{ "id": 1472354, "name": "TODD S. COHS et al., Petitioners-Appellants, v. WESTERN STATES INSURANCE COMPANY, Respondent-Appellee", "name_abbreviation": "Cohs v. Western States Insurance", "decision_date": "2002-05-07", "docket_number": "No. 1\u201400\u20142548", "first_page": "930", "last_page": "938", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 930" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 N.E.2d 2257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "59 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959868 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "395" }, { "page": "395" }, { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0389-01" ] }, { "cite": "290 N.E.2d 284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 547", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2766434 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0547-01" ] }, { "cite": "740 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 1097", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025929 ], "year": 2000, "pin_cites": [ { "page": "1103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/1097-01" ] }, { "cite": "321 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 583", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308044 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "590" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0583-01" ] }, { "cite": "357 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 509", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2727064 ], "year": 1976, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0509-01" ] }, { "cite": "376 N.E.2d 346", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3354663 ], "weight": 10, "year": 1978, "pin_cites": [ { "page": "25" }, { "page": "23" }, { "page": "23" }, { "page": "25" }, { "page": "25" }, { "page": "23" }, { "page": "25" }, { "page": "25" }, { "page": "25-26" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0022-01" ] }, { "cite": "748 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132361 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "814" }, { "page": "811" }, { "page": "812" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0805-01" ] }, { "cite": "701 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209971 ], "year": 1998, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0342-01" ] } ], "analysis": { "cardinality": 782, "char_count": 20685, "ocr_confidence": 0.738, "pagerank": { "raw": 7.796484210511943e-08, "percentile": 0.45714885307985137 }, "sha256": "70ecdb26b1fc69d3e40763f6ba7a7f54d4752c29950b18b1931b75c8244248e4", "simhash": "1:ba093bf861b6dc07", "word_count": 3464 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TODD S. COHS et al., Petitioners-Appellants, v. WESTERN STATES INSURANCE COMPANY, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE McBRIDE\ndelivered, the opinion of the court:\nThis appeal arises out of a declaratory judgment action in which the trial court granted summary judgment in favor of respondent-appellee, Western States Insurance Company (Western). In their complaint, petitioners-appellants, Todd and Jennifer Cohs, sought a declaration that an insurance policy issued by Western to DRW Services, Inc. (DRW), Todd Cohs\u2019 employer, provided Cohs with underinsured motorist coverage for personal injuries he sustained while at work. The parties each moved for summary judgment on the issue of coverage. On June 28, 2000, the trial court granted Western\u2019s summary judgment motion and denied the summary judgment motion made by the Cohs. The trial court found there was not a sufficient nexus between Cohs\u2019 use of the insured vehicle and the accident to trigger coverage under the underinsured endorsement to the Western policy. The Cohs appealed.\nThe sole issue on appeal is whether the trial court erred in granting Western\u2019s motion for summary judgment. Our standard of review on summary judgment dispositions is de novo. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349, 701 N.E.2d 493 (1998).\nThe following facts are undisputed. In his deposition, Todd Cohs testified that he worked as a service technician for DRW DRW was engaged in the business of assisting gasoline service stations with distributing gasoline from inside the service station, to underground tanks, to pumps where the customers received fuel. On September 23, 1996, the record indicates that Cohs was sent by DRW to service Ron\u2019s Marathon gas station located at 1195 Rohlwing in Elk Grove Village, Illinois. He was instructed to install and program a tank monitoring system for the four fuel tanks at Ron\u2019s Marathon. The tank monitoring system measured the volume of fuel in the gas tank and also detected if the tank was leaking.\nCohs testified that he drove to the station in a Chevy van that had been modified by DRW Specifically, the modifications included dividers and shelving that were installed into the vans for the purpose of holding certain parts. Also, the vans were equipped with hinged doors on the side and in the rear. The vans, including the one driven by Cohs, were lettered with a DRW logo on each side.\nWhen Cohs arrived at the station, he pulled up to the premium gas tank, removed the manhole cover or cap, and installed a probe into the tank. In order to insert the probe, Cohs stated that he used a variety of hand tools that he retrieved from his van. Once the first probe was inserted, he then moved the van to work on the remaining three tanks, which were within close proximity to one another. He then installed new probes into the remaining three tanks. He utilized the same type of hand tools from the van that he had used on the first tank. Cohs testified that when he had inserted the probes into the remaining three tanks, he completed the requisite wiring work with respect to those tanks. He then went inside the service station to begin programming a computer system that showed the gas station what tank was being monitored and how low the fuel was with respect to that particular tank.\nCohs realized that he needed to return to the premium tank to obtain a \u201crep rate.\u201d Such a task required reopening the premium fuel tank monitor cover. Cohs testified that he did not move the van and walked back to the premium tank, which was located about 12 feet away from his vehicle. After he had gone over to the tank, he stated that he needed a \u201cseal pack\u201d and returned to his van to obtain the part. He then returned to the tank. At that point, he went down on one knee, reopened the premium tank, and reached down into the hole about 12 to 15 inches. Within approximately one minute from the time he moved away from the van, he was struck by a motor vehicle owned and operated by Victor Cer\u00f3n. Cer\u00f3n was an underinsured motorist.\nIn his affidavit, Cohs stated that he walked approximately 15 feet from the right rear corner of the van to the premium fuel tank monitor cover, knelt down, and used his tools to remove the tank cover. He also stated that it was less than two minutes between obtaining the seal pack from the van and being struck by Cer\u00f3n.\nThe insurance policy, number WDS7 \u2014 054243\u201421 (Western Policy), was issued by Western to DRW for the period November 16, 1995, to November 15, 1996. The Illinois underinsured motorist coverage endorsement of Western Policy stated, in relevant part:\n\u201cA. COVERAGE\n1. We will pay all sums the \u2018insured\u2019 is legally entitled to recover as compensatory damages from the owner or driver of an \u2018underin-sured motor vehicle.\u2019 The damages must result from \u2018bodily injury\u2019 sustained by the \u2018insured\u2019 caused by an \u2018accident.\u2019 The owner\u2019s or driver\u2019s liability for these damages must result from the ownership, maintenance or use of the \u2018underinsured motor vehicle.\u2019 \u201d\nThe endorsement also defined, in pertinent part:\n\u201cB. WHO IS AN INSURED\n1. You\n* ij:\n3. Anyone else \u2018occupying\u2019 a covered \u2018auto\u2019 or a temporary substitute for a covered \u2018auto.\u2019 ***.\n* * *\nE ADDITIONAL DEFINITIONS\n* * *\n2. \u2018Occupying\u2019 means in, upon, getting in, on, out or off.\u201d\nAs we noted above, the trial court entered summary judgment in favor of Western on the basis that it was not possible to conclude that the injury to Cohs arose out of the use of the vehicle. We now address whether the summary judgment order entered below was proper.\nBefore doing so, we note that in their opening briefs, the parties suggested that the issue to be decided on appeal was whether Cohs was using the insured van at the time of the occurrence. Neither party addressed whether Cohs was occupying the vehicle covered by the Western Policy endorsement. As a result of this deficiency, the parties were ordered to file supplemental briefs on the issue of whether Cohs was \u201coccupying\u201d the van at the time of the accident.\nAt the hearing below, plaintiffs counsel focused primarily on the liability section in the principle Western Policy, which states:\n\u201cA. COVERAGE\nWe will pay all sums an \u2018insured\u2019 legally must pay as damages because of \u2018bodily 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\nIn their complaint, the Cohs also set forth the coverage section in the underinsured motorist endorsement to the Western Policy, referred to above, which states that, \u201cThe owner\u2019s or driver\u2019s liability must result from the ownership, maintenance, or use of the \u2018underinsured motor vehicle.\u2019 \u201d The trial court also focused on this language when it stated, \u201c[a]nd most vehicle policies that I have read use the \u2018arising out of the use of language.\u2019 \u201d We note however that the underinsured motorist endorsement in the Western Policy provides that the \u201cdriver\u2019s liability must result from the ownership, maintenance, or use of the \u2018underinsured motor vehicle.\u2019 \u201d (Emphasis added.) Our reading of this provision indicates that it has nothing to do with how Cohs, the insured, was using his van at the time of the accident. Instead, this language clearly applies to the liability of the driver using the under-insured motor vehicle. Here, that vehicle was the one driven by Victor Cer\u00f3n. As a result, the arguments and authorities relied upon by both parties in their original briefs are not dispositive of the issue on appeal.\nWe determine that the correct question for the purpose of determining coverage under the underinsured motorist endorsement is whether Cohs was \u201coccupying\u201d the van within the meaning of the Western Policy at the time of the accident. This is the language that we find triggers coverage for Cohs. If Cohs was occupying the vehicle as it is defined in the Western Policy, then summary judgment should have been granted in his favor. If, on the other hand, Cohs was not occupying the vehicle at the time of the collision, then summary judgment was appropriately entered in favor of Western. The record indicates that although this question was addressed by Western in the summary judgment pleadings below, it was not addressed by either party until this court ordered the parties to do so. In any event, the definition of \u201coccupying\u201d contained in the Western Policy endorsement has been previously addressed by the Illinois courts. See Mathey v. Country Mutual Insurance Co., 321 Ill. App. 3d 805, 814, 748 N.E.2d 303 (2001); Greer v. Kenilworth Insurance Co., 60 Ill. App. 3d 22, 25, 376 N.E.2d 346 (1978); Salinas v. Economy Fire & Casualty Co., 43 Ill. App. 3d 509, 510, 357 N.E.2d 556 (1976); Allstate Insurance Co. v. Horn, 24 Ill. App. 3d 583, 590, 321 N.E.2d 285 (1974).\nIn Greer, the plaintiff-insured was 10 to 15 feet away from the insured vehicle when she was struck by an uninsured motorist. The Greer court evaluated policy language similar to the Western Policy applicable here. In Greer, the policy contained uninsured motorist coverage for the insured while that person was \u201coccupying an insured automobile.\u201d Greer, 60 Ill. App. 3d at 23. \u201cOccupying was defined as \u2018in or upon, entering into or alighting from\u2019 the automobile.\u201d Greer, 60 Ill. App. 3d at 23.\nThe Greer court found the policy language to be unambiguous because the words quoted above were ordinary and common words. Greer, 60 Ill. App. 3d at 25; Mathey, 321 Ill. App. 3d at 811. The court further held that \u201cthe necessary elements for imposition of liability upon the insurer are the existence of some nexus or relationship between the insured and the covered automobile and, in addition, either actual or virtual physical contact with the insured vehicle.\u201d Greer, 60 Ill. App. 3d at 25. This test was recently applied by this court in Mathey, 321 Ill. App. 3d at 812, and we will implement it in the instant case.\nHere, we conclude that a nexus existed between the insured, Cohs, and the covered automobile. The record makes clear that Cohs drove his van to Ron\u2019s Marathon in the course of his employment with DRW While installing the tank monitors, the evidence demonstrated, Cohs constantly walked to and from the van to obtain the parts, tools, and equipment needed. Additionally, Cohs\u2019 affidavit and deposition testimony establish the existence of a nexus between Cohs and the insured vehicle.\nOur analysis does not end there, however, because we must determine whether Cohs was in actual or virtual contact with his van at the time of the accident. As we noted above, Cohs stated in his affidavit that he was approximately 15 feet away from the van at the time of the accident. He further stated that it was less than two minutes between getting the seal pack from his van and the time he was run over by Victor Cer\u00f3n. In his deposition testimony, Cohs said that his van was roughly 12 feet from where the accident took place. He also testified that only one minute had elapsed between the time he obtained the seal pack from his van and the moment he was hit.\nWe observe that there are discrepancies between the facts alleged in Cohs\u2019 affidavit and his deposition testimony. Regardless, we conclude that Cohs lacked the requisite contact with the insured vehicle to trigger coverage pursuant to the underinsured motorist endorsement to the Western Policy.\nAs we noted in Greer above, the plaintiff maintained an automobile insurance policy that provided coverage for injuries caused by an uninsured motorist wherever she happened to be. This coverage was excess or secondary in that it only applied to the extent that any other policy available to plaintiff had been exhausted.\nThe plaintiff and her coworker, Hannah Swanson, took turns driving each other to work. Swanson carried automobile insurance with Aetna Life and Casualty Company (Aetna). The Aetna policy contained uninsured motorist coverage for any person occupying an insured vehicle. \u201cOccupying\u201d in that policy was defined as \u201c \u2018in or upon, entering into or alighting from\u2019 the automobile.\u201d Greer, 60 Ill. App. 3d at 23.\nWhile returning from work, the plaintiff was a passenger in Swanson\u2019s car when it was hit by another vehicle. After the accident, Swanson stopped her vehicle on the right-hand shoulder of an exit ramp. The driver of the other vehicle stopped on the opposite shoulder. The plaintiff, Swanson, and the other driver then inspected the damages to Swanson\u2019s vehicle. Finding no apparent damage, the three elected to cross the ramp to view damage to the other vehicle. While waiting to cross the ramp, the plaintiff stood about 10 to 15 feet from the rear of Swanson\u2019s vehicle. At that time, she was struck by an uninsured motorist. She made no contact with Swanson\u2019s car.\nIn the trial court, the plaintiff filed separate actions for declaratory judgment against her own insurer and Aetna seeking declarations that each insurer owed her coverage under the uninsured motorist provision in their respective policies. The insurers moved for summary judgment. The trial court granted Aetna\u2019s motion on the basis that the plaintiff was not an occupant of the insured vehicle at the time of injury and denied the motion of the plaintiff\u2019s insurer. Plaintiffs insurer appealed.\nAs we noted above the appellate court in Greer held that the policy language at issue was not ambiguous. Greer, 60 Ill. App. 3d at 25. It also established two elements necessary for the imposition of liability upon the insurer: (1) the existence of some nexus between the insured and the covered automobile; and (2) either actual or virtual physical contact with the insured vehicle. Greer, 60 Ill. App. 3d at 25.\nThe appellate court found that the first element had been satisfied because the plaintiff was a passenger in the insured automobile. However, it found that the second element had not been met because the fact that the plaintiff was 10 to 15 feet away from the insured vehicle at the time she was struck amounted to a \u201ctotal absence of contact between the claimant and the insured vehicle.\u201d Greer, 60 Ill. App. 3d at 25-26. As a result, the Greer court found that the trial court\u2019s ruling in favor of Aetna was proper. Greer, 60 Ill. App. 3d at 26.\nSimilarly, in Horn, cited above, the appellate court addressed the issue of whether the claimant was occupying the vehicle for purposes of coverage. Horn was a passenger in a friend\u2019s vehicle that was insured by Allstate Insurance Company (Allstate). Horn made a claim for coverage under the uninsured motorist provision in the Allstate policy. The accident occurred when Horn\u2019s friend parked the insured vehicle on the northeast side of Clybourn Avenue, a six-lane street in Chicago. The two exited the vehicle and crossed the street and entered a restaurant. Upon leaving the restaurant, Horn attempted to cross the street and was struck by an uninsured motorist approximately 24 feet from the insured vehicle. The appellate court held that \u201cone who is 24 feet from a vehicle is not \u2018entering into\u2019 it, and therefore not \u2018occupying\u2019 it, within the meaning of the policy.\u201d Horn, 24 Ill. App. 3d at 590.\nWe find the instant case is analogous to the facts in Greer and Horn. While we have determined that Cohs had a nexus with the insured vehicle, we conclude that the second prong set out in Greer, requiring actual, or virtual physical contact with the insured vehicle, was not met.\nCohs stated in his affidavit that he was 15 feet away from his van and that he was struck by the underinsured motorist within two minutes of getting the seal pack from the van. In his deposition, Cohs testified that he was 12 feet from the van and that he was hit by Cer\u00f3n within one minute after leaving it. In Greer, the claimant was between 10 to 15 feet away from the insured vehicle, and in Horn, the claimant was 24 feet away from the insured auto. Here, Cohs was between 12 and 15 feet away from the insured van. We therefore conclude that Cohs lacked the actual or virtual contact with the insured vehicle required for invoking the underinsured motorist provision in the Western Policy.\nPlaintiff suggests that the definition of an insured in the underin-sured motorist endorsement is unduly restrictive when compared to the definition of who qualifies as an insured contained in the liability coverage section. Plaintiff bases this argument on section 143a \u2014 2(1) of the Illinois Insurance Code, which requires that carriers offering liability coverage must provide underinsured motorist coverage \u201cin an amount equal to the insured\u2019s bodily injury liability limits unless specifically rejected by the insured.\u201d 215 ILCS 5/143a \u2014 2(1) (West 1998). We agree with plaintiff that section 143a \u2014 2(1) requires that the amount of underinsured motorist coverage be equal to the amount of liability coverage provided. Mijes v. Primerica Life Insurance Co., 317 Ill. App. 3d 1097, 1103, 740 N.E.2d 1160 (2000). However, we disagree with plaintiff that the definition of an insured in the underinsured motorist endorsement was unduly restrictive.\nPlaintiff contends that this case is analogous to Doxtater v. State Farm Mutual Automobile Insurance Co., 8 Ill. App. 3d 547, 290 N.E.2d 284 (1972). In Doxtater, the appellate court held that an uninsured motorist exclusion in that policy, which excluded bodily injury coverage to an insured while occupying a vehicle not declared in the policy, was unduly restrictive under section 143a of the Insurance Code. Doxtater, 8 Ill. App. 3d at 552. Doxtater is not analogous to this case. In the instant case, it is undisputed that the van at issue was covered by the Western Policy.\nIn addition, Doxtater was referred to by the supreme court in Heritage Insurance Co. of America v. Phelan, 59 Ill. 2d 389, 395, 321 N.E.2d 2257 (1974). The court however declined to determine Doxtater\u2019s \u201ccorrectness\u201d because of its inapplicability to the facts in that case. Phelan, 59 Ill. 2d at 395. Nevertheless, the supreme court stated, section 143a does not place \u201cany restriction on the right of the parties to an insurance contract to agree on which persons are to be the \u2018insureds\u2019 under an automobile insurance policy.\u201d Phelan, 59 Ill. 2d at 395.\nWe do not agree with plaintiff that the word \u201coccupying\u201d used in the Western Policy endorsement for the purpose of defining an insured is unduly restrictive. Plaintiff suggests that the broader definition, that the driver\u2019s liability must result from the \u201cuse\u201d of the underinsured motor vehicle, contained in the liability section governs under section 143a. However, plaintiff fails to provide any authority that the uninsured motorist statute prohibits parties from defining who are insureds under a particular insurance policy. Because our supreme court has provided that parties can designate who are insureds without contravening the uninsured motorist statute, we are unpersuaded by plaintiffs authority to the contrary from other jurisdictions. We therefore find that plaintiff was not an insured under the Western Policy endorsement because he was not occupying the van at the time of the accident.\nEven if we accepted plaintiffs broader definition of \u201cuse\u201d of the insured vehicle set forth in the liability section of the Western Policy, we determine that plaintiff was not using the van when the injury occurred. As the trial court noted, no nexus existed between the use of the van and plaintiffs injury. The record unequivocally demonstrates that plaintiff was between 12 and 15 feet away from the van at the time the injury occurred. Plaintiff testified that he did not move the van in order to obtain the \u201crep rate\u201d from the premium tank. No cautionary cones were placed around the work area. When he was struck, defendant testified that he was kneeling on the pavement and reaching into the premium tank\u2019s opening. We are in agreement with the trial court that no nexus existed between the use of the van and plaintiffs injury under these facts.\nHaving addressed the merits on the \u201cuse\u201d question, we need not address the waiver and estoppel arguments raised in plaintiff\u2019s supplemental brief. Moreover, our review of the record satisfies us that the parties did not stipulate or agree below that the definition of insured in the liability section of the Western Policy controlled. As a result, no grounds exist for a waiver or estoppel argument by Cohs against Western.\nThe trial court\u2019s order of June 28, 2000, is affirmed.\nAffirmed.\nGORDON and CAHILL, JJ., concur.", "type": "majority", "author": "JUSTICE McBRIDE" } ], "attorneys": [ "Michael W Rathsack and Daniel J. Kaiser, both of Chicago, for appellants.", "Bonnie L. Braverman, of Matyas & Norris, of Chicago, for appellee." ], "corrections": "", "head_matter": "TODD S. COHS et al., Petitioners-Appellants, v. WESTERN STATES INSURANCE COMPANY, Respondent-Appellee.\nFirst District (2nd Division)\nNo. 1\u201400\u20142548\nOpinion filed May 7, 2002.\nMichael W Rathsack and Daniel J. Kaiser, both of Chicago, for appellants.\nBonnie L. Braverman, of Matyas & Norris, of Chicago, for appellee." }, "file_name": "0930-01", "first_page_order": 948, "last_page_order": 956 }