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Browning v. Plumlee

August 4, 2000

ROBERT E. BROWNING AND NORA BROWNING, PLAINTIFFS-APPELLEES,
v.
ROBERT L. PLUMLEE, UNIVERSAL UNDERWRITERS INSURANCE COMPANY, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STOTLAR-HERRIN LUMBER CO., INC., AND GREG WEEKS PONTIAC CHEVROLET-GEO, A MISSOURI CORPORATION, DEFENDANTS (UNIVERSAL UNDERWRITERS INSURANCE COMPANY, COUNTERPLAINTIFF-APPELLANT, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, COUNTERDEFENDANT- APPELLEE).



Appeal from the Circuit Court of Franklin County. No. 95-L-134, consolidated with No. 95-MR-10 Honorable Thomas H. Sutton, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

The plaintiffs, Robert E. Browning and Nora Browning, filed a multicount complaint arising out of a traffic accident that occurred as defendant Robert L. Plumlee was test-driving a truck owned by defendant Greg Weeks Pontiac Chevrolet-Geo (Weeks). The parties sought a declaratory judgment to determine whether the insurance policy issued to the test driver by State Farm Mutual Automobile Insurance Company (State Farm) provided coverage for the accident, or if, instead, the insurance policy issued by Universal Underwriters Insurance Company (Universal) to Weeks, the owner of the vehicle, provided coverage. The trial court determined that Universal, as the insurer of the vehicle's owner, was primarily responsible to provide coverage for the accident and to provide a defense to Plumlee, the test driver.

On appeal, Universal contends that the trial court should have ruled that both State Farm and Universal should provide coverage for the accident and that the amount that each company must pay for the accident should be prorated based upon the respective coverage limits of each policy. Universal also argues that the trial court erred in finding that Universal should reimburse State Farm for its costs of defending Plumlee. We affirm the trial court on both issues.

FACTS

On April 14, 1995, Plumlee was test-driving a pickup truck owned by Weeks. Weeks knew that Plumlee was test-driving the vehicle and gave him permission to do so. During the test drive, Plumlee collided with a vehicle driven by plaintiff Robert Browning. As a result of that collision, Robert sued for his injuries, and his wife, Nora, sued for loss of consortium.

The pickup truck that Plumlee was driving was insured under a garage policy issued to Weeks by Universal. Plumlee was covered under a personal-vehicle policy issued by State Farm. Plumlee's policy also covered him when driving a non-owned car, such as the truck he was test- driving. A dispute arose between the insurance companies as to which coverage was primary, which was excess, and how much coverage was available under each policy. The Brownings, Universal, and State Farm each filed a claim for declaratory judgment and a motion for summary judgment.

On March 4, 1999, the trial court granted summary judgment in favor of the Brownings and State Farm and against Universal. On May 6, 1999, the trial court denied Universal's motion to reconsider its March 4 ruling. The trial court found that Universal's garage-liability policy afforded the sole primary coverage for the accident, held that State Farm's policy was excess, and entered judgment against Universal and in favor of State Farm in the amount of $7,350.41 to reimburse State Farm for its attorney fees in defending the lawsuit. The court further ruled that the limits of Universal's policy were set at the maximum available, $500,000. This timely appeal followed.

ANALYSIS

1. Standard of review

Our review of an order granting or denying a motion for summary judgment is de novo. See Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342 (1998). Summary judgment is proper where the pleadings, depositions, and admissions on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See 735 ILCS 5/2-1005(c) (West 1996); Ragan, 183 Ill. 2d 342.

2. Primary insurance coverage of garage insurance policy

Universal claims that the trial court incorrectly determined that it provides the sole primary coverage for the accident. Universal points out that Plumlee had an active personal-vehicle insurance policy which extended to his use of the truck he was test-driving and that, at most, the two policies contain clauses that are mutually repugnant and require that coverage be prorated between the parties. State Farm counters that Illinois Supreme Court law mandates that garage policies covering car dealerships, such as the one issued by Universal herein, must provide the sole primary coverage for the dealership's test drivers. See State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Group, 182 Ill. 2d 240 (1998) (State Farm).

The relevant provisions in Plumlee's State Farm policy extend coverage to Plumlee for the use of a non-owned car, such as the truck he was test-driving. When Plumlee was test-driving the non-owned car with other coverage, State Farm's policy provided excess coverage. The garage-liability policy issued to Weeks includes similar provisions. The Universal policy provides insurance to any person using an auto covered under the policy if the use of the vehicle is within the scope of the insured's permission. Additionally, Universal's policy provides:

"[T]he most WE will pay is that portion of such limit needed to comply with the minimum limits provision law in the jurisdiction where the OCCURRENCE took place. When there is other insurance applicable, WE will pay only the amount needed to comply with ...


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