American Freedom Insurance Co. v. Uriostegui

• Court: Appellate Court of Illinois
• Decided: July 13, 2006
• Docket: 1-05-0690 & 1-05-1012 cons. Rel
• Status: Published

Opinion

FOURTH DIVISION Filed: July 13, 2006 1-05-0690, 1-05-1012 (Consolidated)

AMERICAN FREEDOM INSURANCE ) Appeal from the COMPANY, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) No. 03 CH 6301 ) JOHN URIOSTEGUI, ERIC BROWN, ) TATYANNA BENNETT and LATAVIA ) BROWN, Minors, By and Through Their Mother, ) DEMETRIC BROWN and TANISHA FAIRLEY, ) a Minor, By and Through Her Guardian, LOUISE ) FAIRLEY, SANGRIA MOODY, Individually, and ) as Special Administrator of the Estate of JOVANA ) Honorable Sophia C. Hall, BROWN, a Minor, Deceased, ) Judge Presiding. ) Defendants-Appellees. )

JUSTICE MURPHY delivered the opinion of the court:

On January 27, 2002, codefendants Eric Brown, Tatyanna Bennett, Tanisha

Fairley and Jovana Brown were all injured when struck by a vehicle driven by John

Uriostegui. All injuries were minor, excepting a head injury to Jovana Brown which

resulted in her death. Sangria Moody, special administrator of the estate of Jovana

Brown, brought a survival and wrongful death action against Uriostegui. The remaining

codefendants filed a separate complaint against Uriostegui for damages resulting from

their personal injuries from the incident.

Plaintiff American Freedom Insurance Company filed a complaint for declaratory

judgment against codefendants. Plaintiff requested that the trial court find its nonowner 1-05-0690, 1-05-1012 (cons.)

automobile insurance policy with Uriostegui did not provide insurance coverage of this

accident. Following a bench trial, the trial court entered judgment in favor of plaintiff,

finding that plaintiff was not obligated to defend or indemnify Uriostegui under the

nonowner automobile insurance policy. Codefendant Sangria Moody, as administrator

of the estate of Jovana Brown, appealed that decision. The remaining codefendants

filed a separate appeal, which were consolidated by this court. Only defendant Sangria

Moody filed briefs in support of her appeal; however, codefendants have adopted these

briefs as their own.

Essentially, this appeal consists of one issue for our review: whether the trial

court erred in determining that plaintiff=s nonowner automobile insurance policy

excluded coverage of Uriostegui as the vehicle at issue was furnished for his Aregular

use.@ For the following reasons, we affirm the trial court.

I. BACKGROUND

On November 30, 2001, pursuant to a court order to purchase automobile

insurance, John Uriostegui went to the Yale Insurance Agency in Oakbrook Terrace,

Illinois, to purchase a policy. After talking with an insurance agent, Uriostegui

purchased an automobile insurance policy issued by plaintiff. At the time, Uriostegui did

not own a vehicle, but specifically needed an insurance policy to drive his

grandmother=s 1992 Ford Crown Victoria. Therefore, he purchased a non-owner

insurance policy recommended by the insurance agent.

The amendment endorsement to the policy defines a Anon-owned autmobile@ as

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Aan automobile not owned by or furnished for the regular use of the named insured or a

resident of the same household.@ Plaintiff further provided in the amendment to the

nonowner policy that this type of policy was not intended to insure any person driving an

automobile that did not meet this definition. Uriostegui was charged an annual premium

of $703 for the policy.

On January 27, 2002, at approximately 4 p.m., Uriostegui was driving his

grandmother=s 1992 Ford Crown Victoria west on West 55th Street in Chicago, Illinois.

At this time, codefendants and Jovana Brown were crossing South Western Avenue

outside of the crosswalk at the intersection of South Western Avenue and West 55th

Street. Immediately after turning south onto South Western Avenue, Uriostegui struck

codefendants and Jovana Brown with his grandmother=s vehicle. Codefendants were

taken to the hospital with minor injuries. Jovana Brown, however, suffered serious head

injuries from the accident and died shortly thereafter.

Codefendants filed suit against Uriostegui claiming that his negligent driving

caused their injuries and demanded the policy limits on his insurance policy with

plaintiff. Plaintiff responded by filing an action for declaratory judgment against the

named defendants. Plaintiff asserted in its complaint that it had no obligation to defend

or indemnify Uriostegui in the underlying civil actions. Plaintiff claimed that the vehicle

involved was furnished for his Aregular use,@ thereby rendering it exempt under the

nonowner policy. The matter then progressed to a bench trial.

At the outset of the trial, the parties entered into four stipulations, two of which

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are of note. In particular, the parties stipulated that, on the date of the accident,

January 27, 2002, Uriostegui did not own the vehicle at issue. Second, they stipulated

that, on that same date, Paula Mendez, Uriostegui=s grandmother, was the legal owner

of the vehicle.

Bill Moran, a claims adjuster for plaintiff, testified first. Moran testified that he

denied Uriostegui coverage on January 28, 2002, based on the amendment

endorsement. Moran completed a check of records with the Illinois Secretary of State

to determine that Paula Mendez was the registered owner of the vehicle. However,

Moran also conducted a tape-recorded telephonic interview of Uriostegui. Uriostegui

admitted to Moran that he used the vehicle approximately three times a week and that it

was his main form of transportation. Therefore, Moran concluded the vehicle was

furnished for Uriostegui=s regular use and he denied coverage.

Uriostegui next took the stand. He testified that he purchased his nonowner=s

policy on November 30, 2001, pursuant to a court order. Uriostegui stated that he did

not own the vehicle at that time and purchased the nonowner=s policy because it was

cheaper. In December 2001, he purchased the vehicle from his grandmother. Prior to

his grandmother=s departure to live in Mexico, she gave him permission to drive the

vehicle and allowed him to use her license plates until he had sufficient funds to transfer

title of the vehicle to his name. Uriostegui=s grandmother remained in Mexico through

the time of the accident and he did not talk with her again before the accident.

Uriostegui further testified that during January 2002, he had keys to the vehicle

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and was the only person driving the vehicle. In fact, he was able to use the vehicle at

any time he wanted. Though he would also use public transportation, he chose to drive

more often than the two to three days a week he worked due to the cold weather and

shorter commute. Uriostegui admitted that the vehicle was his main form of

transportation.

Finally, Uriostegui=s father testified that in January 2002, his son was living with

him and his wife. He further testified that Paula Mendez owned the vehicle at issue, but

was aware that his son had purchased the vehicle and was the only person driving it in

January 2002. However, he testified that he did not know how often his son drove the

vehicle during a typical week.

The trial court entered an order in favor of plaintiff. The court specifically held

that plaintiff was not obligated to defend or indemnify John Uriostegui under the

nonowner=s policy. On appeal, codefendants argue that the trial court erred in finding

the vehicle was furnished for the regular use of Uriostegui and thereby excluded from

coverage by plaintiff=s automobile insurance policy.

II. ANALYSIS

Codefendants first argue that the trial court erred in its interpretation of the

language of plaintiff=s automobile insurance policy with Uriostegui. They highlight that

review of a contract of insurance is de novo. Hobbs v. Hartford Insurance Co. of the

Midwest, 214 Ill. 2d 11, 17 (2005). We also note that if terms of a policy are ambiguous,

we must liberally construe the language to favor coverage of the insured. State Farm

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Mutual Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436, 442 (1998). However,

codefendants= reading of the policy language is untenable.

Codefendants claim that plaintiff=s use of the disjunctive Aor@ in defining regular

use requires a finding of coverage in this case. It was undisputed that Uriostegui did not

own the vehicle. Codefendants valiantly attempt a grammatical analysis of the policy

definition to show that the disjunctive Aor@ is not interchangeable with the conjunctive

Aand,@ thereby requiring coverage if the vehicle at issue is either not owned or not

provided for regular use. We cannot interpret the policy language this way.

Again, the policy limits coverage to Anon-owned automobiles.@ A Anon-owned

automobile@ is defined in the policy as Aan automobile not owned by or furnished for the

regular use of the named insured or a resident of the same household.@ Placing Anot@

before Aor@ in this case simply utilizes the disjunctive Aor@ as a device to identify two

separate scenarios where a vehicle may be determined a Anon-owned automobile.@

Even liberally construing this language to favor coverage, the plain language of this

definition is simply that, to be covered, the policyholder must not either own the vehicle

or have the vehicle furnished for his regular use.

Next, we consider the main issue in this case, whether or not the trial court

properly determined the vehicle at issue was provided for Uriostegui=s regular use.

There is no dispute that the term Aregular use@ is not subject to absolute definition and

that we must consider its meaning based on the facts of each particular case. State

Farm Mutual Automobile Insurance Co. v. Differding, 69 Ill. 2d 103, 107 (1977). As

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such, previous cases may only give guidance in analyzing whether the facts of this case

demonstrate regular use of the vehicle at issue. Knack v. Phillips, 134 Ill. App. 3d 117,

121 (1985). We note that the parties rely heavily on case law from foreign jurisdictions

for their discussions of regular use. Case law from foreign jurisdictions does not have

binding authority on this court. Kim v. Mercedes-Benz, USA, Inc., 353 Ill. App. 3d 444,

455 (2004). Therefore, although there are few analagous cases on point, the applicable

Illinois case law is sufficient for guidance in analyzing the facts in this case and deciding

this issue.

In Differding, the defendant, a Northern Illinois University student, sublet a

summer apartment from a professor, who also asked her to maintain his automobile,

only restricting its use to within the DeKalb, Illinois, area. Differding, 69 Ill. 2d at 105.

The defendant drove the automobile regularly and frequently. In fact, on the fourth time

the defendant utilized the automobile for a trip outside of DeKalb, Illinois, to her

permanent residence in Park Forest, Illinois, she was involved in an accident.

Differding, 69 Ill. 2d at 105-106. The supreme court upheld the trial court=s finding that

the automobile was furnished for the defendant=s regular use and not covered.

Differding, 69 Ill. 2d at 107.

In contrast, in Knack, upon which codefendants place heavy reliance, the Second

District of this court reversed a trial court=s finding of regular use. Knack, 134 Ill. App.

3d at 123. In that case, the defendant, a student, lived on campus at Judson College in

Elgin, Illinois, while her fiancé was stationed in the Navy at the Great Lakes Naval

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Station. Defendant was granted permission by her fiancé to use his vehicle during the

week to drive to her part-time job and then to pick him up on the weekends. The

defendant used the car to drive to work, though she still carpooled at times during the

two-week period she had the vehicle. After the second week she had the vehicle, she

was involved in an accident. Knack, 134 Ill. App. 3d at 118-19.

The court rejected the parties= arguments that the discretion granted to the driver

is the test of regular use. Knack, 134 Ill. App. 3d at 123. Rather, the court found this

was just one consideration of a Aregular use@ analysis. Knack, 134 Ill. App. 3d at 122.

First, the court noted that the duration of the defendant=s use was not defined. Knack,

134 Ill. App. 3d at 122. Second, the defendant=s use of the vehicle was limited to

weekdays for travel to work, when the owner was not using the vehicle. Knack, 134 Ill.

App. 3d at 122. Third, the record demonstrated that the defendant and owner only

regarded her permission to use the vehicle for temporary, casual use. Knack, 134 Ill.

App. 3d at 122. Accordingly, the court held that the availability of the car was consistent

with a Alimited and casual use, and not a regular use as characterized by the permission

to use for all purposes.@ Knack, 134 Ill. App. 3d at 122.

In Soumpholphakdy v. Prudential Property & Casualty Insurance, 188 Ill. App. 3d

602 (1989), the defendant, a superintendent for a general contracting firm, utilized a

company truck for about 75% of his visits to jobsites and kept a truck at his home

overnight about 50% of those times. Soumpholphakdy, 188 Ill. App. 3d at 606. As a

rule, the defendant=s employer did not favor personal use of company vehicles;

however, he granted permission, depending on the employee. In fact, the defendant

received permission to use the truck for his personal use on the day of the accident.

Soumpholphakdy, 188 Ill. App. 3d at 607. On the day he got into an accident, the

defendant utilized the truck to move furniture in the morning and then attended a party.

Soumpholphakdy, 188 Ill. App. 3d at 607. This court found that the defendant=s regular

work use, infrequent though authorized personal use, and overnight storage of the

company truck established regular use of a nonowned vehicle supporting the trial

court=s grant of summary judgment in favor of the insurer. Soumpholphakdy, 188 Ill.

App. 3d at 608.

In Auto Owners Insurance Co. v. Miller, 138 Ill. 2d 124 (1990), the supreme court

again reviewed the use of a company vehicle and reversed a decision cited by the

Soumpholphakdy court in its analysis. In Miller, the driver of a company truck that was

provided to him for business use only, struck and injured the defendants while driving

home from a golf outing which was purely personal in nature. Miller, 138 Ill. 2d at 127-

29. The driver was aware of an unwritten rule that personal use of company trucks

would result in discharge, but utilized the vehicle for his personal use anyway. Miller,

138 Ill. 2d at 129. The court found that the record clearly showed the driver was

authorized to use the truck solely for business purposes, not his personal use or regular

use. Miller, 138 Ill. 2d at 129. Further, the driver was discharged from his job after the

accident. Miller, 138 Ill. 2d at 129. Accordingly, the supreme court found that the trial

court=s decision that the vehicle was not furnished for regular use was not against the

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manifest weight of the evidence. Miller, 138 Ill. 2d at 130.

The facts of this case point more clearly toward a finding that the vehicle was

provided for Uriostegui=s regular use and that he indeed regularly used the vehicle at his

discretion. Unlike Soumpholphakdy and Miller, the vehicle at issue in this case was not

a business vehicle provided to Uriostegui. Rather, Uriostegui testified that he paid his

grandmother an agreed sum for the vehicle and it was available for his use at any time.

Further, he received her permission to use her license plates until he could afford to

transfer title of the vehicle. Though there was no defined duration for use, the record

allows for no other conclusion than Uriostegui=s use was open-ended. Further,

testimony was offered that Uriostegui was the only user of the vehicle for at least the

month prior to the accident and would use the vehicle at his discretion at least three

times a week. Unlike in Knack, there is no evidence that this arrangement was limited

to certain days or regarded as temporary by any means. Unlike in Differding and Miller,

no restrictions were placed on Uriostegui=s usage of the vehicle. In fact, as he paid his

grandmother for the car and she returned to Mexico with no one else using the vehicle,

Uriostegui effectively owned the vehicle in every way but title.

The fact is Uriostegui need not hold title to the vehicle for plaintiff to deny

coverage, so long as the vehicle was furnished for regular use. The purpose of the

Aregular use@ clause is to provide coverage for occasional use of a vehicle, not regular,

habitual or principal use. Such regular, habitual or principal use opens up the insurance

company to greater liability; therefore the nonowner policy mandates a lower premium.

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The facts of this case far surpass those of established case law in support of a finding

the vehicle was furnished for regular use. Uriostegui not only admitted to regular and

principal use of the vehicle, he admitted he chose the policy due to its lower cost.

Accordingly, we find the vehicle was furnished for Uriostegui=s regular use and we affirm

the trial court=s finding that plaintiff had no duty to indemnify or defend Uriostegui under

the policy.

III. CONCLUSION

Accordingly, for the aforementioned reasons, the decision of the trial court is

affirmed.

Quinn, P.J. and Greiman, J., concur.