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01/26/95 ECONOMY FIRE AND CASUALTY COMPANY v. WINDY

January 26, 1995

ECONOMY FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLEE,
v.
WINDY DEAN-COLOMB, DEFENDANT, AND JOHN NOTTOLI, INC., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 94C106. Honorable George S. Miller, Judge Presiding.

Released for Publication January 26, 1995. As Corrected March 31, 1995.

Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J., Concurring.

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

This is an appeal by defendant John Nottoli, Inc. (Nottoli), from a judgment by the circuit court of Champaign County granting plaintiff Economy Fire and Casualty Company (Economy) summary judgment and denying defendants summary judgment. Plaintiff brought this declaratory judgment requesting that plaintiff's automobile policy, issued to Windy Dean-Colomb on her 1988 Ford Tempo (Tempo), be interpreted as not covering an accident involving a 1993 Buick Regal rented to Dean-Colomb by Nottoli.

Dean-Colomb's automobile policy with plaintiff provided in part:

"Your covered auto means:

D. any auto or trailer you do not own while used as a temporary substitute for any other vehicle described in the definition which is out of normal use because of its breakdown, repair, servicing, loss or destruction. This provision (D.) does not apply to Coverage For Damage To Your Auto."

Dean-Colomb rented the Buick for a trip to Baton Rouge, Louisiana, and her brother and two friends accompanied her on the trip. The insured Tempo was not used for the trip, presumably because of its high mileage (80,000 to 90,000 miles) and fuel line problems. The brother was in an accident on March 14, 1993, while using the rented vehicle, and Dean-Colomb was named as defendant in an action brought by Nottoli. Plaintiff brought this declaratory judgment action, seeking a determination of no liability under its policy insuring the Tempo.

Motions for summary judgment were brought by both Economy and Nottoli. The trial court's findings included the following:

"5. At the time Dean-Colomb rented the Buick her 1988 Ford Tempo was driveable and was not scheduled for maintenance or repair and was not undergoing repair. In the week prior to making the trip to Louisiana Dean-Colomb drove the Ford Tempo. It was left in Dean-Colomb's driveway while she traveled to Louisiana.

6. The Tempo had 80,000 to 90,000 miles on it. Dean-Colomb occasionally had troubles with the Tempo -- 'it wasn't running properly. It didn't seem to be getting gas. So I felt that probably maybe the fuel injection system needed to be cleaned and probably a tune-up. It was idling really high and, you know, stuff along those lines.' *** In the two-month period before the Louisiana trip the Tempo sometimes had not started or it had stalled."

The trial court found as a matter of law that the rental automobile did not qualify as a substitute and was excluded from coverage.

The issue is narrow: what constitutes being withdrawn from normal use because of breakdown, repair, and servicing. There appears to be no question but that the Tempo was operational and not scheduled for repair. Use of the rented Buick may have resulted from a lack of confidence in the Tempo's ability to make the round trip ...


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