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Jeffrey L. Metzger v. Country Mutual Insurance) Company

March 21, 2013

JEFFREY L. METZGER,
PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,
v.
COUNTRY MUTUAL INSURANCE) COMPANY, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT (TRICIA L. MACKIE, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF BRIAN J. MCKEE, DECEASED, AND MCKEE CUSTOM MASONRY, DEFENDANTS).



Appeal from the Circuit Court of De Kalb County. No. 10-MR-145 Honorable Kurt A. Klein, Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

JUSTICE BIRKETT delivered the judgment of the court, with opinion Justices Hutchinson and Schostok concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Country Mutual Insurance Co. appeals from the grant of summary judgment in favor of plaintiff, Jeffrey L. Metzger, on his complaint for a declaratory judgment construing an insurance policy issued by defendant. Defendant had filed a cross-motion for summary judgment, which the trial court denied. For the following reasons, we reverse and remand for the trial court to enter summary judgment in favor of defendant.

¶ 2 I. GENERAL BACKGROUND

¶ 3 In September 2009, a vehicle driven by plaintiff collided with a Ford F-250 driven by Brian McKee. At the time, Brian was vice-president of McKee Custom Masonry (McKee Masonry), a subchapter S corporation whose sole shareholders were Brian and his wife, Tricia McKee. Brian was fatally injured in the accident. Subsequently, plaintiff filed a tort lawsuit against both McKee Masonry and Brian's estate. No pleadings from that lawsuit are in the record. According to plaintiff's complaint in the present action, the underlying complaint alleges "in essence" that "on September 21, 2009, [Brian], acting individually and as agent of [McKee Masonry], was operating his personally owned [Ford F-250] in a northernly direction on Hinckley Road, near the intersection of Perry Road, in the Township of Pierce, County of DeKalb, State of Illinois, and that [Brian] failed to stop at the stop sign on Hinckley Road at the intersection of Perry Road, and to yield to traffic on Perry Road, pulling out directly in front of the path of the vehicle being driven by [plaintiff], causing the vehicles to violently collide." Defendant does not contest this representation.

¶ 4 Defendant, for its part, represents on appeal, consistent with its submissions below, that "the defense for [McKee Masonry and Brian's estate] was undertaken by State Farm, which had issued a policy of automobile insurance, specifically insuring the truck or motor vehicle driven by [Brian] at the time of the accident." Plaintiff does not dispute this. We point out, however, that the State Farm policy is not in the record. Moreover, while there are other documents in the record suggesting that Brian was a named insured under the State Farm policy, nothing indicates whether the Ford F-250 was specifically named in the policy as a covered vehicle. There also is no documentation in the record to confirm that State Farm is defending the underlying lawsuit, or that the suit is still pending as of this appeal. Since, however, the parties appear to be in agreement as to these background facts, and the proceedings below seem consistent with their representations, we accept them as true for purposes of our review.

¶ 5 The present action was commenced on October 4, 2010, when plaintiff filed a complaint for a declaratory judgment that policy number AM 9004552 000 (the business policy), on which McKee Masonry was the named insured, provided liability coverage for the Ford F-250 with regard to the September 2009 accident. The business policy was in effect at the time of the accident, and it covered, as we explain in more detail below, any "non-owned" vehicle operated in the business. Plaintiff sought a declaration that the Ford F-250 was a "non-owned" vehicle. Plaintiff further requested that defendant, "by virtue of the determination prayed for," be ordered "to undertake defense at its expense" of the underlying tort lawsuit, "and that the limits of the [business policy] be appli[ed] to any judgment, settlement, compromise or otherwise of said suit within the said limits of the [business policy]."

¶ 6 Defendant filed an answer and, later, a motion to dismiss. The court denied the motion to dismiss. Plaintiff subsequently moved for summary judgment on the ground that there was no dispute of material fact that the Ford F-250 was a "non-owned" vehicle under the business policy.

¶ 7 Defendant filed a counterclaim for declaratory judgment and, later, a cross-motion for summary judgment. In the motion, defendant asserted first that, since State Farm was defending the underlying lawsuit, the current suit presented "only the question of indemnity," and the "duty to defend" was "not even an issue." (Presumably, defendant was suggesting that State Farm's current involvement meant that defendant would not need to undertake a defense even if there appeared to be coverage under the business policy.) Citing Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278 (2001), defendant argued further that the issue of indemnity was "premature" because there was yet no judgment in the underlying action. Second, defendant argued that the undisputed facts established that the Ford F-250 was not a "non-owned" vehicle.

¶ 8 At the hearing on the motion, plaintiff agreed with defendant that any coverage under the business policy would be "secondary or excess."

¶ 9 The trial court granted summary judgment for plaintiff. First, the court agreed that any coverage under the business policy would be "secondary or excess," but nonetheless held that defendant had both a duty to defend and a duty to indemnify. Second, the court held that, as a matter of law, the Ford F-250 was a "non-owned" vehicle under the business policy.

¶ 10 Defendant timely appeals.

¶ 11 II. ANALYSIS

¶ 12 A. Principles Governing Review of Summary Judgment Rulings

ΒΆ 13 The purpose of summary judgment is not to try a question of fact, but to determine if one exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is clearly entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010); Adams, 211 Ill. 2d at 43. Summary judgment should not be granted if the material facts are in dispute or if the material facts are not in dispute but reasonable persons might draw different inferences from the undisputed facts. Adams, 211 Ill. 2d at 43. Although summary judgment is to be encouraged as an expeditious manner of ...


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