{ "id": 637095, "name": "SCR MEDICAL TRANSPORTATION SERVICES, INC., Plaintiff-Appellant, v. AISHA BROWNE, Defendant-Appellant (Empire Fire and Marine Insurance Company et al., Defendants-Appellees)", "name_abbreviation": "SCR Medical Transportation Services, Inc. v. Browne", "decision_date": "2002-11-27", "docket_number": "Nos. 1 \u2014 01 \u2014 0645, 1 \u2014 01 \u2014 0965 cons.", "first_page": "585", "last_page": "595", "citations": [ { "type": "official", "cite": "335 Ill. App. 3d 585" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "739 N.E.2d 85", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "quoting Black's Law Dictionary definition of \"bodily injury\": \" 'Generally refers only to injury to the body, or to sickness or disease contracted by the injured as a result of injury ***.' Black's Law Dictionary 175 (6th ed. 1990)\"" } ], "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025995 ], "year": 2000, "pin_cites": [ { "page": "74", "parenthetical": "quoting Black's Law Dictionary definition of \"bodily injury\": \" 'Generally refers only to injury to the body, or to sickness or disease contracted by the injured as a result of injury ***.' Black's Law Dictionary 175 (6th ed. 1990)\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0067-01" ] }, { "cite": "513 N.E.2d 1168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "\" 'Bodily injury' means bodily injury to any person\"" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 648", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649190 ], "year": 1987, "pin_cites": [ { "page": "654", "parenthetical": "\" 'Bodily injury' means bodily injury to any person\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0648-01" ] }, { "cite": "514 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "\"bodily injury\" defined as \"bodily injury to a person\"" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467934 ], "year": 1987, "pin_cites": [ { "page": "224", "parenthetical": "\"bodily injury\" defined as \"bodily injury to a person\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0223-01" ] }, { "cite": "599 N.E.2d 1338", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "restricting term \"bodily injury\" in insurance policy to \"actual physical injury,\" as opposed to broadening it to include mental anguish and mental distress" } ], "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 340", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5188378 ], "year": 1992, "pin_cites": [ { "page": "362", "parenthetical": "restricting term \"bodily injury\" in insurance policy to \"actual physical injury,\" as opposed to broadening it to include mental anguish and mental distress" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0340-01" ] }, { "cite": "648 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 716", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249233 ], "year": 1995, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0716-01" ] }, { "cite": "285 N.E.2d 506", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466507 ], "year": 1972, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0243-01" ] }, { "cite": "761 N.E.2d 1214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "327 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79391 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "136-37" }, { "page": "136-37" }, { "page": "135-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0128-01" ] }, { "cite": "405 N.E.2d 4", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "all counts could be considered in determining whether insurer had duty to defend" } ], "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 288", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3202204 ], "year": 1980, "pin_cites": [ { "page": "293", "parenthetical": "all counts could be considered in determining whether insurer had duty to defend" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0288-01" ] }, { "cite": "637 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 533", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872478 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "539-42" }, { "page": "540-41" }, { "page": "537-38" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0533-01" ] }, { "cite": "682 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351013 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "269" }, { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0264-01" ] }, { "cite": "710 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 831", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564589 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "836-38" }, { "page": "836" }, { "page": "838" }, { "page": "834" }, { "page": "834-35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0831-01" ] }, { "cite": "746 N.E.2d 35", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527766 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "750" }, { "page": "746" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0744-01" ] }, { "cite": "578 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "144 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592135 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "73" }, { "page": "73" }, { "page": "73" }, { "page": "74" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0064-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "107-08" }, { "page": "107-08" }, { "page": "108-09" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "759 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 1157", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570216 ], "year": 2001, "pin_cites": [ { "page": "1160" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1157-01" ] }, { "cite": "772 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "201 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477033 ], "year": 2002, "pin_cites": [ { "page": "6-7" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0001-01" ] }, { "cite": "355 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "64 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429542 ], "year": 1976, "pin_cites": [ { "page": "197" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/64/0187-01" ] }, { "cite": "384 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "74 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994842 ], "year": 1978, "pin_cites": [ { "page": "157-59" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/74/0132-01" ] }, { "cite": "637 N.E.2d 1167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "265 Ill. App. 3d 533", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872478 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ill-app-3d/265/0533-01" ] }, { "cite": "578 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "144 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592135 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "73" }, { "page": "73" }, { "page": "74" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/144/0064-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "125" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/154/0090-01" ] } ], "analysis": { "cardinality": 953, "char_count": 26100, "ocr_confidence": 0.738, "pagerank": { "raw": 8.430867276554151e-08, "percentile": 0.48389790292793133 }, "sha256": "86b6096fa8eb6e6ac52df130b54e30c9f9ca1171383c9dccfbb6dba77a897dc3", "simhash": "1:3a68bd483fe7d472", "word_count": 4274 }, "last_updated": "2023-07-14T21:04:10.004592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SCR MEDICAL TRANSPORTATION SERVICES, INC., Plaintiff-Appellant, v. AISHA BROWNE, Defendant-Appellant (Empire Fire and Marine Insurance Company et al., Defendants-Appellees)." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nSCR Medical Transportation Services, Inc. (SCR), provides paramedical transportation services in medicar vans to disabled passengers. On July 14, 1995, Aisha Browne was a passenger in the SCR van. SCR\u2019s driver was Robert Britton, a convicted felon. This case arises from the events of that day, with Browne\u2019s claim that Britton sexually assaulted her in the van and in her home.\nBrowne sued SCR for money damages caused by the sexual assaults. That case is pending in the trial court. Of immediate concern is the declaratory judgment action SCR filed against Empire Fire and Marine Insurance Company and Empire Indemnity Insurance Company (Empire) \u2014 SCR\u2019s auto liability insurer \u2014 and Browne. The issue in the trial court was whether Empire owes SCR a duty to defend it against Browne\u2019s complaint. The trial court held it did not. We agree, despite SCR\u2019s last-ditch attempt to label Britton\u2019s conduct as negligence.\nFACTS\nIn her eight-count complaint against SCR, Browne alleged Robert Britton was transporting her from Michael Reese Hospital to her home on July 14, 1995. Britton was employed as a driver for SCR. Browne alleged Britton sexually assaulted her inside the van and then entered her home, where he sexually assaulted her a second time. In the related criminal case, Britton, also known as Robert Vaughn, was convicted of the sexual assaults.\nCounts I through VI of Browne\u2019s fifth amended complaint sought damages from SCR under theories of negligence, negligent hiring, assault, intentional infliction of emotional distress, and negligent supervision. SCR then brought its declaratory judgment action, alleging Empire had a duty to defend and indemnify it in Browne\u2019s lawsuit.\nEmpire filed a motion for summary judgment, contending the automobile liability policy it issued to SCR provided no coverage and no duty to defend against the allegations in Browne\u2019s complaint. The policy section at issue states:\n\u201cWe 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\nThe trial court granted Empire\u2019s motion, and SCR filed a motion for reconsideration. While that motion was pending, Browne filed her sixth amended complaint, adding a count IX for negligence against SCR and Britton. Count IX alleged Britton was negligent in that he:\n\u201cA. Failed to travel upon recognized streets using the most direct route possible;\nB. Operated the SCR medical transportation vehicle through and upon an unnamed alley;\nC. Failed to control his bodily movements so that he caused AISHA to be in fear of her personal safety, although he knew or should have known that his proximity to AISHA would have frightened and injured her;\nD. Failed to call her back-up support to assist AISHA with her disembarkation from SCR medical transportation vehicle, although he knew or should have known that his proximity to AISHA would have frightened and injured her;\nE. Negligently assessed the situation when he attempted to assist AISHA with her disembarkation from the SCR medical transportation vehicle, although he knew or should have known that his words or actions would have frightened and injured AISHA; and\nF. Was otherwise negligent in placing AISHA in a situation which reasonably caused her to experience strong anxiety and fear.\u201d\nCount IX alleged as a result of Britton\u2019s negligent acts, Browne was \u201cphysically and psychologically injured, has endured and will in the future endure untold pain and suffering; and has been deprived of the enjoyment of life.\u201d\nThe trial court denied the motion to reconsider. SCR and Browne now appeal the trial court\u2019s order granting summary judgment in favor of Empire.\nDECISION\nSummary judgment is appropriate where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, affidavits, and admissions on file show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2000); Sollami v. Eaton, 201 Ill. 2d 1, 6-7, 772 N.E.2d 215 (2002). Our review of a grant of summary judgment is de novo. Villarreal v. Village of Schaumburg, 325 Ill. App. 3d 1157, 1160, 759 N.E.2d 76 (2001).\nIn determining whether an insurer has a duty to defend its insured, the court must look to the allegations in the underlying complaint and compare them to the relevant provisions of the insurance policy. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 107-08, 607 N.E.2d 1204 (1992). If the underlying complaint alleges facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926 (1991). An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy\u2019s coverage. Wilkin, 144 Ill. 2d at 73. Moreover, if the underlying complaint alleges several theories of recovery against the insured, the duty to defend arises if only one such theory is within the potential coverage of the policy. Wilkin, 144 Ill. 2d at 73.\nCounts I through VIII of Browne\u2019s underlying complaint, for sexual assaults committed on her by the driver of the medical transport vehicle, clearly do not fall within the coverage of the policy. The policy provides the damages must be caused by an \u201caccident,\u201d \u201cresulting from the ownership, maintenance, or use\u201d of the covered vehicle.\nIn similar cases where injuries were caused by criminal assaults in and about a vehicle, but were not caused by the vehicle itself, courts have held the injuries did not arise out of the operation, maintenance, or \u201cuse\u201d of a vehicle and were not covered under an automobile insurance policy. See State Farm Fire & Casualty Co. v. Rosenberg, 319 Ill. App. 3d 744, 750, 746 N.E.2d 35 (2001); State Farm Mutual Automobile Insurance Co. v. Pfiel, 304 Ill. App. 3d 831, 836-38, 710 N.E.2d 100 (1999); Laycock v. American Family Mutual Insurance Co., 289 Ill. App. 3d 264, 269, 682 N.E.2d 382 (1997); United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 539-42, 637 N.E.2d 1137 (1994).\nA causal relation or nexus must exist between the accident or injury and the ownership, use, or maintenance of the vehicle in order for the accident or injury to come within the policy coverage. Pfiel, 304 Ill. App. 3d at 836. We find there is an insufficient nexus between the operation, use, or maintenance of the SCR vehicle and Browne\u2019s injuries alleged in counts I through VIII to trigger a duty to defend under the terms of the insurance policy.\nBrowne contends SCR\u2019s special duty as a common carrier to transport and deliver disabled passengers safely to their destinations brought her injuries within the \u201cuse\u201d of the vehicle. We considered and rejected a similar argument in Jiffy Cab, 265 Ill. App. 3d at 540-41. We held the taxicab\u2019s common carrier status was irrelevant where the cab driver stabbed a passenger during an argument. We similarly reject Browne\u2019s argument and find her injuries from the sexual assaults did not arise out of the use, operation, or maintenance of the vehicle.\nCount IX was rushed into the breach when it became obvious the first eight counts of Browne\u2019s complaint would not support a duty to defend. The trial court had made it clear it was finding for the insurance company. Summary judgment had been entered for SCR. Obviously, it would be in Browne\u2019s interest to have SCR covered by Empire.\nCount IX, part of Browne\u2019s sixth amended complaint, carves out Britton\u2019s conduct during the harrowing car ride that preceded the assaults and dumps it into the count, dressing it up with \u201cnegligent\u201d labels. The count alleged Britton negligently operated SCR\u2019s van by driving the vehicle past Browne\u2019s home and down an unmarked alley, causing her to experience anxiety and fear, thereby causing her injury. We conclude the count is a device without substance.\nWhen read in conjunction with counts I through VIII, it is clear Browne\u2019s alleged injuries were caused not by the way Britton drove the vehicle, but by the sexual assaults. The reason the driver drove down an unmarked alley behind Browne\u2019s house was to commit the criminal sexual assaults. The mere fact that a vehicle is the site of an injury or incident is insufficient to create a connection between the \u201cuse\u201d of the vehicle and the injury so as to bring the injury within policy coverage. Pfiel, 304 Ill. App. 3d at 838.\nSCR and Browne contend we should consider count IX in isolation from the preceding counts because it is possible Browne will drop the other counts and proceed to trial on count IX alone. We are not required to read count IX as if the other counts do not exist.\nWhere a party has pleaded separate counts against various defendants but has not pleaded in the alternative, \u201cthere is no rule which requires the court to consider each count in isolation and ignore facts pleaded in other counts.\u201d Rlinois Casualty Co. v. Turp\u00e9n, 84 Ill. App. 3d 288, 293, 405 N.E.2d 4 (1980) (all counts could be considered in determining whether insurer had duty to defend).\nWhen deciding whether an insurance company had a duty to defend its insured in Lexmark International, Inc. v. Transportation Insurance Co., 327 Ill. App. 3d 128, 136-37, 761 N.E.2d 1214 (2001), we did not separately analyze each count of the two complaints. Rather, we \u201cconsider[ed] all the facts alleged in both complaints in a single analysis of the duty to defend question\u201d and \u201cperform[ed] a textual exegesis on the complaints to determine whether their factual allegations trigger[ed] the insurance companies\u2019 duty to defend.\u201d (Emphasis added.) Lexmark, 327 Ill. App. 3d at 136-37. In so doing, we gave \u201clittle weight to the legal label that characterizes the underlying allegations.\u201d Lexmark, 327 Ill. App. 3d at 135-36.\nIn Browne\u2019s complaint, there are separate counts alleging separate claims against three separate defendants \u2014 SCR, Britton, and Labor Leasing, Inc. Therefore, we may consider count IX in light of the complaint as a whole and need not ignore the rest of the complaint. Putting labels aside, we find count IX does not allege a negligence claim. It alleges intentional conduct that does not trigger a duty to defend.\nSCR relies on Przybylski v. Yellow Cab Co., 6 Ill. App. 3d 243, 247, 285 N.E.2d 506 (1972), in which the 13-year-old plaintiff jumped out of a cab that was taking an unfamiliar route to her destination and injured herself on some railroad tracks. The reviewing court held the question of proximate cause with respect to the cab driver\u2019s actions was properly submitted to the jury. This case is distinguishable; Przybylski did not concern any insurance policy issues or the interpretation of an insurance contract.\nThis court has said, \u201ctort liability on the part of the insured establishes contractual liability on the part of the insurer only where the policy affords coverage, and that determination is subject to the rules of contract construction, and not tort principles.\u201d Oakley Transport, Inc. v. Zurich Insurance Co., 271 Ill. App. 3d 716, 725, 648 N.E.2d 1099 (1995).\nOur analysis is concerned solely with whether the insurance policy at issue provides coverage for SCR in defending the underlying lawsuit. We do not look to negligence cases in assessing Empire\u2019s duty to defend. Rather, we look only at the relevant insurance policy provisions and compare them to the allegations in the underlying complaint. Outboard Marine, 154 Ill. 2d at 107-08.\nSCR and Browne also contend the trial court erred by prematurely determining the disputed question of negligent versus intentional conduct, a controlling issue in the underlying tort action. In response, Empire contends the trial court\u2019s decision to grant it summary judgment did not depend on whether Britton\u2019s conduct was intentional or negligent. In determining whether an insured\u2019s conduct is covered under a policy, a court must not determine disputed issues of fact which form the basis for the insured\u2019s liability in the underlying tort action. Pfiel, 304 Ill. App. 3d at 834.\nIn a declaratory judgment action, the construction of an automobile insurance policy\u2019s language is an issue of law, independent of the ultimate issues to be resolved in the underlying tort action. Pfiel, 304 Ill. App. 3d at 834-35; Jiffy Cab, 265 Ill. App. 3d at 537-38. We agree with Empire that the trial court\u2019s grant of summary judgment did not improperly resolve contested issues in the underlying tort litigation. There is no evidence in the record that the court did more than properly find the insurance policy at issue did not provide a duty to defend SCR in the underlying complaint.\nEven if we were to consider count IX as a separate cause of action, it does not trigger Empire\u2019s duty to defend because Browne does not allege a \u201cbodily injury,\u201d as required in the insurance policy. Count IX alleges she suffered \u201cstrong anxiety and fear\u201d as a result of the driver\u2019s actions. Although the prayer for relief in count IX alleges she was \u201cphysically and psychologically injured,\u201d there are no specific allegations of any physical injuries. Our conclusion is buttressed by comments made by Browne\u2019s attorney during oral argument. He spoke of Browne being \u201cscared when she was taken by her house\u201d and of Britton\u2019s conduct \u201cexciting a brain-damaged woman with cerebral palsy.\u201d He was asked: \u201cWhat was the physical injury?\u201d His answer: \u201cPrimarily mental anguish and psychological suffering.\u201d The clear meaning of that answer, when taken with the question that was asked, is that there was no \u201cbodily injury\u201d alleged, as that term is used in the insurance policy.\nThe insurance policy requires that the insured suffer a \u201cbodily injury\u201d resulting from an \u201caccident\u201d arising out of the \u201cuse, operation, or maintenance of the vehicle.\u201d \u201cBodily injury\u201d is defined in the policy as \u201cbodily injury, sickness or disease sustained by a person including death resulting from any of these.\u201d\nIn construing an insurance policy, the main objective is to ascertain and enforce the intentions of the parties as expressed in the agreement. Laycock, 289 Ill. App. 3d at 267. If the provisions of a policy are clear and unambiguous, they must be given their plain, ordinary, and popular meaning. Wilkin, 144 Ill. 2d at 74; Rosenberg, 319 Ill. App. 3d at 746. A provision is ambiguous if it is subject to more than one reasonable interpretation. Wilkin, 144 Ill. 2d at 74. Doubts and ambiguities will be construed in favor of the insured and against the insurer who drafted the policy. Outboard Marine, 154 Ill. 2d at 108-09.\n- In other duty-to-defend cases, this court has held where a policy defines \u201cbodily injury\u201d as \u201cbodily injury,\u201d and not just \u201cinjury,\u201d the definition is restricted to actual physical injury. See University of IIlinois v. Continental Casualty Co., 234 Ill. App. 3d 340, 362, 599 N.E.2d 1338 (1992) (restricting term \u201cbodily injury\u201d in insurance policy to \u201cactual physical injury,\u201d as opposed to broadening it to include mental anguish and mental distress), citing Creamer v. State Farm Mutual Automobile Insurance Co., 161 Ill. App. 3d 223, 224, 514 N.E.2d 214 (1987) (\u201cbodily injury\u201d defined as \u201cbodily injury to a person\u201d); Giardino v. Fierke, 160 Ill. App. 3d 648, 654, 513 N.E.2d 1168 (1987) (\u201c \u2018Bodily injury\u2019 means bodily injury to any person\u201d). In cases where \u201cbodily injury\u201d is not defined in the policy, this court has looked to dictionary definitions to find the term\u2019s plain and ordinary meaning. See Fremont Casualty Insurance Co. v. Ace-Chicago Great Dane Corp., 317 Ill. App. 3d 67, 74, 739 N.E.2d 85 (2000) (quoting Black\u2019s Law Dictionary definition of \u201cbodily injury\u201d: \u201c \u2018Generally refers only to injury to the body, or to sickness or disease contracted by the injured as a result of injury ***.\u2019 Black\u2019s Law Dictionary 175 (6th ed. 1990)\u201d).\nWe find the definition of \u201cbodily injury\u201d in the insurance policy is not ambiguous and by its clear terms defines \u201cbodily injury\u201d as actual physical injury. Browne concedes count IX alleges no physical injuries, only fear and anxiety. The trial court correctly decided count IX did not fall within insurance policy coverage because the allegations do not come within the meaning of the policy.\nCONCLUSION\nWe affirm the decision and rulings of the trial court.\nAffirmed.\nSOUTH, EJ., concurs.\nCounts VII and VIII sought damages from Labor Leasing under theories of negligent hiring and negligent supervision. Labor Leasing is not a party to this appeal.", "type": "majority", "author": "JUSTICE WOLFSON" }, { "text": "JUSTICE HOFFMAN,\ndissenting:\nI agree with the majority\u2019s conclusion that counts I through VIII of Aisha Browne\u2019s underlying complaint do not allege facts which bring that case within, or even potentially within, the coverage afforded to SCR Medical Transportation Services, Inc. (SCR), under the policy of insurance issued by Empire Fire and Marine Insurance Company (Empire). The policy at issue provides coverage to SCR for \u201cbodily injury\u201d and \u201cproperty damage\u201d caused by an accident resulting from \u201cthe ownership, maintenance or use\u201d of a covered automobile. Counts I through VIII of Browne\u2019s underlying complaint allege causes of action for damages sustained when she was sexually assaulted by Robert Britton, the driver of an SCR vehicle in which she was a passenger. As the majority holds, there is an insufficient nexus between the operation, use, or maintenance of SCR\u2019s vehicle and the cause of Browne\u2019s injuries as alleged in counts I through VIII of her complaint to trigger a duty to defend under the terms of Empire\u2019s policy of insurance. See United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 637 N.E.2d 1167 (1994). My disagreement with the majority is based on its holding that the allegations set forth in count IX of Browne\u2019s sixth amended complaint do not fall within the coverage of Empire\u2019s policy and, thus, do not give rise to a duty on the part of Empire to defend SCR in Browne\u2019s underlying action.\nThe majority has accurately set forth the charging allegations that appear in count IX of Browne\u2019s sixth amended complaint and the fact that she asserted that, as a proximate result of one or more of the negligent acts alleged therein, she was \u201cphysically and psychologically injured.\u201d It is important to note that there is no reference in count IX to the fact that Britton sexually assaulted Browne. Nevertheless, by reading count IX in conjunction with counts I through VIII, the majority concludes that Empire has no duty to defend SCR, finding that Browne\u2019s injuries were actually caused by her having been sexually assaulted by Britton.\nThe majority speculates that \u201c[cjount IX was rushed into the breach when it became obvious the first eight counts of Browne\u2019s complaint would not support a duty to defend.\u201d 335 Ill. App. 3d at 589. One might very well hold such an opinion as to Browne\u2019s motive for filing count IX, but her motive is totally irrelevant to the issue to be determined in this case. The question before this court is not why Browne amended her underlying complaint to include count IX or whether the allegation that she was \u201cphysically\u201d injured as a result of Britton\u2019s alleged negligent conduct is true. Rather, the issue in this case is whether the allegations in Browne\u2019s underlying complaint potentially fall within the coverage provided to SCR under Empire\u2019s policy. As our supreme court held in United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926 (1991):\n\u201cTo determine an insurer\u2019s duty to defend its insured, the court must look to the allegations of the underlying complaints. If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent. [Citation.] An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the underlying complaints that the allegations fail to state facts which bring the case within, or potentially within, the policy\u2019s coverage. [Citation.] Moreover, if the underlying complaints allege several theories of recovery against the insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. [Citation.]\u201d (Emphasis in original.)\nIn count IX of her sixth amended complaint, Browne has alleged \u201cphysical\u201d injury proximately caused by Britton\u2019s operation of SCR\u2019s vehicle and by the manner in which he assisted in her \u201cdisembarkation\u201d from the vehicle. Unlike the majority, I believe that she has thus asserted a theory of recovery which is separate and apart from the allegations of sexual assault set forth in counts I through VIII and which potentially falls within the coverage provided by the insurance policy Empire issued.\nThe majority asserts that it is not required to read count IX as if the other counts do not exist and, as a consequence of the facts alleged in counts I through VIII, concludes that count IX alleges intentional conduct which does not trigger Empire\u2019s duty to defend. I have found no authority for the proposition that, in determining an insurance carrier\u2019s duty to defend its insured, a court is at liberty to ignore one theory of liability alleged in the underlying complaint because it may be inconsistent with other theories of liability also alleged therein. To be sure, courts must consider all of the facts alleged in an underlying complaint in determining whether an insurance carrier has a duty to defend, but only for the purpose of ascertaining whether those facts allege even a single theory of liability that falls within the potential coverage of the policy. See United States Fidelity & Guaranty Co., 144 Ill. 2d at 73.\nNext, despite Browne\u2019s allegation in count IX that she was \u201cphysically\u201d injured, the majority has determined that \u201cBrowne does not allege a \u2018bodily injury\u2019 as required in the insurance policy.\u201d 335 Ill. App. 3d at 591. The majority supports its conclusion in this regard, in part, by noting that there are \u201cno specific allegations of any physical injuries\u201d set forth in count IX. 335 Ill. App. 3d at 591. However, the majority cites no authority for the proposition that a court will not consider a factual conclusion in determining whether an underlying complaint triggers the duty of an insurance carrier to defend its insured. To the contrary, our supreme court has on several occasions held that the allegations contained in an underlying complaint must be \u201cliberally construed in favor of the insured.\u201d Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125, 607 N.E.2d 1204 (1992); United States Fidelity & Guaranty Co., 144 Ill. 2d at 74.\nIn further support of its conclusion that count IX fails to allege \u201cbodily injury\u201d and, as a consequence, facts which bring Browne\u2019s underlying complaint potentially within the coverage afforded under Empire\u2019s policy, the majority implies that Browne\u2019s attorney conceded her injuries in count IX amounted to mental anguish and fear. Further on in its opinion, the majority states that \u201cBrowne concedes count IX alleges no physical injuries, only fear and anxiety.\u201d 335 Ill. App. 3d at 592. I take issue with both the majority\u2019s reliance upon the statements of Browne\u2019s attorney at oral argument to support its conclusion and its interpretation of those statements.\nFirst, I believe it is inappropriate to consider any extrinsic evidence which impacts on an ultimate fact upon which recovery in the underlying complaint is predicated. See Thornton v. Paul, 74 Ill. 2d 132, 157-59, 384 N.E.2d 335 (1978); Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 197, 355 N.E.2d 24 (1976). Empire\u2019s duty to defend should be determined by the allegations in Browne\u2019s underlying complaint, not by a statement made by her attorney in oral argument before this court. Second, the majority\u2019s statement that Browne\u2019s attorney conceded that the injuries for which she seeks recovery in count IX amount to mental anguish and fear is a bit of an overstatement. As the majority notes, in response to a question during oral argument relating to the allegation of physical injury in count IX, Browne\u2019s attorney responded: \u201cI think it is primarily mental anguish and psychological suffering.\u201d (Emphasis added.) \u201cPrimarily\u201d is not a synonym for \u201cexclusively.\u201d Rather, \u201cprimarily\u201d means \u201cfor the most part.\u201d Merriam-Webster\u2019s Collegiate Dictionary 925 (1998). It does not mean in the entirety. Therefore, even if one were to consider the statement made by Browne\u2019s attorney at oral argument, I do not believe that it constitutes the unqualified concession that the majority makes it out to be.\nAlthough the trial court correctly granted summary judgment in favor of the defendants in the first instance, once Browne filed her sixth amended complaint including count IX, I believe that the trial court erred in denying SCR\u2019s motion for reconsideration. As a consequence, I would reverse the judgment of the trial court and remand the matter for further proceedings.", "type": "dissent", "author": "JUSTICE HOFFMAN," } ], "attorneys": [ "Lee Pulliam and Bradley Daniel Birge, both of Pulliam & Birge, of Chicago, for appellant SCR Medical Transportation Services, Inc.", "Larry R. Rogers and Devon C. Bruce, both of Power, Rogers & Smith, P.C., of Chicago, for appellant Aisha Browne.", "Darlene Strickland, of Moore & Maisel, of Chicago, for appellees." ], "corrections": "", "head_matter": "SCR MEDICAL TRANSPORTATION SERVICES, INC., Plaintiff-Appellant, v. AISHA BROWNE, Defendant-Appellant (Empire Fire and Marine Insurance Company et al., Defendants-Appellees).\nFirst District (3rd Division)\nNos. 1 \u2014 01 \u2014 0645, 1 \u2014 01 \u2014 0965 cons.\nOpinion filed November 27, 2002.\nRehearing denied December 23, 2002.\nHOFFMAN, J., dissenting.\nLee Pulliam and Bradley Daniel Birge, both of Pulliam & Birge, of Chicago, for appellant SCR Medical Transportation Services, Inc.\nLarry R. Rogers and Devon C. Bruce, both of Power, Rogers & Smith, P.C., of Chicago, for appellant Aisha Browne.\nDarlene Strickland, of Moore & Maisel, of Chicago, for appellees." }, "file_name": "0585-01", "first_page_order": 603, "last_page_order": 613 }