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Uhwat v. Country Mutual Insurance Co.

OPINION FILED JUNE 21, 1984.

GARTH UHWAT, PLAINTIFF-APPELLEE,

v.

COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT (CHERYL ILLG ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Lake County; the Hon. Harry D. Strouse, Jr., Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Defendant, Country Mutual Insurance Company (Country Mutual), appeals from a judgment entered in favor of plaintiff, Garth Uhwat, after a jury trial in a declaratory judgment action which plaintiff brought to determine whether his 1976 Ford pickup truck was covered as a "newly-acquired vehicle" under the terms of a personal vehicle policy that he had with Country Mutual.

Country Mutual raises the following issues on appeal: (1) whether the trial court erred in failing to strike and dismiss plaintiff's amended complaint for failure to allege a good cause of action; (2) whether the Ford pickup truck was a "vehicle" within the definitions in Section I of the policy and whether that was a question of law to be decided by the court; (3) whether the pickup truck was acquired for the same use within the meaning of the policy as the insured vehicle, a 1974 Chevrolet four-door sedan, and whether that was a question of law to be decided by the court; (4) whether the trial court erred in admitting into evidence 1978 and 1979 partnership income tax returns; and (5) whether plaintiff's counsel engaged in prejudical final argument.

Plaintiff filed an amended complaint for declaratory judgment alleging, inter alia, that Country Mutual issued a policy of personal vehicle liability insurance which was in full force and effect on October 4, 1979, and provided for payment of claims for bodily injury and property damage caused by accident arising out of ownership, maintenance, or use of a vehicle and for defense of any suit alleging such bodily injury or property damage; that on or about September 15, 1979, plaintiff acquired ownership of a pickup truck; that on or about October 4, 1979, plaintiff, while driving the pickup truck, was involved in an accident with Cheryl Illg; that the policy provided in part:

"5. AUTOMATIC INSURANCE ON NEWLY ACQUIRED VEHICLE

If the vehicle described in the Declarations is disposed of and another acquired in its place by the Named Insured, or spouse, this policy shall without notice transfer to the newly acquired vehicle.

The insurance coverage of this policy with respect to the vehicle described in the Declarations shall also apply to an additional vehicle of which the Named Insured or spouse acquired ownership evidenced by certificate of title thereto. If the vehicle acquired is a motor vehicle as defined in Section I this paragraph shall apply if the newly acquired motor vehicle was acquired for the same use as a motor vehicle described in the Declarations and, provided further the Company insures all vehicles and automobiles owned by and titled to the Named Insured or spouse.

The terms of the two preceding paragraphs apply provided notice of delivery of such vehicle to the Named Insured or spouse is given to the Company within the policy period then current, or if delivery is less than thirty (30) days prior to the end of such period, then within thirty (30) days after delivery. This General Condition 5 shall not extend or affect the expiration provisions of this policy. The Named Insured shall pay any additional premium required for such insurance afforded from date of delivery of such vehicle";

that Illg had filed a complaint against plaintiff seeking property damages and plaintiff believed he would be sued by Illg for personal injuries; that plaintiff made demand upon Country Mutual to assume his defense and to afford liability coverage by reason of the contract of insurance, but Country Mutual refused to undertake plaintiff's defense. Plaintiff asked the court to declare the rights of the parties, declare that Country Mutual was obligated to defend plaintiff and to reimburse plaintiff for amounts spent in his defense, and construe the insurance policy as including the vehicle which plaintiff was operating on October 4, 1979, as an additional vehicle.

Attached to the amended complaint were a copy of the personal vehicle policy, the complaint filed by Illg against plaintiff, and the letter from Country Mutual, signed by Phillip Collins, to plaintiff denying coverage. The definitions under Section I of the policy provided in pertinent part:

"`Vehicle' means any Private Passenger Automobile described in the Declarations or any Motor Vehicle described in the Declarations and includes a Temporary Substitute Vehicle; and under Coverages A and B, includes (1) a trailer designed for use with a Private Passenger Automobile and while used in conjunction with the Private Passenger Automobile described in the Declarations or Motor Vehicle described in the Declaration; providing it is not (a) a passenger trailer, (b) a trailer used for business purposes other than farming, (c) a trailer used as premises for office, store, display purposes, and (d) a trailer while used as a permanent residence, and (2) a farm wagon or farm implement while used with the Private Passenger Automobile described in the Declarations or the Motor Vehicle described in the Declarations.

`Motor Vehicle' means a land motor vehicle including trailers designed for use with a Private Passenger Automobile, but shall not include Private Passenger Automobiles, Midget Automobiles, Motorcycles, or Motorscooters unless described in the Declaration."

Country Mutual filed a motion to strike and dismiss the amended complaint, arguing that it failed to state a good cause of action. The trial court denied the motion.

The following evidence was adduced at trial: plaintiff and Peter Ratajczyk were partners in the Joe Meyer Tree Service. The 1976 Ford pickup truck was originally purchased in 1977 and was paid for by trading in a truck owned by the Joe Meyer Tree Service and with a loan procured by plaintiff. Although title to the truck was taken in plaintiff's name, the partnership made payments on the truck and the license plates were acquired in the name of the Joe Meyer Tree Service. While being used in the partnership ...


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