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Schall v. Country Mutual Ins. Co.

OPINION FILED JUNE 15, 1978.

NORMAN SCHALL ET AL., PLAINTIFFS-APPELLANTS,

v.

COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of McLean County; the Hon. LUTHER DEARBORN, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The several plaintiffs obtained judgments approximating $198,000 against Stanley Tipsord for injuries received in a multivehicle collision. Stanley was driving a truck owned and insured in the name of his father, Emory. The issue of liability was reviewed in Schall v. Forrest (1977), 51 Ill. App.3d 613, 366 N.E.2d 1111. Defendant has paid the maximum liability ($100,000) upon the policy issued to cover the truck owned and insured by Emory.

Plaintiffs appeal from the judgment of the trial court entered in their garnishment proceeding, which alleged that defendant had two additional policies in which plaintiffs had an interest.

It is stipulated that Della is the wife of Emory and that Stanley is the son of Emory, all of whom resided in the same household upon the day of the collision. It does not specifically appear whether Della is the mother of Stanley.

Defendant issued the following policies: Policy "A" issued to Emory Tipsord insuring a pickup truck owned by him in which Stanley was not a named insured; Policy "B" issued to Della Tipsord insuring a 1967 Ford automobile in which Stanley was not a named insured; and Policy "C" issued to Stanley Tipsord insuring a 1968 Dodge automobile.

The parties stipulated that the automobile of Stanley Tipsord described in Policy "C" was not withdrawn from service, that is, that the truck was not being used as a substitute vehicle. There is no contention that the truck was not available for the regular use of the son, Stanley. State Farm Mutual Automobile Insurance Co. v. Differding (1977), 69 Ill.2d 103, 370 N.E.2d 543.

The trial court found under the evidence that Policy "B" and "C" did not provide insurance coverage in addition to that which was provided by Policy "A", and entered judgment in favor of the garnishee-defendant.

Plaintiffs argue that there is an ambiguity arising by reason of the term "Non-Owned Vehicle" appearing in the policy. In the portion of the policy headed "Persons Insured," the policy provides that with respect to a vehicle the named insured and a resident of his household is deemed a named insured. The section further provides:

"(2) with respect to a Non-Owned Vehicle,

(a) the Named Insured, when operating such vehicle or when such vehicle is operated by an agent or servant of the Named Insured;

(b) Relatives as hereinafter defined, provided the actual use of such vehicle is with the permission of the owner and the use is within the scope of such permission."

We note that the language with respect to a "Non-Owned Vehicle" in its paragraph (b) specifically refers to the definition of "Relative" as thereafter defined.

A portion of the policy entitled "DEFINITIONS UNDER SECTION I" in enlarged and heavier type, immediately follows the portion referring to persons insured and defines 11 words or terms employed in the preceding portions of the policy, including the following:

"`Named Insured' means the individual or entity named in the Declarations and if an individual includes his or her spouse, if ...


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