Appeal from the Circuit Court of Winnebago County. No. 99-MR-48 Honorable Ronald L. Pirrello, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Defendant, State Farm Mutual Automobile Insurance Company (State Farm), appeals from a summary judgment granted by the trial court in favor of plaintiff, Martha Ramirez, in this declaratory judgment action. Plaintiff brought the action individually and as parent, next friend, and guardian of the estate of her deceased minor son, Gamaliel Ramirez (Gamaliel), seeking a declaratory judgment that the uninsured motorist provisions in an automobile insurance policy that State Farm had issued to her covered the damages related to Gamaliel's injuries and death. Gamaliel's death resulted from gunshots fired from an uninsured vehicle at plaintiff's car while Gamaliel was driving plaintiff's car. For the reasons that follow, we conclude that the uninsured motorist provisions of plaintiff's policy did not provide coverage and reverse the summary judgment.
The material facts are not in dispute. Around midnight on November 1, 1997, Gamaliel was driving plaintiff's car in Rockford. Antonio Ramirez, the only passenger in the car, was sitting in the front passenger seat. Another car, driven by Jasim Mohamed Albaiaty, began to follow plaintiff's car. There were two passengers in Albaiaty's car, Ricardo "Ricky" Diaz and Rey Velarde. Gamaliel attempted to get away from Albaiaty's car. However, Albaiaty's car continued to follow plaintiff's car for about 40 blocks.
When Gamaliel slowed plaintiff's car for a railroad crossing, Albaiaty's car pulled next to the driver's side of plaintiff's car. Velarde, one of the passengers in Albaiaty's car, then fired about 10 or 11 gunshots at plaintiff's car. One of the gunshots hit Gamaliel in the left arm and passed into his chest. After Velarde fired the shots, Albaiaty's car briefly came into contact with plaintiff's car. Albaiaty's car then sped away.
Shortly after being shot, Gamaliel passed out and was unable to maintain control of plaintiff's car. Plaintiff's car then left the road, struck some property near a building, and eventually hit a light pole.
Gamaliel was taken to a hospital where he received emergency treatment. Gamaliel died at the hospital. The cause of Gamaliel's death was the gunshot wound to the chest.
Albaiaty and Velarde were charged with the murder of Gamaliel. Albaiaty and Velarde each pleaded guilty to the offense. Diaz pleaded guilty to related minor offenses.
Plaintiff filed a claim with State Farm for the damages resulting from Gamaliel's injuries and death. Plaintiff sought coverage under the uninsured motorist provisions in an automobile insurance policy that State Farm had issued to plaintiff. The policy was in force on November 1, 1997.
State Farm subsequently determined that plaintiff was not entitled to coverage for the claimed damages under the uninsured motorist provisions in the policy and denied plaintiff's claim. State Farm also declined plaintiff's request to proceed to arbitration on the matter.
The uninsured motorist provisions in the policy stated, in pertinent part:
"We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle." (Emphasis in original.)
Following State Farm's denial of her claim, plaintiff filed this action seeking a declaratory judgment that she was entitled to coverage for the claimed damages under the uninsured motorist provisions of the policy. The parties filed cross-motions for summary judgment. The trial court determined that the incident in question was an "accident" and that the incident "arose out of" the use and operation of Albaiaty's uninsured vehicle. Based on these determinations, the trial court ruled that the uninsured motorist provisions in the policy provided coverage for plaintiff's claimed damages and granted plaintiff's motion for summary judgment. State Farm's timely notice of appeal followed.
On appeal, State Farm contends that the trial court erred in granting summary judgment in favor of plaintiff. State Farm acknowledges that, under the terms of the policy, Gamaliel was an insured driver and Albaiaty was an uninsured motorist. State Farm argued in its initial appellate brief that the trial court erred in determining that Gamaliel's death was caused by an "accident" and in determining that the accident "arose out of" the operation and use of Albaiaty's uninsured vehicle for purposes of the uninsured motorist provisions in the policy. However, in its reply brief, State Farm acknowledged that the parties agree that Gamaliel's injuries arose by "accident." Thus, we express no opinion whatsoever as to whether Gamaliel's death was the result of an accident. Therefore, the only issue before us is whether the trial court erred in determining that the accident "arose out of" the operation and use of Albaiaty's vehicle.
Familiar principles guide us in reviewing a grant of summary judgment. Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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." 735 ILCS 5/2-1005(c) (West 2000). Summary judgment is a drastic measure and therefore a court should grant summary judgment only when the movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). We review ...