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Thomas v. Aetna Casualty & Surety Co.

MAY 8, 1975.

MARK THOMAS ET AL., PLAINTIFFS-APPELLANTS,

v.

AETNA CASUALTY & SURETY COMPANY ET AL., DEFENDANTS-APPELLEES. — STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, PLAINTIFF-CROSS-APPELLANT AND CROSS-APPELLEE,

v.

KEVIN B. O'BRIEN ET AL., DEFENDANTS (KEVIN B. O'BRIEN ET AL., CROSS-APPELLANTS.) — KEVIN B. O'BRIEN ET AL., THIRD-PARTY PLAINTIFFS-APPELLEES,

v.

COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, THIRD-PARTY DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. PAUL C. VERTICCHIO, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Campbell, Thomas and O'Brien are defendants in a personal injury action brought by Cynthia Blanford. This complaint alleges that the several individuals were attending a school party held at a private home. In brief, as Campbell was leaving in his car to go to work, Thomas and O'Brien mounted the front fender or hood of the car, one on either side facing forward, and while the car traveled some 40 feet along a drive, plaintiff ran from behind some bushes and was struck. It is alleged that Thomas and O'Brien are liable in that the conduct of each distracted the attention of Campbell, the driver, and obscured the latter's vision.

The several actions for declaratory judgment amongst the parties here were consolidated in the trial court: Thomas and Phoenix allege that Thomas "was a passenger on said vehicle" (of Campbell), that Aetna's coverage of Campbell created a primary coverage so that Aetna must defend Thomas and that the coverage by Phoenix is secondary to and in excess over Aetna's liability. Aetna's answer denies liability to defend Thomas and alleges that Thomas mounted the hood of the Campbell car and remained there without permission and that such conduct was not a "use" of the car. State Farm Mutual, alleging a notice of reservation of rights, sought declaratory judgment as to its obligation to defend O'Brien, and a further declaration that if obligated to defend and indemnify O'Brien such obligation was secondary to and excess coverage to that of Aetna. O'Brien answered such complaint and by third-party complaint joined Commercial Union seeking the declaratory judgment that the latter be required to defend O'Brien under its home owner's policy. Commercial Union answered denying its obligation to defend O'Brien and alleged want of timely notice of the Blanford claim by O'Brien.

The memorandum of the trial court serving as the basis for the judgment concluded that there were essentially two issues, i.e., (1) whether the conduct of Thomas and O'Brien constituted a "use" of the Campbell car, *fn1 and (2) that "if the court determines that a `use' was involved, the issue of permission must be resolved to determine whether Aetna coverage is primary or secondary."

Upon the issue of "use" the court concluded that neither Thomas nor O'Brien had any direction or control of the car and that their activity "was not related to the use of the vehicle as contemplated by the policies." In the alternative the court concluded that from the circumstances of the driving by Campbell and his failure to object to the presence of Thomas and O'Brien "permission to remain on the car was readily inferable from the facts."

Upon the issue of timely notice raised by Commercial Union, the court found that the failure of O'Brien to give notice was excusable in that he would not reasonably anticipate that his liability would be asserted by Blanford.

Phoenix appeals from the judgment declaring its liability to defend Thomas; Commercial Union appeals from the judgment declaring it liable to defend O'Brien, and State Farm cross-appeals from the judgment declaring that Aetna has no duty to defend Thomas or O'Brien.

O'Brien cross-appeals individually praying that the judgment that State Farm had no duty to defend be reversed in the event that the judgment against Commercial Union was reversed.

There has been no cross-appeal upon the finding of permission by Campbell.

The briefs supply no cases serving as persuasive authority upon the issue of whether or not the conduct of Thomas and O'Brien constituted such a "use" of the Campbell car that they would become additional insured within the terms of the Aetna policy.

• 1 We note initially that the judicial policy favoring a liberal interpretation of insurance coverage is a policy aimed to assure the compensation of victims of injuries which result from traffic or automobile accidents. (Hayes v. Country Mutual Insurance Co., 28 Ill.2d 601, 192 N.E.2d 855. See also Wolf v. American Casualty Co., 2 Ill. App.2d 124, 118 N.E.2d 777, and the cases cited therein.) Each party defendant in the Blanford complaint for personal injuries is insured under a contract which indemnifies him and assures that plaintiff, Blanford, has a source of compensation. The present issues arise between the several insurers that are each subject to contractual liability but seek to transfer such liability to another. Under such circumstances, a judicial policy which finds ambiguity in the terms of the contract or directs a liberal construction of such terms is not a dominant principle.

In a further aspect, it is apparent that the determination that Aetna was obligated to defend Thomas and O'Brien as additional insured would require such an attempted representation of conflicting interests in the several defendants that the denial of declaratory judgment would be a exercise of judicial discretion in the interests of the administration of justice. Farmers Oil & Supply Co. v. Illinois Central R.R. Co., 6 Ill. App.3d 965, 286 N.E.2d 68; La Salle Casualty Co. v. Lobono, 93 Ill. App.2d 114, 236 N.E.2d 405.

The several briefs cite Orrill v. Garrett, 100 Ill. App.2d 194, 241 N.E.2d 1; Visintin v. Country Mutual Insurance Co., 78 Ill. App.2d 75, 222 N.E.2d 550; General Accident Fire & Life Assurance Corp. v. Brown, 35 Ill. App.2d 43, 181 N.E.2d 191; Country Mutual Insurance Co. v. Bowe, 13 Ill. App.3d 386, 300 N.E.2d 274; Fireman's Fund Indemnity Co. v. Freeport Insurance Co., 30 Ill. App.2d 69, 173 N.E.2d 543, and Lumbermen's Mutual Casualty Co. v. Norris, 15 Ill. App.3d 95, 303 N.E.2d 505, as authority that the conduct of Thomas and O'Brien was a "use" of the Campbell car so that Aetna was obligated to defend them.

Norris is only comparable in that the injured party had been sitting on the fender of a parked car of another before she fled to escape injury by an opposing car. The issue was the construction of the uninsured motorists provisions concerning persons "alighting from" and "upon" a ...


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