Insurance Company’s Duty to Defend or Indemnify when Determining Permission of Use of Vehicle
In American Access Casualty Company v. Kionna Griffin, Erica Perkins was involved in an automobile accident while driving a 1995 Dodge Avenger allegedly owned by Beverly Perkins. LaTonya Reese and Kionna Griffin filed separate complaints against Erica Perkins.
American Access Casualty Company (“American”) alleged it made repeated attempts to contact both Erica Perkins and Beverly Perkins to verify ownership, to determine 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.
American 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.
The court reviewed whether American owes a duty to defend or indemnify and whether the vehicle is covered by the primary insurance policy.
Illinois courts have long recognized the exclusion of cars furnished for regular use to the insured, or a member of his household, which would seem to indicate that the intention of the company is to protect itself from a situation where an insured could pay for one policy and be covered by the insurance company in driving any car that he decided to use, whether owned by him or members of his family, or cars that had been furnished for his regular use, in other words, cars under his control that he could use at will and might use often. Without such an exclusion, it is obvious that the company might lose premiums, and the hazard under the insurance would be increased. It is evident that the purpose on the part of the company in extending the driver’s regular insurance without the payment of any additional premiums would apply to the occasional driving of cars other than his own, but would be inapplicable to an automobile furnished to the insured for his regular use.
American argues that the pertinent allegations in the complaint are that Erica Perkins is not the owner of the vehicle at issue, and that Beverly Perkins, her mother, provided the vehicle for her regular use. Based on those “admitted” facts, plaintiff argues it is entitled to summary judgment on its complaint that it does not owe a duty to defend or indemnify Erica Perkins for any liability arising out of the collision at issue.
The affidavit in this case does not state whether, on the day of the accident, Erica Perkins was using the vehicle with permission, for what purpose she was given permission to use the vehicle, if any, or if she was using the vehicle for that purpose at the time of the collision. Nor does the affidavit say how Beverly and Erica Perkins regarded the permission to use the vehicle. Thus, even accepting the statements in the affidavit as true, whether Erica Perkins required permission to use the car, or was or was not using the car with permission on the date of the collision, are material questions of fact which preclude summary judgment in favor of plaintiff.
Am. Access Cas. Co. v. Griffin, 2014 IL App (1st) 130665.
