{ "id": 2911212, "name": "Automobile Underwriters, Inc., Appellant, vs. Hardware Mutual Casualty Company et al., Appellees.-(Dean E. Grant, Appellant.)", "name_abbreviation": "Automobile Underwriters, Inc. v. Hardware Mutual Casualty Co.", "decision_date": "1971-05-21", "docket_number": "Nos. 43117, 43122 cons.", "first_page": "108", "last_page": "113", "citations": [ { "type": "official", "cite": "49 Ill. 2d 108" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "278 Minn. 218", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 295851 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/minn/278/0218-01" ] }, { "cite": "184 Neb. 670", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5281698 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/neb/184/0670-01" ] }, { "cite": "261 N.E.2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ohio St. 2d 45", "category": "reporters:state", "reporter": "Ohio St. 2d", "case_ids": [ 6710958 ], "opinion_index": 0, "case_paths": [ "/ohio-st-2d/23/0045-01" ] }, { "cite": "444 S.W.2d 583", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10148235 ], "opinion_index": 0, "case_paths": [ "/sw2d/444/0583-01" ] }, { "cite": "39 Wis. 2d 64", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671036 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/wis-2d/39/0064-01" ] }, { "cite": "152 S.W.2d 436", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "269 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563605 ], "opinion_index": 0, "case_paths": [ "/nc/269/0341-01" ] }, { "cite": "292 F. Supp. 554", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5380493 ], "opinion_index": 0, "case_paths": [ "/f-supp/292/0554-01" ] }, { "cite": "409 F.2d 392", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2199740 ], "weight": 2, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/f2d/409/0392-01" ] }, { "cite": "34 Ill.2d 424", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2877607 ], "weight": 3, "pin_cites": [ { "page": "426" }, { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0424-01" ] }, { "cite": "120 Ill. App. 2d 159", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583514 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0159-01" ] }, { "cite": "48 Ill.2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907350 ], "opinion_index": 1, "case_paths": [ "/ill-2d/48/0001-01" ] }, { "cite": "48 Ill.2d 71", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906633 ], "opinion_index": 1, "case_paths": [ "/ill-2d/48/0071-01" ] } ], "analysis": { "cardinality": 514, "char_count": 8691, "ocr_confidence": 0.8, "pagerank": { "raw": 2.9674579936399734e-07, "percentile": 0.8500393266171117 }, "sha256": "e24139712bacc57e9a6ac0596e66bf4b789934e1a37ab941d6988c6f243b03a0", "simhash": "1:daf5b94d0617dcb0", "word_count": 1367 }, "last_updated": "2023-07-14T21:33:39.989022+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Automobile Underwriters, Inc., Appellant, vs. Hardware Mutual Casualty Company et al., Appellees.\u2014 (Dean E. Grant, Appellant.)" ], "opinions": [ { "text": "Mr. Justice Kluczynski\ndelivered the opinion of the court:\nThe plaintiff, Automobile Underwriters, Inc., sought declaratory judgment against Hardware Mutual Casualty Company (hereinafter referred to as Hardware) claiming that it was under obligation to defend Dean E. Grant in a claim arising out of an automobile accident. The circuit court of Peoria County held that Hardware was not under an obligation to defend Grant. The Appellate Court, Third District, affirmed (120 Ill. App. 2d 159), and we granted leave to appeal. Upon oral motion the appeals of Automobile Underwriters and Dean E. Grant were consolidated.\nThe accident in question occurred while Grant, a prospective buyer, was test driving an automobile owned by Hopkins Motor Sales and Service. Occupants of the other automobile involved in the accident sued both Grant and Hopkins. Hardware participated in the defense of Hopkins, its insured, but refused to defend Grant and this declaratory action followed.\nThe dispute arose because of apparently conflicting clauses in the two insurance policies. Automobile Underwriters\u2019 policy, issued to Grant, provided that it would pay all sums Grant would become liable for as a result of damages occurring from bodily injury or property damage in the use of an \u201cowned automobile or any non-owned automobile.\u201d The policy further stated: \u201cthe insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.\u201d (Emphasis added.) This provision is commonly referred to as an \u201cexcess\u201d provision.\nThe Hardware policy, insuring Hopkins Motor Sales and Service, provided basic liability coverage for accidents involving Hopkins\u2019s automobiles. The policy further provided that in consideration for the reduced rate of premium, it was agreed that the section with regard to \u201cPersons Insured\u201d would be amended to read as follows: \u201c(3) (b) Any other person, but only if no other valid and collectible automobile, liability insurance, either primary or excess * * * is available to such person; * * *.\u201d (Emphasis added.) This provision is commonly referred to as an \u201cescape\u201d or \u201cno liability\u201d clause.\nAppellants contend that New Amsterdam Casualty Co. v. Certain Underwriters at Lloyds, London, 34 Ill.2d 424, is controlling. They argue that in New Amsterdam this court established the rule that in a conflict between an \u201cexcess\u201d clause and an \u201cescape\u201d clause the \u201cexcess\u201d clause will prevail. Thus appellants maintain that there was error in failing to apply the New Amsterdam rationale.\nHardware contends that the decision does not control because of the difference in the phraseology of the \u201cescape\u201d clauses. In New Amsterdam the \u201cescape\u201d clause provided that the insurer of the vehicle would be relieved from liability if the driver of the vehicle was \"also covered by other valid and collectible insurance.\u201d (34 Ill.2d at 426.) Hardware Mutual argues that the inclusion in their \u201cescape\u201d clause of the phrase \u201ceither primary or excess\u201d specifically exempts them from coverage of the driver because Automobile Underwriters\u2019 policy did provide Grant with \u201cexcess\u201d insurance. It concludes that the existence of this excess insurance makes its policy wholly inapplicable to Grant and that, since Grant does have \u201cother valid and collectible insurance\u201d under the Automobile Underwriters\u2019 policy provision, Grant\u2019s policy becomes primarily liable to provide him with a defense.\nIn support of this position Hardware cites Indiana Lumbermens Mutual Insurance Co. v. Mitchell (7th cir.), 409 F.2d 392. There the Court of Appeals was called upon to rule on the validity of an \u201cescape\u201d clause which is identical to that in the instant case. The court in holding that the \u201cescape\u201d clause was valid distinguished our holding in New Amsterdam because of the addition of the phrase \u201ceither primary or excess\u201d to the \u201cescape\u201d provision. The court stated: \u201cIt is this specific inclusion of 'excess\u2019 insurance which relieves Lumbermens of any obligation to defend or indemnify Bresnahan.\u201d 409 F.2d at 395.\nOther courts when faced with the dilemma of similar \u201cexcess\u201d and \u201cescape\u201d clauses have split along three lines of authority. One group of cases has given effect to the escape clause which specifically excludes coverage if there is either \u201cprimary or excess\u201d insurance available to the driver under another policy. The rationale for these holdings has been reached by strictly construing the words of the \u201cescape\u201d clauses thereby enforcing the policies as written or by concluding that the \"escape\u201d clause is a condition precedent to the policy taking effect. See: United States Fidelity and Guaranty Co. v. Dixie Auto Insurance Co., 292 F. Supp. 554; Allstate Insurance Co. v. Shelby Mutual Insurance Co., 269 N.C. 341, 152 S.W.2d 436; Faltersack v. Vanden Boogaard, 39 Wis. 2d 64, 158 N.W. 2d 322; Indiana Lumbermens Mutual Insurance Co. v. Mitchell.\nAn alternative view has been to prorate the liability between the various insurance companies on the basis that the \u201cexcess\u201d and \u201cescape\u201d clauses are mutually repugnant to each other. Thus both clauses are ignored and the liability is apportioned between the respective insurers. See Hardware Dealers Mutual Fire Insurance Co. v. Farmers Insurance Exchange (Tex.), 444 S.W.2d 583, and cases therein cited.\nThe third view which various courts have adopted is to hold the \u201cescape\u201d clause does not relieve the owner\u2019s insurer of a duty to defend where the driver\u2019s policy provides only \u201cexcess\u201d coverage if there is other valid and collectible insurance on anon-owned automobile. State Farm Mutual Automobile Insurance Co. v. Home Indemnity Insurance Co., 23 Ohio St. 2d 45, 261 N.E.2d 128; Bituminous Casualty Corp. v. Andersen, 184 Neb. 670, 171 N.W.2d 175; Federal Insurance Co. v. Prestemon, 278 Minn. 218, 153 N.W.2d 429.\nWe find the last mentioned line of authority most persuasive in light of our decision in New Amsterdam Casualty Co. v. Certain Underwriters at Lloyds, London, where the court adopted the view that \u201cwhen the owner of an automobile \u2018has a policy with an omnibus clause, and the additional insured also has a non-ownership policy which provides that it shall only constitute excess coverage over and above any other valid, collectible insurance, the owner\u2019s insurer has the primary liability.\u2019 \u201d (34 Ill.2d at 430.) We find no justification to allow a circumvention of New Amsterdam by the mere inclusion of the phrase \u201ceither primary or excess\u201d in the \u201cescape\u201d clause. Thus, Hardware has the primary responsibility to defend Grant. If judgment should be entered against Grant for an amount in excess of Hardware\u2019s policy limits then Grant\u2019s policy will come into force.\nFor the aforementioned reasons the decision of the appellate court is reversed and the cause is remanded to the circuit court with directions to enter declaratory judgment according to the views expressed in this opinion.\nReversed and remanded, with directions.\nMr. Justice Ryan took no part in the consideration or decision of this case.", "type": "majority", "author": "Mr. Justice Kluczynski" }, { "text": "Mr. Chief Justice Underwood,\ndissenting:\nI cannot agree with the conclusion reached by the Court. The rationale of the opinion seems to me to be totally inconsistent with our earlier decisions in Putnam v. New Amsterdam Casualty Co., 48 Ill.2d 71, and Uliman v. Wolverine Insurance Co., 48 Ill.2d 1. While I certainly favor the simplification of insurance policy provisions, we must deal with those provisions as they appear. It is to me clear that the policy provisions do not provide coverage in the circumstances here. It is to me equally clear that the policy provisions do not contravene the requirements of the statute.\nAs I understand the opinion of the court, it concedes the absence of coverage under the terms of the policy, but then finds \u201cno justification\u201d for the fact that coverage is not provided.\nIf the public policy of this State be thought to require expanded coverage, the General Assembly is the proper forum for resolution of that question, not the courts.", "type": "dissent", "author": "Mr. Chief Justice Underwood," } ], "attorneys": [ "Westervelt, Johnson, Nicoll & Keller, of Peoria, (Richard G. Leiser, of counsel,) for appellant Automobile Underwriters, Inc.", "Heyl, Royster, Voelker & Allen, of Peoria, (Gary M. Peplow and William J. Voelker, of counsel,) for appellant Dean E. Grant.", "McConnell, Kennedy, McConnell & Morris, of Peoria, (Golden A. McConnell and Thomas B. Kennedy, Sr., of counsel,) for appellees." ], "corrections": "", "head_matter": "(Nos. 43117, 43122 cons.\nAutomobile Underwriters, Inc., Appellant, vs. Hardware Mutual Casualty Company et al., Appellees.\u2014 (Dean E. Grant, Appellant.)\nOpinion filed May 21, 1971.\n\u2014 Rehearing denied October 4, 1971.\nRyan, J., took no part.\nUnderwood, C.J., dissenting.\nWestervelt, Johnson, Nicoll & Keller, of Peoria, (Richard G. Leiser, of counsel,) for appellant Automobile Underwriters, Inc.\nHeyl, Royster, Voelker & Allen, of Peoria, (Gary M. Peplow and William J. Voelker, of counsel,) for appellant Dean E. Grant.\nMcConnell, Kennedy, McConnell & Morris, of Peoria, (Golden A. McConnell and Thomas B. Kennedy, Sr., of counsel,) for appellees." }, "file_name": "0108-01", "first_page_order": 120, "last_page_order": 125 }