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Konstant Products, Inc. v. Liberty Mutual Fire Insurance Company

401 Ill.App.3d 83, 929 N.E.2d 1200, 341 Ill. Dec. 121 (1st dist. 2nd div. 2010)

Words & Phrases

Permissive User: In General

Trial Judge

Leroy Martin

Appellate Judge

Justice Karnezis


Allegation in verified complaint of lack of permission to operate vehicle was conclusive so as to defeat coverage under automobile policy even though subsequent amended complaint omitted that allegation.

Fact Summary

The First District recently considered the impact of a verified, but later withdrawn, allegation on coverage. The underlying complaint arose out of an employee’s failed attempt to be a Good Samaritan.  The injured underlying plaintiff was trapped between his truck and a dumpster, and an employee at the facility where the plaintiff was making a pickup heard the cries for help and entered the truck and tried to back it away.). Unfortunately, the would-be Good Samaritan placed the truck in the wrong gear and drove the truck into the driver.  The driver filed a verified complaint, alleging:

Against Plaintiff’s verbal request, [the employee] negligently and carelessly entered Plaintiff’s vehicle, against Plaintiff’s request and drove the vehicle into the dumpster three (3) times causing Plaintiff each time to be pinned between the truck and the dumpster.

The plaintiff later amended his complaint and omitted the above-quoted language.   However, because the original verified complaint alleged that the employee did not have permission to enter and drive the truck, Liberty Mutual denied coverage because the employee was not a permissive user. 

The circuit court granted Liberty Mutual’s motion for summary judgment, holding that because the allegation in the original verified complaint was a judicial admission that the employee did not have permission to enter or drive the truck, that admission remained in the case despite the filing of an amended complaint, the employee was not a permissive user under the Liberty Mutual policy and there was no coverage. 

The First District agreed, reasoning that allegations contained in an original verified complaint “are judicial admission that still bind the pleader even after the filing of an amended pleading that supercedes [sic] the original.” (citing Yarc v. American Hospital Supply Corp., 17 Ill. App. 3d 667, 670, 307 N.E.2d 749 (1974)).  The court noted that there was no evidence that the original admission was a mistake or mere inadvertence, and as a result, the judicial admission was binding on the underlying plaintiff and on Liberty Mutual in determining its duty to defend, because that duty is determined by the allegations contained within the complaint.