St. Paul Fire & Marine Insurance Co. v. Guthrie

Case Date: 07/16/2002
Court: 3rd District Appellate
Docket No: 3-02-0014 Rel

No. 3--02--0014


IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002


ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,

            Plaintiff-Appellant,

            v.

ADAM GUTHRIE, QUENTIN DeMAY
and REBECCA VERSHAW,

            Defendants-Appellees,

            and

LIBERTY MUTUAL FIRE
INSURANCE COMPANY, 

            Intervenor-Appellee.

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Appeal from the Circuit Court
of the 14th Judicial Circuit,
Rock Island County, Illinois,






No. 00--MR--295





Honorable
Alan G. Blackwood,
Judge, Presiding.

JUSTICE SLATER delivered the opinion of the court:


 

Plaintiff St. Paul Fire and Marine Insurance Company filed adeclaratory judgment action to determine whether defendant AdamGuthrie is insured under an automobile liability policy issued byplaintiff to Guthrie's parents. The trial court found thatGuthrie was covered under the policy and it entered summaryjudgment in favor of Guthrie and the other defendants, Quentin(also referred to in the record as "Quinlan") DeMay and RebeccaVershaw. We affirm.

Facts

Defendant DeMay rented a car from Enterprise car rental inMoline, Illinois, on December 27, 1999. Defendant Vershaw waslisted as an additional driver on the rental agreement, whichprovided that other drivers were not permitted withoutEnterprise's approval. The defendants intended to use the rentalcar to travel to Florida. On December 30, 1999, an accidentoccurred during the trip in which Vershaw and DeMay wereallegedly injured. Vershaw filed a claim with plaintiff,asserting that Guthrie had been driving the rental car at thetime of the accident. After plaintiff filed its motion fordeclaratory judgment, Liberty Mutual Fire Insurance Company(Liberty) was given leave to intervene. Liberty insured DeMay'sparents, providing potential uninsured motorist coverage to DeMayif Guthrie was found to be uninsured.

In its complaint for declaratory judgment, plaintiffacknowledged that the insurance policy issued to Guthrie'sparents provided coverage for "any family member," which includedAdam Guthrie. Plaintiff claimed, however, that the followingexclusion contained in the policy negated any potential coverage:

"EXCLUSIONS

A. We do not provide Bodily InjuryLiability or Property Damage LiabilityCoverage for any person:

* * *

8. using or occupying yourcovered auto without yourpermission or using or occupyingany vehicle other than your coveredauto without the permission of theowner."

Plaintiff asserted that because Guthrie did not havepermission from Enterprise, the owner of the rental car, to driveor "use" the car, no coverage was provided. The defendantsargued that the policy exclusion was not applicable becauseGuthrie had permission from DeMay and Vershaw to operate thevehicle, bringing him within the "initial permission rule"established in Maryland Casualty Co. v. Iowa National MutualInsurance Co., 54 Ill. 2d 333, 297 N.E.2d 163 (1973). The trialcourt ruled that the initial permission rule supported a findingof coverage in this case. Accordingly, summary judgment wasentered in favor of the defendants.

Analysis

In construing the language of an insurance policy, theprimary objective is to ascertain and give effect to the intentof the parties; the policy must be construed as a whole, takinginto account the type of insurance, the nature of the risksinvolved and the overall purpose fo the contract. Traveler'sInsurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 757N.E.2d 481 (2001). Construction of the provisions of aninsurance policy is a question of law subject to de novo review. Traveler's Insurance, 197 Ill. 2d 278, 757 N.E.2d 481.

The plaintiff maintains that the initial permission ruleonly applies to "owner's coverage," which is insurance for acovered auto of the named insured. The policy at issue hereinvolves "driver's coverage," which extends protection to aninsured in the use of other vehicles. The defendants concedethat the initial permission rule has, to date, only been appliedto owner's coverage, but they contend that the principlesunderlying the rule apply with equal force to non-owned vehicles,or "driver's coverage." We agree.

The initial permission rule provides that once the namedinsured of an insurance policy containing an omnibus clause (anomnibus clause extends liability coverage to persons who use thenamed insured's vehicle with the insured's permission (State FarmMutual Automobile Insurance Co. v. Universal Underwriters Group,182 Ill. 2d 240, 695 N.E.2d 848 (1998)) has given permission toanother to use the car, any person subsequently given permissionto drive the car by that first permittee is covered under thepolicy. American Country Insurance Co. v. Wilcoxon, 127 Ill. 2d230, 537 N.E.2d 284 (1989). In other words, "'once the initialpermission has been given by the named insured, coverage isfixed, barring theft or the like.'" Maryland Casualty, 54 Ill.2d at 341, 297 N.E.2d at 167, quoting Odolecki v. HartfordAccident & Indemnity Co., 55 N.J. 542, 550, 264 A.2d 38, 42(1970). The rule is based on the theory that the insurancepolicy is as much for the benefit of the public as for theinsured, and that it is undesirable to permit litigationconcerning the details of the permission and use. MarylandCasualty, 54 Ill. 2d at 342, 297 N.E.2d at 168. The rule appliesnotwithstanding the first permittee's deviation from theauthority given to him by the insured, and also "even where itcannot be established that the initial permittee grantedpermission to the third person driving the vehicle." Harry W.Kuhn, Inc. v. State Farm Mutual Automobile Insurance Co., 201Ill. App. 3d 395, 401, 559 N.E.2d 45, 49 (1990).

Application of the initial permission rule results ininsurance coverage for a subsequent permittee in the event of anaccident. The public policy supporting this rule is ensuringthat all drivers are insured against injury to others. Webelieve that the same public policy supports application of therule to "driver's coverage" of non-owned vehicles.

If defendant DeMay had insured the rental car throughEnterprise, Guthrie would have been insured under the Enterprisepolicy by application of the initial permission rule, even thoughhe had no contractual relationship with Enterprise, no permissionto use their vehicle, and was, in effect, a stranger to them. Inthis case plaintiff has a contractual relationship with Guthrieand has agreed to provide coverage to him for non-owned vehicles,albeit not those used without permission. If our supreme courtdeems the public policy of ensuring coverage sufficientlyimportant to mandate coverage in the former situation, we believeit is certainly warranted in the latter. This is particularly soin light of the expectations of the insured. When a personborrows a car from a friend or a co-worker, he expects that hisinsurance will protect him in the event of an accident, even ifit turns out that the car was owned by someone else. To holdotherwise would require a borrower to ask the lender for proof ofownership or risk being uninsured.

The plaintiff asserts that concerns over innocent victimsgoing uncompensated are without merit because mandatory liabilitycoverage, including uninsured motorist protection, coupled withthe effect of the initial permission rule on "owner's coverage,"limit the potential for noncoverage to the unauthorized use ofrental cars. However, the fact that insurance is required doesnot guarantee that a particular vehicle is insured. If one isunfortunate enough to borrow a truck to move some furniture andthe truck turns out to be both owned by someone other than thelender and uninsured, accepting the plaintiff's position wouldleave the driver uninsured. Even if the potential lack ofcoverage was limited to rental cars, however, we believe thepublic policy of protecting the public by providing coveragewould be sufficient to warrant extending the initial permissionrule to include "driver's coverage." Although in this case itappears that DeMay may be insured under his uninsured motoristcoverage with Liberty, it is possible that Vershaw may have norecourse if Guthrie is uninsured. Moreover, if we acceptplaintiff's argument and some driver in Guthrie's position in thefuture strikes an uninsured pedestrian crossing the street, nocoverage may exist. We do not believe that such results areconsistent with the expectations of the purchasers of automobileliability policies. We agree with the sentiments expressed bythe court in Carlsson v. Pennsylvania General Insurance Co., 214Pa. Super. 479, 488, 257 A.2d 861, 866 (1969), aff'd, 438 Pa.553, 265 A.2d 520 (1970):

"Those who purchase automobile insurancedo so in the expectation that they areprotecting both themselves and the generalpublic. The company's argument, however,places an impossible burden upon the insured,undermining the very objectives which hesought to achieve by purchasing suchinsurance. It subjects him to dangers whenborrowing a car which he can neitherreasonably anticipate nor against which hecan ever entirely protect himself no matterhow cautiously he may act."

For the reasons stated above, the judgment of the circuitcourt is affirmed.

Affirmed.

BRESLIN and HOMER, J.J., concur.