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Simpkins v. Protective Insurance Co.

OPINION FILED MARCH 31, 1981.

GEORGE SIMPKINS, D/B/A B & R FREIGHT HAULERS, PLAINTIFF-APPELLANT,

v.

PROTECTIVE INSURANCE CO. ET AL., DEFENDANTS-APPELLEES.



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

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

Plaintiff, George Simpkins, d/b/a B & R Freight Haulers (hereinafter Simpkins), filed a complaint for declaratory judgment seeking to have the court declare that his truck tractor was covered under an automobile liability insurance policy issued by defendant Protective Insurance Company (hereinafter Protective) when it collided with a car; that Protective is obligated to defend a lawsuit involving said vehicle; and that Protective is obligated to pay any judgment that may be entered against him thereunder. On motions for summary judgment by both parties, the trial court found for Protective. Simpkins appeals, raising the issue of whether his vehicle, deemed an "automobile" under terms of the policy, was used "in the business of" his lessee at the time of the accident, thereby excluding coverage under the policy issued by Protective. For the following reasons, we affirm.

Simpkins' vehicle was subject to an equipment lease agreement with Peet Frate Lines, Inc. (hereinafter Peet), which provided that Simpkins would lease his vehicle and supply a driver to Peet for the transportation of commodities on certain intrastate routes. The lease agreement stated further:

"It is expressly agreed to and understood by Lessor and Lessee that during the term of this lease:

1. the said motor vehicle leased hereby shall be under the exclusive and complete possession, use and control of Lessee during the periods the equipment is operated by or for the Lessee.

2. the said motor vehicle leased hereby shall be used in the service of the Lessee exclusively for the transportation of the following commodities within the following described territory: * * *."

This lease ran from July 2, 1975, to July 2, 1978, and Peet was billed weekly at an hourly rate. Simpkins did not have his own Illinois Commerce Commission (hereinafter "Ill. CC") authority, but operated as a common carrier under Peet's Ill. CC authority.

The vehicle was covered by an insurance policy issued by Protective and designated as "Basic Automobile Liability Insurance (Bobtail Only)." The policy provisions at issue here, found in "Endorsement #3," are as follows:

"It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Property Damage Liability and for Automobile Medical Payments with respect to any automobile described above or designated in the policy as subject to this endorsement, does not apply:

(a) * * *

(b) while the automobile is attached to any trailer or semi-trailer or while in the process of being attached or detached from any trailer or semi-trailer;

(c) while the automobile is being used in the business of any person or organization to whom the automobile is rented."

On March 10, 1976, when both the lease agreement and the insurance policy were in effect, a two-vehicle collision occurred between Simpkins' vehicle, which was driven by his employee, Frank Chaney, and a vehicle operated by Ernest Samuels, who subsequently filed suit against Chaney and Simpkins. Chaney had been en route to pick up a trailer and merchandise at Peet's terminal when the collision occurred. Peet was apparently not made a party to that lawsuit.

On January 29, 1980, and January 31, 1980, the parties filed motions for summary judgment. Simpkins' motion was supported by a copy of the "Equipment Lease" entered into between himself and Peet. Protective's motion was supported by a copy of the discovery deposition given by Simpkins, under oath. The trial court found that at the time of the accident, Simpkins' vehicle was used "in the business of" his lessee and ...


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