{ "id": 5477012, "name": "CHAWALIT PHAHOLYOTHIN et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Phaholyothin v. State Farm Mutual Automobile Insurance", "decision_date": "1982-02-01", "docket_number": "No. 81-1089", "first_page": "322", "last_page": "325", "citations": [ { "type": "official", "cite": "104 Ill. App. 3d 322" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "370 N.E.2d 1058", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456186 ], "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0209-01" ] }, { "cite": "260 N.E.2d 99", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 2d 335", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1580184 ], "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/123/0335-01" ] }, { "cite": "326 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783721 ], "year": 1970, "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0915-01" ] }, { "cite": "146 N.E.2d 797", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. App. 2d 524", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5176206 ], "weight": 2, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0524-01" ] }, { "cite": "124 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "105 Ga. App. 278", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1598104 ], "weight": 2, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ga-app/105/0278-01" ] }, { "cite": "215 Kan. 591", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 528235 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/kan/215/0591-01" ] }, { "cite": "296 N.W.2d 804", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10683769 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nw2d/296/0804-01" ] }, { "cite": "200 Neb. 46", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2604839 ], "weight": 6, "pin_cites": [ { "page": "52" }, { "page": "187" }, { "page": "62" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/neb/200/0046-01" ] }, { "cite": "402 N.E.2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070566 ], "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0282-01" ] } ], "analysis": { "cardinality": 543, "char_count": 8997, "ocr_confidence": 0.896, "pagerank": { "raw": 7.964794191478955e-08, "percentile": 0.4630739089421816 }, "sha256": "25c98fac61dffe1bf072196ce936af46bba0d1fce81305102b3c5bbfeae9d4b1", "simhash": "1:605e21bebb468c58", "word_count": 1431 }, "last_updated": "2023-07-14T21:00:33.067215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHAWALIT PHAHOLYOTHIN et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GOLDBERG\ndelivered the opinion of the court:\nChawalit and Chaunpim Phaholyothin (plaintiffs) brought this action against State Farm Mutual Automobile Insurance Company (defendant) to recover upon an automobile insurance policy between the parties. The trial court granted defendant\u2019s motion to dismiss. Plaintiffs appeal.\nThe well-pleaded and pertinent facts alleged in plaintiffs\u2019 complaint are \u201caccepted as true.\u201d (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 284, 402 N.E.2d 599.) On or about October 3, 1979, a person representing himself as \u201cCurtis Benson\u201d indicated he would purchase plaintiffs\u2019 1976 Datsun automobile for $5,200. On October 4,1979, \u201cCurtis Benson\u201d gave plaintiffs a check which purported to be, on its face, a cashier\u2019s check executed by an officer of the United States Steel Corporation Credit Union payable to plaintiff Chawalit Phaholyothin in the amount of $5,200. \u201cBenson\u201d represented that he was employed by the United States Steel Corporation and maintained an account with the credit union. Therefore, plaintiffs delivered the vehicle and its title to \u201cBenson.\u201d On October 16, 1979, plaintiffs discovered the representations made to them by \u201cBenson\u201d were false and the check given them had been stolen and its signature forged.\nDuring this time, an insurance policy issued by defendant to plaintiffs remained in effect. This policy provided the following coverage:\n\u201c1. Loss to Your Car. We [defendant] will pay for loss to your car # # O\nBreakage of glass, or loss caused by missies, falling objects, fire, theft, larceny, \u00b0 * * is payable under this coverage.\u201d\nPlaintiffs further alleged defendant had refused to act upon this policy, resulting in damages to the plaintiffs\u2019 car when ultimately recovered and other damage in the amount of $3,258.82.\nDefendant filed a motion to strike and dismiss the complaint. Defendant did not deny the policy to be in effect during the period in question. However, defendant contended the following exclusionary clause in the policy precluded any liability in this situation:\n\u201cTHERE IS NO COVERAGE FOR:\n# e #\n3. LOSS TO ANY VEHICLE DUE TO:\n# # #\nd. CONVERSION, EMBEZZLEMENT OR SECRETION BY ANY PERSON WHO HAS THE VEHICLE DUE TO ANY LIEN, RENTAL OR SALES AGREEMENT.\u201d\nIn this court, plaintiffs contend the trial court erred in dismissing their complaint. Plaintiffs argue the above exclusionary clause did not relate to . the type of loss they incurred.\nThe parties agree a provision of this type has not been examined by reviewing courts of Illinois. We have examined the cases from other jurisdictions cited by plaintiffs and believe several of them to be relevant to the facts before us. In Modern Sounds & Systems, Inc. v. Federated Mutual Insurance Co. (1978), 200 Neb. 46, 262 N.W.2d 183, the plaintiff transferred title and possession of an automobile to one McMillon in exchange for a check for $10,200. The check was returned because of insufficient funds and was never paid. Plaintiff sought reimbursement from the defendant insurance company pursuant to a policy provision which provided for any loss \u201ccaused by theft or larceny.\u201d The court first noted no definition of either of those terms was found in the policy, and therefore construed the term \u201ctheft\u201d to include \u201ca loss caused by any unlawful or wrongful taking of the insured vehicle with criminal intent.\u201d 200 Neb. 46, 52, 262 N.W.2d 183, 187.\nThe Modern Sounds ir Systems, Inc. court next considered the defendant\u2019s claim that coverage under the policy was precluded due to an exclusionary clause. The clause excluded coverage due to \u201closs or damage due to conversion, embezzlement or secretion by any person in possession of a covered automobile under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.\u201d In finding this exclusion inapplicable to the facts of the case, the court stated:\n\u201cThe transaction with McMillon was complete upon the contemporaneous exchange of his check for title and possession of the car. The exclusion clause is aimed at persons in possession under executory contracts and agreements in which two or more persons have concurrent legal interests in a car and not at a buyer in a completed sale. [Citations.]\u201d 200 Neb. 46, 62, 262 N.W.2d 183, 187.\nAdditional cases cited by plaintiffs are in accord with the above holding, finding such an exclusionary clause inapplicable to the situation where an automobile was \u201csold\u201d in exchange for a forged or otherwise insufficient check. (See Edwards v. State Farm Mutual Automobile Insurance Co. (Iowa 1980), 296 N.W.2d 804; Farm Bureau Mutual Insurance Co. v. Carr (1974), 215 Kan. 591, 528 P.2d 134; Reserve Insurance Co. v. Interurban Transit Lines (1962), 105 Ga. App. 278, 124 S.E.2d 498.) The courts in both Edwards and Farm Bureau Mutual found the exclusionary clauses referred to executory contracts. In Reserve Insurance Co., the court specifically held the exclusionary clause did not apply as the original taking of the car \u201cwas unlawful and constituted a theft or larceny * * V 105 Ga. App. 278, 280,124 S.E.2d 498, 500.\nDefendant relies on Baxter Motors, Inc. v. Iowa Hardware Mutual Insurance Co. (1958), 15 Ill. App. 2d 524, 146 N.E.2d 797. However, we find the holding in Baxter clearly distinguishable from the case before us. In Baxter, the plaintiff allowed a prospective purchaser to have possession of a used car before it was paid for in reliance on the representations by the alleged purchaser. Neither the buyer nor the automobile were ever located again. The plaintiff sought recovery from the defendant on the insurance policy issued by defendant. However, the court ruled this loss was excluded from the policy because of the following exclusionary clause:\n\u201c \u2018(1) Loss resulting from the Insured voluntarily parting with title and possession of any automobile, if induced so to do by any fraudulent scheme, trick, device, false pretense; and\n(2) Loss resulting from embezzlement, conversion, secretion, theft, larceny, robbery or pilferage committed by any person including any employee, entrusted by the Insured with either custody or possession of the automobile.\u2019 \u201d (15 Ill. App. 2d 524, 526.)\nIn our opinion, this exclusionary clause is far broader than the one in the instant case. It expressly precludes coverage in cases involving fraud, trickery, or false pretenses as well as those involving the sort of theft or larceny which had occurred. Clearly, this exclusionary clause covers a far greater range of situations than does the clause in the instant case. Also, it is clear and specific as to the types of transactions sought to be excluded from coverage.\nDefendant urges that the language of the exclusion is clear and unambiguous and the taking of the automobile in the instant case was simply a conversion which thus brings the matter directly within the exclusion. However, plaintiffs also find no ambiguity in the exclusion but reach the opposite result. The courts of Illinois have defined an ambiguous writing as \u201c \u2018one capable of being understood in more senses than one \u00b0 * V \u201d Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 919, 326 N.E.2d 33, quoting First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 341, 260 N.E.2d 99.\nIn our opinion this exclusion is not ambiguous. It appears to us that defendant has taken the manifestly erroneous position of seeking to determine the meaning of this clause simply and only by reference to the word \u201cconversion.\u201d The entire clause and all language therein must be considered in evaluating its meaning. (See St. Paul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 216, 370 N.E.2d 1058.) Although the transfer of possession of the automobile in the instant case may be classified as a conversion, it definitely was not a conversion by a person who had \u201cthe vehicle due to any lien, rental or sales agreement\u201d as required by the exclusion. And, although a conversion, the taking was definitely a theft. The policy itself specifically covers \u201ctheft.\u201d In the State of Illinois theft is specifically defined by statute as including control over property of an owner \u201cby deception.\u201d Ill. Rev. Stat. 1979, ch. 38, par. 16-1 (b).\nUnder these circumstances we are constrained to follow the cases cited by plaintiffs as above reviewed. We find the exclusionary clause not applicable to the facts in the case before us.\nThe order dismissing the plaintiffs\u2019 complaint is therefore reversed and the cause is remanded for further proceedings.\nJudgment reversed; cause remanded.\nMcGLOON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "JUSTICE GOLDBERG" } ], "attorneys": [ "William Butcher, of Melrose Park, for appellants.", "Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski and Glen E. Amundsen, of counsel), for appellee." ], "corrections": "", "head_matter": "CHAWALIT PHAHOLYOTHIN et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.\nFirst District (1st Division)\nNo. 81-1089\nOpinion filed February 1, 1982.\nWilliam Butcher, of Melrose Park, for appellants.\nQuerrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski and Glen E. Amundsen, of counsel), for appellee." }, "file_name": "0322-01", "first_page_order": 344, "last_page_order": 347 }