dissenting:
Safeway’s complaint for declaratory judgment alleges that in an application for insurance, Frank Duran stated that he and Jovita Duran, his wife, were the only drivers “who customarily operate[d]” the insured automobile. The complaint further alleges that in fact these representations were false and fraudulent and that the principal operator of the automobile was Dennis Duran who was also the co-owner of the insured automobile. This representation, it is asserted, is a misrepresentation either made with intent to deceive or affects the acceptance of the risk. (Ill. Rev. Stat. 1975, ch. 73, par. 766.) Safeway further contends that if the question had been truthfully answered it would not have insured the automobile where the principal driver was a male adult less than 25 years of age.
Forfeitures are not favored in the law and unless the right of such forfeiture is clearly shown no forfeiture may be invoked. (Freeport Motor Casualty Co. v. Tharp (1949), 338 Ill. App. 593, 597, 88 N.E.2d 499, aff'd (1950), 406 Ill. 295, 94 N.E.2d 139.) Courts favor affording coverage under an insurance policy whenever the facts justify coverage. Van Hulle v. State Farm Mutual Automobile Insurance Co. (1968), 99 Ill. App. 2d 378, 385, 241 N.E.2d 320; Mollihan v. Stephany (1975), 35 Ill. App. 3d 101, 103, 340 N.E.2d 627.
The application for insurance asked for those who “customarily” operated the automobile. In my estimation the evidence in this motion for summary judgment is insufficient to conclude that at the time the application for insurance was made, Dennis Duran was intended to be a customary operator of the car and that therefore, the application for insurance contained a material misrepresentation. The basis for the conclusion that he was the customary user was that he was a co-owner, had his own keys and used the car, and resided at home.
Frank and Dennis Duran were the co-owners on the title. Frank Duran, however, stated that in fact he was the owner. I do not believe that mere co-ownership or in fact ownership of the automobile can be equated with the question on the application which refers to those who customarily operate the automobile. An owner need not operate the car he owns. Nor do I believe that the fact of co-ownership along with the fact the Dennis Duran had a set of keys and used the car is sufficient to say that the application contained a misrepresentation. The only evidence in the record concerning the use of the automobile by Dennis Duran was that from the time the automobile was purchased until the time of the accident Dennis Duran used the automobile 25 to 50 times, that is only one or two times a week. The minimal use of the car in my estimation does not indicate a customary use and certainly, if this use was contemplated when the application was made, it was not a customary use that rises to the level of a misrepresentation if not stated.
The emphasis in the opinion on the residency of Dennis Duran is confusing. There is nothing in the application that inquired about other members of the Duran household at the time the application was made.
Safeway contends that these allegations must be read in light of the statement in 11(b) of the application concerning the sole ownership being in the name of the applicant. On that issue, the makeup of the form shows that there is a box on the application form that contains a statement, not a question, that unless otherwise stated the automobile is solely owned by the named insured. However, there is no place on the application to indicate that that is not a fact or to explain the fact that as both Frank and Dennis Duran state, on the record title is in the name of both, but, in fact Frank Duran is the sole owner of the automobile. I do not believe that this in conjunction with the other alleged misrepresentation should be construed to allow Safeway to avoid liability in this case.