{ "id": 222600, "name": "MARION D. BRILE, as Surviving Spouse and Adm'r for Her Next of Kin, Christopher Brile, Deceased, Plaintiff and Third-Party Plaintiff-Appellant, v. ESTATE OF MATTHEW BRILE, Deceased, et al., Defendants (Daniel Minter, as Special Adm'r for the Estate of Matthew Brile, Deceased, Third-Party Plaintiff-Appellant; and Federal Insurance Company, Incorrectly Named as The CHUBB Group of Insurance Companies, Third-Party Defendant-Appellee)", "name_abbreviation": "Brile v. Estate of Brile", "decision_date": "1998-05-21", "docket_number": "No. 3\u201497\u20140585", "first_page": "661", "last_page": "669", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 661" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "146 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3570587 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0434-01" ] }, { "cite": "159 Ill. App. 3d 780", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612794 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0780-01" ] }, { "cite": "195 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2492819 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0740-01" ] }, { "cite": "276 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927695 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "979" }, { "page": "980" }, { "page": "974" }, { "page": "979-80" }, { "page": "980" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0971-01" ] }, { "cite": "64 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428424 ], "year": 1976, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0239-01" ] }, { "cite": "66 Ill. 2d 527", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5465195 ], "year": 1977, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0527-01" ] }, { "cite": "144 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592135 ], "year": 1991, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0064-01" ] }, { "cite": "158 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780291 ], "year": 1994, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0116-01" ] }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "177 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317117 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "479-80" }, { "page": "479" }, { "page": "479" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0473-01" ] }, { "cite": "285 Ill. App. 3d 1056", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295524 ], "year": 1996, "pin_cites": [ { "page": "1062" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/1056-01" ] } ], "analysis": { "cardinality": 834, "char_count": 18259, "ocr_confidence": 0.721, "pagerank": { "raw": 1.2103571098716492e-07, "percentile": 0.5957503700022665 }, "sha256": "575fa6ac330d9a15179186cf2fed6404ba082e989f8dab29978c84a70da8c084", "simhash": "1:85c0edd79f0f6edf", "word_count": 2946 }, "last_updated": "2023-07-14T20:46:46.961592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARION D. BRILE, as Surviving Spouse and Adm\u2019r for Her Next of Kin, Christopher Brile, Deceased, Plaintiff and Third-Party Plaintiff-Appellant, v. ESTATE OF MATTHEW BRILE, Deceased, et al., Defendants (Daniel Minter, as Special Adm\u2019r for the Estate of Matthew Brile, Deceased, Third-Party Plaintiff-Appellant; and Federal Insurance Company, Incorrectly Named as The CHUBB Group of Insurance Companies, Third-Party Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE THOMAS\ndelivered the opinion of the court:\nThe plaintiff, Marion D. Brile, as surviving spouse and as administrator for her next of kin, Christopher Brile, deceased, filed a wrongful death action against her son, Matthew Brile, deceased, arising from a vehicular accident that occurred while Matthew was driving and Christopher was riding with him as a passenger. Thereafter, Marion, as administrator of Christopher\u2019s estate, and Daniel Minter, as special administrator of Matthew\u2019s estate, filed this declaratory judgment action against the third-party defendant, Federal Insurance Company (Federal), seeking a declaration that a certain policy of insurance issued by Federal to Christopher\u2019s employer, Photo-comm, Inc. (Photocomm), afforded coverage to Matthew. The parties filed cross-motions for summary judgment in the declaratory judgment action. The trial court granted summary judgment for Federal. The third-party plaintiffs (the plaintiffs) appeal from that ruling.\nFACTS\nThe parties do not contest the facts presented to the trial court. The record reveals that Christopher began working for Photocomm at its Downers Grove, Illinois, office in January 1991, as a marketing representative. He worked in that office with one other employee. The office contained sales and promotional literature, marketing props, demonstration models, and customer files.\nIn 1992, Myron Anduri, Photocomm\u2019s vice-president of sales, decided to close the Downers Grove office. As part of that decision, Anduri offered Christopher a promotion that involved a relocation from Chicago to Denver. Anduri decided to offer Christopher the relocation for two reasons. First, Photocomm had a much greater need in Denver than Chicago for someone of Christopher\u2019s talent, and, second, Photocomm viewed him as a very promising employee.\nIn June 1992, Christopher accepted the offer to transfer from Chicago to Denver. Anduri and Christopher agreed on a plan that required Christopher to vacate and close the Downers Grove office in September 1992 and begin working in Denver at that time. Under the plan, the Brile family would remain in Chicago until February 1993 and then move to Denver. After some delays, Christopher vacated the Downers Grove office as of September 25, 1992. He was scheduled to begin work in Denver on Monday, September 28, 1992.\nAs part of the transfer, Anduri prepared a relocation package for Christopher, which provided that Photocomm would pay for Christopher\u2019s direct and indirect moving expenses. Photocomm asked Christopher to close the Downers Grove office and to pack and ship the contents of the office to Denver, including the inventory, marketing materials, equipment and customer files. The shipment of the customer files was the most important concern for Photocomm since it considered them to be important assets. Normally, Photocomm would package and ship the contents of the office by common carrier. However, shipping by common carrier was expensive and difficult. So Photocomm decided that Christopher would rent a truck and move the contents of the office, along with enough personal items to allow him to begin working in the Colorado office. Anduri agreed to reimburse Christopher for the truck rental for this \u201cdual purpose.\u201d Anduri did not consider the cost of the rental truck as one of Christopher\u2019s moving expenses, but, rather, he considered it a company expense to move a company product.\nChristopher was responsible for choosing the rental company and reserving and renting the truck. On the morning of September 24, 1992, Marion dropped off Christopher at the rental dealer. Christopher entered into a rental agreement using his own name and address. He paid for the rental truck by using his personal credit card. Photocomm\u2019s name did not appear on the rental agreement.\nAfter renting the truck, Christopher took the empty truck to Photocomm\u2019s office where he loaded everything remaining in the office. From there, Christopher went to a family storage unit where he loaded some personal items on the truck. At this point, the truck was one-quarter to one-third full. Christopher then went to his home and loaded some more personal items onto the truck.\nAnduri knew that Christopher was to leave Chicago on Saturday, arrive in Denver on Sunday evening, and then begin work on Monday morning. Since Christopher was a salaried employee, Photocomm did not intend to pay him any additional money for his time in traveling. It considered Christopher\u2019s relocation travel to be part of his responsibilities for which he was being compensated through his salary. Photocomm considered Christopher to be within the scope of his employment with Photocomm while on the drive from Chicago to Denver.\nChristopher left for Denver at 7 p.m. on Saturday, September 26, 1992. He decided to drive all night and take his son Matthew along to help with the driving. About 8 a.m., on September 27, 1992, Matthew was driving when their vehicle was involved in a one-car accident, killing both Christopher and Matthew. Christopher had not informed Photocomm that Matthew would accompany him or drive on the trip.\nFollowing the accident, Anduri was informed that the contents of the truck had been strewn along the highway and then placed in a warehouse in Nebraska. Anduri was tremendously concerned about the customer files that had been on the truck. He sent Chris Pinelli, a Photocomm employee, to salvage Photocomm items that had been on the truck, especially the customer files. Pinelli eventually traveled to Nebraska, loaded the salvageable Photocomm property, and returned it to Photocomm. Photocomm reimbursed Marion for her husband\u2019s expenses for August and September 1992.\nFEDERAL\u2019S INSURANCE POLICY LANGUAGE\nSection II of the policy, the liability coverage section, provides in relevant part:\n\u201cWe will pay all sums an \u2018insured\u2019 legally must pay as damages because of \u201cbodily injury\u2019 or \u2018property damage\u2019 to which this insurance applies, caused by an \u2018accident\u2019 and resulting from the ownership, maintenance or use of a covered \u2018auto\u2019.\u201d\nAt the beginning of the policy it states \u201c[t]hroughout this policy the words \u2018you\u2019 and \u2018your\u2019 refer to the Named Insured shown in the Declarations *** Other words and phrases that appear in quotation marks have special meaning.\u201d\nThe definitions section of the policy defines \u201cInsured\u201d as \u201cany person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage.\u201d The \u201cWHO IS AN INSURED\u201d provision states:\n\u201cThe following are \u2018insureds\u2019:\na. You for any covered \u2018auto\u2019\nb. Anyone else while using with your permission a covered \u2018auto\u2019 you own, hire or borrow ***.\u201d\nThe \u201cEXCLUSIONS\u201d provision of the policy provides in relevant part:\n\u201cThis insurance does not apply to any of the following:\n* * *\n4. EMPLOYEE INDEMNIFICATION AND EMPLOYERS LIABILITY \u2018Bodily injur/ to:\na. An employee of the \u2018insured\u2019 arising out of and in the course of employment by the \u2018insured\u2019 ***.\u201d\nISSUES AND ANALYSIS\nThe following issues are presented by this appeal: (1) whether Matthew was an \u201cinsured\u201d within the meaning of the \u201cWHO IS AN INSURED\u201d provision of the policy; and (2) if so, whether the exclusion provision quoted above should be construed to bar coverage of Matthew. With respect to the second issue, the trial court found that the term \u201cthe insured\u201d referred to Photocomm, the policyholder, and not Matthew, even though he was the person against whom liability was asserted and for whom insurance coverage was sought.\nSummary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 1996). All evidence is construed in the light most favorable to the nonmoving party and strictly against the moving party. Lestos v. Century 21-New West Realty, 285 Ill. App. 3d 1056, 1062 (1996).\nThe construction of an insurance policy is a question of law subject to de novo review. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479-80 (1997). In construing the language of an insurance policy, a court must ascertain and give effect to the intention of the parties as expressed in their agreement. Koloms, 177 Ill. 2d at 479. To that end, terms utilized in the policy are accorded their plain and ordinary meaning (Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108 (1992)) unless specifically defined in the policy, in which case they will be given the meaning as defined in the policy. In addition, a court must read the policy as a whole and consider the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Koloms, 177 Ill. 2d at 479. Provisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer. Koloms, 177 Ill. 2d at 479; National Union Fire Insurance Co. v. Glenview Park District, 158 Ill. 2d 116, 122 (1994). Moreover, all doubts and ambiguities in the policy language must be construed in favor of the insured. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 74 (1991).\nTurning to the question of whether Matthew was an \u201cinsured\u201d under the Photocomm policy, we note that the \u201cWHO IS AN INSURED\u201d provision of the policy provides that anyone is an insured who uses with Photocomm\u2019s permission a covered auto owned, hired, or borrowed by Photocomm. Federal argues that Matthew was not using the vehicle at the time of the accident with Photocomm\u2019s permission and therefore coverage is precluded on that basis. We disagree.\nIt has been held that \u201c \u2018where an insurer elects to include in its policy a broad provision extending liability coverage to persons operating or using a car with the permission of the owner, a further grant of permission from the initial permittee need not be shown in order to invoke the coverage.\u2019 \u201d Western States Mutual Insurance Co. v. Verucchi, 66 Ill. 2d 527, 531 (1977), quoting United States Fidelity & Guaranty Co. v. McManus, 64 Ill. 2d 239, 243 (1976). Here, Christopher had the permission of Photocomm to rent the vehicle in order to move the contents of its office to Denver. We find that the permission given by Photocomm to Christopher extended to Matthew.\nFederal further argues that Photocomm did not \u201cown, hire or borrow\u201d the vehicle that Matthew was driving at the time of the accident.\nBlack\u2019s Law Dictionary defines \u201cborrow\u201d as \u201c[t]o solicit and receive from another any article of property, money or thing of value with the intention and promise to repay or return it or its equivalent.\u201d Black\u2019s Law Dictionary 185 (6th ed. 1990). In the instant case, Photo-comm received a thing of value in that it obtained the means to transport its office items and customer files across country in a cheaper and more convenient manner. Photocom also intended and promised to repay Christopher for placing payment for the vehicle on his credit card. Thus, we find that Photocomm \u201cborrowed\u201d the vehicle within the meaning of the Federal policy. Accordingly, we find that Matthew fits the definition of an \u201cinsured\u201d under the policy in that he used with Photocomm\u2019s permission a covered auto that Photocomm borrowed.\nWe next consider whether the exclusion provision is applicable here, which bars coverage in instances of \u201c \u2018[b]odily injur/ to *** [a]n employee of the \u2018insured\u2019 arising out of and in the course of employment by the \u2018insured.\u2019 \u201d Federal argues and the trial court found that Photocomm is \u201cthe insured\u201d for purposes of this provision. The plaintiffs, on the other hand, argue that Matthew is \u201cthe insured\u201d referred to in that provision because he is the person against whom liability is asserted and for whom insurance coverage is sought.\nInitially, we note that the use of the phrase \u201can insured\u201d in an exclusionary clause unambiguously means \u201cany insured\u201d (Allstate Insurance Co. v. Smiley, 276 Ill. App. 3d 971, 979 (1995)), while the use of the term \u201cthe insured\u201d in an exclusionary clause is meant to refer to a definite, specific insured (Smiley, 276 Ill. App. 3d at 980). Thus, the term \u201cthe insured\u201d cannot refer to both Matthew and Photo-comm. If the term \u201cthe insured\u201d refers to Matthew rather than Photocomm, coverage would exist in this case since Christopher was not an employee of Matthew, and Christopher\u2019s bodily injury did not arise out of and in the course of any employment by Matthew.\nIn Smiley, the Smileys procured homeowners\u2019 insurance from Allstate. Later, Helene Smiley purchased a personal umbrella policy from Allstate. During the course of Helene\u2019s operation of a small daycare business, a small child drowned on the property. The child\u2019s estate sued Helene and her husband, David. Allstate brought a declaratory judgment to construe the policies, including the personal umbrella policy that excluded coverage for bodily injury \u201c \u2018arising out of the past or present business activities of an insured person.\u2019 \u201d (Emphasis omitted and added.) Smiley, 276 Ill. App. 3d at 974. First, the court found that the child\u2019s injuries arose out of Helene\u2019s business activities and were not covered by the policy. The court then found that the language in the exclusion also barred coverage for David\u2019s alleged negligence. This was because, even though the injury did not arise out of his business activities, the phrase \u201can insured\u201d is construed to mean \u201cany insured,\u201d and the injury arose out of the business activities of Helene, who was also an insured. Smiley, 276 Ill. App. 3d at 979-80. The court continued by noting that, if the policy had excluded coverage only for the business activities of \u201cthe insured,\u201d it would likely have held that coverage would exist for David\u2019s alleged negligence because the exclusions only referred to the specific insured who engaged in the business activities. Smiley, 276 Ill. App. 3d at 980.\nApplying Smiley to the present case, we find that the phrase \u201cthe insured\u201d in the Federal policy refers to the insured against whom liability is asserted and for whom coverage is sought. If Federal is correct in its contention that \u201cthe insured\u201d always means the named policyholders, the Smiley court would have applied the exclusion with respect to David regardless of whether the policy read \u201can insured\u201d or \u201cthe insured.\u201d\nFurthermore, Federal does not offer any explanation for the fact that its policy specifically states that the words \u201cyou\u201d and \u201cyour\u201d refer to Photocomm, the named insured shown in the declarations, whereas other words and phrases that appear in quotation marks such as \u201cinsured\u201d have special meaning, referring the reader to the definitions section of the policy. Our conclusion is further supported by the fact that Federal could have resolved any ambiguity with respect to the exclusion\u2019s application in its favor by simply inserting the words \u201cyour\u201d and \u201cyou\u201d in place of \u201cthe insured.\u201d We also note that there are numerous other instances throughout the policy where the term \u201cthe insured\u201d appears that could not be reasonably interpreted to mean the policyholder. In contrast, it is reasonable to interpret \u201cthe insured\u201d throughout the policy as the person or organization for whom coverage is sought, provided that the person or organization fits the definition set forth in the \u201cWHO IS AN INSURED\u201d provision.\nFederal cites Unigard Insurance Co. v. Whitso, Inc., 195 Ill. App. 3d 740 (1990), Midland Insurance Co. v. Bell Fuels, Inc., 159 Ill. App. 3d 780 (1987), and Aetna Casualty & Surety Co. v. Beautiful Signs, Inc., 146 Ill. App. 3d 434 (1986), for the proposition that Illinois courts have applied similar employment exclusions to preclude coverage for injuries arising in the course of employment. We find, however, that Federal\u2019s reliance on those cases is misplaced. In each of those cases, there was no issue as to the entity referred to as \u201cthe insured,\u201d since in each case liability was asserted against the employer/policyholder (either directly or by way of a third-party action for indemnification or contribution). Thus, in each case the employer/policyholder was the party for whom coverage was sought. The courts noted that the exclusion in question was designed to preclude coverage in those areas normally covered by workers\u2019 compensation insurance; there is no reason to secure double coverage. See Beautiful Signs, Inc., 146 Ill. App. 3d at 436.\nIn the instant case, the policyholder named in the declarations is not seeking coverage under the policy. Nor is there a chance of double recovery as suggested by Federal. Section 5(b) of the Workers\u2019 Compensation Act provides that an \u201cemployer may have or claim a lien upon any award, judgment or fund\u201d out of which an employee might be compensated from a third party for injuries in a case such as the present one. 820 ILCS 305/5(b) (West 1996). In the event Christopher\u2019s estate obtained an award in a workers\u2019 compensation action against Photocomm, Photocomm would have a claim or lien on any amount recovered by Christopher\u2019s estate in the lawsuit against Matthew\u2019s estate.\nFor the foregoing reasons, we find that as a matter of law Matthew was \u201can insured\u201d under the Federal insurance policy and that the exclusion discussed above did not operate to bar coverage for Matthew\u2019s alleged negligence. Accordingly, we reverse the judgment of the circuit court of Du Page County and remand the cause for further proceedings consistent with this opinion.\nReversed and remanded.\nGEIGER, P.J., and McLAREN, J., concur.", "type": "majority", "author": "JUSTICE THOMAS" } ], "attorneys": [ "William F. White, of White & White, of Downers Grove, for appellant.", "Jeremiah P. Connolly and Kelly A. Giampa, both of Bollinger, Ruberry & Garvey, of Chicago, for appellee." ], "corrections": "", "head_matter": "MARION D. BRILE, as Surviving Spouse and Adm\u2019r for Her Next of Kin, Christopher Brile, Deceased, Plaintiff and Third-Party Plaintiff-Appellant, v. ESTATE OF MATTHEW BRILE, Deceased, et al., Defendants (Daniel Minter, as Special Adm\u2019r for the Estate of Matthew Brile, Deceased, Third-Party Plaintiff-Appellant; and Federal Insurance Company, Incorrectly Named as The CHUBB Group of Insurance Companies, Third-Party Defendant-Appellee).\nSecond District\nNo. 3\u201497\u20140585\nOpinion filed May 21, 1998.\n\u2014 Rehearing denied June 25, 1998.\nWilliam F. White, of White & White, of Downers Grove, for appellant.\nJeremiah P. Connolly and Kelly A. Giampa, both of Bollinger, Ruberry & Garvey, of Chicago, for appellee." }, "file_name": "0661-01", "first_page_order": 679, "last_page_order": 687 }