Browning v. Plumlee

737 N.E.2d 320, 316 Ill. App. 3d 738, 249 Ill. Dec. 930
CourtAppellate Court of Illinois
DecidedOctober 3, 2000
Docket5-99-0379
StatusPublished
Cited by10 cases

This text of 737 N.E.2d 320 (Browning v. Plumlee) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Browning v. Plumlee, 737 N.E.2d 320, 316 Ill. App. 3d 738, 249 Ill. Dec. 930 (Ill. Ct. App. 2000).

Opinion

JUSTICE HOPKINS

delivered the opinion of the court:

The plaintiffs, Robert E. Browning and Nora Browning, filed a multicount complaint arising out of a traffic accident that occurred as defendant Robert L. Plumlee was test-driving a truck owned by defendant Greg Weeks Pontiac Chevrolet-Geo (Weeks). The parties sought a declaratory judgment to determine whether the insurance policy issued to the test driver by State Farm Mutual Automobile Insurance Company (State Farm) provided coverage for the accident or if, instead, the insurance policy issued by Universal Underwriters Insurance Company (Universal) to Weeks, the owner of the vehicle, provided coverage. The trial court determined that Universal, as the insurer of the vehicle’s owner, was primarily responsible to provide coverage for the accident and to provide a defense to Plumlee, the test driver.

On appeal, Universal contends that the trial court should have ruled that both State Farm and Universal should provide coverage for the accident and that the amount that each company must pay for the accident should be prorated based upon the respective coverage limits of each policy. Universal also argues that the trial court erred in finding that Universal should reimburse State Farm for its costs of defending Plumlee. We affirm the trial court on both issues.

FACTS

On April 14, 1995, Plumlee was test-driving a pick-up truck owned by Weeks. Weeks knew that Plumlee was test-driving the vehicle and gave him permission to do so. During the test drive, Plumlee collided with the vehicle driven by plaintiff Robert Browning. As a result of that collision, Robert sued for his injuries, and his wife, Nora, sued for loss of consortium.

The pick-up truck that Plumlee was driving was insured under a garage policy issued to Weeks by Universal. Plumlee was covered under a personal-vehicle policy issued by State Farm. Plumlee’s policy also covered him when driving a nonowned car, such as the truck he was test-driving. A dispute arose between the insurance companies as to which coverage was primary, which was excess, and how much coverage was available under each policy. The Brownings, Universal, and State Farm each filed a claim for declaratory judgment and a motion for summary judgment.

On March 4, 1999, the trial court granted summary judgment in favor of the Brownings and State Farm and against Universal. On May 6, 1999, the trial court denied Universal’s motion to reconsider its March 4 ruling. The trial court found that Universal’s garage-liability policy afforded the sole primary coverage for the accident, held that State Farm’s policy was excess, and entered judgment against Universal and in favor of State Farm in the amount of $7,350.41 to reimburse State Farm for its attorney fees in defending the lawsuit. The court further ruled that the limits of Universal’s policy were set at the maximum available, $500,000. This timely appeal followed.

ANALYSIS

1. Standard of Review

Our review of an order granting or denying a motion for summary judgment is de novo. See Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342 (1998). Summary judgment is proper where the pleadings, depositions, and admissions on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See 735 ILCS 5/2 — 1005(c) (West 1996); Ragan, 183 Ill. 2d 342.

2. Primary Insurance Coverage of Garage Insurance Policy

Universal claims that the trial court incorrectly determined that it provides the sole primary coverage for the accident. Universal points out that Plumlee had an active personal-vehicle insurance policy which extended to his use of the truck he was test-driving and that, at most, the two policies contain clauses that are mutually repugnant and require that coverage be prorated between the parties. State Farm counters that Illinois Supreme Court law mandates that garage policies covering car dealerships, such as the one issued by Universal herein, must provide the sole primary coverage for the dealership’s test drivers. See State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Group, 182 Ill. 2d 240 (1998) (State Farm).

The relevant provisions in Plumlee’s State Farm policy extend coverage to Plumlee for the use of a nonowned car, such as the truck he was test-driving. When Plumlee was test-driving the nonowned car with other coverage, State Farm’s policy provided excess coverage.

The garage-liability policy issued to Weeks includes similar provisions. The Universal policy provides insurance to any person using an auto covered under the policy if the use of the vehicle is within the scope of the insured’s permission. Additionally, Universal’s policy provides:

“[T]he most WE will pay is that portion of such limit needed to comply with the minimum limits provision law in the jurisdiction where the OCCURRENCE took place. When there is other insurance applicable, WE will pay only the amount needed to comply with such minimum limits after such other insurance has been exhausted.”

Finally, the Universal policy provides that its coverage “is primary, except it is excess” for persons using the covered vehicle with the permission of the insured, such as those test-driving the owner’s vehicles.

In the State Farm case, the supreme court considered “whether a car dealer’s garage insurance policy covers the liability of a separately insured customer who is involved in an accident while test-driving one of the dealer’s vehicles.” State Farm, 182 Ill. 2d at 241. Universal admits that the policy issued to the car dealership in State Farm “contained the same language” as found in Universal’s policy in the case at bar. However, Universal attempts to distinguish the State Farm case on the basis that the court was not asked to decide whether State Farm’s policy provided coprimary coverage, which Universal claims is the issue before this court. After a thorough review of State Farm, we can easily eliminate this argument.

In State Farm, the insurance carrier for the dealership (which was Universal, the same company that insures the dealership in the case at bar) argued that although a dealership is required to provide insurance coverage for those who test-drive their cars, that coverage is necessary only when the test driver has no other insurance of his own. See State Farm, 182 Ill. 2d at 243. The test driver, who was insured by State Farm (who also insures the driver in the instant case), collided with another vehicle. State Farm submitted a claim to Universal for the amounts it paid to the passenger and driver of the other vehicle. See State Farm, 182 Ill. 2d at 241-42. State Farm argued that because the test driver was legally required to have minimal insurance coverage, he fell within Universal’s definition of an insured even though he had other insurance coverage. The supreme court agreed with State Farm and found that under the Illinois Vehicle Code (the Code) (625 ILCS 5/7

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Bluebook (online)
737 N.E.2d 320, 316 Ill. App. 3d 738, 249 Ill. Dec. 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browning-v-plumlee-illappct-2000.