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06/13/88 State Farm Fire and v. Robert Mann

June 13, 1988

STATE FARM FIRE AND CASUALTY COMPANY ET AL., PLAINTIFFS-APPELLEES

v.

ROBERT MANN, INDIV. AND AS FATHER AND NEXT FRIEND OF JAMES MANN, A MINOR, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

526 N.E.2d 389, 172 Ill. App. 3d 86, 122 Ill. Dec. 130 1988.IL.922

Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Jr., Judge, presiding.

Rehearing Denied July 28, 1988.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL, P.J., and MANNING, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Defendant, Patricia McNamara, individually and as mother and next friend of James A. McNamara, brings this appeal from the order of the circuit court of Cook County which granted summary judgment to plaintiffs, State Farm Fire and Casualty Company (State Farm Casualty) and State Farm Mutual Automobile Insurance Company (State Farm Mutual), in their declaratory judgment suits filed against the defendants below. The injuries, which were the basis for the declaratory judgment suits, arose on August 4, 1986, when James Mann lost control of the dirt bike which he was operating, causing James McNamara to be thrown from the back of the bike to the ground. The dirt bike was owned by either Caveniss Allred or his son, Brian Allred. The site of the accident was near the intersection of 157th Street and Brennen Highway in Markham, Illinois. James Mann, James McNamara, and Brian Allred were all minors at the time of the accident.

James McNamara, through his mother, Patricia McNamara, filed a suit against Robert Mann and Caveniss Allred seeking sums in excess of $20,000 from each defendant on theories of negligent entrustment, negligent operation, and negligent supervision. State Farm Mutual filed a declaratory judgment suit on February 17, 1987. State Farm Casualty sent a reservation of rights to the defendants, hired independent defense counsel for them, and on February 27, 1987, filed its declaratory judgment action. On April 8, 1987, the trial court granted the motion of defendant Patricia McNamara to consolidate the two declaratory judgment actions.

In its declaratory judgment suit State Farm Casualty alleged that it had no duty to defend either the Allreds or the Manns in the personal injury suit brought by McNamara because the homeowner policies, which it had issued to the Allreds and to the Manns, specifically excluded medical payments to third parties under the circumstances presented here. In particular, the homeowner policies excluded liability for medical payments to third parties arising out of the use of a "motor vehicle" owned by an insured or loaned to an insured, which it defined as "a motorized land vehicle subject to motor vehicle registration." State Farm Casualty further alleged that the dirt bike was a "motor vehicle" within the policy exclusions when Mann operated the bike on the public highway because the bike then became "a motorized land vehicle subject to motor vehicle registration," both under the policy definition and the State motor vehicle code. State Farm Casualty contended that it, thus, owed no duty to defend the Allreds because the medical payments claimed to be owed McNamara arose out of the use of a motor vehicle owned by the Allreds. Furthermore, it contended that, pursuant to this same exclusion, there was no coverage for McNamara's medical payments under Mann's homeowner policy either, because McNamara's injuries arose out of the use of a motor vehicle loaned to James Mann, which was also a specific exclusion of the policy. In addition, State Farm Casualty asserted that there was a provision in Allred's policy which denied payment for medical injuries to third parties arising out of the entrustment of any motor vehicle by an insured to another. It is State Farm Casualty's position that McNamara's claims that Allred was liable for negligent entrustment fall within the policy's exclusion for injuries arising out of the entrustment of a motorized land conveyance. They contended that Mann's alleged negligent supervision is also excluded from coverage since Mann's negligence is by necessity related to the excluded instrumentality, the motor vehicle, and thus, must be excluded under the policy. State Farm Casualty further noted that it had no duty to defend under either Mann's or Allred's homeowner policy inasmuch as the accident occurred off the insured premises at the intersection of 157th Street and Brennen Highway, and thus, was also a specific exclusion under the policy. Finally, State Farm Casualty contended that it could have no duty to defend or to pay as a matter of law under a "gap" theory of coverage because none of the allegations in McNamara's complaint, even potentially, fit within the homeowner policies issued to Allred and Mann, and insurance policies, like any contract, must be construed according to the plain meaning of their provisions.

State Farm Mutual in its declaratory judgment suit also alleged that it owed no duty to defend or to pay any judgments arising out of this accident because of the specific exclusions within its automobile policies. The policies which State Farm Mutual issued to Robert Mann and to Caveniss Allred defined "car," for the purpose of limiting liability coverage to incidents involving the insured vehicle, as a "land motor vehicle with four or more wheels, which is designed for use mainly on public roads." State Farm Mutual asserted that coverage was excluded here because the dirt bike was a two-wheeled vehicle, not within the coverage contemplated by the policies. State Farm Mutual observed that it had served requests to admit certain facts on the defendants on April 15, 1987, pursuant to Supreme Court Rule 216 (107 Ill. 2d R. 216), seeking to establish that the dirt bike was owned by the Allreds and that it only had two wheels. State Farm Mutual alleged that the defendants Allred and Mann admitted in their responses that the dirt bike was owned by the Allreds and that it had two wheels. Accordingly, State Farm Mutual also argued, as had State Farm Casualty, that it owed no duty to defend or to pay under any "gap" theory of coverage, as a matter of law, since the policies it had issued to Mann and to Allred expressly excluded coverage of two-wheeled vehicles.

Defendant McNamara moved for judgment on the pleadings in her favor and both insurance companies then moved for summary judgment. A hearing was held on all three motions on October 9, 1987. McNamara argued before the trial court that Mann's homeowner and automobile policies were issued by "essentially the same entity" and, thus, should be read together and the "gap" in coverage" should be closed in favor of a common insured." The insurance companies, on the other hand, argued that there was no coverage, as a matter of law, under either of the policies. State Farm Mutual asserted that the automobile insurance policies expressly limited coverage to four-wheeled vehicles, while State Farm Casualty contended that the homeowner insurance policies expressly excluded coverage for motor vehicles used off the insured premises that were either owned by or loaned to an insured and excluded coverage for negligent entrustment and supervision. After hearing argument on the motions, the trial court denied McNamara's motion for judgment on the pleadings and granted the motions of State Farm Casualty and State Farm Mutual for summary judgment.

In stating its findings, the trial court rejected defendant McNamara's "gap theory of policy interpretation" and further noted that there can be no such thing as "common law" insurance coverage. The court held that the homeowner insurance policies were unambiguous and that the allegations of the underlying complaint did not come within the duty to defend, relying primarily on State Farm Fire & Casualty Co. v. McGlawn (1980), 84 Ill. App. 3d 107, 404 N.E.2d 1122. The court distinguished the subsequent case of Tuell v. State Farm Fire & Casualty Co. (1985), 132 Ill. App. 3d 449, 477 N.E.2d 70, and also rejected defendant McNamara's contentions that the negligent supervision allegation was a separate cause of action. The trial court then granted plaintiff State Farm Mutual summary judgment, relying on State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453, 365 N.E.2d 290.

McNamara is the only defendant who has appealed the trial court's orders of October 9, 1987. She contends that material issues of fact precluded summary judgment in this consolidated case. It is McNamara's argument, both before this court and in the trial court below, that because the plaintiff insurance companies insured Mann's residence and automobiles, that a common law or "gap" insurance coverage should be found which imposed a duty on the insurance companies to defend and which rendered the insurer liable for any judgment in the personal injury suit against Mann, that McNamara had filed in the circuit court of Cook County on behalf of her minor son, James McNamara.

We disagree. We find that the trial court properly granted summary judgment to State Farm Casualty and to State Farm Mutual on their declaratory judgment suits, finding, as a matter of law, that the insurers had neither a duty to defend, nor an obligation to pay any judgments in the underlying personal injury suit against the insureds, ...


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