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05/01/89 Rockford Mutual Insurance v. Steven Schuppner Et Al.

May 1, 1989

ROCKFORD MUTUAL INSURANCE COMPANY ET AL., PLAINTIFFS-APPELLANTS

v.

STEVEN SCHUPPNER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

538 N.E.2d 732, 182 Ill. App. 3d 898, 131 Ill. Dec. 357 1989.IL.641

Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Plaintiffs, the Rockford Mutual Insurance Company (Rockford) and the Kane County Mutual Insurance Company (Kane), filed a declaratory judgment action in the circuit court of Cook County, seeking a declaration that they were not liable under a farm tenant insurance policy issued to defendants Steven Schuppner and Paul Schuppner for the damages which arose from an automobile accident involving Steven Schuppner and Marc Eldridge. Defendants in the case include Steven and Paul Schuppner, the insureds, and Mitchell and Cheryl Eldridge, individually and as parents and next friends of Marc Eldridge, who were the plaintiffs in a separate suit against the Schuppners for the damages Marc Eldridge sustained in the accident on June 18, 1985. Plaintiffs here, Rockford and Kane, filed a motion for summary judgment asking that judgment be entered in their favor. The defendants countered by filing a cross-motion for summary judgment. The circuit court denied plaintiffs' motion and granted defendants' motion, ruling that plaintiffs were liable for the accident under their farm tenant policy. Plaintiffs have now appealed that decision to this court. We reverse.

The underlying accident in this case occurred on June 18, 1985. Steven Schuppner, who was driving a 1978 Chevrolet truck with a trailer attached, collided with Marc Eldridge, who was riding his bicycle. Thereafter, Mitchell and Cheryl Eldridge, individually and as parents and next friends of Marc Eldridge, a minor, filed suit against Paul Schuppner and against Steven Schuppner, individually and as the agent of Paul Schuppner. Steven Schuppner and Paul Schuppner, Steven's father, were co-owners of the truck that was involved in the accident.

At the time of the accident, the truck was insured under an automobile insurance policy by the County Mutual Insurance Company (County Mutual). Paul Schuppner was the only named insured on the County Mutual policy, but the Schuppners also had a farm tenant insurance policy with the plaintiffs here, Rockford and Kane, in which both Paul and Steven were named. The farm tenant insurance policy contained an exclusion for " bodily injury or property damage . . . arising from the ownership, maintenance, operation, use, loading or unloading of . . . any motor vehicle or any recreational motor vehicle owned by, loaned to or operated by an Insured " (emphasis in original); however, the policy provided that it would cover a motor vehicle or recreational motor vehicle on the insured location if the vehicle was not licensed for road use or was used exclusively on the insured location. The policy defined motor vehicle as a "motorized land vehicle, trailer or semi-trailer (including any attached machinery or apparatus), designed principally for travel on public roads." And, noteworthy for purposes of the contentions in this case, the policy then excluded farm implements or farm machinery from its definition of a motor vehicle, unless they were towed by or carried on a motor vehicle.

After the accident of June 18, 1985, the Schuppners tendered the defense and indemnity of the Eldridge accident to County Mutual, under the terms of the automobile policy that Paul Schuppner maintained with County Mutual and, subsequently, County Mutual undertook the defense of the Eldridge lawsuit. Approximately 11 months after tendering the lawsuit to County Mutual, the Schuppners also tendered the defense and indemnity of the Eldridge suit to Rockford and Kane, claiming coverage under their farm tenant insurance policy with Rockford and Kane.

After receipt of the request for coverage, Rockford and Kane filed this complaint for declaratory judgment in the circuit court of Cook County, seeking a determination of their obligations under the policy. Rockford and Kane asserted that the accident between Steven Schuppner and Marc Eldridge fell within the motorized vehicle exclusion of its farm tenant policy and, accordingly, asked the court to enter a declaratory judgment finding that they had no obligations under the policy. The Schuppners filed an answer in which they claimed that the motor vehicle exclusion did not apply to the Eldridge accident and requested the court to deny plaintiffs' request.

Later, at the request of Rockford and Kane, Steven Schuppner and Paul Schuppner both gave depositions in connection with the declaratory judgment case. In Steven Schuppner's deposition, Steven said that he obtained the farm tenant insurance policy through an insurance broker, David Werdin, but had never discussed with Werdin whether the farm tenant policy would cover an accident involving his truck and trailer. He also stated that he never read the section of the policy dealing with motor vehicle exclusions. Concerning the accident, Steven testified that it occurred on a public road as he was driving a 1978 Chevrolet truck, which properly displayed Illinois license plates. Steven asserted that the truck was generally used for farming, but he also estimated that it was used approximately once a week for non-farming purposes. The trailer, which was attached to the truck, was borrowed from a neighbor and did not have a license on it, but it did display a "slow moving vehicle" sign. At the time of the accident, Steven said he was driving the truck and trailer home from baling hay on some property that he and Paul Schuppner rented. Steven stated that he guessed the distance between his home and the rented property was about one-half a mile.

In Paul Schuppner's deposition, Paul also said that the farm tenant insurance policy was obtained through David Werdin and further stated that he, like Steven, did not remember ever discussing with Werdin whether an accident involving his truck and trailer would be covered by the farm policy. Paul testified that he never used the truck for non-farming purposes, nor did he remember his family ever using the truck for non-farming purposes. However, Paul did recall that the truck had been used in the past to move furniture.

Rockford and Kane then filed their motion for summary judgment contending, on the basis of those depositions and the language of their policy, that there was no genuine issue of material fact and that it was clear that the Eldridge accident fell within the motor vehicle exclusion in their insurance policy. The defendants responded by filing a cross-motion for summary judgment asserting that while there was no genuine issue of fact, the evidence established that the Eldridge accident was in fact a covered occurrence under the policy. The trial court, as noted above, denied plaintiffs' motion for summary judgment and granted defendants' cross-motion. The trial court ruled that the accident was a covered occurrence, and that the determining factor in finding that the occurrence was covered was, in its judgment, the purpose for which the vehicle had been used, which the court found here to be a farm purpose. Also, in denying Rockford and Kane's motion for summary judgment, the court said, "The fact that the vehicle has four wheels and travels on a public road does not make it a motor vehicle . . . within the meaning of this insurance policy . . .." Following the court's ruling, Rockford and Kane filed a motion for rehearing, which the trial court denied. This appeal followed.

On appeal, Rockford and Kane again contend that the Schuppner's truck fell within the motor vehicle exclusion in their insurance policy and that, therefore, the trial court erroneously ruled that the truck was covered by their policy. In addition, Rockford and Kane assert that the Schuppners' truck could not properly fall within any exception to the motor vehicle exclusion, and the trial court's ruling that it did was erroneous. The Schuppners argue, on the other hand, that their truck was a farm implement and that, ...


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