American Access Casualty Company v. Griffin
2014 IL App (1st) 130665
Ill. App. Ct.2014Background
- American issued Erica Perkins a nonowner’s auto policy and defended her in Reese and Griffin lawsuits.
- Plaintiff sought a declaratory judgment that it has no duty to defend or indemnify based on vehicle being furnished for Perkins’ regular use.
- The 1995 Dodge Avenger was owned by Beverly Perkins and allegedly used by Erica Perkins.
- Plaintiff relied on an affidavit claiming Erica Perkins admitted regular use and ownership facts during two phone conversations.
- The trial court granted summary judgment; the appellate court reversed, finding triable issues of material fact on regular use.
- Key questions: scope and duration of permission to use the car and whether it was furnished for Perkins’ regular use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 'regular use' is a question of fact suitable for summary judgment. | Griffin/Reese admitted facts show regular use; no triable issue. | Material facts about permission and usage are unresolved; depends on context. | Not proper to decide on summary judgment; triable issue remains. |
| Whether the affidavit alleging Erica Perkins’ admissions is admissible or controling. | Admissions show lack of coverage; admissible as party admissions. | Affidavit is hearsay, lacks foundation, and relies on a third party; not admissible. | Admissions questioned; cannot resolve on summary judgment. |
| Whether Perkins’ default can support entry of summary judgment against her without her participation. | Defaults establish admitted facts against Perkins. | Default against one party cannot bind nondefaulting parties; evidence cannot be used that way. | Defaults cannot support judgment against nondefaulting defendants; reversal warranted. |
Key Cases Cited
- Knack v. Phillips, 134 Ill. App. 3d 117 (1985) (permits consideration of permission scope/duration in 'regular use' analysis)
- Sheary v. State Farm Mutual Automobile Insurance Co., 207 Ill. App. 3d 1067 (1991) (limits on when regular-use findings depend on duration and context)
- Differding, State Farm Mutual Automobile Insurance Co. v. Differding, 69 Ill. 2d 103 (1977) (regular use exclusion interpreted with respect to driver’s regular access)
- Auto Owners Insurance Co. v. Miller, 138 Ill. 2d 124 (1990) (permission for business use vs. personal use affects regular use analysis)
- Mashal v. City of Chicago, 2012 IL 112341 (2012) (summary judgment precluded where material facts are disputed)
- American Standard Insurance Co. of Wisconsin, 2011 IL App (1st) 101274 (2011) (insurance policy interpretation and 'regular use' terminology analysis)