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Valor Insurance Co. v. Torres

March 16, 1999


Appeal from the Circuit Court of Lake County. No. 97--MR--299 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger


The plaintiff, Valor Insurance Company (Valor), appeals from the April 13, 1998, order of the circuit court of Lake County entering judgment in favor of the defendants, Robert "Rob" Torres (Torres); Tappers, Inc., d/b/a Tappers Bar & Grill; Robert Hogan; Mike Sudek, a/k/a Mike Sudiak; and Scott E. Dulberg (Dulberg), on plaintiff's complaint for declaratory judgment. Specifically, the trial court found that defendant Robert Torres was a permissive driver of David Lichtenstein's (Lichtenstein's) vehicle and was therefore a covered driver under Valor's policy insuring the vehicle. On appeal, Valor argues that the trial court's judgment was improper as a matter of law. We agree and reverse the trial court's judgment.

The facts relevant to this appeal are not in dispute. David Lichtenstein owned a truck that was insured by Valor. Valor's policy contained an omnibus clause that provided coverage to any "person using [the] automobile to whom the named insured has given permission, provided the use is within the scope of such permission."

On the evening of April 22, 1995, Lichtenstein permitted Robert Torres to drive his truck to a tavern in Johnsburg. Lichtenstein was a passenger in the vehicle at that time. Apparently, Lichtenstein often let Torres drive his vehicle, as Lichtenstein had a suspended driver's license and a pending driving-under-the-influence charge.

At approximately 1 a.m. on the morning of April 23, 1995, Lichtenstein and Torres left the tavern and drove to McHenry to attend a party. Once again, Torres drove Lichtenstein's truck with permission. When they arrived at the party, Torres parked the truck, turned off the ignition, and put the keys in his pocket. Lichtenstein testified that he was not aware that Torres had the keys and instead believed that the keys had been left under the seat of his unlocked vehicle.

Lichtenstein remained at the party for approximately two hours and then decided to walk to his girlfriend's house, which was one block away. Immediately before Lichtenstein left the party, he told Torres "not to take [his] truck anywhere." Torres began to argue with Lichtenstein, during which time Lichtenstein repeated one or two times that Torres could not take the vehicle. Torres does not dispute that this conversation occurred and acknowledged that Lichtenstein "pleaded" with him not to take the truck. Apparently, Torres had consumed four to five beers and three to four shots of hard liquor at the party, and Lichtenstein wanted him to spend the night there.

When their conversation reached an impasse, Lichtenstein left the party. Torres testified he believed that, when Lichtenstein gave up the Discussion and walked away, "it was alright for [him] to drive then." Torres also acknowledged that he had already made up his mind that he was going to take the truck regardless of what Lichtenstein told him.

Torres proceeded to drive the truck to his home. Scott Dulberg also rode in the truck as a passenger. After arriving at Torres's home, Torres and Dulberg decided to go back out to get some food. Torres again drove Lichtenstein's truck even though he had his own automobile at his home. While driving, Torres lost control of the truck, struck a guardrail, and allegedly caused injury to Dulberg. Dulberg thereafter filed a personal injury suit against Torres and Lichtenstein in the circuit court of McHenry County.

Valor proceeded to file a declaratory judgment action in the circuit court of Lake County to determine the question of coverage. After a bench trial, the trial court found that Torres was a permitted driver under the policy and that Valor had a duty to defend him. The trial court explained that, once Lichtenstein had given Torres permission to drive his truck, he needed to take some affirmative act to manifest his desire to terminate the permission. The trial court found that no such affirmative act was taken, explaining as follows: "And when we look at the facts in this case, [Lichtenstein] told them no. I think they agree to that. Don't drive the truck yet made--even after being warned, I am going to use the truck any way, he didn't take any affirmative action such as retrieving the person, retrieving the keys, locking the truck, anything of that nature.

*** [T]he fact [that Lichtenstein] *** was driving on a suspended license and that, in addition, apparently amongst his group they usually let each other drive, I think that the revocation of that permission was ineffective. So [Torres] had permission to drive." Following the entry of the trial court's judgment, Valor filed a timely notice of appeal.

On appeal, Valor argues that the trial court erred as a matter of law when it found that Torres was a permitted driver of Lichtenstein's truck. Valor argues that Lichtenstein's repeated statements to Torres not to drive the truck were sufficient to revoke any express or implied permission Torres had to drive the vehicle. We agree.

As an appellate court, we take a deferential approach to the findings of the trial court on disputed factual issues; but the scope of our review on questions of law is independent, not deferential. Woodall v. Booras, 182 Ill. App. 3d 1096, 1100 (1989). In the instant case, as the controlling facts are not in dispute, the legal result of those undisputed facts is solely a question of law. Woodall, 182 Ill. App. 3d at 1100.

It is well settled that an omnibus clause in an automobile insurance policy extends coverage to any third party driving a covered vehicle with the insured's permission. Harry W. Kuhn, Inc. v. State Farm Mutual Automobile Insurance Co., 201 Ill. App. 3d 395, 400-01 (1990). An insured's permission to use the vehicle continues in effect until it is revoked. Hall v. Illinois National Insurance Co., 34 Ill. App. 2d 167, 170 (1962). Permission is effectively revoked by expressly forbidding use of the car, by ...

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