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.

American Freedom Insurance Co. v. Smith

March 08, 2004

[5] AMERICAN FREEDOM INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
COREY SMITH AND MARK WHITTINGTON, DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Cook County Honorable Nancy Arnold Judge Presiding

[7] The opinion of the court was delivered by: Justice McNULTY

[8]  The parties to the instant appeal contest the interpretation and application of an automobile insurance policy's "automatic insurance" provision, which offers coverage for newly acquired vehicles for a limited period. The trial court found that the provision provided coverage. We affirm.

[9]  The day after his purchase of a second car, and while driving to the office of the insurer of his first car, defendant Corey Smith was involved in an auto accident which resulted in the total loss of the vehicle and injuries to himself and his passenger. Five days later, Smith made a claim under the uninsured motorist provision of the policy he had obtained for his first car. The insurer, plaintiff American Freedom Insurance Company (AFIC), filed a declaratory judgment action against Smith and his passenger, Mark Whittington, in pursuit of a determination that Smith's accident was not covered by the existing policy. On cross-motions for summary judgment, the parties disputed whether the policy had required Smith to provide notice of the acquisition of the Caprice, and whether such notice was given. The trial court found the accident to be covered under the policy.

[10]   BACKGROUND

[11]   Smith's policy had been obtained for a 1995 Chevrolet Monte Carlo he purchased early in 1999. The policy offered coverage for an "insured automobile" and its passengers for losses incurred as a result of accidents with uninsured motorists, and included in its definition of "insured automobile" two provisions pertinent to the instant litigation. The first relevant provision covered an automobile "acquired by the named insured during the policy period, provided it replaces an insured automobile." The second provision focused upon by the parties applied if AFIC insured all vehicles owned by the insured on the date of his acquisition and if "the named insured notifies the Company in writing within 30 days after the date of such acquisition of his election to make the Liability and Uninsured Motorist Coverages under this and no other policy issued by the Company applicable to such automobile."

[12]   According to his discovery deposition, Smith purchased a 1986 Chevrolet Caprice on October 12, 1999, and was involved in an accident in the vehicle the following day. Smith testified that as of the day of the accident, he had not notified AFIC of the purchase of the Caprice, that the Monte Carlo was still working, and that he was "supposed to sell" the Monte Carlo later that week.

[13]   Smith apparently made a claim under the Monte Carlo policy on October 18, 1999, although the record before us does not reveal the form or other particulars of that claim. AFIC then filed the action underlying the instant appeal: a complaint alleging that Smith "never submitted any application for insurance coverage" for the Caprice; seeking a declaratory judgment that Smith materially breached his insurance contract "by failing to apply for insurance coverage" for the Caprice; and seeking a judgment that AFIC owed no coverage under the policy to Smith or his passenger, Whittington. The answer filed jointly by Smith and Whittington (who have acted jointly through the representation of the same attorney throughout the trial court proceedings and in the instant appeal) denied that Smith had failed to make any application for insurance for the Caprice, affirmatively alleged that Smith "made a verbal application for insurance coverage" for the Caprice, and admitted that he made a claim for personal injury and property damage. In its assertion of affirmative defenses, the Smith-Whittington answer alleged that Smith "could not apply for insurance" for the Caprice because "the automobile was destroyed and became a total loss" and that he "made every effort possible to apply for insurance coverage" for the Caprice and "was on his way to the insurance agent's office, to apply for coverage when an accident occurred."

[14]   AFIC moved for summary judgment, asserting that Smith "had never applied for coverage" for the Caprice. As support for this proposition, AFIC's motion cited testimony from Smith's discovery deposition, in which the subject of Smith's communications with AFIC was addressed:

[15]   "Q. Now, on October 13th of '99, you owned both the '95 Monte Carlo and the '86 Chevy Caprice?

[16]   A. Yes.

[17]   Q. Had you notified anybody at American Freedom Insurance Company of the purchase of the '86 Caprice?

[18]   A. No, no.

[19]   Q. Okay. Do you remember how many miles were on that '95 Monte Carlo, approximately, if you can remember?

[20]   A. 83,000 or something like that.

[21]   Q. That car was on the American Freedom ...


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.