{ "id": 3508480, "name": "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. RONALD PANZICA et al., Defendants-Appellants", "name_abbreviation": "Allstate Insurance v. Panzica", "decision_date": "1987-11-16", "docket_number": "Nos. 3-87-0059, 3-87-0091 cons.", "first_page": "589", "last_page": "593", "citations": [ { "type": "official", "cite": "162 Ill. App. 3d 589" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "303 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2686431 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/1027-01" ] }, { "cite": "404 N.E.2d 1122", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3210049 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0107-01" ] }, { "cite": "386 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3310065 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0535-01" ] }, { "cite": "504 N.E.2d 123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 46", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574417 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0046-01" ] }, { "cite": "437 N.E.2d 663", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 190", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3023003 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0190-01" ] }, { "cite": "475 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3439117 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0001-01" ] }, { "cite": "418 N.E.2d 744", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 365", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046540 ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0365-01" ] }, { "cite": "397 N.E.2d 75", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 153", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5605660 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0153-01" ] }, { "cite": "436 N.E.2d 663", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3032419 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0988-01" ] }, { "cite": "478 N.E.2d 464", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441826 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/1073-01" ] } ], "analysis": { "cardinality": 520, "char_count": 9204, "ocr_confidence": 0.743, "pagerank": { "raw": 2.5483777627046016e-07, "percentile": 0.8140982350708478 }, "sha256": "b26aa87388f25696a17dab57c7325edffaef08e45aed946547d5deb88211cee2", "simhash": "1:4c6b2cec9f63bcf1", "word_count": 1479 }, "last_updated": "2023-07-14T21:56:31.562358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. RONALD PANZICA et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE WOMBACHER\ndelivered the opinion of the court;\nIn April 1984 Dino Nicolazzi, 13 years old, was a passenger on a dirt bike driven by Mateo Panzica, also 13 years old. The bike was owned by Mateo\u2019s brother, Paul Panzica. Nicolazzi was killed when the bike collided with a vehicle driven by Raul Gonzales. The accident occurred on a public roadway, four miles from the Panzicas\u2019 property.\nAldo Nicolazzi, Dino- Nicolazzi\u2019s representative, brought suit against Panzica and his parents, Ronald and Martha. The complaint sought recovery against Mateo Panzica for his negligent operation of the bike; it also sought recovery against Ronald and Martha Panzica based upon negligent entrustment of the dirt bike to their son and violation of the Parental Responsibility Law (Ill. Rev. Stat. 1985, ch. 70, par. 53).\nAllstate Insurance Company filed a declaratory judgment action against Ronald, Martha and Mateo Panzica and Aldo Nicolazzi. The complaint sought a judicial declaration that the homeowner\u2019s and automobile insurance policies issued to Ronald and Martha Panzica did not provide liability coverage for the accident in question. Allstate also filed a motion for summary judgment seeking a declaration that neither policy covered the accident at issue.\nAldo Nicolazzi conceded that the automobile policy did not provide coverage for the accident. He filed a response to the motion for summary judgment supported by an affidavit of Susan Roach. Roach, an English professor, opined that the homeowner\u2019s insurance policy was ambiguous and required construction.\nThe trial court struck Roach\u2019s affidavit and granted Allstate\u2019s motion for summary judgment.\nNicolazzi appeals the trial court\u2019s decision to strike the affidavit of Susan Roach and the grant of summary judgment in Allstate\u2019s favor.\nThe Allstate homeowner\u2019s policy at issue excludes coverage for bodily injury arising under the ownership, maintenance or use of any motorized land vehicle. The exclusion provides:\n\u201cExclusions \u2014 Losses We Do Not Cover\n(5) We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any motorized land vehicle or trailer. However, this exclusion does not apply to:\n(a) a motorized land vehicle in dead storage or used exclusively on the residence premises;\n(b) a motorized land vehicle not owned by an insured person when used off the residence premises and which is designed principally for recreational use off public roads ***.\u201d\nThus, the plain language of the policy provides liability coverage for an owned motorized land vehicle involved in an accident occurring on the insured premises. It does not provide liability coverage if the motorized vehicle is used off the insured premises. The accident at issue occurred at the intersection of two public streets miles away from the insured premises. Clearly, no coverage is provided.\nNicolazzi also contends that since the bike was not owned by Mr. or Mrs. Panzica, but rather by their son Paul, the exclusion exception pertaining to uninsured persons applies. This assertion is without merit inasmuch as the policy defines insured persons to be the named insured under the policy and \u201cif a resident of your household, any relative.\u201d Quite obviously, Paul Panzica, as the insureds\u2019 son and household member, is covered by the homeowner\u2019s policy.\nAdditionally, Professor Roach\u2019s affidavit was properly struck. Affidavits not supported by allegations of fact are not sufficient to defeat a motion for summary judgment. (Kosten v. St. Anne\u2019s Hospital (1985), 132 Ill. App. 3d 1073, 478 N.E.2d 464.) Furthermore, the application of contract language is a question of law and not one of fact. (Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663.) A motion for summary judgment is the appropriate means to have the terms of a contract construed. Bates v. Select Lake City Theater Operating Co. (1979), 78 Ill. App. 3d 153, 397 N.E.2d 75.\nIn interpreting a contract of insurance the general rule is that where the provisions of the policy are clear and unambiguous, it is the duty of the court to enforce them according to their plain meaning. (Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 418 N.E.2d 744.) A trial court\u2019s grant of summary judgment will not be reversed absent a showing of abuse of discretion such that plaintiff\u2019s right to fundamental justice is violated. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.) The insurance policy in the instant case is clear and unambiguous. Its terms specifically exclude coverage for the accident at issue. The trial court properly struck the affidavit and granted summary judgment for Allstate.\nNext, we consider whether the court should have dismissed the negligent entrustment and parental responsibility counts upon the motion for summary judgment.\nThe defendant contends that the case of United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1982), 107 Ill. App. 3d 190, 437 N.E.2d 663, supports the reinstatement of the negligent entrustment count. In USF&G a complaint was filed against a day care center alleging that while an employee was transporting some children in an automobile, a child fell from the car. The insurer brought a declaratory judgment action against the defendant to determine whether it owed a defense and coverage under the center\u2019s policy. The underlying complaint included allegations not related to the use of the automobile, namely, the negligent operation of the day care center and the negligent supervision of the children. The court held that these allegations came within the coverage of the center\u2019s general liability policy. The case was remanded and this year the court upheld the trial court\u2019s entry of judgment on the verdict that the policy provided coverage. See United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1987), 152 Ill. App. 3d 46, 504 N.E.2d 123.\nThis court finds that USF&G is not dispositive of the issue as to whether the negligent entrustment claim was properly resolved at the summary judgment stage in the instant case. In USF&G the insurer had failed to show that the injuries were caused solely by a cause excluded under the policy. The complaint in USF&G included allegations pertaining to the negligent supervision of the plaintiff and not solely the negligent entrustment to the defendant. Those alternative theories of recovery were held to be potentially within the policy coverage. Ultimately, the court had found that some allegations in the complaint were not related to the center\u2019s use of the vehicle, but, rather, constituted separate and independent duties imposed upon the day care center. Such allegations are not present in the case at bar.\nSpecifically focusing on the count of negligent entrustment, we note that in order to state a cause of action for the tort two elements must appear: (1) a negligent entrustment, and (2) the recklessness or inexperience of the party who received control of the entrusted instrument was the proximate cause of the injury. (Giers v. Anten (1978), 68 Ill. App. 3d 535, 386 N.E.2d 82.) The first element concerns itself with conduct only; the second element concerns itself with conduct and an instrumentality.\nUnder Illinois law it is clear that where the instrumentality which causes the injury is excluded, no liability coverage is afforded for negligent entrustment of the instrumentality. This is because an injury resulting from the use of the instrumentality is a necessary element of the cause of action. See State Farm Fire & Casualty Co. v. McGlawn (1980), 84 Ill. App. 3d 107, 404 N.E.2d 1122.\nAs we have previously resolved, the policy in question specifically excludes the use of the dirt bike at issue. It is the duty of the court to assign the plain meaning to the exclusionary provision of the policy. (La Salle National Bank v. American Insurance Co. (1973), 14 Ill. App. 3d 1027, 303 N.E.2d 770.) So long as the injury arose out of the use of the dirt bike, an excluded instrumentality, the exclusion should prevail. We therefore hold that the Allstate policy does not potentially afford coverage under the negligent entrustment count, and Allstate has no duty to defend upon it.\nBecause the count regarding the Parental Responsibility Law (111. Rev. Stat. 1985, ch. 70, par. 53) is based upon the operation of the dirt bike, and the bike is excluded from the policy, Allstate has no duty to cover under this theory of liability. Summary judgment was properly granted.\nFor all the foregoing reasons the judgment of the circuit court of Will County is affirmed.\nAffirmed.\nSCOTT and STOUDER, JJ., concur.", "type": "majority", "author": "JUSTICE WOMBACHER" } ], "attorneys": [ "David R. Kozlowski, of Kozlowski, Polito & Feeley, of Joliet (Joseph C. Polito and Louis E. Siciliano, of counsel), for appellants.", "Stephen R. Swofford and Peter C. Morse, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kathryn Spalding, of counsel), for appellee." ], "corrections": "", "head_matter": "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. RONALD PANZICA et al., Defendants-Appellants.\nThird District\nNos. 3\u201487\u20140059, 3\u201487\u20140091 cons.\nOpinion filed November 16, 1987.\nDavid R. Kozlowski, of Kozlowski, Polito & Feeley, of Joliet (Joseph C. Polito and Louis E. Siciliano, of counsel), for appellants.\nStephen R. Swofford and Peter C. Morse, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kathryn Spalding, of counsel), for appellee." }, "file_name": "0589-01", "first_page_order": 611, "last_page_order": 615 }