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04/03/96 SIRUS ARYAINEJAD v. ECONOMY FIRE &

April 3, 1996

SIRUS ARYAINEJAD, PLAINTIFF-APPELLANT,
v.
ECONOMY FIRE & CASUALTY COMPANY, A DIVISION OF KEMPER CORPORATION, AN INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 21st Judicial Circuit, Kankakee, Illinois. No. 93 MR 267. Honorable Patrick M. Burns, Judge, Presiding.

Released for Publication May 9, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Kent Slater, Justice. Presiding Justice Breslin delivered the opinion of the court: Lytton, J., concur. Justice Slater, dissenting:

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

The plaintiff, Sirus Aryainejad, filed a claim for uninsured motorist coverage under his automobile insurance policy with the defendant, Economy Fire and Casualty Company (Economy). The trial court found that Aryainejad was not entitled to uninsured motorist benefits because the causal relationship between his injuries and the ownership, maintenance or use of the uninsured motor vehicle was insufficient. We hold that uninsured motorist coverage does apply in this case because Aryainejad's injuries resulted from an activity that presented the type of risk the parties reasonably contemplated would be covered by the policy. Accordingly, we reverse.

James Duffy was driving on Interstate 57 near Kankakee when he ran out of gasoline. Duffy left his vehicle to walk to a gas station. While Aryainejad was driving on I-57, he observed Duffy walking toward him in the middle of a traffic lane on the interstate. Aryainejad lost control of his vehicle in an attempt to avoid hitting Duffy and sustained serious injuries in the ensuing crash. Duffy admitted that he had been drinking prior to the accident.

Upon learning that Duffy was uninsured, Aryainejad filed a claim for uninsured motorist coverage under his automobile insurance policy with Economy. When Economy denied his claim, Aryainejad filed the instant suit in the circuit court.

The uninsured motorist provision of Aryainejad's policy provided that "the owner's or operator's liability for these damages must arise out of the ownership, maintenance, or use of the uninsured motor vehicle ***." The parties agreed that the sole issue was whether the accident "arose out of Mr. Duffy's ownership, maintenance, or use of his vehicle," and they each filed motions for summary judgment. The trial court found that the accident was unrelated to Duffy's ownership, maintenance or use of his vehicle primarily because Duffy's vehicle did not come into physical contact with Aryainejad's vehicle. Accordingly, the court granted Economy's motion for summary judgment.

When parties file cross motions for summary judgment, they agree that only a question of law is involved and invite the court to decide the issues based on the record. Andrews v. Cramer, 256 Ill. App. 3d 766, 769, 629 N.E.2d 133, 135, 195 Ill. Dec. 825 (1993). On appeal from the entry of summary judgment, the standard of review is de novo. Andrews, 256 Ill. App. 3d at 769, 629 N.E.2d at 135.

Insurance policies are subject to the same rules of construction that apply to other types of contracts. Morgan v. CUNA Mutual Insurance Society, 242 Ill. App. 3d 1027, 611 N.E.2d 112, 183 Ill. Dec. 259 (1993). The main objective in construing an insurance policy is to ascertain and enforce the intention of the parties as expressed in the agreement. Milwaukee Guardian Insurance, Inc. v. Taraska, 236 Ill. App. 3d 973, 602 N.E.2d 70, 176 Ill. Dec. 763 (1992). Where the terms in an insurance policy are unambiguous, they must be given their plain and ordinary meaning. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). Insurance policies must be liberally construed in favor of the insured. United States Fidelity & Guarantee Insurance Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 637 N.E.2d 1167, 202 Ill. Dec. 431 (1994).

Many courts throughout the country have construed insurance policies with language almost identical to the policy at issue here, and some general principles have been uniformly applied. The words "arising out of" have been interpreted broadly to mean originating from, incident to, or having a causal connection with the ownership, maintenance or use of the vehicle. See 6B Appleman, Insurance Law and Practice, § 4317, at 360-63 (1979) and cases cited therein. Thus, for example, an injury may arise out of the ownership, maintenance or use of a vehicle despite the fact that the vehicle was not being operated at the time the injury was sustained. Westchester Fire Insurance Co. v. Continental Insurance Cos., 126 N.J. Super. 29, 312 A.2d 664 (1973); 12 Couch on Insurance 2d § 45.58 at 294-96 (Rev. ed. 1981). *fn1 In addition, to determine whether an injury arose out of an uninsured motorist's use of his vehicle, courts must consider what the uninsured motorist was doing when the injury occurred, as well as his purpose and intent. See State Farm Mutual Automobile Insurance Co. v. Powell, 227 Va. 492, 318 S.E.2d 393, 397 (Va. 1984); see also 6B Appleman, Insurance law and Practice, § 4317, at 367 (1979).

A majority of the courts that have analyzed this issue have held that there must be a causal relationship between the injury and the ownership, maintenance or use of the vehicle for coverage to apply. E.g., Stuen v. American Standard Insurance Co., 178 Ill. App. 3d 986, 534 N.E.2d 208, 128 Ill. Dec. 188 (1989). Unfortunately, no uniform causation standard or test for resolving this issue has been adopted. Instead, the causation tests may generally be divided into two categories: the "but for" test, and the more restrictive tests.

The states that have adopted a "but for" test find that coverage applies if the injuries would not have occurred "but for" the ownership, maintenance or use of the vehicle. E.g., Eichelberger v. Warner, 290 Pa. Super. 269, 434 A.2d 747 (Pa. Super. Ct. 1981). Under this broad test, courts have held that coverage applies if there is any causal nexus between the injuries and the ownership, maintenance or use of the vehicle. E.g., Government Employees Insurance Co. v. Novak, 453 So. 2d 1116 (Fla. 1984).

Other courts, however, have rejected the "but for" test because it often leads to coverage in cases where the only connection between the vehicle and a person's injuries is that the vehicle transported the person to the location where the injury occurred. See Hawkeye-Security Insurance Company v. Gilbert, 124 Idaho 953, 866 P.2d 976 (1994). These courts have created more restrictive causation tests that do not provide coverage where the vehicle's relation to the injuries is incidental or fortuitous. See Gilbert, 124 Idaho at 956, 866 P.2d at 979 (holding that causal connection must be more than incidental or fortuitous); Foss v. Cignarella, 196 N.J. Super. 378, 482 A.2d 954 (1984) (holding that there must be a "substantial nexus" between the injury and the use of the vehicle); Indiana ...


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