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03/17/89 Auto-Owners Insurance v. Ernest E. Gray

March 17, 1989

AUTO-OWNERS INSURANCE COMPANY, PLAINTIFF-APPELLANT

v.

ERNEST E. GRAY, INDIV. AND AS ADM'R OF THE ESTATE OF LYNDA GRAY, DECEASED, ET AL., DEFENDANTS-APPELLEES (GARY E.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Miller et al., Defendants)

536 N.E.2d 444, 180 Ill. App. 3d 761, 129 Ill. Dec. 604 1989.IL.339

Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. SCOTT and HEIPLE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

Plaintiff Auto Owners Insurance Company brought this action seeking a declaratory judgment regarding its liability under a personal automobile insurance policy. Plaintiff seeks a determination that the policy did not afford coverage because the vehicle being operated by the insured, defendant Gary Miller, at the time of the accident was furnished for his frequent and regular use. The trial court determined the vehicle was not furnished for Miller's regular use because there was a deviation from the permitted uses at the time of the accident.

Gary Miller was involved in an accident while driving a pickup truck owned by his employer, La Salle County Asphalt. The accident occurred on the evening of September 9, while Miller was returning from a golf outing.

Miller was assigned the pickup truck in May of 1982; the truck was in his exclusive possession up until the date of the accident in September 1984. Miller kept the truck at his personal residence at all times, 24 hours a day, for the entire year. Miller was allowed to retain the truck during the winter months even though he would frequently not work and not be on La Salle's payroll because it was La Salle's slow season. The only sets of keys to the truck were in La Salle's office and in Miller's possession.

Miller stated he had made personal use of the truck prior to the date of the accident and had never been reprimanded for making personal use of the vehicle. Although he had never received verbal or written instructions from his supervisor at La Salle limiting or restricting his use of the truck, Miller acknowledged he knew he was violating company policy at the time of the accident.

Under La Salle's unwritten policy, employees were allowed to use company trucks for company business only. According to La Salle, any personal use of the truck by an employee would result in discharge. Miller was discharged from his position with La Salle after the accident. All of the employees who were in positions similar to Miller, who testified in court, stated that they had been given specific directions as to the prohibition of personal use of the vehicle.

La Salle's vice-president, Owen Seibert, testified that La Salle benefited from its foreman having possession of the trucks because the workers were able to go directly to the job site. Seibert maintained that in the event of an emergency, La Salle's foreman could quickly reach a problem area if the truck was in his possession. According to Seibert, the trucks were also used for storage of the company's bulky, heavy tools, which were frequently used each day.

At the time of the loss there was in effect a policy of insurance issued by Auto Owners covering Miller for his personal automobile use. The policy included coverage for Miller's operation of a non-owned vehicle subject to an exclusion which is the subject of this litigation. The ...


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