Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County. No. 11 CH 014807. Honorable Moshe Jacobius, Judge Presiding.
Reversed and remanded.
The appellate court reversed the entry of summary judgment for plaintiff insurer in its action seeking a declaratory judgment that it had no duty to defend or indemnify defendant for the losses arising from an automobile accident that occurred when a vehicle owned by defendant's mother and driven by defendant was involved in a collision with another vehicle, notwithstanding the facts that defendant had a nonowners automobile insurance policy and both she and her mother were defaulted in plaintiff's action, since genuine issues of material fact existed as to whether defendant had to ask her mother for permission to use the car, the nature of the permission that was granted, whether defendant was the " regular" or " primary" driver of the car, and whether any exclusions applied under the circumstances.
For defendant-appellant: Scott J. Larsen, Michael C. Keefe, of counsel, The Larsen Law Firm, P.C., Chicago, IL.
For plaintiff-appellee: Phyllis Roman, of counsel, Giamanco & Ooink Law Office, Bolingbrook, IL.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.
[¶1] Plaintiff, American Access Casualty Company (American), filed a complaint for declaratory judgment against defendants Erica Perkins, Beverly Perkins, Latonya Reese, and Kionna Griffin. Erica Perkins is plaintiff's insured. The remaining defendants are named as necessary parties from whom no relief is sought. The complaint sought a declaration that plaintiff owes no duty to defend or indemnify Erica Perkins for losses caused by her use of a 1995 Dodge Avenger owned by defendant Beverly Perkins. The complaint also sought a declaration of whether the vehicle is covered by any primary insurance policy, and that Erica Perkins had breached
her duty of assistance and cooperation under her insurance policy with plaintiff. Plaintiff filed a motion for summary judgment supported by an affidavit from one of its attorneys. Plaintiff's attorney made averments as to statements Erica Perkins allegedly made to him in two telephone conversations, which plaintiff argued constituted admissions eliminating her use of the subject vehicle from the insurance policy's coverage. The circuit court of Cook County granted plaintiff's motion for summary judgment.
[¶2] For the following reasons, we reverse.
[¶4] In September 2008, Erica Perkins was involved in an automobile accident while driving a 1995 Dodge Avenger allegedly owned by Beverly Perkins. Defendants Latonya Reese and Kionna Griffin filed separate complaints against Erica Perkins for injuries each allegedly sustained as a result of the collision. American issued a nonowners automobile insurance policy to Erica Perkins. American is providing a defense to Erica Perkins against each complaint under a reservation of rights.
[¶5] The policy contains the following pertinent language:
" If this policy is written as a Non-Owner's Filing Policy ***, it is agreed that such insurance as is afforded for Bodily Injury and Property Damage only applies with respect to the use of an 'non-owned automobile' and not any 'owned automobile' by the names insured ***.
1. 'non-owned automobile means an automobile not owned by or furnished for the regular use of the named insured ***;
2. This policy does not apply to any automobile owned by or furnished for the regular use of the named insured ***.
3. This insurance shall be excess over any other valid and collectible insurance."
[¶6] The policy also contains a provision requiring the insured to " cooperate with the Company" and, upon request, to answer all questions and provide any written proofs of loss American requires. The policy states that American " has no duty to provide coverage under the policy unless there has been full compliance with these responsibilities." The complaint states, on information and belief, that Beverly Perkins furnished the vehicle to Erica Perkins for regular use. American alleged it made repeated attempts to contact both Erica Perkins and Beverly Perkins to verify ownership and whether any person had taken out a primary insurance policy on the vehicle, and to ascertain whether Erica Perkins used the vehicle on a regular basis. The complaint also alleged that Erica Perkins has continually failed to cooperate in American's investigation of this matter. The complaint alleged that as a consequence of the foregoing, American does not have a duty to defend or indemnify Erica Perkins against the Reese and Griffin lawsuits because the vehicle was furnished by a close relative for regular use.
[¶7] Plaintiff sought a declaration staying any and all proceedings related to the vehicle accident, a declaration that American owes no duty to defend Erica Perkins in the Reese and Griffin lawsuits or for any losses caused by the vehicle accident because the vehicle is not a " non-owned automobile" under the policy, a determination of whether the vehicle is covered by a primary insurance policy, and a declaration that Erica Perkins violated the terms and conditions of the policy by failing to cooperate with American by providing documentation
and information regarding ownership, insurance coverage, and usage of the vehicle.
[¶8] Plaintiff issued a summons to defendants. In June 2011 plaintiff filed a motion to appoint a special process server and to issue alias summonses for Beverly Perkins, Latonya Reese, and Erica Perkins. Plaintiff's motion alleged the sheriff's office returned summonses as not found. In July 2011 the trial court appointed a special process server and plaintiff issued alias summonses. On July 27, 2011, the special process server executed an affidavit of attempted service, stating that he had been unable to effect service on Erica Perkins or Beverly Perkins because neither resided at the given address and that the process server was unable to obtain any information from the current resident. On August 16, 2011, the Illinois Secretary of State accepted service of the summons and complaint for Erica Perkins. On August 31, 2011, plaintiff filed a motion for alternative service on Beverly Perkins through the Illinois Secretary of State. On October 6, 2011, the court granted the motion ...