Duty to Defend Permitted Drivers
In Founders Insurance Co. v. Jose J. Leal, Founders Insurance Company (‘Founders”) brought a lawsuit seeking a declaration that it had no duty to defend or indemnify Jose Leal (“Jose”) for an automobile accident involving a vehicle that Founders insured because he was not a named insured on the policy. Founders alleged that the Juan Leal (“Juan”) was the named insured on the policy that Founders issued to him and which covered a 1995 Ford pick-up truck. On February 26, 2010, Jose was involved in an accident while driving the truck. The policy that was issued to Juan provided liability coverage only to “Persons insured.” That term was defined as “the named insured” and “any other person using such automobile with the permission of the named insured.” After the accident, Founders conducted an investigation. As a result Founders concluded that Jose was “non-permissive driver” of the truck. This conclusion was based upon recorded statements obtained from Juan and Jose. Therefore, Founder’s alleged that Jose was not a person insured under the policy, and thus Founders had no duty to defend or indemnify Jose. During trial, Juan testified that he did not give Jose permission to drive the truck, but he was not aware that Maria, Juan’s wife and Jose’s mother, gave permission to Jose. Maria then testified that she gave Jose permission to drive the truck.
The court reviewed whether Jose was a permissive driver and whether Founders met their burden of proof. The court reasoned that Founders had the burden to prove that it was entitled to declaratory judgment because Jose was not entitled to insurance coverage since he was not a permissive driver. The construction of an insurance policy’s provisions and the ultimate determination of the parties’ rights and obligations under the policy are a question of law which the court reviews de novo.
There is no dispute that the policy of insurance issued to Maria and Juan provided liability coverage with respect to the use of the truck to Juan and Maria and named insureds and any person using the automobile with their permission. The policy was required to cover the named insured and any person using the vehicle with the named insured’s permission. At trial testimony was presented that indicated that Jose was given permission. The finding of fact is entitled to great deference by the court, because the circuit court was in a superior position to observe the witnesses to judge their credibility and determine the weight of their testimony. Founders reasserts the credibility attacks of the witnesses’ testimony. However, the court states that resolving conflicts relating to the credibility of witnesses and the weight to be afforded their testimony is the province of the trial court. The court found that Founders had a duty to defend or indemnify because Jose had express permission to drive the truck.
Founders Insurance Co. v. Jose J. Leal, 2013 WL 1804113, (Ill.App. 1 Dist., 2013), No. 1-12-1113) (Filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).).
