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02/07/89 Douglas D. Stuen Et Al., v. American Standard

February 7, 1989

DOUGLAS D. STUEN ET AL., PLAINTIFFS-APPELLANTS

v.

AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 208, 178 Ill. App. 3d 986, 128 Ill. Dec. 188 1989.IL.147

Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. WOODWARD and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

The plaintiffs, Douglas and Pamela Stuen, appeal the trial court's order granting summary judgment in favor of the defendants, American Standard Insurance Company of Wisconsin and Illinois Farmers Insurance Company. On appeal, the plaintiffs contend that the trial court erred in finding that their injuries did not arise out of the use and/or the ownership, maintenance or use of an uninsured motor vehicle. We find no error and affirm the judgment of the trial court. The following facts are pertinent to our review.

On August 2, 1987, Steven and Linda Scheeler drove to Green County, Wisconsin, to enjoy a day of fishing at the Sugar River. They were accompanied by their 1 1/2-year-old dog, Rambo. The Scheelers parked their car off the south side of County Highway EE, and the couple and their dog got out of the car. Linda occupied herself picking up broken glass near the car, and Steven took the dog on a leash to the rear of the car to remove fishing equipment from the trunk. At some point during this act, Steven let go of the dog's leash, and the dog wandered off. Shortly thereafter , both Linda and Steven became aware that the dog was on the north shoulder of the road some distance away from them. They heard and saw several motorcycles approaching the spot where the dog was standing. The dog appeared to move in front of one of the motorcycles, which was ridden by Douglas and Pamela Stuen, the plaintiffs in this matter. The Stuens and the dog collided, which resulted in injuries to both Stuens and in the dog's death. Approximately 10 minutes had passed from the time that the Scheelers arrived at the location to the time of the collision.

The Scheelers had no automobile liability insurance. The Stuens held three such policies: Douglas had two policies with the defendant American Standard Insurance Company of Wisconsin (one for a car, one for the motorcycle), and Pamela had one policy for her car with the defendant Illinois Farmers Insurance Company. The Stuens were Illinois residents, and both insurance companies were licensed to do business in Illinois at the time of the collision.

The Stuens filed a complaint seeking a declaratory ruling that their injuries arose out of the use of an uninsured motor vehicle, thus bringing their injuries within the scope of coverage provided by the uninsured motorist clauses contained in the defendants' insurance policies. The complaint alleged that the plaintiffs' injuries were caused by the Scheelers' negligence in "letting the dog out of or loading the dog into their [uninsured] automobile."

Following the Scheelers' depositions on January 6, 1988, the plaintiffs filed a "motion for summary determination of major issues" in which the plaintiffs sought to have the court rule that their injuries were covered by the subject insurance policies. Both defendants filed motions in opposition to the plaintiffs' motion.

The policies issued by American Standard to Douglas Stuen contained the following uninsured motorist clause:

"We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the uninsured motor vehicle."

The policy issued by Illinois Farmers to Pamela Stuen contained the following uninsured motorist clause:

"We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out ...


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