{ "id": 411626, "name": "ANTHONY ZIMMERMAN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees", "name_abbreviation": "Zimmerman v. State Farm Mutual Automobile Insurance", "decision_date": "2000-04-14", "docket_number": "No. 1 \u2014 99 \u2014 0372", "first_page": "1065", "last_page": "1070", "citations": [ { "type": "official", "cite": "312 Ill. App. 3d 1065" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "476 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3435057 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0914-01" ] }, { "cite": "403 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11066738 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "351" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ne2d/403/0348-01" ] }, { "cite": "380 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3337831 ], "year": 1978, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0714-01" ] }, { "cite": "559 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 395", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594269 ], "year": 1990, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0395-01" ] }, { "cite": "356 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "64 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428424 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/64/0239-01" ] }, { "cite": "264 A.2d 38", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "55 N.J. 542", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1949645 ], "year": 1970, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nj/55/0542-01" ] }, { "cite": "297 N.E.2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "54 Ill. 2d 333", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2931612 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "341" }, { "page": "342" }, { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0333-01" ] }, { "cite": "684 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456161 ], "year": 1997, "pin_cites": [ { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0888-01" ] } ], "analysis": { "cardinality": 603, "char_count": 12394, "ocr_confidence": 0.747, "pagerank": { "raw": 5.464105272875323e-08, "percentile": 0.3429717331010418 }, "sha256": "780aaca79f52e3b4968803f08a4fa411bf92a2e5ccc75e87af468d4c5ca466fa", "simhash": "1:3dfe4df617e7ef48", "word_count": 1982 }, "last_updated": "2023-07-14T15:51:04.567640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANTHONY ZIMMERMAN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nAn automobile owned by defendants Jacoby and Patricia Battle was repossessed by plaintiff Anthony Zimmerman, who was injured in an accident while driving that vehicle. Zimmerman later sought a declaratory judgment that the Battles\u2019 automobile insurance policy, issued by defendant State Farm Mutual Automobile Insurance Company (State Farm), afforded him coverage. The circuit court granted State Farm\u2019s motion for summary judgment, finding that Zimmerman did not have \u201cpermission\u201d to use the Battles\u2019 automobile and, therefore, the policy did not provide coverage for his injuries. Zimmerman appeals.\nOn or before January 1, 1993, Jacoby and Patricia Battle purchased a 1993 Ford Escort station wagon, which they financed through Ford Motor Credit Company. The retail installment contract provided, in part:\n\u201cIf you are in default, a creditor may require you to pay at once the unpaid Amount Financed, the earned and unpaid part of the Finance Charge and all other amounts due under this contract. He may also repossess (take back) the vehicle, too. He may also take goods found in the vehicle when repossessed and hold them for you.\u201d (Emphasis added.)\nAfter the Battles defaulted on their vehicle loan, Starlight Recovery (Starlight) repossessed their vehicle. Starlight is a small, family-run business located in Lake Village, Indiana, and is engaged in the business of repossessing automobiles for Ford Motor Credit Company.\nSometime after midnight, on October 18, 1994, Zimmerman, a Starlight employee, drove from Lake Village with Albert Bond, Starlight\u2019s owner, to the Battles\u2019 home in Summit, Illinois. Zimmerman and Bond drove in Bond\u2019s own vehicle. There, Zimmerman checked the vehicle identification number, cut a new key for the Battles\u2019 Escort and drove away in that vehicle, followed by Bond driving his own car. Zimmerman first drove the Battles\u2019 vehicle to the Summit police station and Bond notified police of the repossession. Zimmerman then drove the Battles\u2019 car to Ford\u2019s vehicle storage lot in Alsip, Illinois. Leaving his own automobile at the lot, Bond then drove with Zimmerman in the Battles\u2019 vehicle to another location, where they repossessed a van. With Bond following in the van, Zimmerman returned to Starlight in Indiana, where the contents of the Battles\u2019 vehicle were inventoried.\nThe following night, on October 19, 1994, Zimmerman returned to work at Starlight. From there, Zimmerman, with another Starlight employee, drove to Alsip, Illinois in the Battles\u2019 Escort; Bond, who was driving the van repossessed the night before, followed Zimmerman. The plan was to leave the van and the Battles\u2019 Escort at Ford\u2019s storage lot in Alsip; however, Bond decided that he and Zimmerman first would attempt to repossess a Lincoln located nearby. Zimmerman waited in the Battles\u2019 Escort as Bond attempted to repossess the Lincoln. The Lincoln\u2019s alarm was activated as Bond drove it away, alerting the owner. While driving the Escort, Zimmerman followed Bond in the repossessed Lincoln. Someone in another vehicle then began to chase the Lincoln and the Escort. During the chase, the Battles\u2019 Escort, still driven by Zimmerman, was involved in a collision with the other vehicle, driven by an uninsured motorist. Zimmerman suffered severe injuries as a result of the accident.\nAt the time of Zimmerman\u2019s accident, the Battles\u2019 1993 Escort was insured under an automobile insurance policy issued by State Farm to the Battles. The policy provided for uninsured and underinsured motorist coverage. As required under Illinois law, the policy also contained a provision that provided coverage for other persons driving the insured\u2019s vehicle with the permission of the insured. That clause specifically provided coverage to:\n\u201c1. the first person[, the policy holder,] named in the declarations;\n2. his or her spouse-,\n3. their relatives', and\n4. any other person while occupying:\na. your car[.] Such vehicle has to be used within the scope of the consent of you or your spouse.\u201d (Emphasis in original.)\nExercising an abundance of the ancient, but venerable, doctrine of \u201cchutzpah,\u201d Zimmerman sought uninsured motorist coverage under the Battles\u2019 State Farm policy for injuries he suffered in the accident, based upon the theory that he had the Battles\u2019 consent to use their vehicle as it was being employed at the time of his accident. After State Farm denied Zimmerman\u2019s demand for coverage, he filed a declaratory judgment action seeking a judicial determination that his injuries were covered under the Battles\u2019 State Farm policy. Both parties moved for summary judgment, which the circuit court denied as to Zimmerman and granted as to State Farm. In so ruling, the court held:\n\u201cApparently the Battle\u2019s [sic] were in default and Ford decided to \u2018take back\u2019 the car. The contract, in my opinion, does not imply permissive use of the vehicle; rather it simply gives Ford the right to repossess the vehicle. I do not view \u2018take back\u2019 and \u2018permissive use\u2019 as being the same. The sales contract could have easily been written to plainly give Ford the right to repossess and use the vehicle.\u201d\nZimmerman appeals the court\u2019s order granting summary judgment to State Farm.\nZimmerman contends that he was entitled to coverage under the policy\u2019s uninsured motorist provision because he had \u201cpermission\u201d to drive the Battles\u2019 Escort. He claims that the retail sales contract that the Battles initially signed bestowed that \u201cpermission\u201d upon Ford Motor Credit Company to repossess the vehicle in the event of default. Zimmerman equates the language contained in the sales contract, giving Ford the right to repossess the vehicle, with \u201cpermission\u201d to use that vehicle in other repossession activities conducted by Starlight.\nState-Farm counters that repossession of a vehicle, although allowed by law (810 ILCS 5/9 \u2014 503 (West 1996)) and the retail sales contract, does not automatically occur with the consent or permission of the vehicle\u2019s owner. Accordingly, the mere existence of the repossession language contained in the sales contract does not establish that Ford, or its agent, was a permissive user of the vehicle for casualty insurance purposes.\nThe construction of an insurance policy and a determination of the rights and obligations of the parties to that policy are questions of law which are subject to de novo review. Pekin Insurance Co. v. L.J. Shaw & Co., 291 Ill. App. 3d 888, 891, 684 N.E.2d 853 (1997). The instant case involves the issue of whether an individual repossessing an automobile not only is a permissive user of the subject automobile, but may use that vehicle in repossessing unrelated cars and yet invoke the insurance coverage of the first repossessed vehicle for purposes of furthering the repossessor\u2019s own benefit.\nIllinois courts follow the \u201cinitial permission\u201d rule: if the named insured has initially given permission to another to use the insured vehicle, departure from the authorized use does not terminate the initial permission. Maryland Casualty Co. v. Iowa National Mutual Insurance Co., 54 Ill. 2d 333, 341, 297 N.E.2d 163 (1973). The public policy behind such a rule is based on the theory that the insurance contract is as much for the benefit of the public as it is for the insured and, therefore, it is undesirable to allow litigation as to the details of the permission and use. Maryland Casualty Co., 54 Ill. 2d at 342. Accordingly, once initial permission has been granted by the named insured, \u201c \u2018coverage is fixed, barring theft or the like.\u2019 \u201d Maryland Casualty Co., 54 Ill. 2d at 342, quoting Odolecki v. Hartford Accident & Indemnity Co., 55 N.J. 542, 550, 264 A.2d 38, 42 (1970); see also United States Fidelity & Guaranty Co. v. McManus, 64 Ill. 2d 239, 356 N.E.2d 78 (1976). When the named insured of a policy which contains a clause extending liability coverage to those driving the covered automobile with the insured\u2019s consent gives consent to another, any third person allowed to drive the insured vehicle by the initial permittee is likewise covered. Harry W. Kuhn, Inc. v. State Farm Mutual Automobile Insurance Co., 201 Ill. App. 3d 395, 400-01, 559 N.E.2d 45 (1990).\nThe threshold consideration in the case sub judice is whether the Battles, by signing the retail sales contract for purchase of their automobile, gave initial consent to Ford Motor Credit Company to use their 1993 Escort in furtherance of its business or that of its agent. Clearly, they did not.\nThere is no dispute that the Battles entered into a retail sales contract with Ford Motor Credit Company. That contract did not state that the Battles were \u201cconsenting\u201d or giving \u201cpermission\u201d to Ford Motor Credit Company to use their automobile in the event of a default. Rather, the retail sales contract provided, in the event of the Battles\u2019 default on their loan, that Ford Motor Credit Company \u201cmay *** repossess (take back) the vehicle.\u201d This language merely recognizes the possibility of repossession; it does not give Ford Motor Credit Company \u201cpermission\u201d to use the vehicle in furtherance of its own repossession interests not involving the Battles\u2019 vehicle. On the contrary, the act of repossession presupposes that the owners are not giving, nor are they required to give, their permission for the taking of their vehicle.\nIn the event of a default, a secured creditor has \u201cno need to secure the permission\u201d of the debtor to take possession; a secured party on default clearly has \u201cthe right to take possession of the property of its debtor without judicial process.\u201d Elliot v. Villa Park Trust & Savings Bank, 63 Ill. App. 3d 714, 716, 380 N.E.2d 507 (1978). A repossession \u201cby its very existence, presupposes that the defaulting party did not consent.\u201d Census Federal Credit Union v. Wann, 403 N.E.2d 348, 351 (Ind. App. 1980). Had the defaulting party consented, \u201cno statutory authority would be required for a secured party to repossess, with or without judicial process.\u201d Census Federal Credit Union, 403 N.E.2d at 351.\nIn the instant case, Ford Motor Credit Company\u2019s right to repossess the Battles\u2019 vehicle was premised upon a provision in the retail sales contract, which in turn was authorized by section 9 \u2014 503 of the Uniform Commercial Code, granting certain creditors the right to repossess a vehicle without judicial process, the so-called \u201cself help\u201d rule. 810 ILCS 5/9 \u2014 503 (West 1996) (\u201cUnless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action\u201d); see, e.g., First National Bank v. Lachenmyer, 131 Ill. App. 3d 914, 476 N.E.2d 755 (1985). At no time is it shown here that the Battles either expressly or impliedly consented to Ford Motor Credit Company\u2019s use of their vehicle.\nRecognizing that a debtor in default likely would not hand over his or her vehicle to the creditor, this fact alone does not merit the imposition of casualty claim insurance coverage where none otherwise exists. It follows that unless the Battles affirmatively gave permission to their creditor to use their vehicle, no subsequent user of the vehicle is entitled to coverage under the Battles\u2019 policy as a \u201cpermissive\u201d user. Particularly, nothing in the language contained in the retail sales contract confers the Battles\u2019 consent or permission to Ford Motor Credit Company to \u201cuse\u201d their vehicle in furtherance of repossession interests unrelated to the Battles, nor can its agent claim such consent or permission.\nFinally, State Farm presents the argument that Zimmerman\u2019s use of the Battles\u2019 vehicle was equivalent to a tortious conversion. This contention was not specifically ruled upon by the circuit court and need not be addressed here.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nGREIMAN and QUINN, JJ., concur.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Lawrence H. Hyman & Associates, of Chicago (Lawrence H. Hyman, of counsel), for appellant.", "Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Hugh J. Doyle, of counsel), for appellee State Farm Mutual Automobile Insurance Company." ], "corrections": "", "head_matter": "ANTHONY ZIMMERMAN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1 \u2014 99 \u2014 0372\nOpinion filed April 14, 2000.\nLawrence H. Hyman & Associates, of Chicago (Lawrence H. Hyman, of counsel), for appellant.\nTaylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Hugh J. Doyle, of counsel), for appellee State Farm Mutual Automobile Insurance Company." }, "file_name": "1065-01", "first_page_order": 1085, "last_page_order": 1090 }