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State Farm Fire & Casualty Co. v. Mcglawn

OPINION FILED MAY 13, 1980.

STATE FARM FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLEE,

v.

DIANNA L. MCGLAWN ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiff filed this action in declaratory judgment (Ill. Rev. Stat. 1977, ch. 110, par. 57.1) in the circuit court of McLean County to determine its liability under a policy of insurance commonly known as a homeowner's policy. The trial court entered summary judgment for plaintiff and this appeal followed.

The declaratory judgment action arose by reason of an underlying lawsuit in which defendant McGlawn, through her father and next friend, brought suit against defendant Ragland on account of injuries sustained by McGlawn, and allegedly inflicted by Ragland's minor son Robert. The theory of the underlying suit is one of negligent entrustment. It is alleged that the senior Ragland, defendant here, negligently entrusted a motorcycle to his son Robert, and that Robert negligently injured McGlawn. The injuries are admitted serious.

No questions are raised that the homeowner's policy was not in force, nor that Robert Ragland was not an insured within the meaning of the policy. The controversy centers about an exclusion in the policy for bodily injury arising out of the maintenance of any motor vehicle loaned to any insured. There is a minor difference of opinion between the parties as to ownership of the motorcycle, but the underlying amended complaint alleges that Reginald Ragland "maintained" certain motorcycles.

The basic question to be answered is whether, admitting that the exclusion would apply to an action sounding in common negligence, negligent entrustment is a sufficiently different cause of action to be covered by the broad language of the policy. The language at issue reads, in part, as follows:

"SECTION II

COVERAGES

COVERAGE E — PERSONAL LIABILITY

This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. * * *

DEFINITIONS

Applicable only to Section II * * *

5. `occurrence' means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage. * * *

EXCLUSIONS

THIS POLICY DOES NOT ...


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