Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pekin Insurance Co. v. Benson

June 30, 1999

PEKIN INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
TAMMY BENSON, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice O'Mara Frossard

Appeal from the Circuit Court of Cook County Honorable Lester D. Foreman, Judge Presiding.

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Defendant, Tammy Benson, an employee of Corvette Clinic, Inc. (Corvette), sought underinsured motorists benefits from an insurance policy that plaintiff Pekin Insurance Company issued to Corvette. Plaintiff denied coverage and brought this declaratory action.

After cross-motions for summary judgment, the trial court determined that defendant's vehicle was covered under plaintiff's insurance policy and granted summary judgment in favor of defendant. After the declaration of coverage, there was still pending Benson's arbitration because Pekin's policy required underinsured motorist claims to be resolved by arbitration. Plaintiff filed a motion to stay the enforcement of the court's judgment and the arbitration hearing. The trial court granted the motion but ordered, as a condition of the stay, that plaintiff pay interest on any subsequent arbitration award at 9% per annum from August 21, 1998, the date of the arbitration hearing. On appeal, plaintiff contends that the trial court erred in: (1) finding that the automobile that defendant operated constituted a "non-owned auto" under plaintiff's insurance policy; and (2) imposing a condition of interest as a term of its stay order.

On July 23, 1998, the trial court entered its order staying the judgment and conditioning a payment of interest on the stay pursuant to Supreme Court Rule 305(b). 155 Ill. 2d R. 305(b). On July 23, 1998, plaintiff also filed an amended notice of appeal that did not challenge the stay order itself but requested this court to reverse the condition of an interest payment. Plaintiff's initial brief states that this court has jurisdiction of the stay order under Supreme Court Rule 301 and that it has timely invoked the jurisdiction by filing an amended notice of appeal within 30 days of the order of stay. 155 Ill. 2d Rs. 301, 303.

Defendant's brief, however, contends that this court lacks jurisdiction over the trial court's order of stay dated July 23, 1998, under Supreme Court Rule 301, because the trial court, in staying its judgment with the condition of an interest payment, did not enter a "final order." 155 Ill. 2d R. 301. Defendant further argues that by not filing a motion in this court attacking the interest payment condition of the stay order, plaintiff thereby failed to invoke this court's jurisdiction under Supreme Court Rule 305(d). 155 Ill. 2d R. 305(d). Defendant contends that this court lacks jurisdiction of the appeal from the order dated July 23, 1998, and requests that plaintiff's appeal of the condition of interest as a term of the stay order be dismissed. On April 13, 1999, at the same time plaintiff filed its reply brief, it filed a motion to strike the condition of the stay requiring it to pay interest on any future arbitration award. We decided to take the motion with the case and will address it below.

I. FACTS

The facts of this appeal are relatively undisputed. On June 19, 1995, defendant was employed at Corvette. While performing an errand for Corvette in a vehicle that Corvette did not own, defendant was involved in a car accident and was injured. Defendant received the maximum insurance benefits from a policy covering the other vehicle in the accident. Defendant then filed a claim with plaintiff for underinsured motorists (UIM) benefits on a policy plaintiff issued to Corvette.

Plaintiff's insurance policy provided UIM coverage to anyone occupying a "covered auto." The policy then defines covered autos for the purpose of UIM and uninsured motorist (UM) coverage as:

"NON-OWNED 'AUTOS' USED IN YOUR GARAGE BUSINESS. Any 'auto' you do not own, lease, hire, rent, or borrow used inconnection with your garage business described in theDeclarations. This includes 'autos' owned by your employees or partners or members of their households while used in your garage business."

Plaintiff denied any coverage for defendant's injuries and filed a complaint for declaratory judgment. Plaintiff claimed that at the time of the accident, defendant was operating a vehicle owned by her mother, Gerda Flanigan, who did not reside in defendant's household. Plaintiff denied coverage because Flanigan was not an employee, partner, or member of an employee or partner's household, and, according to plaintiff, a "non-owned auto" was limited to vehicles owned by Corvette's employees, partners, and members of their households.

After both parties filed cross-motions for summary judgment, the court rejected plaintiff's argument and ruled in favor of defendant. The court found that the first sentence of the definition of a "non-owned auto" defined "covered autos" which the insured did not own, as all autos used in connection with the insured's business. The court further found that the second sentence of the definition was not a limitation but an "amplification and an attempt to add definition to what in fact is a non-owned auto." Because Corvette did not own the auto defendant operated at the time of the accident and defendant was using the auto in connection with Corvette's garage business, the trial court held that defendant's vehicle constituted a "non-owned auto" and that defendant was entitled to UIM benefits under plaintiff's policy.

Following judgment in her favor, defendant requested an arbitration of her UIM claim on August 21, 1998, pursuant to the terms of plaintiff's insurance policy. Plaintiff then moved in the trial court to stay the arbitration pending this appeal. Defendant requested that if the court issued any stay of the arbitration, the court should require plaintiff to pay interest from August 21, 1998, the date of the arbitration. The trial court then stayed the enforcement of its judgment and the arbitration of plaintiff's automobile accident claim. The trial court also granted defendant's request and conditioned the stay on plaintiff's payment of interest from August 21, 1998, pending the resolution of this appeal.

II. ANALYSIS

Plaintiff first argues that the trial court erred in its interpretation of the "non-owned auto" definition of its insurance policy. Plaintiff contends that the second sentence of the definition limits its coverage to autos owned by the insured's employees, partners, or members of their households used in connection with the insured's business. According to plaintiff, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.