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State Farm Mutual Auto Ins. Co. v. Larsen

OPINION FILED JUNE 13, 1978.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, PLAINTIFF-APPELLANT,

v.

LEE R. LARSEN, ADM'R OF THE ESTATE OF JOHN R. LARSEN, DECEASED, ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

This case involves an action for declaratory judgment. State Farm Mutual Automobile Insurance Company (hereinafter State Farm) issued an automobile liability policy to Perry Snower. Subsequent to this transaction, Snower's adult son, David, was involved in an automobile accident while occupying a vehicle which neither he nor his father owned and which was driven by Gary K. Foreman. John R. Larsen died from injuries suffered in the collision with Foreman's car and, because of this, the administrator of his estate brought a wrongful death action against Snower and Foreman. In response to this suit Foreman filed a counterclaim against Snower. State Farm then filed a declaratory judgment action seeking a declaration that it did not have an obligation under the "omnibus" provision of the insurance policy issued to Perry Snower to defend his son or to pay any judgment that might be entered against him as a defendant or counterdefendant. State Farm next filed a motion for summary judgment. After hearing the arguments of counsel, and after considering the relevant pleadings, affidavits and depositions, the trial court denied this motion and ordered State Farm to afford liability coverage and a legal defense to David Snower. State Farm appeals, contending that they do not have such an obligation under the omnibus clause because at the time of this accident David Snower was operating the offending vehicle without Foreman's permission and without the permission of the legal title holder.

We reverse.

The relevant pleadings and discovery depositions reveal that in the fall of 1971 Gary Foreman and David Snower, who had been friends since high school, were enrolled as first year students at Harper Junior College which is located at Algonquin and Roselle Roads in Palatine, Illinois. Since Foreman and Snower lived in close proximity to one another, and since each had the use of an automobile, they decided to alternate the driving to and from class. The accident in question took place on October 27, 1971, while the two were on their way home from Harper. At approximately 2 p.m. on that date, Foreman left the college in his 1962 Dodge Dart with Snower sitting in the front passenger seat and drove north on Roselle Road and then east on Palatine Road. At the collision point, Palatine Road is a four-lane highway with two lanes for eastbound traffic and two lanes for westbound automobiles. The east and west lanes are separated by a concrete rectangular divider which is raised eight inches from street level. When the Dodge had travelled three or four miles on this roadway, Snower allegedly grabbed the steering wheel without warning and forcibly turned the wheel toward the center median. The Dodge responded to this action by crossing over the median strip and going into the westbound lanes of traffic. Once there, it struck a westbound vehicle driven by a John A. Larsen. Larsen was killed, and Foreman and Snower were severely injured.

Foreman testified that immediately prior to this collision there was nothing unusual about Snower's actions, that neither he nor Snower were roughhousing or playing games, and that he was not having any trouble steering the Dodge. He further stated that it was a complete surprise to him when Snower grabbed the steering wheel; that he never asked Snower to take control of the steering wheel; and that he never indicated in any manner that he wanted Snower to take over operation of the Dodge.

Foreman purchased the 1962 Dodge with his own money in August 1971. Since he was a minor at the time of purchase, title to the car was placed in his father's name. The name on the title had not been changed prior to the October 27 accident.

There was no public liability insurance on the Dodge when this collision took place. However, as was stated above, State Farm had previously issued a policy of liability insurance to David Snower's father for a vehicle he owned. This policy provides that coverage is extended within its provisions to members of the father's household. David Snower was such a member on October 27, 1971. The policy also contains the following omnibus clause:

"Use of Non-Owned Automobiles

If the named insured is a person or persons, and if during the policy period such named insured owns a motor vehicle covered by this policy . . . such insurance as is afforded by this policy with respect to the owned motor vehicle under:

(1) coverages A and B applies to the use of a non-owned automobile by:

(a) the first person named in the declarations or,

(b) if a resident of the same household, his spouse or the relatives of either, * * *

PROVIDED SUCH USE, OPERATION OR OCCUPANCY IS WITH THE PERMISSION OF THE OWNER OR PERSON IN LAWFUL POSSESSION OF SUCH AUTOMOBILE AND IS WITHIN THE SCOPE OF SUCH PERMISSION."

• 1 "Omnibus" clauses such as this one have been the subject of a great deal of litigation. Cases involving such clauses are generally regarded as falling into three categories: (1) coverage exists only as long as there is strict compliance with the express permission and intended purposes of the owner; (2) coverage will exist as long as deviations from these purposes are minor; and (3) once general permission is granted, coverage exists in spite of any deviation from the original permission. (Fireman's Fund Indemnity Co. v. Freeport Insurance Co. (1st Dist. 1961), 30 Ill. App.2d 69, 72-73, 173 N.E.2d 543, 544.) Illinois belongs to the third category (Konrad v. Hartford Accident & Indemnity Co. (2d Dist. 1956), 11 Ill. App.2d 503, 514-15, 137 N.E.2d 855, 861) which has been characterized as the "liberal" rule. (Annot., 5 A.L.R.2d 622 (1949).) More specifically, this rule means that once general permission is granted for the use of a vehicle, coverage exists even though the use may be for a purpose not ...


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