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Progressive Premier Insurance Co. of Illinois v. Emiljanowicz

Court of Appeals of Illinois, First District, Second Division

May 28, 2013

PROGRESSIVE PREMIER INSURANCE COMPANY of ILLINOIS, Plaintiff-Appellee,
v.
KRZYSZTOF EMILJANOWICZ, BARBARA KARAWACKI-HOROWITZ, DAVID HOROWITZ, GEICO a/k/a Geico General Insurance Company, and OCCIDENTAL FIRE AND CASUALTY COMPANY, Defendants (Occidental Fire and Casualty Company, Appellant and Counterplaintiff;
v.
Progressive Premier Insurance Company of Illinois, Krzysztof Emiljanowicz, Barbara Karawacki-Horowitz, David Horowitz and Geico, a/k/a Geico General Insurance Company, Counterdefendants)

Appeal from the Circuit Court of Cook County No. 04 CH 08266 The Honorable Sophia Hall, Judge Presiding.

Justices Quinn and Connors concurred in the judgment and opinion.

OPINION

HARRIS, PRESIDING JUSTICE

¶ 1 Appellant Occidental Fire & Casualty Company (Occidental) appeals the order of the circuit court granting Plaintiff-Appellee Progressive Premier Insurance Company's (Progressive) motion for summary judgment on Progressive's declaratory judgment action. On appeal, Occidental contends (1) genuine issues of material fact exist precluding summary judgment; and (2) if both Occidental's and Progressive's policies apply to the underlying accident, Progressive's policy is primary pursuant to the "other insurance" provisions of the relevant policies. We affirm.

¶ 2 JURISDICTION

¶ 3 The circuit court granted summary judgment in favor of Progressive. On November 14, 2011, the court entered a judgment in the amount of $480, 231.24 in favor of Progressive and against Occidental. Occidental filed a notice of appeal on December 12, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 4 BACKGROUND

¶ 5 Defendant Krzysztof Emiljanowicz (Emiljanowicz) owned a 1995 Freightliner truck. On April 21, 2004, Emiljanowicz executed an application of employment with SSTS, Inc. (SSTS), a corporation in the business of transporting freight both interstate and intrastate. SSTS operates under a certificate of public convenience and necessity issued by the Interstate Commerce Commission, and possesses operating rights issued by the state of Illinois. SSTS leases equipment for hauling freight from contractors such as Emiljanowicz.

¶ 6 On May 12, 2004, at 10 a.m., SSTS and Emiljanowicz executed a contractor operating agreement in which Emiljanowicz agreed to lease his freightliner to SSTS for the purpose of hauling freight. In his deposition, the president of SSTS, Alex Sandrzyk, stated that pursuant to the agreement Emiljanowicz would furnish the freightliner "for the exclusive possession, Control and use of" SSTS and "shall transport only freight of" SSTS. As proof SSTS received the freightliner from Emiljanowicz, SSTS issued a signed "Receipt for Possession of the Equipment." The contractor, however, assumed "complete responsibility for the operation of equipment for the duration of this agreement." Sandrzyk stated that it was SSTS policy to require its contractors to have their equipment inspected and serviced by a mechanic before transporting freight for the company. Chris Sandrzyk, Alex's son, signed the agreement on behalf of SSTS. At that time, he instructed Emiljanowicz to have his freightliner inspected by a mechanic.

¶ 7 After execution of the agreement at 10 a.m., SSTS issued decals to Emiljanowicz for placement on his freightliner. The decals indicate the authority to operate the freightliner pursuant to Department of Transportation regulations and contain identification numbers. Sandrzyk stated that it is the responsibility of the drivers to place the decals on their vehicles.

¶ 8 Later that same day, Emiljanowicz drove the truck to pick up a friend and take the truck to a mechanic. In his deposition, Emiljanowicz stated that the truck did not have problems but he needed to "[c]heck everything out" because he was "start[ing] a new job." He purchased the freightliner so he could go into business as an independent operator. Emiljanowicz stated that he had called his friend earlier and asked him "to come with [him] so [he] can drop it off to [the] mechanic." Around 1:45 p.m. on May 12, 2004, on his way to pick up his friend, Emiljanowicz collided with a vehicle driven by defendant Barbara Karawacki-Horowitz.

¶ 9 Officer Kenneth King responded to the call of an accident. In his deposition, Officer King acknowledged that his report did not contain information identifying Emiljanowicz's vehicle as a commercial carrier. He stated that he could not recall whether the truck had decals or placards identifying it as a commercial carrier, but if the truck had such information Officer King would have indicated so in his report. Officer King further stated that Emiljanowicz never told him that he was working for SSTS at the time of the accident. Officer King obtained insurance information from Emiljanowicz.

¶ 10 At the time of the accident, Emiljanowicz was covered by an insurance policy issued by Progressive. The Progressive policy contains the following "Contingent Liability Endorsement":

"We agree with you that the provisions of the Policy relating to insurance for Personal Injury Protection, Bodily Injury Liability, and Property Damage Liability are subject to the following limitations:
1. These coverages apply only to an insured named in the Policy declarations.
2. These coverages do not apply at any time when an insured under this endorsement is operating, maintaining, or using the insured auto or any other auto for or on behalf of anyone else or any organization whether ...

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