{ "id": 333091, "name": "EMPIRE FIRE AND MARINE INSURANCE COMPANY, Plaintiff-Appellant, v. CLARENDON INSURANCE COMPANY et al., Defendants-Appellees", "name_abbreviation": "Empire Fire & Marine Insurance v. Clarendon Insurance", "decision_date": "1994-10-28", "docket_number": "No. 1\u201493\u20142028", "first_page": "1022", "last_page": "1031", "citations": [ { "type": "official", "cite": "267 Ill. App. 3d 1022" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "384 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994842 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0132-01" ] }, { "cite": "578 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "144 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592135 ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0064-01" ] }, { "cite": "592 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793398 ], "weight": 2, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0360-01" ] }, { "cite": "599 N.E.2d 1311", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5187838 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0070-01" ] }, { "cite": "571 N.E.2d 806", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2599050 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0744-01" ] }, { "cite": "355 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "64 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429542 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0187-01" ] }, { "cite": "625 N.E.2d 48", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "252 Ill. App. 3d 260", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2968469 ], "year": 1985, "pin_cites": [ { "page": "265" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/252/0260-01" ] }, { "cite": "619 F.2d 1178", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1376840 ], "pin_cites": [ { "page": "1183" } ], "opinion_index": 1, "case_paths": [ "/f2d/619/1178-01" ] }, { "cite": "776 F.2d 1380", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1516312 ], "weight": 2, "year": 1980, "opinion_index": 1, "case_paths": [ "/f2d/776/1380-01" ] }, { "cite": "541 N.E.2d 1220", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "185 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2649168 ], "pin_cites": [ { "page": "911" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/185/0907-01" ] }, { "cite": "152 N.E.2d 576", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "14 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770664 ], "year": 1989, "pin_cites": [ { "page": "292" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/14/0284-01" ] }, { "cite": "169 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 1 }, { "cite": "19 Ill. 2d 593", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743913 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/ill-2d/19/0593-01" ] }, { "cite": "358 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "44 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2812803 ], "pin_cites": [ { "page": "484" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/44/0481-01" ] }, { "cite": "473 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "129 Ill. App. 3d 952", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489465 ], "pin_cites": [ { "page": "957" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/129/0952-01" ] }, { "cite": "570 N.E. 2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "211 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2528885 ], "year": 1984, "pin_cites": [ { "page": "591" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/211/0586-01" ] }, { "cite": "544 N.E.2d 1032", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "188 Ill. 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App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "weight": 2, "pin_cites": [ { "page": "1027" } ], "opinion_index": 1 }, { "cite": "384 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "74 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994842 ], "pin_cites": [ { "page": "144" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/74/0132-01" ] }, { "cite": "599 N.E.2d 1311", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "234 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5187838 ], "weight": 4, "pin_cites": [ { "page": "73" }, { "page": "75" }, { "page": "75" }, { "page": "76" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/234/0070-01" ] }, { "cite": "355 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "64 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429542 ], "year": 1991, "pin_cites": [ { "page": "193" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/64/0187-01" ] } ], "analysis": { "cardinality": 767, "char_count": 20049, "ocr_confidence": 0.776, "pagerank": { "raw": 1.6310915464936916e-07, "percentile": 0.6889117859767114 }, "sha256": "72f4c8a131ee1cf8a9ef8e47b32bbf408aa05ad3e08262b669e9d47ccad9e88f", "simhash": "1:befc3e1a69e6bcd4", "word_count": 3242 }, "last_updated": "2023-07-14T14:32:09.244505+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EMPIRE FIRE AND MARINE INSURANCE COMPANY, Plaintiff-Appellant, v. CLARENDON INSURANCE COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE MURRAY\ndelivered the opinion of the court:\nEmpire Fire & Marine Insurance Company (Empire) appeals the denial of its summary judgment motion and the grant of Clarendon Insurance Company\u2019s (Clarendon\u2019s) cross-motion for summary judgment in a declaratory judgment action regarding insurance coverage in relation to an August 4, 1989, auto accident. The facts giving rise to this appeal are as follows.\nA multi-vehicle automobile accident occurred on August 4, 1989, while defendant Florence Nicpon (Nicpon), a \"car hiker\u201d for defen-dont Lakeshore Auto Sales, Inc. (Lakeshore), was returning a 1987 Dodge Dakota from Lakeshore\u2019s location in Zion, Illinois, to defendant Schaumburg Toyota, Inc. (Schaumburg), in Schaumburg. Lake-shore had intended to purchase the 1987 Dodge Dakota from Schaum-burg, but allegedly rejected the vehicle due to its failure to conform to representations made by Schaumburg based upon a defective paint job. Allegedly Schaumburg agreed that Lakeshore could return the vehicle. Nicpon, a \"car hiker\u201d who had worked for Lakeshore for the past several months, was then assigned to return the Dakota to Schaumburg.\nNicpon, while leading a group of three other car hikers, allegedly crossed the median on Palatine Road resulting in a number of collisions and injuring, among others, Judith Arnold (Arnold) and Ramona Cimballo (Cimballo). Arnold and Cimballo filed lawsuits to recover for personal injury damages sustained during this accident. The Arnold suit (docket No. 90 \u2014 L\u20145301) claimed, in count I, that Lakeshore owned the Dodge Dakota and that Nicpon was an agent, servant or employee of Lakeshore. Alternatively, in count II, the Arnold suit claimed that Schaumburg owned the vehicle and that Nicpon was its agent, servant or employee. The Cimballo suit (docket No. 90 \u2014 L\u201419944) named only Nicpon and Lakeshore as defendants. Cimballo alleged that she was injured as a result of a collision with a Dodge Dakota, which was in the possession and control of Lakeshore and operated by Nicpon, who was Lakeshore\u2019s employee.\nSubsequently, Empire, Lakeshore\u2019s insurer, tendered the entire defense of the Arnold and Cimballo lawsuits to Clarendon, Schaum-burg\u2019s insurer, claiming that Clarendon\u2019s policy of insurance provided primary coverage for all defendants named in both suits. Clarendon rejected the tender. Empire then filed a declaratory judgment action and moved for summary judgment, claiming that, as a matter of law, Clarendon\u2019s policy of insurance provided primary coverage for all defendants. Clarendon filed a cross-motion for summary judgment, claiming that, as a matter of law, its policy of insurance did not cover Nicpon or Lakeshore and, therefore, they had no duty to defend these parties. After a hearing on the motions, the trial court issued an order denying Empire\u2019s motion, but granting Clarendon\u2019s cross-motion for summary judgment, finding that the Dodge Dakota was not a \"covered auto\u201d under Clarendon\u2019s policy of insurance. It is from this order that Empire appeals.\nOn appeal, Empire does not deny that Lakeshore and Nicpon tendered the defense of the law suits to it and that they are insureds under its policy of insurance. Rather, Empire contends that the Dodge Dakota being returned to Schaumburg from Lakeshore was a \"covered auto\u201d under both the Empire and Clarendon insurance policies and that, pursuant to Clarendon\u2019s policy provisions, the Clarendon policy afforded primary coverage. In support of this position, Empire contends that Nicpon was an \"insured\u201d under Clarendon\u2019s policy of insurance because she was working in furtherance of Schaumburg\u2019s \"garage operations\u201d and that ownership of the Dakota and the attendant risk of loss remained with Schaumburg because Lakeshore properly rejected the vehicle as a nonconforming good. Finally, Empire argues that its tender of the defense of the underlying cases was sufficient to trigger coverage under Clarendon\u2019s policy of insurance for Nicpon and Lakeshore.\nClarendon, on the other hand, argues that it owes no duty to defend Nicpon or Lakeshore in either underlying action because, as the trial court properly determined, the Dakota was not a \"covered auto\u201d at the time of the accident pursuant to the provisions of its policy of insurance. Clarendon\u2019s policy provision states that a \"covered auto\u201d is one that is in the actual possession or control of the insured (Schaumburg) or its bailee. Clarendon argues that, since the allegations in the complaints charge that Nicpon was Lakeshore\u2019s agent and that Lakeshore owned, possessed or controlled the Dakota, the allegations in the complaints take Nicpon and Lakeshore outside the parameters of Clarendon\u2019s policy of insurance. Clarendon also denies that Nicpon was acting in furtherance of Schaumburg\u2019s garage operations.\nIt is Clarendon\u2019s position that it was proper for the trial court to interpret its policy provisions and determine that Lakeshore and Nicpon were not insureds. In so doing, Clarendon claims the trial court correctly determined that Empire\u2019s motion for summary judgment should be denied and Clarendon\u2019s motion should be granted.\nIn the alternative, however, Clarendon argues that a second basis exists for upholding the trial court\u2019s ruling. Clarendon contends that its duty to defend Lakeshore and Nicpon was never triggered because Lakeshore and Nicpon looked only to Empire for a defense and they never tendered or authorized the tender of the defense of the underlying actions to Clarendon.\nIt should also be noted that two motions have been filed with this court and have been taken with the case; first, a motion by Ramona Cimballo for leave to file a brief in support of Empire, and, second, a motion by Empire for leave to file an additional brief on the issues of waiver and estoppel.\nFor reasons that follow, we affirm the trial court\u2019s denial of summary judgment to Empire, but reverse the trial court\u2019s order granting summary judgment to Clarendon. The motions before this court and taken with the case are also denied at this time.\nSettled law in Illinois recognizes that an insurer owes an insured two duties, the duty to defend and the duty to indemnify. The two duties are not coextensive. An insurer\u2019s duty to defend or, if a conflict of interest exists, to provide for a defense is determined by the allegations contained within the complaint. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24; Central Mutual Insurance Co. v. Kammerling (1991), 212 Ill. App. 3d 744, 571 N.E.2d 806.) The insurer\u2019s obligation is triggered when the insured, or someone acting on behalf of the insured, tenders the defense of an action which alleges facts that fall within, or potentially within, the policy\u2019s coverage. (Institute of London Underwriters v. Hartford Fire Insurance Co. (1992), 234 Ill. App. 3d 70, 599 N.E.2d 1311.) This duty exists even if the allegations in the complaint are groundless, false or fraudulent (Insurance Co. v. Protective Insurance Co. (1992), 227 Ill. App. 3d 360, 592 N.E.2d 117) and if only one of several theories of recovery alleged in the complaint potentially falls within the policy\u2019s coverage (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 578 N.E.2d 926). If an insurer is in doubt as to its duty to defend, it should seek a declaratory judgment as to its rights and obligations, or defend under a reservation of rights, or both. {Insurance Co. v. Protective Insurance Co., 227 Ill. App. 3d at 365.) However, a declaratory judgment action to determine an insurer\u2019s duty to defend will be deemed premature if, in resolving the question, one must look beyond the allegations of the complaint or if issues crucial to the underlying action would be decided, thereby precluding one or more theories of recovery. Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Maryland Casualty Co. v. Peppers, 64 Ill. 2d at 197, 355 N.E.2d at 30.\nIn the present case, Empire does not contest the fact that the allegations in the underlying Arnold and Cimballo actions alleged facts which brought Lakeshore and Nicpon potentially within the coverage of its policy. Thus, once Lakeshore and Nicpon tendered the defense of the actions to Empire, there is no doubt that Empire owed them the duty to defend them or, if a conflict of interest existed, to provide for their defense. Empire concedes this point but, nonetheless, sought a declaratory judgment that Clarendon, too, owed Lake-shore and Nicpon a duty to defend, and that Clarendon\u2019s policy provided primary coverage.\nBased upon the principles stated above, the first matter to be considered is whether the allegations in either complaint placed Lakeshore or Nicpon within, or potentially within, the coverage of the policy Clarendon provided Schaumburg. Looking at the Arnold complaint, it can be seen that the complaint alleges, in alternative counts, that Nicpon is the agent, servant or employee of either Lake-shore or Schaumburg. It seems clear, therefore, that the Arnold complaint alleges facts that would bring Nicpon potentially within the coverage of the policy Clarendon provided to Schaumburg. Furthermore, if Empire\u2019s duty to defend Lakeshore and Nicpon, its alleged agent, servant or employee, was triggered by Lakeshore\u2019s tender, Clarendon\u2019s obligation to defend Schaumburg and its alleged agent, servant, or employee (Nicpon) would also be triggered by Schaum-burg\u2019s tender to Clarendon. We find, therefore, that Clarendon owes Nicpon a duty to defend under the Schaumburg policy equal to that of Empire\u2019s duty under Lakeshore\u2019s policy.\nNevertheless, Empire\u2019s declaratory judgment action seeking a ruling that Clarendon\u2019s policy provided primary coverage was premature and the trial court properly denied the motion. This is because the resolution of the issue of primary coverage would require the trial court to determine which of the two parties, Schaumburg or Lakeshore, owned the Dodge Dakota at the time of the accident. This issue is a hotly contested issue of fact and one of the ultimate issues upon which recovery is predicated. Thus, it would be inappropriate and an abuse of discretion for the trial court to make such a determination.\nFor similar reasons, we must find that the trial court abused its discretion in ruling that Clarendon owed no duty to defend or indemnify either Lakeshore or Nicpon. In so holding the trial court went beyond the allegations of the Arnold complaint and determined that, at the time of the accident, the Dodge Dakota was not in the actual possession of Schaumburg or its bailee and, thus, was not a \"covered auto\u201d within the terms of Clarendon\u2019s policy of insurance. However, as stated above, since Nicpon was alleged to have been the agent, servant or employee of both Lakeshore and Schaumburg, the resolution of this issue would be a premature determination of one of the ultimate facts upon which recovery was predicated. Therefore, we reverse the portion of the trial court\u2019s order granting Clarendon\u2019s motion for summary judgment.\nIn light of our resolution of the issues on appeal, we find it unnecessary to address the motion by Cimballo to intervene in the appeal or the motion by Empire to file an additional brief to raise new matters. These motions, which were taken with the case, are hereby denied.\nThe order of the circuit court denying Empire\u2019s motion for summary judgment is affirmed; the order granting Clarendon\u2019s motion for summary judgment is reversed.\nAffirmed in part; reversed in part.\nGORDON, J., concurs.\nClarendon indicates in its brief that its correct name is Clarendon National Insurance Company.", "type": "majority", "author": "PRESIDING JUSTICE MURRAY" }, { "text": "JUSTICE COUSINS,\nconcurring in part and dissenting in part:\nI concur in part and dissent in part for the reasons which follow.\nContrary to the majority opinion, the primary issue in the instant appeal is not who \"owned the Dodge Dakota at the time of the accident.\u201d (267 Ill. App. 3d 1027.) The primary issue in this appeal is whether the auto was in the actual possession of the insured (Schaumburg) or bailee of the insured at the time of the accident. (See 267 Ill. App. 3d at 1027.) Based on the pleadings and depositions, the trial court properly found that there was no coverage under the Clarendon policy. Therefore, summary judgment was properly granted in favor of Clarendon (Schaumburg\u2019s insurer).\nSchaumburg\u2019s insurance policy with Clarendon clearly excludes coverage in the instant case. The Clarendon policy states in relevant part:\n\" 'Covered auto\u2019 means an automobile owned or hired by or consigned to the named insured which is:\na. held for sale, or\nb. used in the automobile business of the insured, or\nc. a customer rental auto, or\nd. a company auto, or\ne. held by the insured pending removal from the insured\u2019s premises after sale.\nAll only while the covered autos are in the actual possession of the insured or bailee of the insured.\u201d (Emphasis added.)\nThe trial court correctly concluded that the pick-up truck was not a \"covered auto\u201d under the Clarendon policy as it was not in the \"actual possession\u201d of Schaumburg Toyota or its bailee at the time of the accident. Thus, Clarendon owed no duty to defend Lakeshore or its car hiker.\nIn Illinois, an insurer must defend when a complaint has been filed against the insured and the allegations are sufficient to bring the case potentially within coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24; Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335.) This court has stated that \"if the complaint contains allegations which if true would exclude coverage under the policy, the insurer has no obligation to defend.\u201d (Emphasis added.) (Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 817, 386 N.E.2d 529.) \"Primary insurance coverage is coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the event that gives rise to liability.\u201d (Federal Insurance Co. v. Economy Fire & Casualty Co. (1989), 189 Ill. App. 3d 732, 738, 545 N.E.2d 541.) Furthermore, where the trial court properly holds that an insurance company has no duty to defend, it may also find that the insurer has no duty to indemnify (Altaf v. Hanover Square Condominium Association No. 1 (1989), 188 Ill. App. 3d 533, 542, 544 N.E.2d 1032).\nTwo conditions must be met before an insurer\u2019s duty to defend arises: (1) the action must be brought against an insured and (2) the allegations of the complaint must disclose potential coverage under the policy. (Employers Mutual Cos./Illinois Emcasco Insurance Co. v. Country Cos. (1991), 211 Ill. App. 3d 586, 591, 570 N.E. 2d 528; Federal Insurance Co., 189 Ill. App. 3d at 735; Murphy v. Peterson (1984), 129 Ill. App. 3d 952, 957, 473 N.E.2d 480.) Clarendon properly declined to defend allegations where its named insured was not covered under the Clarendon policy. Neither condition was met in the instant case.\nThe Riesco and C\u00edmbalo lawsuits fail to name Schaumburg Toyota as a defendant. The C\u00edmbalo lawsuit alleges:\n\"At the time and place alleged herein, LAKESHORE AUTO SALES, INC., employed one FLORENCE R. NICPON as a driver and directed said FLORENCE R. NICPON to drive a certain Dodge Dakota Pick-Up Truck in possession and control of Defendant LAKESHORE AUTO SALES, INC., to SCHAUMBURG TOYOTA, INC., in Schaumburg, Illinois.\u201d\nThis is the sole allegation in the C\u00edmbalo complaint which even mentions Schaumburg Toyota. Count I of the Arnold lawsuit alleges that Lakeshore \"owned\u201d the pick-up truck and that Lakeshore, acting through its \"agent and/or employee\u201d Nicpon, was guilty of negligence.\nTaking these allegations as true, in accord with well-established Illinois law (Associated Indemnity Co., 68 Ill. App. 3d at 817; Sheppard, Morgan & Schwaab, Inc. v. United States Fidelity & Guaranty Co. (1976), 44 Ill. App. 3d 481, 484, 358 N.E.2d 305), Clarendon owed no duty to defend Lakeshore and its car hiker with respect to a pick-up truck which Lakeshore \"owned\u201d or which was in Lakeshore\u2019s \"possession and control\u201d when the accident took place while Lakeshore\u2019s car hiker was driving it.\nIn the trial court, Empire made no claim whatsoever that Lake-shore was Schaumburg Toyota\u2019s bailee. The following colloquy took place between Empire\u2019s counsel and the trial court at the hearing on April 26, 1993:\n\"THE COURT: Who was the bailee?\n[EMPIRE\u2019S COUNSEL]: The bailee is Florence Nicpon, the driver.\u201d (Emphasis added.)\nThe plaintiff must provide some factual basis which would arguably entitle Empire to judgment. A triable issue precluding summary judgment exists only where material facts are disputed. (Ray v. City of Chicago (1960), 19 Ill. 2d 593, 169 N.E.2d 73.) When the case came before the trial court on cross-motions for summary judgment, all material facts were before the court and the parties agreed that only a question of law was involved. Therefore, the entry of summary judgment for one or the other was proper. Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576; Wenger v. Finley (1989), 185 Ill. App. 3d 907, 911, 541 N.E.2d 1220.\nIt is noteworthy that Lakeshore has never tendered the defense to Schaumburg Toyota or Clarendon. Empire did not file its action against Clarendon in the lower court at either the request of or on behalf of Lakeshore and Nicpon. On the contrary, Empire has named them as defendants. Also, neither Lakeshore, Nicpon, Riesco, nor Arnold has filed briefs or sought to be heard in the instant appeal. C\u00edm-balo has no pending appeal and, in my opinion, has no standing to appeal. The only appellant in the instant case is Empire.\nThe law in Illinois is that an insurer\u2019s obligations under an insurance contract are triggered when the insured tenders an action potentially within the policy coverage. (Institute of London Underwriters v. Hartford Fire Insurance Co. (1992), 234 Ill. App. 3d 70, 73, 599 N.E.2d 1311; Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380; Solo Cup Co. v. Federal Insurance Co. (7th Cir. 1980), 619 F.2d 1178, 1183.) Coverage cannot be triggered by tender from a rival insurer. (Institute of London Underwriters, 234 Ill. App. 3d at 75.) Here, neither Lakeshore nor Nicpon, through its agents or attorneys, requested Clarendon\u2019s or Schaumburg Toyota\u2019s assistance. To the contrary, Empire admitted that Nicpon and Lakeshore tendered only to it. Empire never made the representation that it was acting upon or at the request of Nicpon or Lakeshore. The criteria for a proper tender require that a specific request for the insurer\u2019s assistance be made by an insured, or person authorized to act on behalf of the insured, and be made in a timely manner. (Institute of London Underwriters, 234 Ill. App. 3d at 75.) Even where an insurer is aware that its own insured is sued, there must be a tender in order to trigger coverage. In the absence of a proper tender, the insurer is not required to defend or indemnify a claim. (Institute of London Underwriters, 234 Ill. App. 3d at 76.) Although the trial court did not reach this issue, this court can affirm for any reason appearing on this record. Leavitt v. Farwell Tower Ltd. Partnership (1993), 252 Ill. App. 3d 260, 265, 625 N.E.2d 48. See also Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380.\nAccordingly, I concur with that part of the opinion which affirms the trial court\u2019s dismissal of Empire\u2019s motion. However, I dissent from the reversal of the trial court\u2019s grant of Clarendon\u2019s cross-motion for summary judgment.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE COUSINS," } ], "attorneys": [ "Scott Skaletsky and Karen A. Keefer, both of Skaletsky & Mannis, P.C., of Chicago, for appellant.", "Michael Resis and Randy Sue Schreiber, both of Querrey & Harrow, Ltd., of Chicago, for appellee Clarendon Insurance Company." ], "corrections": "", "head_matter": "EMPIRE FIRE AND MARINE INSURANCE COMPANY, Plaintiff-Appellant, v. CLARENDON INSURANCE COMPANY et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201493\u20142028\nOpinion filed October 28, 1994.\nRehearing denied November 30, 1994.\nScott Skaletsky and Karen A. Keefer, both of Skaletsky & Mannis, P.C., of Chicago, for appellant.\nMichael Resis and Randy Sue Schreiber, both of Querrey & Harrow, Ltd., of Chicago, for appellee Clarendon Insurance Company." }, "file_name": "1022-01", "first_page_order": 1040, "last_page_order": 1049 }