{ "id": 2741314, "name": "Johnie R. Kern, for the Use of Lillian A. Russell, as Conservator, Plaintiff, v. Michigan Mutual Liability Company, Defendant-Appellant, and Illinois National Insurance Company, Defendant-Appellee", "name_abbreviation": "Kern v. Michigan Mutual Liability Co.", "decision_date": "1970-10-08", "docket_number": "Gen. No. 11,156", "first_page": "423", "last_page": "431", "citations": [ { "type": "official", "cite": "129 Ill. App. 2d 423" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "91 F Supp 18", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 294122 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/f-supp/91/0018-01" ] }, { "cite": "56 Cal Rptr 861", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1967, "opinion_index": 0 }, { "cite": "248 Cal App2d 719", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2192305 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/cal-app-2d/248/0719-01" ] }, { "cite": "200 F2d 5", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1281189 ], "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/f2d/200/0005-01" ] }, { "cite": "275 F2d 381", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1953705 ], "weight": 2, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/f2d/275/0381-01" ] }, { "cite": "210 NE2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "62 Ill App2d 297", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5299942 ], "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/62/0297-01" ] }, { "cite": "213 NE2d 141", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "65 Ill App2d 407", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5292366 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/65/0407-01" ] }, { "cite": "237 NE2d 754", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill App2d 238", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2537304, 2535404 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/96/0238-02", "/ill-app-2d/96/0238-01" ] } ], "analysis": { "cardinality": 537, "char_count": 11913, "ocr_confidence": 0.596, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.30502125799612256 }, "sha256": "0b101ddebebfb32489eb53022afd321137d8fe1811cdd7f197c87fa4fcef2075", "simhash": "1:20c7fbdc46b88758", "word_count": 1925 }, "last_updated": "2023-07-14T20:54:26.521673+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Johnie R. Kern, for the Use of Lillian A. Russell, as Conservator, Plaintiff, v. Michigan Mutual Liability Company, Defendant-Appellant, and Illinois National Insurance Company, Defendant-Appellee." ], "opinions": [ { "text": "TRAPP, J.\nThis is an appeal from an order of the circuit court granting a summary judgment in favor of Illinois National Insurance Company (Elinois National) against Michigan Mutual Liability Company (Michigan Mutual), and denying a motion of Michigan Mutual for summary judgment against Illinois National. The appeal presents the question whether Michigan Mutual is alone required to satisfy a $50,000 personal injury judgment recovered by Lillian Russell as Conservator of the Estate and Person of Harold Russell against Johnie R. Kern, as determined by the trial court, or is entitled to pro rata contribution from Illinois National. Kern, an employee of Hoover Brothers, a partnership, was driving a truck owned by Hoover Brothers, Inc., and loaned to the partnership at the time of the motor vehicle accident which injured Harold Russell. Kern brought suit in garnishment against Michigan Mutual, who insured Hoover Brothers, Inc., and Illinois National, who insured Hoover Brothers, a partnership.\nIn a prior declaratory judgment action in the Circuit Court of Cook County, Elinois, it was determined that both Michigan Mutual and Illinois National policies covered the risk. That judgment was appealed to the Appellate Court of Elinois, First District, and was there affirmed. No determination was made as to the priority of payment by the companies of any judgment in the suit of Lillian Russell as Conservator of Harold Russell against Johnie Kern. That Court held that by reason of correspondence with the insurance company prior to the issuance of the policy to Hoover Brothers, Inc., an implement dealership, concerning occasional cartage work done by the insured, the loss was covered under the Michigan Mutual policy on trucks owned by Hoover Brothers, Inc. It also held that the Elinois National policy issued to Hoover Brothers, a partnership, engaged in livestock and general hauling, covered the accident by virtue of its Truckmen\u2019s endorsement which made it responsible for use of a \u201chired\u201d vehicle in its business by an employee. That Court decided that the vehicle was a \u201chired\u201d vehicle. Michigan Mut. Liability Co. v. Hoover Brothers, Inc., 96 Ill App2d 238,237 NE2d 754.\nThe Illinois National policy also contained the required endorsement of the Illinois Commerce Commission required of certificated carriers which provided in part, as follows:\n\u201cIn consideration of the premium stated in the policy to which this endorsement is attached and regardless of anything stated in the policy or elsewhere to the contrary, . . . the Company hereby agrees to pay, within the limits of liability hereinafter provided, any final judgment rendered and recovered against the insured for bodily injury to or death of any person, or loss of or damage to property of others . . . resulting from the operation, maintenance or use of motor vehicles by virtue of a certificate of public convenience and necessity or a permit issued to the insured by the Illinois Commerce Commission. \u201e . . regardless of whether such motor vehicles are specifically described in the policy or not.\u201d\nThe Appellate Court did not then pass upon the effect of the required Illinois Commerce Commission endorsement, but we think it is material in reference to public policy contentions made by Illinois National.\nThe portion of the Illinois National Policy which the First District, Appellate Court, held covered the accident in question is as follows:\n\u201cTRUCKMEN\n\u201c (Interests Covered)\n\u201cSuch insurance as is afforded by the policy for an owned automobile or a hired automobile shall apply to the named insured and to any other person including any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and with respect to the use of a non-owned automobile shall apply to the named insured and to any executive officer of the named insured.\n\u201cDefinitions\n\u201c\u2018Owned Automobile\u2019 means an automobile owned by the name insured.\n\u201c \u2018Hired Automobile\u2019 means an automobile used under contract in behalf of, or loaned to, the named insured except (1) an automobile owned by or registered in the name of the named insured or (2) an automobile classified and rated as a private passenger automobile owned by or registered in the name of an agent or employee of the named insured or a member of the same household as such named insured, agent or employee.\n\u201c \u2018Nonowned Automobile\u2019 means any other automobile.\n\u201c \u2018Automobile\u2019 includes trailer.\n\u201cOTHER INSURANCE \u2014 If the insured has other insurance against a loss covered by the policy the company shall not be liable for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of all valid and collectible insurance against such loss; provided, however, the insurance with respect to (1) any automobile of the commercial type while leased or loaned to another motor carrier, (2) any hired private passenger automobile if not written on the specified car basis, and (3) any nonowned automobile, shall be excess insurance over any other valid and collectible insurance available to the insured.\u201d\nIllinois National contends that the truck owned by Hoover Brothers, Inc., and loaned to Hoover Brothers, a partnership, Illinois National\u2019s named insured, was a \u201cnonowned automobile\u201d under its Truckmen\u2019s endorsement, and therefore, the insurance with respect to the accident caused by Johnie Kern while driving the truck on the partnership business was \u201cexcess\u201d insurance and could not be reached until the limits of liability of the Michigan Mutual policy on its named insured, Hoover Brothers, Inc., the owner of the truck, were exhausted.\nMichigan Mutual contends that under the Illinois National Truckmen\u2019s endorsement vehicles are classified in three classes, to wit: owned, hired and any other.\nWe think that the controlling principle to be found in the cases involving the respective liability of two or more automobile liability carriers is that the question is to be determined from a construction of the language employed by the insurers in their respective policies. Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE2d 141,143; Iowa Nat. Mut. Ins. Co. v. Fidelity and Casualty Co., 62 Ill App2d 297, 301, 210 NE2d 622, 624; Continental Cas. Co. v. American Fidelity Co., 275 F2d 381, 384; McFarland v. Chicago Express, 200 F2d 5, 7.\nThe Truckmen\u2019s endorsement provides three classifications of automobiles with reference to the named assured which are (1) an automobile owned by the named assured, (2) an automobile hired on behalf of the named assured, with two exceptions, and (3) a nonowned automobile which is defined as \u201cany other automobile.\u201d\nIt should be obvious that it would have been a simple matter to have specifically provided that liability in respect to a \u201chired\u201d automobile was excess insurance, as was the case in Continental Cas. Co. v. American Fidelity Co., 275 F2d 381. It is also plain that Illinois National\u2019s definition of \u201chired automobile\u201d contains two exceptions, and therefore the two exceptions would fall in the classification of \u201cany other automobile\u201d and would be \u201cnon-owned.\u201d To adopt the interpretation given by Illinois National would render the exceptions to the definition of \u201chired\u201d meaningless.\nAdditionally, under the paragraph entitled \u201cOther Insurance\u201d and after the word \u201cprovided,\u201d first, one form of \u201cowned\u201d vehicle, i. e., a commercial type loaned to another carrier is covered as excess only, and second, \u201cany hired private passenger automobile if not written on a specified car basis\u201d is covered only as excess.\nIf it was intended that all \u201chired\u201d vehicles were to be covered as excess would it be stated that a hired private passenger car, if not written on a specified car basis, should be excess ? Certainly, in construing the language of a contract it must be assumed that language is inserted for a purpose. It reasonably appears that placing one type of \u201cowned\u201d vehicle and one type of \u201chired\u201d vehicle in the class of \u201cnonowned\u201d vehicles was the intent of the endorsement.\nIf it were intended to use the simple classification of \u201cowned\u201d and \u201cnonowned\u201d for excess it would hardly have been necessary to define the terms. We are cognizant of the fact that this classification by definition has other uses in the policy. We cannot regard owned and non-owned as the sole classification for excess because even an \u201cowned\u201d vehicle is excess if the vehicle is commercial and is loaned out.\nThe California Court of Appeals in Wilshire Ins. Co. v. Transit Cas. Co., 248 Cal App2d 719, 56 Cal Rptr 861 (1967), had practically the identical situation as that here presented. The court said, p 864:\n\u201cIt is obvious, therefore, that the quoted clause was not intended to define automobiles, but to classify them into three groups, by defining owned automobiles and hired automobiles and putting all others into a classification called \u2018nonowned automobiles/ \u201d\nand again, p 864:\n\u201cIf the automobile is hired it is not one of the others. If Transit, in its policy, chooses to give the term \u2018nonowned automobile\u2019 a restricted meaning, it should not be heard to say that it did not do so.\u201d\nThe California court found that no public policy was violated if the owner\u2019s policy was held to be primary. We note here that this is not the ordinary case of a casual nonowner driver, but is a case in which the very cartage business which Illinois National insured and was required by the Illinois Commerce Commission endorsement to insure was the business engaged in at the time of the accident. Johnie Kern, Hoover Brothers partnership\u2019s employee, was driving a load of livestock in the borrowed truck when Harold Russell, the pedestrian, was struck. We find no public policy which requires us to favor the insurer of the lessee, but even such a policy would not override the language of the policy.\nIllinois National cites Manufacturer\u2019s Casualty Ins. Co. v. Great American Indemnity Co., 91 F Supp 18 (ED Penn 1950), as reaching a different result from that obtained in Wilshire Ins. Co. v. Transit Cas. Co., 248 Cal App2d 719, 56 Cal Rptr 861. In that case the court did not say that hired and nonowned were equivalents, but rather that definitions similar to those here involved were related to the issue of the \u201cnamed insured.\u201d The court said that since a doubt existed as to whether the \u201chired\u201d vehicle was loaned to the \u201cnamed insured\u201d corporation\u2019s president in his official capacity or loaned to the president in his individual capacity the issue could not be resolved without evidence. The effect of the decision was to distinguish between being loaned to the \u201cnamed insured\u201d and loaned otherwise.\nThe Michigan Mutual policy provides that it shall share pro rata with other valid collectible insurance covering the risk. We find that the applicable portion of Elinois National\u2019s \u201cother insurance\u201d clause provides substantially the same.\nWe hold, therefore, that the policies of both companies provide for liability in respect to the judgment in favor of Lillian Russell, Conservator of Harold Russell, against Johnie Kern on a pro rata basis in proportion to the applicable limits of their policies.\nThe cause is reversed and remanded to the Circuit Court with directions to enter judgment against each company for its pro rata share of the judgment and interest.\nReversed and remanded with directions.\nCRAVEN, P. J. and EOVALDI, J., concur.", "type": "majority", "author": "TRAPP, J." } ], "attorneys": [ "Pope & Driemeyer, of East St. Louis (Karl D. Dexheimer, of counsel), for appellant.", "Reed, Armstrong, Gorman & Coffey, of Edwardsville (James L. Reed, of counsel), for appellee." ], "corrections": "", "head_matter": "Johnie R. Kern, for the Use of Lillian A. Russell, as Conservator, Plaintiff, v. Michigan Mutual Liability Company, Defendant-Appellant, and Illinois National Insurance Company, Defendant-Appellee.\nGen. No. 11,156.\nFourth District.\nOctober 8, 1970.\nPope & Driemeyer, of East St. Louis (Karl D. Dexheimer, of counsel), for appellant.\nReed, Armstrong, Gorman & Coffey, of Edwardsville (James L. Reed, of counsel), for appellee." }, "file_name": "0423-01", "first_page_order": 429, "last_page_order": 437 }