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05/26/89 State Farm Fire and v. Stefanie Rixecker

May 26, 1989

STATE FARM FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

STEFANIE RIXECKER, DEFENDANT-APPELLANT (MATTHEW C. JOHNSTON ET AL., DEFENDANTS; ALLSTATE INSURANCE COMPANY, DEFENDANT AND CROSS-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

540 N.E.2d 436, 184 Ill. App. 3d 506, 132 Ill. Dec. 696 1989.IL.812

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This appeal and cross-appeal arose as a result of a declaratory judgment action in which State Farm Fire and Casualty Company sought a declaration that (1) a policy of automobile liability insurance issued by it to Arnulf Rixecker, the father of defendant Stefanie Rixecker, and a policy issued by Allstate Insurance Company to Morey Sachnoff did not provide liability coverage for an accident which occurred when defendant was driving Sachnoff's car, or (2) that if the policies did provide coverage for the accident, the Allstate policy provided primary coverage and State Farm's policy provided excess coverage. The trial court entered summary judgment in favor of Allstate on May 26, 1987, and summary judgment in favor of State Farm on August 19, 1987, ruling in both instances that defendant Rixecker was precluded from coverage under the policies because she lacked the permission or consent of the owner or person entitled to lawful possession of the car to drive it when she collided with the other vehicle.

Rixecker appeals only from the order granting State Farm summary judgment, contending that the trial court erred in using an "objective" rather than "subjective" test in determining that she lacked consent to use the Sachnoff car. State Farm, in its cross-appeal against Allstate, argues that should this court find that Rixecker is covered under the policy it issued to Rixecker's father, then such coverage is excess coverage and the policy issued by Allstate to Sachnoff, the owner of the car, provides primary coverage for the accident. Allstate has not filed a brief in answer to State Farm's cross-appeal pursuant to this court's order granting a stay of that appeal until we have disposed of Rixecker's appeal against State Farm. For the reasons set forth below, we affirm.

The record discloses that on April 17, 1983, Rixecker, while driving a 1978 Toyota owned by Morey Sachnoff, collided with a car being driven by Matthew Johnston in North Chicago. As a result, Todd Warner, one of the passengers in the Johnston vehicle, was killed. Warner's administrator subsequently filed a wrongful death action against Rixecker and others.

Prior to April 17, Morey Sachnoff had given his son Lee possession of the Toyota. Lee had parked the car in the driveway at his home in Riverwoods on the day of the accident. On the same day, Rixecker, who had been released from a hospital after a suicide attempt three days earlier and was intoxicated from the consumption of barbiturates, left her house with some teenage friends to go for a car ride. She subsequently instructed the driver of the car she was riding in to drive down some streets near Bannockburn. When they came to Lee Sachnoff's driveway, Rixecker told her friend to drive the car in and stop. Even though Rixecker did not know the Sachnoffs, nor they her, she then went over to the Toyota which was parked in the driveway, found the keys in the car, and drove off. Shortly thereafter she was involved in the collision with Johnston's car, which resulted in Todd Warner's death.

The pertinent provisions of the State Farm policy considered by the trial court in granting State Farm summary judgment are as follows:

"The liability coverage extends to the use by an insured of a newly acquired car, a temporary substitute car or a non-owned car.

Non-Owned Car -- means a car not:

1. owned by,

2. registered in the ...


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