Bohner v. ACE American Insurance Co.8/26/2005
The plaintiff, Jeremy Bohner, was involved in a one-car automobile accident while driving under the influence of alcohol. The defendant, Ace American Insurance Co., refused to cover the loss of the plaintiff's vehicle, due to an exclusion in the plaintiff's insurance policy for criminal or illegal acts. The plaintiff then filed a breach of contract action. The defendant appeals the December 9, 2004, order of the circuit court of Lake County granting the plaintiff's motion for summary judgment and denying its motion for summary judgment. We reverse.
On August 24, 2002, the plaintiff purchased a GMC Sonoma from Anthony Pontiac in Gurnee. The plaintiff financed the vehicle through US Bank. Also on August 24, 2002, the plaintiff purchased an "auto gap" insurance policy from the defendant. The policy provided that in the event that the plaintiff's vehicle were in an accident that resulted in a total loss, the defendant would pay the difference between the fair market value of the vehicle and the outstanding loan amount. The policy excluded loss or damage "arising directly or indirectly out of any dishonest, fraudulent, criminal , or illegal act by [the plaintiff or his agents]."
On February 8, 2004, the plaintiff was in an automobile accident that resulted in a total loss of his vehicle. The plaintiff was charged with driving under the influence (DUI) of alcohol at the time of the accident. Subsequently, the plaintiff pleaded guilty to the DUI charge and received one year of court supervision.
The plaintiff sought $6,994.61 from the defendant, the difference between the fair market value of the vehicle and the amount owed to US Bank. The defendant denied the plaintiff's claim, reasoning that the plaintiff's policy did not cover loss or damage that arose from the plaintiff driving under the influence , a criminal act.
On June 2, 2004, the plaintiff filed a breach of contract action against the defendant. On October 18, 2004, the plaintiff and the defendant filed cross-motions for summary judgment. On December 9, 2004, the trial court granted the plaintiff's motion for summary judgment and denied the defendant's motion for summary judgment. The defendant filed a timely notice of appeal.
On appeal, the defendant argues that the trial court erred in granting the plaintiff's motion for summary judgment and denying its motion for summary judgment. Summary judgment is a drastic means of disposing of litigation and, therefore, should be granted only when the "pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 2004); Happel v. Walmart Stores, Inc., 199 Ill. 2d 179, 186 (2002). When ruling on a motion for summary judgment, the trial court should consider the pleadings, depositions, admissions, and affidavits in the light most favorable to the nonmoving party. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483 (1998). "Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Where a reasonable person could draw divergent inferences from the undisputed facts, summary judgment should be denied. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). The standard of review of an order granting summary judgment is de novo. Dowd & Dowd, Ltd., 181 Ill. 2d at 483.
The construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court and, thus, are
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