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Grinnell Mutual Reinsurance Co. v. Wolf

July 30, 2010

GRINNELL MUTUAL REINSURANCE COMPANY, PLAINTIFF,
v.
GARY L. WOLF, INDIVIDUALLY AND D/B/A HOMER HAY, AND CINDY MATIJEVICH, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTOPHER MATIJEVICH, DECEASED, DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Grinnell Mutual Reinsurance Company seeks a declaratory judgment that it has no duty to defend or indemnify its insured, defendant Gary Wolf, in an underlying lawsuit in Illinois State Court. See 28 U.S.C. §§ 2201-02. Grinnell and defendant Cindy Matijevich have filed cross motions for summary judgment. For the following reasons, Grinnell's motion is GRANTED and Matijevich's motion is DENIED. The court will accordingly enter a declaratory judgment that Grinnell has no duty to defend or indemnify Wolf in the underlying suit.

FACTS

On October 1, 2009, Cindy Matijevich, as the representative of the estate of Christopher Matijevich ("the decedent"), filed suit in the Circuit Court of Will County against Gary Wolf and his corporation Homer Hay. In her second amended complaint, Matijevich alleges that Wolf (both individually and as agent or employee of Homer Hay) negligently caused the death of the decedent, and she seeks recovery under the Illinois Wrongful Death Act. See 740 ILCS 180/1 et seq. Matijevich alleges that on June 24, 2008, the decedent was riding his motorcycle westbound on 159th Street in Homer Glen, Illinois, while Wolf drove a truck with an attached hayrack eastbound on that same street. When Wolf attempted to turn north into a private drive at 13304 W. 159th Street, the hayrack attached to his vehicle "came into contact" with the decedent's motorcycle, injuring and killing him. (Matijevich's original complaint had alleged that Wolf's vehicle-as opposed to the hayrack attached to the vehicle-struck the decedent's motorcycle). Matijevich now describes that hayrack as "dilapidated and unfit for travel on a public roadway." The decedent is survived by his mother Cindy, his father Gary, and his sister Catelin Matijevich.

The second amended complaint alleges that Wolf:

a) Failed to yield the right of way to decedent's vehicle before making a left-hand turn, in violation of 625 ILCS 5/11902;

b) Operated a vehicle and attached hayrack without keeping a proper and sufficient lookout;

c) Failed to mark the attached hayrack so that it would be visible at night;

d) Failed to inspect the hayrack to insure fitness for operation on a public highway;

e) Operated a hayrack on a public highway at night when he knew or should have known that it was not fit or safe for such operation;

f) Operated a motor vehicle and attached hayrack at a speed that impacted or blocked the normal and reasonable movement of traffic, in violation of 625 ILCS 5/11-606; and

g) Operated a hayrack in a manner that was unsafe and unreasonable in regards to the safety of others lawfully on a public highway.

Grinnell Mutual Reinsurance Company issued a Commercial Lines Policy (No. 0000372923) to Gary L. Wolf d/b/a Homer Hay/Wolf's Custom Services, providing general commercial liability insurance for a one-year policy period beginning April 3, 2008. Grinnell denies that the policy provides coverage for this occurrence. The provisions of the ...


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