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Continental Nat'l American Group v. Vaicunas

FEBRUARY 26, 1975.

CONTINENTAL NATIONAL AMERICAN GROUP (VALLEY FORGE INSURANCE COMPANY), PLAINTIFF-APPELLEE,

v.

AL VAICUNAS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This action arose out of an automobile accident which occurred on October 31, 1968, when a 1961 Buick owned by Roger Green and operated by Jeffery Vaicunas collided with a vehicle driven by Elaine Wise and occupied by Nelson Wise. On February 14, 1969, Nelson and Elaine Wise filed an action against Jeffery Vaicunas and Roger Green for injuries arising out of the collision. Jeffery Vaicunas claimed coverage under an automobile insurance policy issued by the plaintiff to his father, Al Vaicunas. Plaintiff defended Jeffery Vaicunas under a reservation of rights and filed this action for a declaratory judgment to resolve the rights and liabilities of the parties under the terms of the policy. The court ruled in favor of the plaintiff, and the defendants filed this appeal.

There is no factual dispute. The automobile insurance policy involved in this controversy was issued by plaintiff to defendant, Al Vaicunas, on July 15, 1966, and was in effect on October 31, 1968, when the accident occurred. It covered two automobiles owned by Al Vaicunas: a 1963 Chevrolet and a 1964 Ford. The policy also provided coverage to relatives of the policyholder who operated a non-owned automobile. Under the terms of the policy, a non-owned automobile is defined as:

"* * * [A]n automobile or trailer not owned by or furnished for the regular use of the named insured or any relative * * *." (Emphasis supplied.)

Jeffery Vaicunas, the 19-year-old son of Al Vaicunas, was the only person who testified at the trial. He stated that he had obtained a 1961 Buick from Roger Green approximately 2 weeks before the accident in question. Jeffery stated that he obtained the car to get back and forth to work at O'Hare Field, but also acknowledged driving it to places other than his job. He drove the Buick approximately 8 working days prior to the accident. Jeffery paid no money to Green for the car and did not receive title to it. According to Jeffery, Roger Green told him that he could use the car for as long as he needed it.

On October 31, 1968, Jeffery Vaicunas was operating the 1961 Buick when it collided with a vehicle occupied by Elaine and Nelson Wise. At the time of the accident, Jeffery was in the process of stopping at a friend's house and proceeding to work. The Buick was totaled out in the accident, and Jeffery subsequently claimed coverage under the non-owned automobile provision of his father's insurance policy.

A hearing was held before the Honorable Edward J. Egan sitting without a jury on the plaintiff's complaint for declaratory judgment. At the conclusion thereof, the trial court found that the Buick was "furnished for the regular use" of Jeffery Vaicunas, that there was no restriction by Roger Green on the time or place of use of the automobile, and that the claimants under the policy have the burden of proof on the question of coverage. The court then entered its judgment that the plaintiff is not obligated under the policy to defend Jeffery Vaicunas or Roger Green, nor is it obligated to pay any judgment that may be entered against Roger Green or Jeffery Vaicunas. We affirm.

In this appeal, defendants ask that the judgment of the court be vacated and the cause remanded to the trial court with a direction that it find that plaintiff's insurance policy does cover Jeffery Vaicunas for the collision of October 31, 1968. They contend that the 1961 Buick was furnished to Jeffery Vaicunas only for the limited purpose of getting to and from his place of employment and not for his regular use. In support of their position, the following points are argued by the defendants:

1. The court's finding that the automobile was for the regular use of Jeffery Vaicunas is against the manifest weight of the evidence;

2. Jeffery Vaicunas' use of the furnished automobile was infrequent and casual;

3. Plaintiff failed to sustain its burden of proof that the automobile was furnished to Jeffery Vaicunas for his regular use;

4. The court's ruling failed to adhere to the principle that policies of insurance will be strictly construed in favor of the insured in order to afford coverage; and

5. The court erred in failing to adhere to the policy of this state that courts should protect the rights of minors.

The first question we shall discuss is whether the court's finding that the 1961 Buick was furnished for the regular use of Jeffery Vaicunas is against the manifest weight of the evidence. Appellants contend that Jeffery Vaicunas' use of the automobile was infrequent and casual. After reviewing the record in this case, we ...


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