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April 19, 2004.


The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


Plaintiff, West American Insurance Company, has filed this action seeking a declaration that the insurance policy it issued to the Tovars provides no coverage for the claims Courtney O'Hara ("Courtney") asserts against them and that it has no duty to defend the Tovars in connection with those claims. The parties have filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons provided in this Memorandum Opinion and Order, both motions are denied.

Background and Facts

  This is not the first time these parties have been before us. Before addressing the current motions, we believe a brief history of the controversy would be useful. The following recitation is taken from our opinion at West American Ins. Co. v. Tovar, 2002 WL 256803 (N.D. 111. Feb. 21, 2002) ("West American I") and from the memoranda of law submitted by the parties in connection with the notions before us now. In 1999, Courtney and Kelli Tovar ("Kelli"), high school girls, were vacationing with their families together in Zihuatanejo, Mexico. Courtney and Kelli each brought a friend along on the trip. While in Mexico, one day Courtney and Kelli were both operating rented personal watercraft ("Waverunner")*fn1 with their friends riding as passengers. The girls collided, resulting in injuries to Courtney. Courtney sued Kelli and her parents, Dennis and Maureen Tovar, in state court seeking to recover for her injuries ("Illinois Action"). In her complaint, Courtney alleged that one of the Waverunners was rented to Kelli.

  Dennis and Maureen Tovar are the named insureds on a horneowner's insurance policy issued by plaintiff, an Indiana insurance corporation. The policy excludes various claims from coverage, including those arising out of the use of certain engine-powered craft (a Waverunner, for example) that is "owned by or rented to an `insured,'" in this case, Kelli. In 2001, plaintiff filed an action in this Court against Dennis, Maureen and Kelli Tovar and Courtney O'Hara seeking a declaration that the insurance policy it issued to the Tovars provides no coverage for the claims Courtney asserted against them and that it had no duty to defend the Tovars in connection with those claims. Plaintiff filed a motion for summary judgment, which we granted in part and denied in part. See West American I, 2002 WL 256803, at *9. The case was ultimately dismissed because Courtney amended her complaint in the Illinois Action to allege that she rented both Waverunners, rendering moot the controversy over whether the insurance policy absolved plaintiff of its duty to defend the Tovars. Plaintiff then undertook the defense of the Tovars in the Illinois Action pursuant to a reservation of rights and was granted leave to intervene in that case. According to plaintiff, despite Courtney's allegations that she rented both Waverunners, the deposition testimony of the parties in the Illinois Action demonstrates that she actually rented only one of the Waverunners and that Kelli rented the second one. Based on that testimony, plaintiff filed this action seeking: (1) a declaration that it has no duty or obligation to provide coverage to the Tovars for the March 1999 accident; and (2) reimbursement of costs associated with defending the Tovars in the Illinois Action.

  Plaintiff has filed a motion for summary judgment, Courtney has filed a cross-motion for summary judgment. We consider the following facts, undisputed unless otherwise noted, for purposes of these cross-motions.

  On March 26, 1999, Dennis Tovar gave Kelli money early in the day to ride on the Waverunner or for another purpose such as shopping or getting her hair braided — (Pl.'s LR 56. l(a) Stmt. ¶ 8.) Dennis gave Kelli tips early in the day about how to drive a Waverunner in the same flow of other traffic. (O' Hara Resp. Pl.'s LR 56.1(a) Stmt. ¶ 17.) Plaintiff believes Dennis gave her these pointers in the event she rented a Waverunner; Kelli's testimony indicates he gave her this advice "if [she goes] on a Waverunner." (Kelli Dep. at 58:23-59:1.) Dennis understood that the older girls (Courtney and her friend Shelley Morgan) would drive and the younger girls (Kelli and her friend Brenna Essary) would ride. (O'Hara Resp. Pl'.s LR 56.1(a) Stmt. ¶ 17; Dennis Dep. at 7:1-4.) Maureen Tovar gave Kelli permission to ride a Waverunner. (Pl.'s LR 56.1(a) Stmt. ¶ 9.) Maureen testified that she discussed with JoAnn O'Hara, Courtney's mother, the fact that Courtney and Shelley have drivers licenses and "should be driving these things," but she never told Kelli specifically that Kelli was not to drive one of them. (Maureen Dep. at 12:23-13:6.) Shelley testified that she heard Maurcen tell JoAnn that it was alright for Kelli to drive the Waverunners, (Shelley Dep. at 14:2-4.) Shelley also testified that she did not remember if Kelli specifically asked her mother if she could drive one of the Waverunners, but did remember that it was never suggested that Kelli should only ride as a passenger, (Id. at 13:9-15:7.)

  Kelli understood that her mother's condition for riding a Waverunner was that she was to be a passenger, but she disregarded that condition. (Kelli Dep. at 50:1-16, 52:8-53:9.) At one time during her deposition, Courtney testified that she and Shelley decided to go on the Waverunners and Kelli and Brenna wanted to "go along." (Courtney Dep. at 16:16-18.) At a later time, however, Courtney stated that when she indicated to Kelli and Brenna that she and Shelley were going to rent Waverunners, Kelli and Brenna indicated they wanted "to rent" them also. (Id. at 104:11-20.) Brenna testified that the decision for Kelli to drive one of the Waverunners was "probably from the get go" but also stated that she could not remember exactly when it was decided that Kelli would drive. (Brenna Dep. at 11:23-12:3; 36:4-6.) Kelli testified that the decision regarding who would ride with whom was made when all the girls were on the beach. (Kelli Dep. at 13:4-17.)

  Kelli made the decision at the Waverunner rental booth that she would drive one of the Waverunners herself. (Pl.'s LR 56.1(a) Stmt. ¶ 10.) Kelli decided that she would ride with Brenna on one Waverunner and that Courtney and Shelley would ride on the other Waverunner. (Id. ¶ 11.) Shelley never intended to operate one of the Waverunners. (Id. ¶ 31.) Shelley testified that the driving/riding arrangements among the four girls was never discussed, but Kelli testified that it was discussed on the beach. (Shelley Dep. at 64:16-24; Kelli Dep. at 13:4-17.) According to Shelley, it was always understood that Kelli was going to drive one of the two Waverunners. (Pl.'s LR 56.1(a) Stmt. ¶ 32.) Kelli went to the Waverunner booth to find out the cost of the rental, walked back to get money from her mother, and then returned to the Waverunner booth, (Id. ¶ 33.) Kelli used part of the money her father gave her earlier in the day to go on the Waverunner, (Id. ¶ 12.) Kelli gave Courtney money to rent one of the Waverunners.*fn2 (Pl.'s LR 56.1(a) Stmt. ¶ 21.) Kelli handed her money to Courtney; Courtney used the money she received from her mother to pay for her and Shelley, combined it with Kelli's money and gave it all to the man [in charge] for both Waverunners. (Pl.'s LR 56.1(a) Stmt. ¶ 13; O'Hara Resp. Pl.'s LR 56.1(a) Stmt. ¶¶ 19, 20.) Without Kelli's money, Courtney could only rent one Waverunner with the money she had. (Pl.'s LR 56.1(a) Stmt. ¶ 23.) With the money she got from her mother, Courtney paid for her and Shelley. (Pl.'s Reply O'Hara's LR 56.1(b)(3)(B) Stmt. ¶ 43.) JoAnn gave Courtney money for the rental of one Waverunner to be shared by Courtney and Shelley. (Pl.'s LR 56.1 (a) Stmt. ¶ 25.) JoAnn did not provide any money for the rental of a Waverunner for Kelli and Brenna.*fn3 (Id. ¶ 26.) Brenna did not contribute any money toward the Waverunner rental, (Id. ¶¶ 21, 27.)

  Courtney did not intend to drive both Waverunners. (Id. ¶¶ 16, 22.) Only Courtney and Kelli drove the Waverunners; Kelli's friend Brenna rode as a passenger on the Waverunner operated by Kelli. (Id. ¶¶ 14, 15.) According to Courtney, the man from whom the Waverunners were rented knew that Kelli would be driving one of them with Brenna as her passenger. (Id. ¶ 24.)

  The parties dispute whether Courtney signed a rental agreement in connection with the rental of the Waverunners. Courtney asserts that she was the only one of the four girls who signed a rental agreement and that she docs not recall signing anyone's name but hers in order to take out the Waverunners. (O'Hara LR 56.1(b)(3)(B) Stmt. ¶¶ 40, 42; Tovar LR 56.1(b)(3)(B) Ex A ¶ 5.) Plaintiff points out, however, that Courtney's testimony only states that she signed "papers," not a "rental agreement." (Courtney Dep. at 23:15.) Kelli testified that Courtney signed all four girls' names on the document (during her deposition Kelli also refers to it as a "form" and a "sign up sheet") and that Kelli offered to sign the document but that Courtney said "she would sign everybody's name." (Kelli Dep. at 17:18-24, 48:9-23; 55:10-13.) Shelley said that Courtney signed for "all of them." (Shelley Dep. at 64:8-12.)

  Some facts submitted by the parties through Local Rule 56.1 are not material to the issues and therefore have not been included, e.g., the age of the girls at the time of the rental and when the collision occurred. No one has provided copies of the document signed or completed by Courtney in connection with the rental. There is no evidence regarding the terms and conditions of the rental arrangement, the identity of the man from whom the Waverunners were rented ("Lessor") or the Lessor's knowledge, understanding and intentions in renting the Waverunners.

  The Legal Standard

  To prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] 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." Fed, R. Civ. P. 56(c). At this stage, we do not weigh evidence or determine the truth of the matters asserted, Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the nonmoving party. Michas v. Health Coat Control of III, Inc., 209 F.3d 687, 692 (7th Cir. 2000). The movant is not required to make an affirmative showing that there are no material facts in issue. Instead, the movant need only show an "absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion. Mesnick v. General Elec. Co., 950 F.2d ...

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