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  "name": "FOUNDERS INSURANCE COMPANY Plaintiff-Appellee, v. JOEL CONTRERAS, JR., et al., Defendants-Appellants",
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  "casebody": {
    "judges": [],
    "parties": [
      "FOUNDERS INSURANCE COMPANY Plaintiff-Appellee, v. JOEL CONTRERAS, JR., et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "JUSTICE HALL\ndelivered the opinion of the court:\nThis appeal arises out of an automobile collision between vehicles driven by defendants-appellants Joel Contreras, Jr., and Sung Kuk. The sole issue on appeal is whether the \u201cinitial permission\u201d rule applies under the facts in this case, thereby entitling Joel Contreras, Jr. (hereinafter Contreras Jr.), to automobile liability coverage.\nThe \u201cinitial permission\u201d rule provides that once the owner or named insured of an automobile liability insurance policy containing an omnibus clause gives another individual permission to use the vehicle (the initial permittee), any person subsequently given permission to drive the vehicle by the initial permittee is also covered under the policy, barring theft or tortious conversion. American Country Insurance Co. v. Wilcoxon, 127 Ill. 2d 230, 236, 537 N.E.2d 284 (1989); St. Paul Fire & Marine Insurance Co. v. Guthrie, 332 Ill. App. 3d 486, 489, 773 N.E.2d 763 (2002). We find that the trial court did not err in holding that Contreras Jr. was not entitled to such omnibus coverage.\nThe record reveals the following facts and procedural history. At the time the accident occurred, Contreras Jr. was operating a vehicle owned by his father, Joel Contreras, Sr. The vehicle, a 1995 Plymouth Neon Sport, was insured under an automobile liability insurance policy issued by plaintiff-appellee, Founders Insurance Company (Founders Insurance). The policy contained an omnibus clause providing that an insured was \u201cany other person using such automobile with the direct permission of the named insured, provided the actual use thereof is within the scope of such direct permission.\u201d Contreras Sr.\u2019s daughter, Isela Contreras, was a named insured on the policy.\nIt is undisputed that neither Joel Contreras, Sr. nor Isela Contreras ever gave Contreras Jr. permission to use the vehicle. At the time Contreras Jr. took the car keys and drove away in the vehicle, his father was away on vacation and his sister was out of the house.\nAs a result of the accident, Sung Kuk filed a personal injury lawsuit against Contreras Jr. Sung Kuk v. Contreras, No. 02 M1 20626 (Cir. Ct. Cook Co.). In addition, defendant-appellant Allstate Insurance Company (Allstate), as subrogee of Sung Kuk, filed a subrogation lawsuit against Contreras Jr. for property damage to Sung Kuk\u2019s vehicle. Allstate Insurance Company v. Contreras, No. 02 M1 24717 (Cir. Ct. Cook Co.). Founders Insurance subsequently provided a defense to Contreras Jr. in connection with both lawsuits, subject to a reservation of rights.\nThereafter, Founders Insurance filed a declaratory judgment action against defendants-appellants seeking a declaration that it did not have a duty to defend or indemnify Contreras Jr. in the underlying lawsuits, on the ground that at the time the accident occurred, Contreras Jr. was a nonpermissive, unauthorized driver of the subject vehicle and therefore was not covered under the policy. Contreras Jr. was subsequently defaulted for failing to file an appearance or responsive pleading.\nOn cross-motions for summary judgment on the parties\u2019 respective requests for declaratory judgment, the trial court entered an order in favor of Founders Insurance and against Allstate, finding and declaring that Founders Insurance had no duty to defend or indemnify Contreras Jr. under the policy, because at the time of the accident he was a nonpermissive, unauthorized driver of the subject vehicle. The trial court also found that the \u201cinitial permission\u201d rule was inapplicable under the factual circumstances in the case and therefore did not apply to make Contreras Jr. a permissive user of the vehicle. After the trial court denied its motion for reconsideration, Allstate filed a timely notice of appeal. For the reasons that follow, we affirm.\nANALYSIS\nSince this is an appeal from a summary judgment, our review of the trial court\u2019s order granting summary judgment is de novo. Sears Roebuck & Co. v. Acceptance Insurance Co., 342 Ill. App. 3d 167, 171, 793 N.E.2d 736 (2003). \u201cThe construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court and appropriate subjects for disposition by summary judgment.\u201d Konami (America), Inc. v. Hartford Insurance Co. of Illinois, 326 Ill. App. 3d 874, 877, 761 N.E.2d 1277 (2002).\nSummary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005 (c) (West 2000); Bier v. Leanna Lakeside Property Ass\u2019n, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773 (1999). As in this case, where the parties file cross-motions for summary judgment, they invite the court to decide the issues presented as a matter of law. Lexmark International, Inc. v. Transportation Insurance Co., 327 Ill. App. 3d 128, 134, 761 N.E.2d 1214 (2001). Applying these principles, we conclude that the trial court did not err in granting summary judgment in favor of Founders Insurance.\nDefendants-appellants contend that the trial court erred in concluding that Contreras Jr. was not a permissive user of the vehicle under the \u201cinitial permission\u201d rule, arguing that the trial court improperly based its decision on a finding that the rule applied only in instances where the initial permission to use the vehicle was given by the named insured rather than the owner of the vehicle. We disagree.\nDefendants-appellants misstate the basis for the trial court\u2019s ruling. The record shows that the trial court\u2019s ruling was based on a determination that the \u201cinitial permission\u201d rule was inapplicable under the facts in the case because the issue of \u201cpermission\u201d never arose. In granting Founders Insurance\u2019s cross-motion for summary judgment, the trial court stated: \u201cWe go back to Founders\u2019 original position. Their original position is that the initial permission rule doesn\u2019t even apply here. And I agree with that. I believe they are correct because there is no evidence of any form of a permission scenario here.\u201d\nWe agree with the trial court. In this case, the \u201cinitial permission\u201d rule is irrelevant because none of the individuals involved ever gave Contreras Jr. permission to use the vehicle.\nIn all of the cases defendants-appellants rely upon to support their position, there was a grant of permission by the insured to an initial permittee. See United States Fidelity & Guaranty Co. v. McManus, 64 Ill. 2d 239, 356 N.E.2d 78 (1976) (named insured gave friend permission to drive vehicle); Maryland Casualty Co. v. Iowa National Mutual Insurance Co., 54 Ill. 2d 333, 337, 297 N.E.2d 163 (1973) (named insured gave son permission to use vehicle); Western States Mutual Insurance Co. v. Verucchi, 66 Ill. 2d 527, 529, 363 N.E.2d 826 (1977) (same).\nThe \u201cinitial permission\u201d rule is inapplicable under the facts in the case because the issue of \u201cpermission\u201d never arose. Neither Joel Contreras, Sr., nor Isela Contreras ever gave Contreras Jr. permission to use the vehicle.\nAccordingly, for the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nGARCIA, P.J., and WOLFSON, J., concur.\nAn \u201comnibus clause\u201d is a provision in an automobile insurance policy that extends liability coverage to persons who \u201cuse the named insured\u2019s vehicle with his or her permission.\u201d State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Group, 182 Ill. 2d 240, 243-44, 695 N.E.2d 848 (1998). \u201cThe purpose of the omnibus provisions is to protect the public by ensuring that adequate resources are available to compensate for injuries sustained as a result of automobile accidents.\u201d State Farm Mutual Automobile Insurance Co. v. Hertz Claim Management Corp., 338 Ill. App. 3d 712, 717, 789 N.E.2d 407 (2003).",
        "type": "majority",
        "author": "JUSTICE HALL"
      }
    ],
    "attorneys": [
      "Morse & Bolduc, of Chicago (Peter C. Morse and Jeffrey A. Siderius, of counsel), for appellants.",
      "Newman, Raiz & Shelmadine, L.L.C., of Chicago (Shari S. Shelmadine, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "FOUNDERS INSURANCE COMPANY Plaintiff-Appellee, v. JOEL CONTRERAS, JR., et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 1\u201404\u20143188\nOpinion filed December 20, 2005.\nMorse & Bolduc, of Chicago (Peter C. Morse and Jeffrey A. Siderius, of counsel), for appellants.\nNewman, Raiz & Shelmadine, L.L.C., of Chicago (Shari S. Shelmadine, of counsel), for appellee."
  },
  "file_name": "1052-01",
  "first_page_order": 1070,
  "last_page_order": 1074
}