finding that the defendant's deposition and affidavit are self-serving and "insufficient to create an issue of fact."
How later courts described this case
- finding that the defendant's deposition and affidavit are self-serving and "insufficient to create an issue of fact."
Written by the judges who cited it.
The opinion
JUSTICE LINDBERG, specially concurring.
I agree with the majority’s disposition of this case. However, there is a language problem which should be noted. A reading of the policy language quoted in the majority opinion reveals that “delivery” is the essential occurrence for the purpose of deciding when notice must be given the insurer.
The majority here (as did the parties, the trial court and this court in the first appeal) focuses on the language of the first-quoted paragraph of the automatic insurance provision namely “acquisition of ownership.” I am quick to add however that under the facts of the instant case my observation is a distinction without a difference as I will indicate both “acquisition of ownership” and “delivery” occurred after August 3, 1977, and before February 3, 1978. Therefore the December 19, 1977, notice of delivery was timely under the second paragraph of the automatic insurance provision.
Contrary to the view of the majority I would rely on the authority of this court’s decision in Mullen v. Farm Bureau (1959), 21 Ill. App. 2d 280 , 157 N.E.2d 679 , which is not factually distinguishable in its significant parts. I conclude that rather than favoring third-party defendant insurer, the case compels an affirmance of the instant case.
This court held in Mullen that the crucial determination is whether or not there has been a “delivery” within the meaning of the policy and that delivery is an essential prerequisite to coverage. The court observed that there need not be a manual delivery of the article. The court concluded that the payment of the purchase price and the fee for transfer of the license and certificate of title was sufficient evidence of delivery to implement the automatic insurance provision. Mullen v. Farm Bureau (1959), 21 Ill. App. 2d 280, 285-89 , 157 N.E.2d 679, 682-84 . See generally 7 Am. Jur. 2d Automobile Insurance sec. 233 (1980).
Since in the instant case the receipt of title evidencing acquisition of ownership and payment of the purchase price occurred after August 3, 1977, “delivery,” as defined in Mullen, occurred after August 3, 1977. Under these facts plaintiff had until February 3, 1978, to give notice to the insurer of the delivery of the vehicle. Notice given December 19, 1977, two days after the accident, was timely and the insurer is liable under the terms of its policy.