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Martin v. Allstate Insurance Co.

OPINION FILED JANUARY 23, 1981.

ELOISE MARTIN, PLAINTIFF-APPELLEE,

v.

ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. AUBREY F. KAPLAN, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In this appeal from the judgment entered on a jury verdict in favor of plaintiff in the amount of $150,000, defendant contends that the trial court erred (1) in refusing to permit its witnesses to explain the import of a notation in the insurance policy after plaintiff had been permitted to give her explanation of it; (2) in refusing to permit defense counsel to comment during closing argument on anticipated jury instructions; (3) in giving certain instructions as to damages; and (4) in failing to grant judgment to defendant notwithstanding the verdict. Defendant also maintains that the verdict was against the manifest weight of the evidence and was excessive.

In her amended complaint, plaintiff alleged in count I, sounding in fraud, that her husband, William Martin, purchased automobile insurance from defendant; that he informed defendant's agent the insurance was to cover plaintiff and him not only on their car but also on non-owned autos used by either of them; that defendant's agent fraudulently misrepresented this coverage would be issued; and that subsequent to the death of her husband, defendant fraudulently misrepresented that she would receive all death benefits provided in the policy but none have been paid. In count II, sounding in a theory of unjust enrichment, she alleged payment of the policy premium and asserted that defendant was unjustly enriched because of its fraudulent misrepresentations as to coverage. In count III, she alleged generally that through breaches of its duty to her with respect to coverage and payment of death benefits, defendant improperly interfered with her property rights.

The record discloses from plaintiff's testimony that her husband was employed by Marshall White Ford as a used car manager and in that capacity had the use of its automobiles. He also bought and sold cars at auctions for Futrell Auto Sales and, in connection therewith, would drive its cars to and from the auctions. Needing insurance for his wife when she used those vehicles, he applied for coverage with defendant for their car and non-owned cars used by either of them. It appears, however, that he signed a statement excluding coverage with respect to non-owned automobiles. Additionally, plaintiff testified that she and her husband, separately and sometimes together, had conversations with Picur (defendant's agent who sold the policy) in which the latter said that "they were covered"; that "we were both on any car"; that they were covered on any car that they drove; that they "had continuing income, hospitalization, sickness and `full coverage on anything.'" *fn1

The record reflects that the policy in question provided coverage for their personal auto and that premiums had been paid for bodily injury and property damage, basic personal injury, excess personal injury, uninsured motorists coverage, and collision and comprehensive coverages. Plaintiff stated, however, that she did not understand what any of the coverages meant; that she had not read the policy before the death of her husband but had told her niece and a Mrs. Futrell (apparently the owner of Futrell Auto Sales) that they had "full coverage"; that following the death by asphyxiation of her husband while sitting in a Marshall White auto, she applied for personal injury protection (PIP) benefits but had received nothing; and that since her husband's death, she had sought medical attention and had been hospitalized for physical and mental conditions.

Agent Picur testified that plaintiff's husband applied for coverage on a personally owned vehicle; that after they discussed the various types of coverage available, he requested coverage for liability, property damage, uninsured motorists, medical, full comprehensive, and no-fault personal injury (which is called PIP); that when Martin said he had the use of non-owned automobiles, Picur asked him to fill out and sign a non-owned automobile questionnaire form, indicating he declined such coverage and desired protection only for his personal auto; that Martin filled out and signed the questionnaire; that he (Picur) never informed Martin that he was covered for the use of non-owned vehicles; that Martin never requested a change in coverage for non-owned autos; and that the policy provided coverage on plaintiff's own car for basic and excess personal injury protection.

OPINION

Defendant initially contends that numerous trial errors require a new trial. First, he asserts that the trial court improperly refused defense testimony intended to explain the significance of a notation on the declarations page of the insurance policy after plaintiff was allowed to give her interpretation. On that page was the following notation: "EXCEPTIONS, IF ANY, TO DECLARATIONS 5-13: #6 — No, has non-owned auto use." Plaintiff was questioned about the declarations page as follows:

"Q. Does the page 1 of the supplemental page indicate whether or not there is coverage for a non-owned auto?

A. Yes.

Q. Does it not in fact say #6 has non-owned auto use?

A. Yes."

Defendant thereafter sought to introduce the testimony of two witnesses to explain the notation, arguing unsuccessfully that it should have been permitted to present the explanation of its insurance agent (Picur) who sold the policy and of its underwriter (Snoply) to refute plaintiff's testimony concerning that notation. Defendant then made no offer of proof that those witnesses would testify in substance that after an insured indicates he has non-owned automobile use, it is standard procedure to request that he fill out and sign the non-owned auto questionnaire form; that plaintiff's husband executed such a questionnaire, indicating a waiver of any non-owned auto coverage and that when there is such a waiver the underwriting department makes a notation on the declarations page of the policy issued, as it did here, reflecting that fact.

In closing argument, plaintiff's counsel emphasized her interpretation of the notation as follows:

"Now I want you to look at this policy when you go into the jury room; and right there on the bottom, number six: `has non-auto [sic] use.' What is the reasonable person to expect? Draw on your own everyday experience in life, ...


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