APPEAL from the Circuit Court of Coles County; the Hon.
WILLIAM J. SUNDERMAN, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Two identical insurance policies.
Two different automobiles.
But neither one was the vehicle Lucas was driving when the fatal accident occurred.
Quaere. Was he (it) covered?
On October 18, 1974, Lucas collided with a vehicle driven by Roger M. Ruch which resulted in Ruch's death. The vehicle in which Lucas was riding was also involved in a collision with a second automobile driven by Goins. The vehicle Lucas was driving at the time of the accident was neither of the two specific automobiles covered by the two policies it was a 1949 Ford pickup truck. The automobiles covered were a 1968 Dodge and a Coronet of the same vintage.
Ruch's administrator subsequently sued Lucas. Plaintiff entered its appearance for Lucas and tendered a defense based upon a reservation of rights letter, which read in part:
"Our investigation discloses that you are not entitled to the benefits of said policy and we deny any obligation or liability to you hereunder because the vehicle you were operating did not qualify as a NEWLY ACQUIRED AUTOMOBILE (motor vehicle) as provided in our policy."
Shortly thereafter State Farm filed a declaratory judgment action seeking a declaration of its rights and obligations under the two policies. In addition to Lucas, the administrator, the other person involved in the incident (Goins), and Country Mutual were made defendants. Country Mutual had a policy with the deceased Ruch which had an uninsured motorist provision. Following a series of depositions in both actions and the pleadings being settled, State Farm moved for summary judgment, which was granted. The court declared that plaintiff had no obligation under its policies with Lucas to defend and pay any judgment that might be obtained. This appeal (by Country Mutual only) followed.
The linchpin here is primarily a factual question.
The pivotal point, as we see it, is whether the Ford pickup was owned by Lucas. To bring this point into focus, Lucas' policies provided that a newly acquired vehicle would be covered provided that "as a condition precedent the named insured within thirty days following such delivery date applies to the company for insurance on such newly acquired automobile." The insurance company State Farm argues that Lucas' newly acquired '49 Ford pickup truck was owned by him more than 30 days preceding the accident on October 18 that is, from June or July. Also, if Lucas had not acquired ownership and was merely using the Ford truck belonging to another, his policies on the Dodge and Coronet would provide coverage under the "use of non-owned automobiles" provision.
Thus, the question did he own it or not? and if he did, when? are crucial. Country Mutual says that there is a genuine issue of material fact as to whether Lucas owned the pickup truck more than 30 days prior to the date of the accident. Hence, regardless of the correctness of the ruling, the matter must be tried and therefore, cries Country Mutual, we must reverse.
We glean the facts from the depositions of Lucas and his father-in-law, Sims. Lucas states that Sims "gave" him the truck in May 1974. Thereafter it was always in his possession. At the time Sims gave him the truck he signed the back of the title and handed it either to Lucas or his wife (according to Sims). Lucas in his deposition didn't know whether it was a gift to him or his wife, if it was a gift. At the time Sims turned over the title, it had not been notarized. So a week later (or maybe much later) Lucas went back to Sims to get the notarization. Sims took the nonnotarized title back, but Lucas continued in possession of the truck. About a week later (or much later, depending on whom you believe) Sims got the title notarized and handed it back to Lucas. Even after having been notarized the blank for the name of the transferee was still blank. In any event, Lucas filled out the requisite forms for the Secretary of State and mailed them in the latter part of June or the first part of July. Not until the day before the accident on October 18, 1974, did he receive back the title with ...