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Rivota v. Kaplan

OPINION FILED MAY 20, 1977.

MARIA RIVOTA, INDIV. AND AS ADM'R OF THE ESTATE OF JESUS RIVOTA, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

DONALD KAPLAN ET AL., DEFENDANTS. — (SENTRY INSURANCE, GARNISHEE-DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This action arises from a garnishment proceeding brought by plaintiffs against garnishee-defendant, Sentry Insurance Company (Sentry), following entry of judgment against defendant, Donald Kaplan. Sentry answered the summons and affidavit for garnishment, alleging that it possessed no property belonging to the judgment debtor, and moved for summary judgment. Sentry's motion for summary judgment was premised on three grounds: (1) that the insurance policy which plaintiffs sought to garnish, issued to defendant's father, Irving Kaplan, was suspended at the time of the occurrence which resulted in judgment against defendant; (2) that defendant was excluded from coverage under his father's policy by the terms of a restrictive endorsement; and (3) that Sentry was relieved of liability by insured's breach of the condition of notice as required by the policy.

The trial court granted Sentry's motion, and it is from this ruling that plaintiffs now appeal. The sole issue on appeal is whether the trial court erred in granting summary judgment in favor of Sentry. We reverse and remand with directions. The pertinent facts established by the documents of record follow.

On November 17, 1971, Jesus Rivota and four of his children were standing on the sidewalk near 3429 West North Avenue, Chicago, Illinois. At that time defendant was driving an automobile, owned by Patrick Koch, in an easterly direction along North Avenue. Defendant was using the car with Koch's permission. While driving the car, defendant struck a parked car, propelling it onto the sidewalk, killing Jesus Rivota, and injuring his four children.

On January 18, 1972, Maria Rivota sued both defendant and Patrick Koch for the wrongful death of her husband and the injuries suffered by her children. Defendant filed a pro se appearance on January 24, 1972. The complaint was amended on April 28, 1972, to include counts for negligence and wilful and wanton misconduct on the part of defendant.

On May 4, 1970, approximately a year and a half before the accident, Hardware Dealer's Mutual Fire Insurance Company (Hardware) issued an automobile liability insurance policy to Irving Kaplan, defendant's father. The policy was titled "Sentry Auto Policy" and the two companies, Hardware and Sentry, were referred to interchangeably in the policy. The record indicates that the policy was renewed, first by Hardware and then by Sentry, for successive six-month periods running from November 4, 1970, through May 4, 1972. It was during the last policy renewal period that the instant accident occurred.

On June 18, 1970, Irving Kaplan executed an "Exclusion Endorsement" restricting defendant from coverage under the policy. The endorsement was given an effective date of May 4, 1970, corresponding to the date the policy was issued. Neither the declarations, nor the printed form policy issued by Sentry for the last six-month renewal period, November 4, 1971 through May 4, 1972, make any reference to this endorsement. No such endorsement was attached to the copy of the policy for that period.

On October 17, 1971, the following endorsement was issued to Irving Kaplan suspending certain liability coverage under the policy:

"It is agreed that as of the effective date hereof the insurance afforded with respect to the coverages and automobiles indicated below by (x) is suspended in accordance with the request of the insured * * *.

COVERAGES AND AUTOMOBILES SUSPENDED

Coverage (a) All Automobiles (b) Automobiles Designated Below

Liability ) Medical Expense ) ( ) (XX) Protection Against Uninsured Motorists )

Collision ( ) ( )

Comprehensive ( ) ( )

Designation of Automobile: 67 CHEV IMP 4 DR HT"

The Chevrolet Impala was an owned automobile under the policy. It had been involved in an accident on October 16, 1971, and was no longer operable. Coverage was reinstated as to a newly designated automobile on November 30, 1971.

On November 3, 1972, notice was sent to Sentry informing the company that plaintiffs would move for an order of default against defendant for failure to file an answer to plaintiffs' complaint. Sentry was further advised of the proceedings against defendant by a letter from plaintiffs' attorney dated November 7, 1972.

On November 13, 1972, an order of default was entered against defendant. A copy of the order was sent to Sentry. On December 1, 1972, Sentry was served with notice that plaintiffs would offer proof of damages and ask for judgment against defendant. Judgment was entered against defendant on December 12, 1972. A copy of the judgment order was sent to Sentry on December 20, 1972.

On January 11, 1973, Sentry responded by stating that there was no coverage in effect at the time of the loss and, therefore, the company had no obligation to defend defendant. The garnishment action, giving rise to this appeal, followed.

• 1 Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 57(3)) provides that summary judgment is appropriate "* * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law." Thus, summary judgment is proper when the issue is determinable solely as a question of law. (Sidwell v. Sidwell (1975), 28 Ill. App.3d 580, 328 N.E.2d 595; Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill. App.2d 260, 222 N.E.2d 168.) The right of a party to summary judgment must be clear and free from doubt. McHenry Sand & Gravel, Inc. v. Rueck (1975), 28 Ill. App.3d 460, 328 N.E.2d 679; Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App.3d 56, 324 N.E.2d 444.

• 2 The first two bases raised by Sentry in support of its motion for summary judgment required the trial court to determine the effect of certain endorsements to the Kaplan insurance policy. Construction of an insurance contract presents only a question of law; it is not submissible to a jury. (Voss v. Associated Life Insurance Co. (1976), 36 Ill. App.3d 105, 343 N.E.2d 174; Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 ...


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