Appeal from the Circuit Court of Lake County; the Hon. Jack
Hoogasian, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Plaintiff, Edward Knack, appeals from an order in favor of defendant, Allstate Insurance Company (Allstate), in a declaratory judgment action brought to determine whether Allstate's automobile liability policy issued to Mabel Phillips extends to her daughter, Pamela Phillips, who was driving an uninsured motor vehicle owned by Christopher Dombek when it collided with the motorcycle driven by plaintiff.
The issues for our review are: (1) was the non-owned vehicle driven by Pamela Phillips at the time of the accident available or furnished for her regular use pursuant to the "regular use" clause in the Allstate policy issued to her mother, thereby excluding her from coverage under the policy for this accident; and (2) whether the trial court erred in placing the burden of proof on the plaintiff, rather than the insurer, Allstate.
Plaintiff's complaint for declaratory judgment against Allstate, Mabel Phillips and her daughter, Pamela Phillips, and Christopher Dombek alleges that Allstate issued a policy of automobile insurance to Mabel Phillips; that on April 16, 1983, plaintiff was involved in a collision with a vehicle driven by Pamela Phillips and owned by Christopher Dombek; that at the time, Pamela was a member of the household of Mabel Phillips; and that Allstate had denied coverage and an actual controversy existed whether Pamela was covered under the policy. Only Allstate filed an answer, and while admitting the allegations of the complaint, asserted as an affirmative defense that the vehicle Pamela was driving was a non-owned vehicle furnished for her regular use by Christopher Dombek, so that under the terms of the Allstate policy issued to her mother she was not afforded coverage for this accident.
The Allstate policy clause in issue here stated:
(4) A non-owned auto used by you or a resident relative with the owner's permission. This auto must not be available or furnished for the regular use of an insured person."
The case was submitted to the trial judge upon the evidence depositions of Pamela Phillips and Christopher Dombek, together with the insurance policy in question. Dombek's deposition testimony, in essence, was that he had purchased a 1979 Chevrolet Monza in mid-March 1983, while stationed in the Navy in San Diego, California. He was thereafter assigned to the Great Lakes Naval Station and arrived on March 29, 1983. His fiancee, Pamela Phillips, at that time was attending Judson College in Elgin and resided on campus. When not attending school, Pamela lived with her mother in New York. Dombek lived at the base and kept the car there from March 29 until the Easter weekend, April 3. Then he allowed Pamela to keep the car during the week, and during the weekend he would use the vehicle. He gave Pamela permission to use the car to go back and forth to her part-time job and to pick him up on the weekends. The main reason she had the car was to drive back and forth to work in St. Charles, although she made some limited personal use of the car. She had used the car for approximately two weeks before the accident on April 16, 1983, a Saturday. Pamela was on her way to meet Dombek when the accident occurred. He was not insured at the time of the accident.
Pamela Phillips stated in her deposition that she was 18 years old and lived with her mother in New York. In March and April 1983, she was a student at Judson College in Elgin. Following the Easter weekend, Dombek loaned her his automobile. She had the car the week before the accident and possibly the week before that, but not on the weekends. She used it to go back and forth to work, but not every day, as she sometimes car-pooled. She used it on occasion for a personal errand. There was no formal arrangement of how long she would continue to use the car during the week. She signed a statement given to a representative of Allstate that she started using the car on a regular basis on March 29. Pamela explained in her deposition that she really didn't understand the term "regular basis," and she did not begin keeping the car on March 29.
The trial judge found that plaintiff had not met his burden to prove by a preponderance of the evidence that the Dombek automobile used by Pamela was not available or furnished for her regular use, and therefore no coverage was afforded Pamela under the Allstate policy for this accident.
As the evidence before the trial court consists entirely of depositions and documentary evidence, the appellate court makes an independent decision on the facts, and our review is not limited to the usual manifest weight of the evidence standard. Antioch Missionary Baptist Church v. Rosewell (1983), 119 Ill. App.3d 981, 457 N.E.2d 500; Delasky v. Village of Hinsdale (1982), 109 Ill. App.3d 976, 980, 441 N.E.2d 367.
• 1 We address first plaintiff's contention that the trial court erred when it placed the burden of proof on plaintiff to show that Pamela's use of the non-owned automobile did not fall within the "regular use" exception to the Allstate policy. Plaintiff argues it is well-established that where "an insurer defends by alleging that the claim falls within an exception or exclusion to the policy, the burden of proof rests with the insurer."
It has been held generally that where an insurer attempts to limit liability by excluding coverage under certain circumstances, the insurer has the burden of showing that the loss claimed falls within the ambit of the exclusion. (See, e.g., State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App.3d 1062, 1064-65, 419 N.E.2d 601; Voss v. Bituminous Casualty Corp. (1977), 52 Ill. App.3d 49, 51, 366 N.E.2d 159.) Nevertheless, the Illinois Appellate Court has held that claimants under automobile insurance policies have the burden of proof on the question of coverage on the issue of whether the non-owned automobile was furnished for the regular use of the driver. (Continental National American Group v. Vaicunas (1975), 26 Ill. App.3d 835, 840, 325 N.E.2d 747; Harter v. Country Mutual Insurance Co. (1959), 20 Ill. App.2d 413, 419-20, 156 N.E.2d 243; Rodenkirk v. State Farm Mutual Automobile Insurance Co. (1945), 325 Ill. App. 421, 432, 60 N.E.2d 269; see also 12A Couch, Cyclopedia of Insurance Law sec. 45:1807 (R. Anderson 2d ed 1965); contra, State Automobile & Casualty Underwriters v. Ishmael (1972), 87 S.D. 49, 202 N.W.2d 384.) The trial court, therefore, correctly concluded that the plaintiff as claimant had the burden of proof under an automobile insurance policy where the issue of coverage concerned the "regular use" provision of the policy.
• 2 The central issue in this appeal is whether Pamela Phillips was entitled to liability coverage under the Allstate policy issued to her mother. If the Dombek vehicle was available or furnished for Pamela's regular use, she is not entitled to coverage under the Allstate policy for this accident. It is not disputed by Allstate that Pamela was an insured person under the policy as a resident of her mother's household unless coverage is otherwise not ...