                         NO. 4-06-0258              Filed 1/19/07

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

AUTO-OWNERS INSURANCE COMPANY,             )   Appeal from
          Plaintiff-Appellee,              )   Circuit Court of
          v.                               )   Jersey County
LORI STUBBAN and SHANNON UFER,             )   No. 05MR21
          Defendants-Appellants,           )
          and                              )   Honorable
LOREN DALE and SHIRLEY DALE,               )   Eric S. Pistorius,
          Defendants.                      )   Judge Presiding.


          JUSTICE APPLETON delivered the opinion of the court:

          Defendants Lori Stubban and Shannon Ufer appeal from

the trial court's order granting plaintiff Auto-Owners Insurance

Company's (Auto-Owners) motion for summary judgment.    Auto-Owners

had filed an action seeking a declaratory judgment that it had no

duty to defend its insured, Loren Dale, in a personal-injury

action filed by Stubban and Ufer.   Auto-Owners contested coverage

because Dale owned the vehicle involved in the accident--a

condition which, if true, eliminates Auto-Owners' duty to provide

coverage pursuant to the terms of the insurance policy.    We

affirm.

                          I. BACKGROUND

          On September 2, 2003, Stubban and Ufer were injured on

a four-wheeler (ATV) driven by Dale.   They filed a personal-

injury action against Dale in Jersey County (Stubban v. Dale No.

03-L-33 (Cir. Ct. Jersey Co.)).    Dale had in effect at the time

of the accident a homeowner's insurance policy issued by Auto-

Owners, and he requested that Auto-Owners defend against
Stubban's and Ufer's claims.   The policy set forth, in relevant

part, that Auto-Owners would "pay damages because of or arising

out of the maintenance, use, loading or unloading of only *** a

recreational vehicle which is not owned by any insured."    Because

it was discovered after the accident that the ATV had been stolen

from its true owner, Stubban and Ufer claimed Dale did not

legally own the ATV and sought to trigger Auto-Owners' duty to

provide coverage.

          On April 1, 2005, Auto-Owners filed the instant

declaratory-judgment action, claiming that its policy did not

cover the injuries allegedly sustained by Stubban and Ufer

because Dale, in fact, owned the ATV at the time of the accident.

In his discovery deposition in the personal-injury case, Dale

testified that he owned the ATV at the time of the accident.      He

said he purchased it in 2000 for $1,500 from a man he did not

know, whom he had met in a bar.   Dale asked the man for the

title, but the man said he had lost it.    Dale stored the ATV at

his brother's farm in Calhoun County for his family's use.     He
said he had a suspicion when he purchased the ATV that it may

have been stolen due to the low asking price.    He estimated the

fair-market value at approximately $5,000.    Dale's suspicion was

confirmed a few months after the accident at the base of this

litigation when he was arrested for possession of stolen prop-

erty.

          In the declaratory-judgment action, the parties filed

cross-motions for summary judgment.    On October 27, 2005, the


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trial court granted Auto-Owners' motion and found Dale did own

the ATV within the meaning of the insurance policy because he was

using it "as if he owned it," and therefore, Auto-Owners was not

obligated to defend Dale in the Stubban and Ufer personal-injury

action.   This appeal followed.

                           II. ANALYSIS

           On appeal, Stubban and Ufer claim the trial court erred

in finding that Dale owned the ATV (within the meaning of the

insurance policy) at the time of the accident.     They rely solely

on the fact that Dale did not have legal title to the vehicle.

           "Summary judgment is appropriate when there is no

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law.     [Citation.]   A circuit court's

entry of summary judgment is subject to de novo review [cita-

tion], and the construction of an insurance policy, which pres-

ents a question of law, is likewise reviewed de novo [citation]."

Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223

Ill. 2d 352, 360, ___ N.E.2d ___, ___ (2006).

               "A court's primary objective in constru-

          ing the language of an insurance policy is to

          ascertain and give effect to the intentions

          of the parties as expressed by the language

          of the policy.   [Citation.]    Like any con-

          tract, an insurance policy is to be construed

          as a whole, giving effect to every provision,

          if possible, because it must be assumed that

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          every provision was intended to serve a pur-

          pose.    [Citation.]"   Valley Forge, 223 Ill.

          2d at 362-63, ___ N.E.2d at ___.

          In their appeal, Stubban and Ufer claim the phrase "not

owned," as it appears in the policy, is ambiguous and, thus, the

policy "must be interpreted broadly in favor of coverage."     The

trial court found the phrase, which was not defined in the

policy, unambiguous after examining the underlying purpose of the

policy provision.

          Several Illinois courts have stated the purpose behind

similar exclusionary provisions.     See Schall v. Country Mutual

Insurance Co., 60 Ill. App. 3d 738, 741, 377 N.E.2d 592, 595

(1978); Continental National American Group v. Vaicunas, 26 Ill.

App. 3d 835, 838, 325 N.E.2d 747, 750 (1975); MFA Mutual Insur-

ance Co. v. Harden, 26 Ill. App. 3d 360, 364, 325 N.E.2d 102, 105

(1975); Rodenkirk v. State Farm Mutual Automobile Insurance Co.,

325 Ill. App. 421, 433, 60 N.E.2d 269, 274 (1945).     We quote from

the Rodenkirk decision, where the court best explained the

rationale of a similar provision:

                  "The exclusion from coverage of other

          cars owned by the insured as well as cars

          owned by the members of his household, and

          the exclusion of cars furnished for regular

          use to the insured or a member of his house-

          hold would seem to indicate the intention of

          the company to protect itself from a situa-

                                  - 4 -
          tion where an insured could pay for one pol-

          icy and be covered by the insurance in driv-

          ing any car that he decided to use whether

          owned by him or members of his family, or

          cars that had been furnished for his regular

          use; in other words, cars under his control

          that he could use at will and might use of-

          ten. Without some such exclusion it is obvi-

          ous that the company might lose premiums and

          also that the hazard under the insurance

          would be increased. It is evident that the

          purpose on the part of the company in extend-

          ing the driver's regular insurance without

          the payment of any additional premiums would

          apply to the occasional driving of cars other

          than his own, but would be inapplicable to an

          automobile furnished to the insured for his

          regular use."   Rodenkirk, 325 Ill. App. at

          433, 60 N.E.2d at 274.

          Similarly, in the case sub judice, Dale chose not to
insure the ATV under the policy at issue; therefore, Auto-Owners

did not receive the benefit of a premium paid.   Consequently,

Auto-Owners would not provide coverage for any ATV that Dale

would regularly use or have under his control on a regular basis

so as to protect itself from the hazards that would arise from

the regular use of an ATV.   The purpose of extending coverage to


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Dale's use of an ATV applies then only to the occasional or

incidental operation of an ATV other than his own.    From both

Dale's and Auto-Owners' perspective, the purpose of this provi-

sion is reasonable.   Dale would not be afforded coverage on any

ATV that he used as his own without first paying a premium.

Likewise, Auto-Owners would not be obligated to provide coverage

(without receiving an additional premium) on any ATV unless it is

one that was operated on rare occasions.

          At the time of the accident, Dale considered himself

the owner of the ATV and that ownership had not then been chal-

lenged.   Dale had purchased it for valuable consideration approx-

imately three years prior to the accident.    He and his family

used it on his brother's farm as if it were Dale's.    As against

the world (except for the person who held the legal title), Dale

was the owner of the ATV.    He had all of the incidents of owner-

ship except documented title.    We agree with the trial court that

at the time of the accident, the ATV was "owned" by Dale and,

based on the policy terms, Auto-Owners was not obligated to
provide coverage.

          In sum, we find Dale owned the ATV at issue within the

meaning of the insurance policy in effect at the time of the

accident, thereby relieving Auto-Owners from the duty to defend

Dale in Stubban's and Ufer's personal injury lawsuit.    We affirm

the trial court's order granting summary judgment.

                            III. CONCLUSION

          For the foregoing reasons, we affirm the trial court's


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judgment.

            Affirmed.

            STEIGMANN, P.J., and McCULLOUGH, J., concur.




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