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No. 3--02--0688

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

FACTS

Richey's boat and its motor were insured by Erie. Richey'scomplaint stated that "[o]n or about July 24, 1999," he was boatingon the Illinois River when the boat's "skeg, propeller and assemblyholding the propeller" came into contact with "mud and otherdebris" under the surface of the water. Richey claimed that "[a]sa result of this collision, *** the underside of the housing forthe propeller and attached assembly to the propeller was [sic]damaged and wrecked."

During Richey's deposition, he said that at the time of thecollision, the boat was traveling "[m]aybe 15 miles an hour, ifthat." The boat then came to a stop in "[m]aybe 15-18 inches" ofwater. Richey turned the boat's motor off and got out of the boatto assess the damage. He determined that the boat's "outdrive" wasimbedded in mud. Richey got back in the boat, started the motor,and attempted to free it from the mud by rocking it back and forth. He stated that in less than five minutes "all the warning buzzerswere going off" on the motor. He could not recall whether themotor "shut itself down or if [he] shut it down."

In his complaint, Richey alleged that "mud and other debrisblocked the water pick-up of the lower unit of the motor" as aresult of the collision. He submitted after he restarted themotor, "[t]he water pump disintegrated and no longer providedcoolant to the motor, thus damaging the motor irreparably." In hisaffidavit, Erie's "Material Damage Adjuster," Skip Rhea, "concludedthe motor was pushed passed [sic] its limit when Mr. Richeyattempted to dislodge [his boat] from the mud."

Richey then freed the boat from the mud by digging around itwith an oar. Another boat that was passing Richey's location towedRichey and his boat back to the boat launch. At the boat launch,Richey could not restart the motor.

Richey paid for repairs to the propeller and gears and forreplacement of the motor. Richey submitted an insurance claim toErie, but Erie rejected the claim.

Erie's insurance policy states that Erie "will pay for directand accidental loss of or damage to your insured property." Thepolicy "applies to losses that occur during the policy periodanywhere within the continental United States." An "occurrence" isdefined as "an accident, including continuous or repeated exposureto the same general harmful conditions." An "accident" is definedas "a sudden, unforeseen, unintended event which causes ***damage." The policy excludes coverage for damage "confined to ***mechanical breakdown."

Richey filed his complaint against Erie, which moved forsummary judgment. The trial court granted partial summary judgmentto Erie. The court's order stated that "[t]he damage to the boatwas caused by two separate occurrences." The court ruled that theoccurrence that damaged the propeller was covered by Erie's policy,but disallowed Richey's claim for the occurrence that damaged themotor. Richey appealed.

ANALYSIS

Richey argues that the trial court erred as a matter of law bygranting partial summary judgment to Erie.

Summary judgment is appropriate where "the pleadings,depositions, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material factand that the moving party is entitled to a judgment as a matter oflaw." 735 ILCS 5/2--1005(c) (West 2000). We review a trialcourt's grant of summary judgment de novo. Arangold Corp. v.Zehnder, 204 Ill. 2d 142, N.E.2d (2003).

The construction of an insurance policy and its coverage arequestions of law, which are appropriate subjects for summaryjudgment. In construing an insurance policy, a court is toascertain and enforce the intent of the parties as expressed by thewords in the policy. To determine the intent of the parties andthe meaning of the words used in the insurance policy, a court mustconstrue the policy as a whole. If the words of the policy areplain and unambiguous, a court will give them their plain, ordinarymeaning and will apply them as written. Mutlu v. State Farm Fireand Casualty Co., 337 Ill. App. 3d 420, 785 N.E.2d 951 (2003).

In this case, the wording of Erie's policy showed that Erieonly covered occurrences which were accidents. In turn, accidentsmust be unforeseen events that cause damage. Furthermore, Erie'spolicy excludes damage caused by mechanical breakdown. The wordsof Erie's policy are plain and unambiguous. Therefore, we willgive the words of Erie's policy their plain, ordinary meaning andapply them as written.

Richey's boat collided with "mud and debris" under the surfaceof the water. The collision was an occurrence under Erie's policybecause it was an accident, meaning that it was an unforeseen eventthat caused damage to the propeller and its assembly. When Richeystopped the boat's motor, got out of the boat, and restarted themotor, the ensuing damage to the motor was not part of the sameoccurrence that damaged the propeller and its assembly. It wasforeseeable that irreparable damage to the motor would result when,after restarting the motor, Richey continued to use it until thewater pump was destroyed and he heard the motor's "warningbuzzers." Thus, the damage was foreseeable because of Richey's ownactions, not the accident, and was not covered under the policy. Furthermore, under a plain reading of the insurance policy,coverage was also excluded as a "mechanical breakdown." There wasno genuine issue of material fact that damage to Richey's boatmotor was not covered under the plain and unambiguous terms ofErie's insurance policy. The trial court did not err as a matterof law by granting partial summary judgment to Erie.

CONCLUSION

The judgment of the Peoria County circuit court is affirmed.

Affirmed.

BARRY and SLATER, JJ., concur.