Illinois Appellate Court Reverses Summary Judgment Where There Were Material Issues of Fact Yet to be Decided

In September 2008, Erica Perkins was involved in a car crash while driving a car owned by Beverly Perkins. LaTonya Reese and Kionna Griffin sued Erica Perkins for the injuries they suffered in the crash.

American Access Casualty Co. issued a non-owner’s insurance policy to Erica Perkins and provided a defense to Erica against each of the complaints filed against her. However, the insurance company required Erica to cooperate with American Access and to answer all questions and provide any written proofs that American Access required.

American Access charged that Beverly Perkins regularly let Erica drive without adding her as a primary insured. American Access alleged that the Perkinses have been uncooperative, choosing not to answer questions or cooperate with American Access’s investigation. As a result, American Access filed for a declaratory judgment against Erica, Reese and Griffin seeking a judicial declaration that American Access owed no duty to defend Erica because the car was not a “non-owned automobile.”

In addition, American asked the court to determine if the vehicle was even covered by Beverly Perkins’s insurance policy and to declare that Erica Perkins had violated the terms of the auto policy by choosing not to cooperate.

In June 2011, American Access attempted to serve notice to the Perkinses and Reese. Reese was served, but the Perkinses were not. American Access moved for summons service through the Illinois Secretary of State’s office. On Oct. 6, 2011, leave was granted to file with the Secretary of State who accepted service on Oct. 31, 2011.

On Jan. 30, 2012, American Access moved for default judgment and on Jan. 31, 2012 the company moved for summary judgment. Summary judgment was granted on Feb. 9, 2012. Griffin was at this point notified and permitted to file a reply wherein she contested the summary judgment and had it thrown out.

On Jan. 23, 2013, the trial judge once again granted summary judgment in favor of American Access. Again neither of the Perkinses appeared. American Access submitted an affidavit containing what little they could obtain form Erica Perkins, which they asserted was sufficient to show that she was the primary owner and user of the automobile. Summary judgment was again granted. Griffin appealed.

Griffin raised several arguments against the grounds and in support of the affidavit that American Access submitted, referring to it as hearsay and without proper foundation. The appellate court refused to look at any of the arguments. Instead the court held it was not necessary to look at whether the affidavit was supported because even if it had been, it was insufficient for summary judgment.

The appeals panel concluded that Erica’s admission, in her affidavit, that she was the “primary driver” of the car was not clear enough to show that there was no question of material fact as to who owned the vehicle and how often Erica used it.

The court concluded that summary judgment is appropriate only when there is no dispute about the facts. Here the parties disputed the regularity of the permission required for Erica to use the car. As a result, the appellate court reversed the trial judge’s decision granting summary judgment and remanded the case back to the trial court for further proceedings.

American Access Casualty Company v. Kionna Griffin, Erica Perkins, Beverly Perkins and LaTonya Reese, 2014 IL App (1st) 130665, March 31, 2014.

Kreisman Law Offices has been handling automobile accidents, car crashes, truck accidents, motorcycle accidents and bicycle accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Chicago Ridge, Markham, Matteson, Melrose Park, Norridge, Rolling Meadows, Westchester, Streamwood, Stone Park, Palos Park, Schiller Park, Barrington, Bartlett, Alsip, Blue Island, Calumet City, Chicago (Sauganash, Roscoe Village, Garfield Ridge, Printers Row, Pulaski Park, Old Town, North Town, Chinatown, Edgewater, Edgebrook, Englewood, Gold Coast, Hegewisch, Humboldt Park, Hyde Park, Jackson Park, Jefferson Park, Koreatown, Wicker Park, Irving Park, Wrigleyville), Schaumburg, River Grove, Riverdale, Richton Park and Worth, Ill.

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