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08/11/87 American Country Insurance v. Anthony Wilcoxon

August 11, 1987

AMERICAN COUNTRY INSURANCE COMPANY, PLAINTIFF-APPELLEE

v.

ANTHONY WILCOXON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

513 N.E.2d 45, 159 Ill. App. 3d 884, 111 Ill. Dec. 799 1987.IL.1150

Appeal from the Circuit Court of Cook County; the Hon. Arthur Cunn, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC, Defendant, Anthony Wilcoxon, appeals from an order granting summary judgment in favor of plaintiff, American Country Insurance Co. (American).

The underlying transaction involves a personal injury suit brought by defendant, Anthony Wilcoxon, who sustained personal injuries when he was struck by a Checker taxi while he was a pedestrian on a Chicago sidewalk. Checker leased the cab to Willie White for a 24-hour period. White permitted David Overstreet to operate the cab. Overstreet allegedly drove the cab onto the sidewalk and injured Wilcoxon. The personal injury action filed by Wilcoxon is pending in the circuit court of Cook County and is not involved in this appeal.

Plaintiff filed a complaint for declaratory judgment against Checker, the owner of the cab; Overstreet, the driver of the cab; and Wilcoxon, the injured pedestrian. White, who leased the cab from Checker and permitted Overstreet to use the cab, was not sued. Plaintiff sought and obtained summary judgment declaring that it was not required to pay or indemnify for Wilcoxon's injuries pursuant to a bond which it issued to Checker in accordance with the Illinois financial responsibility statute. Ill. Rev. Stat. 1983, ch. 95 1/2, par. 8-101 et seq.

Three affidavits were presented in support of plaintiff's motion for summary judgment. Plaintiff's president verified the authenticity of the bond issued to Checker. The other two affidavits were from the lease manager and personnel manager of Checker, who verified the authenticity of the 24-hour lease from Checker to White and the fact that Overstreet, the driver, was not an employee or lessee of Checker and was a stranger to Checker. Having provided plaintiff with these essential affidavits, Checker, as a defendant, filed an appearance but failed to answer plaintiff's complaint or otherwise plead, and permitted a default judgment to be entered against it.

Defendant Overstreet failed to appear or answer and was also defaulted. Defendant Wilcoxon, the injured pedestrian, appeared and opposed plaintiff's action and is the only party appealing the order of the circuit court of Cook County.

The Illinois financial responsibility statute requires that the owner of a cab must provide proof of financial responsibility, by way of bond, certificate of self-insurance or insurance policy, to cover liability for personal injury and property damage in certain amounts and for the satisfaction of any judgment that may be rendered against the "owner or any person operating the motor vehicle with the owner's express or implied consent." Ill. Rev. Stat. 1983, ch. 95 1/2, par. 8-101 et seq.

The bond issued to Checker by American, pursuant to the requirements of the Illinois financial responsibility statute, provides that American will satisfy any judgment "resulting from negligence of such Owner/Principal, his agent, or any person operating the motor vehicle with his express or implied consent." The bond document does not make reference to any rider. However, an unsigned, untitled page, which is alleged to be a rider to the bond, provides in part:

"(c) Express or implied consent is a motor vehicle described in this instrument which is being used with the express or implied consent of CHECKER when it is being used by:

(i) an employee of CHECKER while operating said motor vehicle in the course and ...


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