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01/18/95 JOHN M. STEINBERG v. UNIVERSAL

January 18, 1995

JOHN M. STEINBERG, ADMINISTRATOR OF THE ESTATE OF MARY J. STEINBERG, DECEASED, JOHN M. STEINBERG, EXECUTOR OF THE ESTATE OF MARGARET I. STEINBERG, DECEASED, AND JOHN M. STEINBERG, EXECUTOR OF THE ESTATE OF VIRGIL J. STEINBERG, DECEASED, PLAINTIFF-APPELLEE,
v.
UNIVERSAL UNDERWRITERS INSURANCE CO., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 91MR136. Honorable Stuart H. Shiffman, Judge Presiding.

As Corrected May 31, 1995.

Honorable James A. Knecht, P.j., Honorable Carl A. Lund, J., Concurring, Honorable Robert W. Cook, J., Dissenting

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Plaintiff John Steinberg sought a declaratory judgment of the rights and liabilities of the parties concerning a $100,000/$300,000 garage policy issued by Universal Underwriters Insurance Company (Universal) to Honda of Illinois, Inc. (Honda). The issue is whether the garage policy affords coverage to Timothy Massey, an insured driver who was involved in an accident with plaintiff's decedents while test driving an automobile owned by Honda. We find Massey is not "an INSURED" under Universal's garage policy and reverse and remand with directions.

On August 19, 1990, while driving an automobile owned by Honda, Massey was involved in a collision with plaintiff's three decedents. At the time of the accident, Massey was covered by his mother's personal automobile insurance policy with State Farm which satisfied the minimum coverage limits of $20,000/$40,000 under the mandatory insurance provision of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 7-601). It is undisputed Massey and the vehicle are covered under the State Farm policy. However, in a second-amended complaint, plaintiff sought coverage for Massey's negligent operation of Honda's automobile under the garage policy and judgment against Universal. Plaintiff filed a motion for summary judgment contending coverage of Massey exists as a matter of law under the garage policy. Universal filed a cross-motion for summary judgment claiming Massey is not "an INSURED" under the garage policy. The circuit court disagreed with Universal and granted plaintiff's motion for summary judgment. Universal appeals.

The interpretation of an insurance policy is a question of law properly decided on a motion for summary judgment. ( Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 108, 607 N.E.2d 1204, 1212, 180 Ill. Dec. 691.) As a question of law, our review of the circuit court's granting a summary judgment is de novo. Outboard Marine Corp., 154 Ill. 2d at 102, 607 N.E.2d at 1209.

To determine whether Massey is covered under Universal's garage policy, we must look to the policy language:

"WHO IS AN INSURED

With respect to the AUTO HAZARD:

1. YOU;

2. Any of YOUR partners, paid employees, directors, stockholders, executive officers, a member of their household or a member of YOUR household, while using an AUTO covered by this Coverage Part, or when legally responsible for its use. The actual use of the AUTO must be by YOU or within the scope of YOUR permission;

3. Any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permission." (Emphasis added.)

Clearly, Massey does not fall within the scope of paragraph (1) or (2). The issue then is whether Massey is a person "required by law to be an INSURED" ...


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