Find Legal Information

                                                                                                                                                                        Second Division
                                                                                                                                                                        December 20, 2005

JUSTICE HALL delivered the opinion of the court:

This appeal arises out of an automobile collision betweenvehicles driven by defendants-appellants Joel Contreras, Jr., andSung Kuk. The sole issue on appeal is whether the "initialpermission" rule applies under the facts in this case, therebyentitling Joel Contreras, Jr., (hereinafter Contreras Jr.), toautomobile liability coverage.

The "initial permission" rule provides that once the owneror named insured of an automobile liability insurance policycontaining an omnibus clause⁽¹⁾ gives another individual permissionto use the vehicle (the initial permittee), any personsubsequently given permission to drive the vehicle by the initialpermittee is also covered under the policy, barring theft ortortious conversion. American Country Insurance Co. v. Wilcoxon,127 Ill. 2d 230, 236, 537 N.E.2d 284 (1989); St. Paul Fire &Marine Insurance Co. v. Guthrie, 332 Ill. App. 3d 486, 489, 773N.E.2d 763 (2002). We find that the trial court did not err inholding that Contreras Jr. was not entitled to such omnibuscoverage.

The record reveals the following facts and proceduralhistory. At the time the accident occurred, Contreras Jr. wasoperating a vehicle owned by his father, Joel Contreras, Sr. Thevehicle, a 1995 Plymouth Neon Sport, was insured under anautomobile liability insurance policy issued by plaintiff-appellee, Founders Insurance Company (Founders Insurance). Thepolicy contained an omnibus clause providing that an insured was"any other person using such automobile with the directpermission of the named insured, provided the actual use thereofis within the scope of such direct permission." Contreras Sr.'sdaughter, Isela Contreras, was a named insured on the policy.

It is undisputed that neither Joel Contreras, Sr. nor IselaContreras ever gave Contreras Jr. permission to use the vehicle. At the time Contreras Jr. took the car keys and drove away in thevehicle, his father was away on vacation and his sister was outof the house.

As a result of the accident, Sung Kuk filed a personalinjury lawsuit against Contreras Jr. Sung Kuk v. Contreras, No.02 M1 20626 (Cir. Ct. Cook Co.). In addition, defendant-appellant Allstate Insurance Company (Allstate), as subrogee ofSung Kuk, filed a subrogation lawsuit against Contreras Jr. forproperty damage to Sung Kuk's vehicle. Allstate Insurance Companyv. Contreras, No. 02 M1 24717 (Cir. Ct. Cook Co.). FoundersInsurance subsequently provided a defense to Contreras Jr. inconnection with both lawsuits, subject to a reservation ofrights.

Thereafter, Founders Insurance filed a declaratory judgmentaction against defendants-appellants seeking a declaration thatit did not have a duty to defend or indemnify Contreras Jr. inthe underlying lawsuits, on the ground that at the time theaccident occurred, Contreras Jr. was a nonpermissive,unauthorized driver of the subject vehicle and therefore was notcovered under the policy. Contreras Jr. was subsequentlydefaulted for failing to file an appearance or responsivepleading.

On cross-motions for summary judgment on the parties'respective requests for declaratory judgment, the trial courtentered an order in favor of Founders Insurance and againstAllstate, finding and declaring that Founders Insurance had noduty to defend or indemnify Contreras Jr. under the policy,because at the time of the accident he was a nonpermissive,unauthorized driver of the subject vehicle. The trial court alsofound that the "initial permission" rule was inapplicable underthe factual circumstances in the case and therefore did not applyto make Contreras Jr. a permissive user of the vehicle. Afterthe trial court denied its motion for reconsideration, Allstatefiled a timely notice of appeal. For the reasons that follow, weaffirm.

ANALYSIS

Since this is an appeal from a summary judgment, our reviewof the trial court's order granting summary judgment is de novo.Sears, Roebuck & Company v. Acceptance Insurance Co., 342 Ill.App. 3d 167, 171, 793 N.E.2d 736 (2003). "The construction of aninsurance policy and a determination of the rights andobligations thereunder are questions of law for the court andappropriate subjects for disposition by summary judgment." Konami(America), Inc. v. Hartford Insurance Co. of Illinois, 326 Ill.App. 3d 874, 877, 761 N.E.2d 1277 (2002).

Summary judgment is appropriate where the pleadings,depositions, and admissions on file, together with any affidavitsand exhibits, when viewed in the light most favorable to thenonmoving party, indicate that there is no genuine issue ofmaterial fact and the moving party is entitled to judgment as amatter of law. 735 ILCS 5/2-1005 (c) (West 2000); Bier v. LeannaLakeside Property Ass'n, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773(1999). As in this case, where the parties file cross-motionsfor summary judgment, they invite the court to decide the issuespresented as a matter of law. Lexmark International, Inc. v.Transportation Insurance Co., 327 Ill. App. 3d 128, 134, 761N.E.2d 1214 (2001). Applying these principles, we conclude thatthe trial court did not err in granting summary judgment in favorof Founders Insurance.

Defendants-appellants contend that the trial court erred inconcluding that Contreras Jr. was not a permissive user of thevehicle under the "initial permission" rule, arguing that thetrial court improperly based its decision on a finding that therule applied only in instances where the initial permission touse the vehicle was given by the named insured rather than theowner of the vehicle. We disagree.

Defendants-appellants misstate the basis for the trialcourt's ruling. The record shows that the trial court's rulingwas based on a determination that the "initial permission" rulewas inapplicable under the facts in the case because the issue of"permission" never arose. In granting Founders Insurance'scross-motion for summary judgment, the trial court stated: "We goback to Founders' original position. Their original position isthat the initial permission rule doesn't even apply here. And Iagree with that. I believe they are correct because there is noevidence of any form of a permission scenario here."

We agree with the trial court. In this case, the "initialpermission" rule is irrelevant because none of the individualsinvolved ever gave Contreras Jr. permission to use the vehicle.

In all of the cases defendants-appellants rely upon tosupport their position, there was a grant of permission by theinsured to an initial permittee. See United States Fidelity &Guaranty Co. v. McManus, 64 Ill. 2d 239, 356 N.E.2d 78 (1976)(named insured gave friend permission to drive vehicle); MarylandCasualty Co. v. Iowa National Mutual Insurance Co., 54 Ill. 2d333, 337, 297 N.E.2d 163 (1973) (named insured gave sonpermission to use vehicle); Western States Mutual Insurance Co.v. Verucchi, 66 Ill. 2d 527, 529, 363 N.E.2d 826 (1977) (same).

The "initial permission" rule is inapplicable under thefacts in the case because the issue of "permission" never arose.Neither Joel Contreras, Sr., nor Isela Contreras ever gaveContreras Jr. permission to use the vehicle.

Accordingly, for the reasons set forth above, the judgmentof the circuit court of Cook County is affirmed.

Affirmed.

GARCIA, P.J., and WOLFSON, J., concur.

1. An "omnibus clause" is a provision in an automobileinsurance policy that extends liability coverage to persons who"use the named insured's vehicle with his or her permission."State Farm Mutual Automobile Insurance Co. v. UniversalUnderwriters Group, 182 Ill. 2d 240, 243-44, 695 N.E.2d 848(1998). "The purpose of the omnibus provisions is to protect thepublic by ensuring that adequate resources are available tocompensate for injuries sustained as a result of automobileaccidents." State Farm Mutual Automobile Insurance Co. v. HertzClaim Management Corp., 338 Ill. App. 3d 712, 717, 789 N.E.2d 407(2003).