempting to squeal his tires as he accelerated from a stop sign.

Lee Kendle had no insurance coverage of his own. However, U.S.F.I. issued to William C. Abbott, as named insured, a policy of liability insurance which covered the 1962 Chevy II automobile. The policy contained the following omnibus clause:

"Persons Insured: Under the Liability and Medical Expense Coverages the following are insured:

(a) with respect to an owned automobile,

(2) any other person using such automobile, with the permission of the named insured, providing his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission * * *."

The policy specifically excluded Ronald Abbott. It contained the following clause:

"It is agreed that the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by * * * Ronald N. Abbott."

There was also in force a policy of liability insurance issued by General Casualty to Ray Kendle, the father of the defendant Lee Kendle, ...

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