{ "id": 4135780, "name": "PEKIN INSURANCE COMPANY et al., Plaintiffs-Appellants, v. FIDELITY AND GUARANTY INSURANCE COMPANY, Defendant-Appellee (Janice L. Holmes et al., Defendants)", "name_abbreviation": "Pekin Insurance v. Fidelity & Guaranty Insurance", "decision_date": "2005-03-14", "docket_number": "No. 4-04-0039", "first_page": "891", "last_page": "905", "citations": [ { "type": "official", "cite": "357 Ill. App. 3d 891" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "796 N.E.2d 1133", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1139", "parenthetical": "additional named insured required to tender defense directly to insurer rather to other insured named on policy" } ], "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719157 ], "year": 2003, "pin_cites": [ { "page": "101", "parenthetical": "additional named insured required to tender defense directly to insurer rather to other insured named on policy" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0093-01" ] }, { "cite": "755 N.E.2d 122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "134" } ], "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 981", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256349 ], "year": 2001, "pin_cites": [ { "page": "994-95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0981-01" ] }, { "cite": "701 N.E.2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "505" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209975 ], "year": 1998, "pin_cites": [ { "page": "329-30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0317-01" ] }, { "cite": "727 N.E.2d 211", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "213" }, { "page": "213" }, { "page": "213" }, { "page": "215" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 570", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224800 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "571" }, { "page": "571" }, { "page": "571" }, { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0570-01" ] }, { "cite": "757 N.E.2d 881", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 2001, "pin_cites": [ { "page": "885" }, { "page": "883" }, { "page": "884" }, { "page": "884" }, { "page": "885" }, { "page": "885" } ], "opinion_index": 0 }, { "cite": "197 Ill. 2d 369", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259034 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "376" }, { "page": "373" }, { "page": "374" }, { "page": "374" }, { "page": "375-76" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0369-01" ] }, { "cite": "752 N.E.2d 1212", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1215", "parenthetical": "where mutually repugnant \"other insurance\" clauses exist and one violates public policy, that insurer becomes primary insurer while other insurer is secondary" } ], "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171761 ], "year": 2001, "pin_cites": [ { "page": "307", "parenthetical": "where mutually repugnant \"other insurance\" clauses exist and one violates public policy, that insurer becomes primary insurer while other insurer is secondary" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0303-01" ] }, { "cite": "823 N.E.2d 561", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "214 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450488 ], "year": 2005, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0011-01" ] }, { "cite": "789 N.E.2d 407", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "338 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25346 ], "year": 2003, "pin_cites": [ { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0712-01" ] }, { "cite": "333 N.W2d 327", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1983, "pin_cites": [ { "page": "330" } ], "opinion_index": 0 }, { "cite": "123 Mich. App. 688", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2229116 ], "year": 1983, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/mich-app/123/0688-01" ] }, { "cite": "214 F.2d 523", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 537489 ], "weight": 5, "year": 1954, "pin_cites": [ { "page": "525", "parenthetical": "insurer of towing vehicle was allowed contribution from towed vehicle's insurance company because towing vehicle \"used\" towed vehicle" }, { "page": "524" }, { "page": "524" }, { "page": "524" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/f2d/214/0523-01" ] }, { "cite": "456 F.2d 238", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 738073 ], "year": 1972, "pin_cites": [ { "page": "239", "parenthetical": "suit for proration between insurance companies of towing vehicle and towed vehicle, finding both vehicles were being used by driver of towing vehicle" } ], "opinion_index": 0, "case_paths": [ "/f2d/456/0238-01" ] }, { "cite": "193 Colo. 519", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 4573769 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "522-23", "parenthetical": "declaratory judgment action where tow truck driver was found to be \"using\" towed vehicle so as to be covered by towed vehicle's insurance policy" }, { "page": "462", "parenthetical": "declaratory judgment action where tow truck driver was found to be \"using\" towed vehicle so as to be covered by towed vehicle's insurance policy" } ], "opinion_index": 0, "case_paths": [ "/colo/193/0519-01" ] }, { "cite": "400 A.2d 862", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1979, "pin_cites": [ { "page": "867", "parenthetical": "declaratory judgment action where towed vehicle's carrier was found to provide coverage because tow truck company and its driver were \"using\" towed vehicle within meaning of omnibus clause" } ], "opinion_index": 0 }, { "cite": "167 N.J. Super. 335", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 914606 ], "year": 1979, "pin_cites": [ { "page": "344", "parenthetical": "declaratory judgment action where towed vehicle's carrier was found to provide coverage because tow truck company and its driver were \"using\" towed vehicle within meaning of omnibus clause" } ], "opinion_index": 0, "case_paths": [ "/nj-super/167/0335-01" ] }, { "cite": "153 Ariz. 564", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1496670 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "568", "parenthetical": "declaratory judgment action where towed vehicle's carrier was forced to cover tow truck owner and driver after their carrier became insolvent because they were \"using\" towed vehicle at time of accident" }, { "page": "222", "parenthetical": "declaratory judgment action where towed vehicle's carrier was forced to cover tow truck owner and driver after their carrier became insolvent because they were \"using\" towed vehicle at time of accident" } ], "opinion_index": 0, "case_paths": [ "/ariz/153/0564-01" ] }, { "cite": "534 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "declaratory judgment action finding mired vehicle's coverage primary and towing vehicle's coverage excess where victim was killed while attaching chain between vehicles in preparation to tow" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497391 ], "year": 2000, "pin_cites": [ { "parenthetical": "declaratory judgment action finding mired vehicle's coverage primary and towing vehicle's coverage excess where victim was killed while attaching chain between vehicles in preparation to tow" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0602-01" ] }, { "cite": "326 So. 2d 911", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9672668 ], "weight": 5, "year": 1976, "pin_cites": [ { "page": "912" }, { "page": "912" }, { "page": "912" }, { "page": "914" }, { "page": "914" } ], "opinion_index": 0, "case_paths": [ "/so2d/326/0911-01" ] }, { "cite": "765 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "487", "parenthetical": "Quinn, J., specially concurring in part and dissenting in part" } ], "opinion_index": 0 }, { "cite": "328 Ill. App. 3d 301", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183271 ], "year": 2002, "pin_cites": [ { "page": "316", "parenthetical": "Quinn, J., specially concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0301-01" ] }, { "cite": "623 N.E.2d 806", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "807" }, { "page": "807" }, { "page": "811" }, { "page": "811" } ], "opinion_index": 0 }, { "cite": "251 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2960754 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "974" }, { "page": "976" }, { "page": "980" }, { "page": "980" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0973-01" ] }, { "cite": "328 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1975, "pin_cites": [ { "page": "375" }, { "page": "375" }, { "page": "375" }, { "page": "377" } ], "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5406604 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "367" }, { "page": "364" }, { "page": "364" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0363-01" ] }, { "cite": "785 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "6" } ], "opinion_index": 0 }, { "cite": "203 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799389 ], "year": 2003, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0141-01" ] }, { "cite": "722 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1232" } ], "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349582 ], "year": 2000, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0694-01" ] }, { "cite": "695 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "850", "parenthetical": "\"[a] provision in an automobile insurance policy extending liability coverage to persons who use the named insured's vehicle with his or her permission is commonly referred to as an omnibus clause\"" } ], "opinion_index": 0 }, { "cite": "182 Ill. 2d 240", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864529 ], "year": 1998, "pin_cites": [ { "page": "243-44", "parenthetical": "\"[a] provision in an automobile insurance policy extending liability coverage to persons who use the named insured's vehicle with his or her permission is commonly referred to as an omnibus clause\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0240-01" ] }, { "cite": "743 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "165-66" } ], "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 881", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026050 ], "year": 2000, "pin_cites": [ { "page": "885" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0881-01" ] }, { "cite": "764 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29937 ], "year": 2001, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0249-01" ] } ], "analysis": { "cardinality": 1045, "char_count": 33027, "ocr_confidence": 0.731, "pagerank": { "raw": 1.4726101934879112e-07, "percentile": 0.6595710792405272 }, "sha256": "7f2fcbe45abe9d48225fa945f5745d1d15c543d5565a9c37defbdc31ea0ce07f", "simhash": "1:996a13101566b7f4", "word_count": 5478 }, "last_updated": "2023-07-14T22:31:24.775353+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PEKIN INSURANCE COMPANY et al., Plaintiffs-Appellants, v. FIDELITY AND GUARANTY INSURANCE COMPANY, Defendant-Appellee (Janice L. Holmes et al., Defendants)." ], "opinions": [ { "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nIn February 1999, a business van owned by Sanfilippo and Sons, Inc. (delivery van owner), and insured by defendant Fidelity and Guaranty Insurance Company (Fidelity) broke down. The driver, Thomas Graff (delivery van driver), called for a tow and Brown\u2019s Vehicle Inspection (Brown\u2019s towing business), a business owned by Larrie D. Brown, responded with a tow truck insured by plaintiff Pekin Insurance Company (Pekin). Christopher Huckstep (tow truck driver), hitched the van to the tow truck and proceeded to drive toward Quincy, Illinois. During the trip, the van broke free, crossed into oncoming traffic, and injured the driver and passenger of an oncoming vehicle. The driver and passenger of the oncoming vehicle sued Larrie D. Brown individually and as Brown\u2019s towing business, as well as the tow truck driver, the delivery van owner, and the delivery van driver. Pekin, the insurer of Brown\u2019s towing business and its driver, initiated this declaratory judgment action against the delivery van owner\u2019s insurer, Fidelity, seeking a declaration that Fidelity owed a duty to defend Brown\u2019s towing business and its driver and that Pekin owed no duty to defend the delivery van owner and its driver. Pekin argues the trial court erred in granting judgment on the pleadings that (1) Brown\u2019s towing business and its driver were not covered by Fidelity as omnibus users of the delivery van; (2) the delivery van owner\u2019s insurer, Fidelity, did not breach its duty to defend Brown\u2019s towing business and its driver; (3) Pekin had a duty to defend the delivery van owner and its driver; and (4) Pekin breached its duty to defend the delivery van owner and its driver.\nWe conclude that, while Brown\u2019s towing business is covered by Fidelity as an omnibus user of the delivery van, Pekin\u2019s coverage for Brown\u2019s towing business\u2019s use of the delivery van is primary and Fidelity\u2019s coverage is secondary and excess over that of Pekin. We further find Brown\u2019s towing business has no right to \u201cdeselect\u201d its Pekin insurance policy.\nAccordingly, we reverse the trial court\u2019s judgment that (1) towing the delivery van did not constitute a use of the delivery van by Brown\u2019s towing business and its driver, (2) Brown\u2019s towing business and its driver are excluded from coverage by the business exclusion in the Fidelity policy, (3) Fidelity should be allowed an opportunity to demonstrate Brown\u2019s towing business\u2019s Pekin policy cannot be \u201cdeselected,\u201d and (4) Pekin breached its duty to defend the delivery van owner and its driver. We affirm the court\u2019s judgment that Pekin owed a duty to defend the delivery van owner and its driver.\nI. BACKGROUND\nThe facts are largely undisputed. On February 16, 1999, Graff operated a delivery van owned by Sanfilippo. The van broke down near Carthage, Illinois, and the delivery van driver called Brown\u2019s towing business and requested a tow to Quincy, Illinois. The tow truck driver, an employee of Brown\u2019s towing business, responded to the delivery van driver\u2019s request for a tow truck. After hitching the back of the van to the tow truck, the tow truck driver drove toward Quincy with the delivery van driver as a passenger in the tow truck.\nAs the two drove west on Illinois 61 toward Quincy, the van broke loose from the tow truck, crossed into the eastbound lane, and struck Janice L. Holmes\u2019s vehicle, in which Suzann R. Witt was a passenger, injuring both. As a result of the collision, in November 1999, Janice L. Holmes sued Larrie Brown individually and as Brown\u2019s towing business, as well as the tow truck driver, the delivery van owner, and the delivery van driver. In January 2000, Witt sued the same defendants.\nThe Witt and Holmes complaints alleged common-law negligence against Brown\u2019s towing business and its driver in failing to properly secure the delivery van to the tow such that it came unhitched. The complaints against the delivery van\u2019s driver allege common-law negligence in that, inter alia, he failed to set up the towing connections in a proper manner; engaged in a driveaway-towaway operation on a public highway with knowledge the hitch was not secure; continued to engage in the driveaway-towaway operation when he knew or should have known the hitch was not secure; and towed the van from the rear instead of the front, when he knew or should have known the only safe way to tow the van was from the front. The Witt complaint alleges the delivery van owner was negligent in failing to train, educate, or instruct its employees, including the delivery van driver, as to proper towing procedures in the event of a breakdown.\nBrown\u2019s towing business owned a $750,000 Pekin insurance policy on the tow truck. The delivery van owner had an insurance policy from Fidelity consisting of commercial liability insurance, employee benefits liability insurance, business auto insurance with a liability limit of $1 million, and commercial umbrella liability insurance with a limit of $25 million. In February 2003, Brown\u2019s towing business and its driver \u201cdeselected\u201d their coverage under the Pekin policy and targeted Fidelity.\nOn February 19, 2003, Brown\u2019s towing business\u2019s insurer, Pekin, filed a declaratory judgment action against Fidelity, seeking a declaration that (1) Brown\u2019s towing business was insured under the towed delivery van\u2019s Fidelity policy, (2) the tow truck driver was insured under the delivery van\u2019s policy, (3) Fidelity was Brown\u2019s towing business\u2019s and its driver\u2019s sole and exclusive insurer for the underlying actions, and (4) Fidelity breached its duty to defend by denying Brown\u2019s towing business\u2019s tender of defense. Fidelity filed a counterclaim, which it later amended to allege that (1) the delivery van owner and its driver were insured by the tow truck owner\u2019s Pekin policy; (2) Pekin breached its duty to defend the delivery van owner and its driver; (3) Brown\u2019s towing business was not a \u201cuser\u201d of the delivery van; (4) Brown\u2019s towing business was not insured under the delivery van\u2019s Fidelity policy; (5) Brown\u2019s towing business made an invalid \u201ctargeted tender\u201d; (6) even if Brown\u2019s towing business and its driver were \u201cusers\u201d of the delivery van, they were not covered by the delivery van\u2019s Fidelity policy because the detachment of the van was an expected or intended result; (7) even if Brown\u2019s towing business is covered by the delivery van\u2019s Fidelity policy, that coverage is excess over other insurer\u2019s policies, i.e., over Brown\u2019s towing business\u2019s Pekin policy; and (8) the delivery van\u2019s umbrella policy with Fidelity was not triggered.\nBoth Pekin and Fidelity filed motions for judgment on the pleadings. The trial court denied Pekin\u2019s motion and granted Fidelity\u2019s motion for judgment on the pleadings, finding (1) towing the delivery van did not constitute a \u201cuse\u201d of the delivery van by Brown\u2019s towing business and its driver; (2) Brown\u2019s towing business and its driver were not permissive users of the delivery van, and Fidelity did not have a duty to defend them; (3) Brown\u2019s towing business and its driver were excluded from coverage by the business exclusion in the Fidelity policy; (4) Fidelity should be allowed an opportunity to demonstrate that Brown\u2019s towing business\u2019s Pekin policy cannot be \u201cdeselected\u201d; (5) Pekin breached its duty to defend the delivery van owner and its driver; (6) Pekin owed a duty to defend the delivery van owner and its driver; and (7) Fidelity did not breach its duty to defend Brown\u2019s towing business and its driver. This appeal followed.\nII. ANALYSIS\nOn appeal, Pekin argues the trial court erred in finding (1) Brown\u2019s towing business and its driver were not covered by the delivery van\u2019s Fidelity policy as omnibus users of the delivery van; (2) Fidelity did not breach its duty to defend Brown\u2019s towing business and its driver; (3) Pekin, as insurer of the towing business, had a duty to defend the delivery van owner and its driver; and (4) Pekin breached its duty to defend the delivery van owner and its driver.\nA. Standard of Review\nA trial court should enter a judgment on the pleadings only if the record reveals no genuine issue of material fact and the moving party is entitled to the judgment as a matter of law. M.A.K. v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 198 Ill. 2d 249, 255, 764 N.E.2d 1, 4 (2001). We review the judgment de novo, asking whether any genuine issue of material fact exists and, if not, whether the prevailing party is entitled to a judgment as a matter of law. XLP Corp. v. County of Lake, 317 Ill. App. 3d 881, 885, 743 N.E.2d 162, 165-66 (2000).\nB. Permissive Use\n1. Delivery Van\u2019s Fidelity Policy\nPekin, as Brown\u2019s towing business\u2019s insurer, first argues Fidelity had a duty to defend Brown\u2019s towing business and its driver because, at the time of the accident, the tow truck driver was a permissive user or omnibus insured of the towed delivery van under the omnibus clause in the delivery van owner\u2019s insurance policy. See State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Group, 182 Ill. 2d 240, 243-44, 695 N.E.2d 848, 850 (1998) (\u201c[a] provision in an automobile insurance policy extending liability coverage to persons who use the named insured\u2019s vehicle with his or her permission is commonly referred to as an omnibus clause\u201d). Fidelity, in turn, argues it had no duty to defend Brown\u2019s towing business and its driver and, in fact, Pekin had a duty to defend the delivery van owner and its driver, as they were permissive users of the tow truck. The first issue is whether Fidelity owed a duty to defend Brown\u2019s towing business and its driver.\n\u201cWhen determining whether an insurance provider has a duty to defend its insured in a lawsuit, a court should generally apply an \u2018eight[-]corners rule\u2019 \u2014 that is, the court should compare the four corners of the underlying complaint with the four corners of the insurance contract and determine whether the facts alleged in the underlying complaint fall within, or potentially within, the insurance policy\u2019s coverage.\u201d Farmer\u2019s Automobile Insurance Ass\u2019n v. Country Mutual Insurance Co., 309 Ill. App. 3d 694, 698, 722 N.E.2d 1228, 1232 (2000).\nThe question of construction of an insurance policy is a question of law that is reviewed de novo. Guillen v. Potomac Insurance Co. of Illinois, 203 Ill. 2d 141, 149, 785 N.E.2d 1, 6 (2003).\nHere, the business-auto portion of the delivery van\u2019s Fidelity insurance policy provides, in pertinent part, as follows:\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\n* * *\n1. Who Is An Insured\nThe 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 ***.\n* * \u2756\n5. Other Insurance\na. For any covered \u2018auto\u2019 you own, this [c]overage [florm provides primary insurance. For any covered \u2018auto\u2019 you don\u2019t own, the insurance provided by this [c]overage [florm is excess over any other collectible insurance.\n* * *\nd. When this [c]overage [florm and any other [c]overage [florm or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the [flimit of [flnsurance of our [c]overage [florm bears to the total of the limits of all the [c] overage [florms and policies covering on the same basis.\u201d (Emphases added.)\nThe complaints in the underlying case allege common-law negligence against Brown\u2019s towing business, the tow truck driver, the deliveiy van owner, and the delivery van driver for essentially failing to properly secure the van to the tow such that it veered off and struck plaintiffs\u2019 vehicle.\nIllinois has defined \u201cuse\u201d of a vehicle under an omnibus clause as \u201coperation\u201d or \u201ccontrol of operation.\u201d For example, in Thomas v. Aetna Casualty & Surety Co., 28 Ill. App. 3d 363, 367, 328 N.E.2d 374, 375 (1975), two men jumped onto the hood of the driver\u2019s car as he was attempting to leave a party, obstructing his vision, whereupon he struck the victim with his car. The victim sued the driver of the car, as well as the two men who had jumped on the car. Thomas, 28 Ill. App. 3d at 364, 328 N.E.2d at 375. In the declaratory judgment actions among the defendants that followed, the insurance companies of the men who had jumped on the hood asked for a declaration that the vehicle owner\u2019s insurance provided primary coverage to the men who had jumped on the hood as \u201cusers\u201d of the vehicle. Thomas, 28 Ill. App. 3d at 364, 328 N.E.2d at 375. This court affirmed the denial of coverage to the men riding on the car and stated \u201ccontrol of operation\u201d is one of the factors that constitutes \u201cuse.\u201d Thomas, 28 Ill. App. 3d at 367, 328 N.E.2d at 377.\nIn Apcon Corp. v. Dana Trucking, Inc., 251 Ill. App. 3d 973, 974, 623 N.E.2d 806, 807 (1993), an Apcon employee directed, by hand signals, the backing of a truck owned by Dana Trucking and driven by a Dana employee when it struck and killed the plaintiff. The plaintiffs estate sued Apcon, and Apcon contended it was covered under Dana\u2019s insurance policy because, by directing the driver with hand signals, it was \u201cusing\u201d the truck with permission of the insured. Apcon, 251 Ill. App. 3d at 976, 623 N.E.2d at 807. This court disagreed, finding Apcon was not a \u201cuser\u201d of the Dana vehicle and stating \u201cin order to constitute a \u2018use\u2019 or be a \u2018user\u2019 under the policy, such as to be an insured, one must be in operation of the vehicle.\u201d Apcon, 251 Ill. App. 3d at 980, 623 N.E.2d at 811.\nThe exact issue of whether a tow truck \u201cuses\u201d or \u201coperates\u201d the vehicle it tows so as to be an omnibus insured under the towed vehicle\u2019s policy is one of first impression in this state. The majority of other jurisdictions, however, have held a tow truck owner uses the towed vehicle with the permission of the named insured, resulting in coverage under the towed vehicle\u2019s policy. Absent an Illinois determination on a point of law, the courts of this state will look to other jurisdictions as persuasive authority. Hawthorne v. Village of Olympia Fields, 328 Ill. App. 3d 301, 316, 765 N.E.2d 475, 487 (2002) (Quinn, J., specially concurring in part and dissenting in part).\nIn Howard v. Ponthieux, 326 So. 2d 911, 912 (La. App. 1976), the victims were injured when a truck broke loose from the tow truck, entered oncoming traffic, and collided with their vehicle. The plaintiffs sued the tow truck owner and driver, the driver of the towed vehicle before the towing, the towed vehicle\u2019s insurance company, and the passenger-victim\u2019s insurance company. Howard, 326 So. 2d at 912. At issue was whether the towed vehicle\u2019s insurance provided coverage for the accident. Howard, 326 So. 2d at 912. Although the court ultimately found no coverage existed because of a business exclusion in the policy, it observed that the term \u201cuse\u201d \u201c \u2018is not limited to those actually operating or driving the motor vehicle but extends to those who have such a right of control over the vehicle as to impose a legal responsibility upon them for the use of the vehicle.\u2019 \u201d Howard, 326 So. 2d at 914, quoting 7 Am. Jur. 2d Automobile Insurance \u00a7 110 (now 7 Am. Jur. 2d Automobile Insurance \u00a7 96 (1997)). The court concluded that the tow truck driver was \u201cunquestionably\u201d using the towed vehicle with the permission of the named insured. Howard, 326 So. 2d at 914; see also Dutch v. Harleysville Mutual Insurance Co., 139 N.C. App. 602, 534 S.E.2d 262 (2000) (declaratory judgment action finding mired vehicle\u2019s coverage primary and towing vehicle\u2019s coverage excess where victim was killed while attaching chain between vehicles in preparation to tow); Westfield Insurance Co. v. Aetna Life & Casualty Co., 153 Ariz. 564, 568, 739 P.2d 218, 222 (App. 1987) (declaratory judgment action where towed vehicle\u2019s carrier was forced to cover tow truck owner and driver after their carrier became insolvent because they were \u201cusing\u201d towed vehicle at time of accident); Hartford Accident & Indemnity Co. v. Travelers Insurance Co., 167 N.J. Super. 335, 344, 400 A.2d 862, 867 (1979) (declaratory judgment action where towed vehicle\u2019s carrier was found to provide coverage because tow truck company and its driver were \u201cusing\u201d towed vehicle within meaning of omnibus clause); Dairyland Insurance Co. v. Drum, 193 Colo. 519, 522-23, 568 P.2d 459, 462 (1977) (declaratory judgment action where tow truck driver was found to be \u201cusing\u201d towed vehicle so as to be covered by towed vehicle\u2019s insurance policy); State Automobile Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 456 F.2d 238, 239 (6th Cir. 1972) (suit for proration between insurance companies of towing vehicle and towed vehicle, finding both vehicles were being used by driver of towing vehicle); American Fire & Casualty Co. v. Allstate Ins. Co., 214 F.2d 523, 525 (4th Cir. 1954) (insurer of towing vehicle was allowed contribution from towed vehicle\u2019s insurance company because towing vehicle \u201cused\u201d towed vehicle).\nIn another case involving use of a towed vehicle, American Fire & Casualty, 214 F.2d at 524, the victims were injured as a result of a collision between their vehicle and another vehicle, which was towing a Jeep. The driver of the towing vehicle owned both the towing vehicle and the Jeep being towed and had separate insurance policies covering each. American Fire & Casualty, 214 F.2d at 524. The insurer for the towed Jeep was required to share the liability with the towing vehicle\u2019s insurer because the plaintiff\u2019s injuries arose out of ownership, maintenance, or use of the towed Jeep. American Fire & Casualty, 214 F.2d at 524. The court observed the Jeep\n\u201cwas moving on the road by means of its own running gear and although it was not employing its own power unit, it was subject to the vicissitudes and dangers of travel on the public highway and was being propelled under circumstances not infrequently encountered. It cannot be said that the employment of the vehicle in such a manner was so unusual as not to have been within the contemplation of the parties to the insurance contract, and it would violate the usual rule of liberal interpretation of such an agreement in favor of the insured, if it should be held that a car being transported under the circumstances was not actually in use.\u201d American Fire & Casualty, 214 F.2d at 525.\nTherefore, the facts as pleaded in the underlying complaint are sufficient to potentially fall within the delivery van owner\u2019s Fidelity policy coverage. However, to determine who owes the primary duty to defend, we must determine whether or on what basis Brown\u2019s towing business\u2019s Pekin policy provides coverage to (1) Brown\u2019s towing business and its driver and (2) the delivery van owner and its driver.\n2. Towing Business\u2019s Pekin Policy\nFidelity argues the towing business\u2019s insurer, Pekin, owed a duty to defend Fidelity\u2019s named insureds, the delivery van owner and driver, because they were permissive users of the tow truck within the omnibus clause in Brown\u2019s towing business\u2019s auto policy issued by Pekin. Pekin\u2019s policy with Brown\u2019s towing business provides, in pertinent part, as follows:\n\u201cPart IV \u2014 Liability Insurance\nA. We will pay\n1. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.\nB. Other Insurance\n1. For any covered auto you own this policy provides primary insurance. For any covered auto you don\u2019t own, the insurance provided by this policy is excess over any other collectible insurance.\n^ ^\n2. When two or more policies cover on the same basis either excess or primary, we will pay only our share. Our share is the proportion that the limit of our policy bears to the total of the limits of all the policies covering on the same basis.\u201d (Emphasis added.)\nThe complaints against the delivery van owner and its driver allege common-law negligence in towing the delivery van. Specifically, the complaints allege the delivery van driver attached the delivery van in preparation for towing. Again, to constitute a \u201cuse\u201d or be a \u201cuser\u201d such as to be insured under an omnibus clause as here, one must be in operation of the vehicle. Apcon, 251 Ill. App. 3d at 980, 623 N.E.2d at 811. Towing as a \u201cuse\u201d of an automobile extends to activities directly relating to the preparation for such towing or the termination thereof. Michigan Mutual Liability Co. v. Ohio Casualty Insurance Co., 123 Mich. App. 688, 693, 333 N.W2d 327, 330 (1983), citing 7 Am. Jur. 2d Automobile Insurance \u00a7 131 (now 7 Am. Jur. 2d Automobile Insurance \u00a7 95 (1997)).\nIn comparing the tow truck business\u2019s Pekin insurance policy with the underlying complaints, the complaints allege facts that potentially fall within the tow truck business\u2019s Pekin policy coverage. Although the delivery van driver did not drive the tow truck, the complaints allege negligence by him in hitching the van to the tow truck. Operating the tow truck\u2019s equipment to attach a vehicle for tow constitutes \u201coperation\u201d of the tow truck so as to potentially make the delivery van driver an insured under the towing business\u2019s Pekin policy. Accordingly, the facts, as pleaded, are sufficient to raise a question as to the delivery van driver\u2019s use of the tow truck and give rise to Pekin\u2019s duty to defend the delivery van owner and its driver.\nIn summary, the facts as pleaded in the complaints are sufficient to potentially provide coverage to (1) the delivery van owner and its driver by Pekin and (2) Brown\u2019s towing business and its driver by Fidelity. The question is which provides primary coverage in this situation.\nHere, both the Pekin policy and the Fidelity policy contain \u201cother insurance\u201d clauses, purporting to make their coverage excess in situations where the named insured does not own the vehicle being used. Where two insurance policies each purport to offer only secondary coverage, the insurance of the vehicle\u2019s owner is primary while that of the driver is secondary. State Farm Mutual Automobile Insurance Co. v. Hertz Claim Management Corp., 338 Ill. App. 3d 712, 717, 789 N.E.2d 407, 411 (2003). Generally, \u201c[i]f the policy language is unambiguous, the policy will be applied as written, unless it contravenes public policy.\u201d Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17, 823 N.E.2d 561, 564 (2005).\nHowever, allowing Pekin to become secondary coverage for its tow of the delivery van violates the public policy reflected in section 12 \u2014 606(d) of the Illinois Vehicle Code (625 ILCS 5/12 \u2014 606(d) (West 2002)), mandating liability insurance for tow trucks. See Fuller v. Snyder, 323 Ill. App. 3d 303, 307, 752 N.E.2d 1212, 1215 (2001) (where mutually repugnant \u201cother insurance\u201d clauses exist and one violates public policy, that insurer becomes primary insurer while other insurer is secondary). In light of the policy of mandatory insurance for tow trucks and the fact that Brown\u2019s towing business was engaged in the business of towing automobiles, a business based on the use of vehicles it does not own, we find Pekin is the primary insurer for the delivery van\u2019s use by Brown\u2019s towing business\u2019s driver and the delivery van driver. Therefore, Fidelity\u2019s coverage for the delivery van\u2019s use is secondary and excess over that of Pekin.\nBrown\u2019s towing business\u2019s insurer, Pekin, argues it owes no duty to defend or indemnify anyone because Brown\u2019s towing business and its driver \u201cdeselected\u201d their coverage under the Pekin policy and \u201ctargeted\u201d Fidelity. Fidelity responds that allowing Brown\u2019s towing business and its driver to deselect their statutory Pekin policy and target the delivery van owner\u2019s Fidelity policy violates the public policy of Illinois and is not required by Illinois law. We agree with Fidelity.\nThe principal purpose of mandatory automobile liability insurance is to protect the public by securing payment of its damages. State Farm Mutual Automobile Insurance Co. v. Smith, 197 Ill. 2d 369, 376, 757 N.E.2d 881, 885 (2001). Illinois\u2019s law requires that tow trucks have liability insurance policies. 625 ILCS 5/12 \u2014 606(d) (West 2002). Insurance is mandatory for tow trucks on public highways in order to protect the public from damage arising from the use of tow trucks. To allow the owner of a policy mandated by this statute to deselect that coverage in favor of the coverage of the vehicle it tows would render the statute and its purpose virtually meaningless.\nBrown\u2019s towing business\u2019s insurer, Pekin, argues Brown\u2019s towing business and its driver have an exclusive right to determine whether to trigger coverage under an available policy by making a selective tender of its claims and cites John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570, 727 N.E.2d 211 (2000), in support. In John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213, John Burns entered into a subcontracting agreement in which Sal Barba Asphalt Paving, Inc., would pave a parking lot. The agreement provided that Sal Barba would add Burns to its insurance contract with Indiana Insurance Company by way of an additional endorsement. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. After a victim slipped and fell in the lot and sued John Burns, Burns targeted Indiana instead of its own carrier. John Burns, 189 Ill. 2d at 571, 727 N.E.2d at 213. The court held where nothing in the policy limited John Burns\u2019s choice, it had a right to choose which insurer would be required to defend and indemnify it in the underlying action. John Burns, 189 Ill. 2d at 574, 727 N.E.2d at 215.\nJohn Burns is distinguishable. There, the contractor was named on both policies and both insurers were thus primary carriers. Moreover, John Burns\u2019s inclusion on the Indiana policy was specifically part of a negotiated construction contract with the subcontractor that owned the Indiana policy.\nIn the case sub judice, Brown\u2019s towing business and its driver were not named as insureds or additional insureds on the delivery van owner\u2019s Fidelity policy but were omnibus insured. Their status in relation to Fidelity was not a specific part of a contract between Brown\u2019s towing business and the delivery van\u2019s owner. Moreover, the \u201ctargeted-tender\u201d doctrine has thus far been limited primarily to the context of construction contracts involving a named additional insured. Therefore, John Burns does not require Brown\u2019s towing business and its driver be allowed to \u201cdeselect\u201d their own coverage in favor of the delivery van owner\u2019s Fidelity policy. Because Brown\u2019s towing business and its driver did not have a right to deselect their coverage under the Pekin policy and target the delivery van owner\u2019s Fidelity policy, the towing business\u2019s Pekin policy remains the primary insurer.\n3. Breach of Duty To Defend\nBecause Fidelity\u2019s coverage to Brown\u2019s towing business and its driver was secondary, it did not breach any duty to defend. However, Pekin, as the primary insurer, owed a defense to the delivery van driver, and we now consider whether it breached its duty to provide one.\nIn Cincinnati Cos. v. West American Insurance Co., 183 Ill. 2d 317, 329-30, 701 N.E.2d 499, 505 (1998), the court held that \u201cto have actual notice sufficient to locate and defend a suit, the insurer must know both that a cause of action has been filed and that the complaint falls within or potentially within the scope of the coverage of one of its policies.\u201d\nHowever, in Home Insurance Co. v. United States Fidelity & Guaranty Co., 324 Ill. App. 3d 981, 994-95, 755 N.E.2d 122, 134 (2001), the First District Appellate Court found Cincinnati distinguishable where the additional insured was neither named nor listed on the policy. See also American National Fire Insurance Co. v. National Union Fire Insurance Co. of Pittsburg, PA, 343 Ill. App. 3d 93, 101, 796 N.E.2d 1133, 1139 (2003) (additional named insured required to tender defense directly to insurer rather to other insured named on policy). Similarly, here the delivery van driver was not listed on the Pekin policy, so mere notice of the underlying cause of action alone did not necessarily put Pekin on notice that it owed a defense to its omnibus insured. Based on Home and American National, Pekin\u2019s duty to defend the delivery van driver in the instant case was never triggered because the delivery van driver never tendered defense of the action to Pekin.\nC. Business Exclusion\nPekin contends the trial court erred in finding the delivery van owner\u2019s Fidelity policy business exclusion precluded coverage for Brown\u2019s towing business and its driver. Pekin contends Fidelity\u2019s business exclusion is void as against public policy. We agree with Pekin.\nThe business exclusion in the delivery van owner\u2019s Fidelity policy provides the following are excluded from coverage: \u201cSomeone using a covered \u2018auto\u2019 while he or she is working in a business of selling, servicing, repairing, parking[,] or storing \u2018autos\u2019 unless that business is yours.\u201d Clearly, this exclusion applies to Brown\u2019s towing business as Brown\u2019s is someone working in a business and we have already found it \u201cused\u201d the delivery van.\nHowever, the Illinois Supreme Court found such a business exclusion violated public policy in State Farm, 197 Ill. 2d at 373, 757 N.E.2d at 883, where the relevant insurance provision denied coverage for an insured vehicle when that vehicle was \u201c \u2018BEING REPAIRED, SERVICED[,] OR USED BY ANY PERSON EMPLOYED OR ENGAGED IN ANY WAY IN A CAR BUSINESS\u2019 \u201d (emphasis omitted). The court held the automobile-business exclusion in the policy violated the public policy stated in section 7 \u2014 317(b)(2) of the Illinois Vehicle Code (625 ILCS 5/7 \u2014 317(b)(2) (West 1998)), stating that section 7 \u2014 317(b)(2) \u201cmandates that a motor vehicle liability policy, or a liability insurance policy, cover the named insured and any other person using the vehicle -with the named insured\u2019s permission.\u201d State Farm, 197 Ill. 2d at 374, 757 N.E.2d at 884. The court stated that, in violation of section 7 \u2014 317(b)(2), \u201ca provision written into an insurance policy that excludes coverage for persons engaged in an automobile business necessarily excludes coverage for persons who are using an insured\u2019s vehicle with the insured\u2019s express or implied permission.\u201d State Farm, 197 Ill. 2d at 374, 757 N.E.2d at 884.\n\u201cThe Illinois legislature has decided that the public policy of Illinois requires that an insurance company that issues a liability insurance policy or motor vehicle liability policy to an insured must cover the insured and any other person who has received the insured\u2019s express or implied permission to use the vehicle.\u201d State Farm, 197 Ill. 2d at 375-76, 757 N.E.2d at 885. The principal purpose of mandatory automobile liability insurance is to protect the public by securing payment of their damages. State Farm, 197 Ill. 2d at 376, 757 N.E.2d at 885.\nThe Fidelity business exclusion also violates that public policy. The fact that tow trucks are required to carry their own insurance does not mean that towed vehicles should be allowed to except tow trucks from their coverage. The policy of protecting the public is best served by having both the tow truck\u2019s policy and the towed vehicle\u2019s policy as available insurance.\nBecause the delivery van owner\u2019s Fidelity policy business exclusion as applied to Brown\u2019s towing business violates the public policy of Illinois as stated in State Farm, the trial court improperly denied Pekin judgment on the pleadings as to this claim.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment that towing the delivery van did not constitute a use of the delivery van by Brown\u2019s towing business and its driver, Brown\u2019s towing business and its driver were not permissive users of the delivery van, Brown\u2019s towing business and its driver are excluded from coverage by the business exclusion in the Fidelity policy, Fidelity should be allowed an opportunity to demonstrate Brown\u2019s towing business\u2019s Pekin policy cannot be \u201cdeselected,\u201d and Pekin breached its duty to defend the delivery van owner and its driver. We affirm the court\u2019s judgment that Pekin owed a duty to defend the delivery van owner and its driver and Fidelity did not breach its duty to defend Brown\u2019s towing business and its driver.\nAffirmed in part and reversed in part.\nCOOK, EJ, and APPLETON, J., concur.", "type": "majority", "author": "JUSTICE MYERSCOUGH" } ], "attorneys": [ "Robert Marc Chemers (argued) and Richard R. Gordon, both of Pretzel & Stouffer, Chtrd., of Chicago, for appellants.", "Thomas M. Hamilton (argued), Jennifer K. Gust, Christine L. Olson, and Timothy G. Shelton, all of Hinshaw & Culbertson, L.L.P, of Chicago, for appellee." ], "corrections": "", "head_matter": "PEKIN INSURANCE COMPANY et al., Plaintiffs-Appellants, v. FIDELITY AND GUARANTY INSURANCE COMPANY, Defendant-Appellee (Janice L. Holmes et al., Defendants).\nFourth District\nNo. 4-04-0039\nArgued October 20, 2004.\nOpinion filed March 14, 2005.\nRobert Marc Chemers (argued) and Richard R. Gordon, both of Pretzel & Stouffer, Chtrd., of Chicago, for appellants.\nThomas M. Hamilton (argued), Jennifer K. Gust, Christine L. Olson, and Timothy G. Shelton, all of Hinshaw & Culbertson, L.L.P, of Chicago, for appellee." }, "file_name": "0891-01", "first_page_order": 907, "last_page_order": 921 }