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Heritage Insurance Co. v. Bucaro

OPINION FILED NOVEMBER 6, 1981.

HERITAGE INSURANCE COMPANY, PLAINTIFF-APPELLEE,

v.

VITO MARTIN BUCARO, D/B/A MILFORD AUTO SALES & PARTS, ET AL., DEFENDANTS. — (VITO MARTIN BUCARO, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding. MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff, Heritage Insurance Company (Heritage), brought a declaratory judgment action to construe the provisions of a "Manufacturers' and Contractors' Liability Insurance Coverage for Premises" policy it issued to defendant, Vito Martin Bucaro d/b/a Milford Auto Sales & Parts (Bucaro), the operator of an automobile dismantling business. The trial court found that Heritage had no duty under the insurance policy to defend or indemnify Bucaro for a tort action then pending against him. The court therefore granted Heritage's motion for summary judgment. The underlying tort action arose from the theft of an automobile from Bucaro's business premises by Calvin Sparks and Rayford Sullivan. The two subsequently collided with a motorcycle carrying Anthony and Linda Post. In the tort action, the Posts charged Sparks and Sullivan with the negligent operation of the stolen automobile, and charged Bucaro with, inter alia, negligently failing to remove the ignition keys from the unattended automobile. Bucaro now appeals from the order granting summary judgment on the complaint for declaratory judgment to Heritage.

The issue presented before us on appeal is whether Bucaro's alleged negligence, which led to the "off premises" automobile collision with the plaintiffs in the underlying action, falls within the coverage provided by the insurance policy issued by Heritage.

Resolution of this issue requires an examination of the pleadings in this case.

According to the complaint for declaratory judgment, the automobile collision in question occurred on July 9, 1974. This occurrence resulted from the theft of a 1966 Plymouth which was parked in front of Bucaro's place of business at 409 N. Pulaski Road, Chicago. The car had been purchased by Bucaro as junk for $25 for the purpose of salvage and destruction. The accident occurred on the Eisenhower Expressway where it intersects Des Plaines Avenue. According to the complaint in the underlying tort action, Bucaro is culpable for the accident in that he:

(1) Left a motor vehicle unattended in a location where defendant, Bucaro, knew or should have known the likelihood of such motor vehicle being stolen and causing an injury to motorists on public highways;

(2) Failed to remove the ignition keys from an unattended motor vehicle on a public highway in violation of section 11-1401 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-1401);

(3) Failed to remove the ignition keys from an unattended motor vehicle on private property heavily frequented by the public, when defendant Bucaro knew or should have known the likelihood of said motor vehicle being stolen and causing injury to motorists on public highways;

(4) Placed the keys of a motor vehicle in an easily accessible location when defendant, Bucaro, knew or should have known the likelihood of said motor vehicle being stolen and causing injury to motorists on public highways;

(5) Failed to lock a motor vehicle or otherwise prevent access into it. The complaint for declaratory judgment concludes by requesting a declaration that the policy Heritage issued to Bucaro is inapplicable to the automobile collision.

Bucaro filed an answer admitting the salient facts of Heritage's complaint for declaratory judgment. Then, Heritage filed its motion for summary judgment since only the legal effect of the insurance policy was at issue. On October 9, 1979, the trial court denied this motion. However, on March 7, 1980, the trial court vacated its October 9, 1979, order and entered summary judgment for Heritage. The trial court's order recites as follows:

(a) that Heritage policy number 6LA 10567 issued by Heritage to Bucaro is inapplicable to the occurrence alleged in cause number 74 L 21330 refiled as 79 L 5822;

(b) that Heritage has no obligation to defend Bucaro in the action brought by Linda Post and Anthony Post in cause number 74 L 21330 refiled as 79 L 5822;

(c) that Heritage has no obligation to pay any judgment that may be rendered against Bucaro and in favor of Linda Post and/or Anthony Post in cause ...


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