{ "id": 3715564, "name": "MAXUM INDEMNITY COMPANY, Plaintiff-Appellant, v. DON GILLETTE et al., d/b/a Gillette Parade Products, Defendants-Appellees", "name_abbreviation": "Maxum Indemnity Co. v. Don Gillette", "decision_date": "2010-11-22", "docket_number": "No. 3\u201410\u20140006", "first_page": "881", "last_page": "888", "citations": [ { "type": "official", "cite": "405 Ill. App. 3d 881" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "899 N.E.2d 1231", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "1238" } ], "opinion_index": 0 }, { "cite": "387 Ill. App. 3d 549", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4281965 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "556-57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/387/0549-01" ] }, { "cite": "632 N.E.2d 1039", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1042-43" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780291 ], "year": 1994, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0116-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1215" }, { "page": "1216" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "115" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "620 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "1077-79" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "391-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] } ], "analysis": { "cardinality": 660, "char_count": 15365, "ocr_confidence": 0.772, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.10855362609943668 }, "sha256": "848dc0c69907c446aba516d5c7f9a88606f0144e09dd8e58c4613603aab31bb9", "simhash": "1:c8e7bd4a2c5d2287", "word_count": 2471 }, "last_updated": "2023-07-14T15:12:02.087067+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MAXUM INDEMNITY COMPANY, Plaintiff-Appellant, v. DON GILLETTE et al., d/b/a Gillette Parade Products, Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McDADE\ndelivered the opinion of the court:\nThis appeal arises from a declaratory judgment action filed in the circuit court of La Salle County to resolve insurance coverage issues. Plaintiff, Maxum Indemnity Company, appeals arguing that the court erred in determining that it owed a duty to defend defendant Don and Betty Gillette, d/b/a Gillette Parade Products. We reverse and remand for further proceedings.\nFACTS\nDefendant is engaged in the business of preparing, providing and transporting parade floats for compensation. Plaintiff issued a commercial liability policy (the policy) to defendant with an effective policy period from October 10, 2007, through October 1, 2008. The policy provides in pertinent part:\n\u201ca. We will pay those sums that the Insured becomes legally obligated to pay as \u2018damages\u2019 because of \u2018bodily injury\u2019 or \u2018property damage\u2019 to which this insurance applies. We will have the right and duty to defend the Insured against any \u2018suit\u2019 seeking those \u2018damages.\u2019 However, we will have no duty to defend the Insured against any \u2018suit\u2019 seeking \u2018damages\u2019 for \u2018bodily injury\u2019 or \u2018property damage\u2019 to which this insurance does not apply.\n* * *\nb. This insurance policy applies to \u2018bodily injury\u2019 and \u2018property damage\u2019 only if:\n(1) The \u2018bodily injury\u2019 or \u2018property damage\u2019 is caused by an \u2018occurrence\u2019 that takes place in the \u2018coverage territory\u2019; and\n(2) The \u2018bodily injury\u2019 or \u2018property damage\u2019 takes place during the policy period.\u201d\nThe policy contains an \u201cAircraft, Auto or Watercraft\u201d exclusion (auto exclusion) which excludes coverage for:\n\u201c \u2018Bodily injury\u2019 or \u2018property damage\u2019 arising out of the ownership maintenance, use or entrustment to others of any aircraft, \u2018auto\u2019 or watercraft owned or operated by or rented or loaned to any Insured, including the supervision, hiring, employment, training or monitoring of, or failure to warn anyone in connection with, the ownership, maintenance, use or entrustment to others of any aircraft, \u2018auto\u2019 or watercraft. Use includes operation and \u2018loading or unloading.\u2019 \u201d\nThe policy defines \u201cauto\u201d as:\n\u201c[A] land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment.\u201d\nOn August 3, 2008, Cecilia Kaler was a passenger on a parade float owned and operated by defendant. The parade float at issue was being pulled by defendant, by way of its agent driver, on a public road. While being pulled, Kaler was thrown from the float.\nOn April 24, 2009, Kaler filed a lawsuit against defendant alleging that defendant was guilty of one or more of the following negligent acts:\n\u201ca. Provided a parade float in an unsafe, defective and dangerous condition in that there were no side rails to prevent passengers thereon from being thrown from the float,\nb. Provided a parade float in an unsafe, defective and dangerous condition in that there were insufficient hand rails for passengers to prevent them from being thrown from the float,\nc. Permitted and allowed *** KAILER [sic] to sit upon the defective and unsafe float when they knew or should have known that the float provided inadequate safety devices to prevent passengers from being thrown from the float,\nd. Failed to warn *** KAILER [sic] of the defective and unsafe condition of the float.\ne. Pulled the float on a public way when the float was in an unsafe condition so as to endanger passengers thereon,\nf. Failed to have the float equipped with a retaining device to prevent passengers from being thrown onto the pavement,\ng. Failed to provide a safe and competent driver.\u201d\nThe complaint also alleged that defendant, by and through their agent driver, was guilty of one or more of the following negligent acts:\n\u201ca. Pulled the float at a speed greater than reasonable,\nb. Pulled the float at an excessive speed so that when pulled over a bump in the road, caused the float to violently lunge and buck,\nc. Failed to decrease the speed at which the float was being pulled when he saw or should have seen the bumpy nature of the pavement ahead,\nd. Failed to keep a proper look-out ahead for pavement imperfections that could or might cause the float to lunge and buck,\ne. Failed to proceed cautiously when he saw or should have seen pavement imperfections ahead,\nf. Failed to see and observe pavement imperfections ahead,\ng. Swerved the float suddenly, when this movement could not be made with reasonable safety to passengers thereon.\u201d\nOn June 3, 2009, plaintiff filed a declaratory judgment action seeking a determination that it was not required to defend and/or indemnify defendant Gillette in the Kaler lawsuit. In lieu of answering plaintiff\u2019s complaint, defendant filed a motion for judgment on the pleadings. Upon hearing argument, the circuit court denied defendant\u2019s motion as to the duty to indemnify, finding that the issue was premature. The court, however, granted defendant\u2019s motion in part, finding that plaintiff owed a duty to defend defendant. Specifically, the court found that Kaler\u2019s complaint involved a parade float, not an auto. The court also noted that Kaler\u2019s complaint contained separate allegations pertaining to how the float was built, which did not relate in any way to an auto. Thus, the court concluded that the auto exclusion found in the policy did not apply. Plaintiff now appeals the court\u2019s finding that it owes a duty to defend defendant.\nANALYSIS\nPlaintiff argues that the circuit court erred in finding that it owed a duty to defend defendant. Plaintiff presents two specific arguments in support of this claim. First, plaintiff contends that the \u201cparade float clearly falls within the definition of an \u2018auto,\u2019 as *** defined by the policy.\u201d Plaintiff also contends that \u201cKaler\u2019s allegations that [defendant] provided the parade float in an alleged unsafe and defective condition, failed to warn of the unsafe conditions, and failed to provide a safe and competent driver to pull the float, are merely a rephrasing of the fact that the claimant\u2019s injuries arose out of the insured\u2019s use of the \u2018auto\u2019 [pulling the float], and thus, are not wholly independent of the negligent operation of the \u2018auto.\u2019 \u201d\nThe supreme court in Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 620 N.E.2d 1073 (1993), explained the principles courts of review should apply when called to interpret an insurance policy and determine whether an insurer owes a duty to defend its insured by its terms. Specifically, the court stated:\n\u201cThe construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court ***. [Citations.] In construing an insurance policy, the primary function of the court is to ascertain and enforce the intentions of the parties as expressed in the agreement. [Citations.] To ascertain the intent of the parties and the meaning of the words used in the insurance policy, the court must construe the policy as a whole, taking into account the type of insurance for which the parties have contracted, the risks undertaken and purchased, the subject matter that is insured and the purposes of the entire contract. [Citations.] If the words in the policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. [Citation.] The court will not search for ambiguity where there is none. [Citation.]\n^ ^\n*** [I]n determining whether an insurer has a duty to defend its insured, the court must look to allegations in the underlying complaint and compare these allegations to the relevant coverage provisions of the insurance policy. [Citation.] If the facts alleged in the underlying complaint fall within, or potentially within, the policy\u2019s coverage provisions, then the insurer has a duty to defend the insured in the underlying action. [Citation.] The insurer\u2019s duty to defend is much broader than its duty to indemnify its insured.\u201d Crum, 156 Ill. 2d at 391-94, 620 N.E.2d at 1077-79.\nInitially, we examine plaintiffs claim that the \u201cparade float clearly falls within the definition of an \u2018auto,\u2019 as *** defined by the policy.\u201d Specifically, plaintiff argues that \u201cat an absolute minimum, a parade float, which is pulled by a vehicle, would be categorized as a trailer, and thus would fall squarely within the definition of \u2018auto.\u2019 \u201d We agree.\nAgain, the policy defines \u201cauto\u201d as \u201ca land motor vehicle, trailer or semi-trailer designed for travel on public roads.\u201d (Emphasis added.) Because the policy does not define the term \u201ctrailer,\u201d we must give it its plain, ordinary and popular meaning. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 115, 607 N.E.2d 1204, 1215 (1992). \u201c \u2018 \u201cUsual and ordinary meaning\u201d has been stated variously to be that meaning which the particular language conveys to the popular mind, to most people, to the average, ordinary, normal [person], to a reasonable [person], to persons with usual and ordinary understanding, to a business[person], or to a lay [person].\u2019 \u201d Outboard Marine, 154 Ill. 2d at 115, 607 N.E.2d at 1216, quoting 2 Couch on Insurance 2d \u00a715:18 (rev. ed. 1984).\nMerriam-Webster\u2019s Online Dictionary (Merriam) defines the term \u201ctrailer\u201d as a \u201cnonautomotive vehicle designed to be hauled by road as *** a vehicle for transporting something.\u201d Merriam-Webster Online Dictionary 2010, www.merriam-webster.com/dictionary/trailer. Here, we find the float constitutes a \u201ctrailer\u201d as contemplated by the policy due to the fact that it was a nonautomotive vehicle being pulled on a public road by an automobile while transporting passengers and displays. We believe this fact also supports the conclusion that the float was designed \u201cfor travel on public roads\u201d as contemplated by the policy. The trial court itself recognized that trailers used for travel on public roads are frequently converted to parade floats. To the popular mind, to most people, to ordinary laypersons, \u201ctrailer\u201d connotes a parade float. Thus, we find the float falls within the definition of an \u201cauto\u201d as defined by the policy. This determination, however, does not end our inquiry as we are still left with the question of whether the underlying complaint\u2019s defective condition claims fall within the scope of the auto exclusion.\nWe begin with the principle that if the underlying complaint alleges 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. See National Union Fire Insurance Co. of Pittsburgh v. Glenview Park District, 158 Ill. 2d 116, 124, 632 N.E.2d 1039, 1042-43 (1994). Clearly, Kaler\u2019s claims regarding negligent operation of the \u201cauto\u2019Yfloat fall within the scope of the auto exclusion. Both the trial court and defendant, however, believe that plaintiff still owes a duty to defend due to the fact that Kaler\u2019s defective condition claims do not allege bodily injury arising \u201cout of the ownership maintenance, use or entrustment to others\u201d of the \u201cauto\u2019Yfloat. We disagree.\nWe find the recent holding in State Farm Fire & Casualty Co. v. Perez, 387 Ill. App. 3d 549, 899 N.E.2d 1231 (2008), to be instructive. The insurer in Perez sought a declaratory judgment that a homeowner\u2019s policy did not provide coverage for a civil action arising from a traffic accident. The driver was an insured under the homeowner\u2019s policy, but the policy excluded coverage for claims arising out of the use of a motor vehicle. The passenger filed a complaint against the driver alleging that the driver: (1) negligently operated the vehicle, and (2) negligently modified the vehicle\u2019s seats and restraint system, leading to the passenger\u2019s injuries in the accident. On appeal, the passenger argued that the motor vehicle exclusion found in the homeowner\u2019s policy was inapplicable because the negligent modification claim did not allege bodily injury arising out of the ownership, maintenance, use, loading or unloading of the driver\u2019s vehicle. Specifically, the passenger alleged that the negligent modification allegations were \u201cwholly independent\u201d from the allegation that the driver negligently operated the vehicle. In rejecting the passenger\u2019s argument the court stated:\n\u201cHere, [the passenger\u2019s] negligent modification claim against [the driver] arose from injuries she sustained while the car was being used in a manner consistent with its customary use. The alleged problem with the modified seats and safety restraint system, and [the driver\u2019s] alleged failure to warn [the passenger] about these alterations, only created a risk to [the passenger], as was the case here, when the car was in motion and used as a mode of transportation \u2014 an actual legitimate purpose of the car contemplated by the parties to the insurance contract. Because the exclusion in the homeowner\u2019s policy did not define the term \u2018use,\u2019 we must give it its plain, ordinary and popular meaning. We thus construe it in light of the reasonable person standard and note that a reasonable person would find the phrase \u2018use of a motor vehicle\u2019 to mean driving and operating a vehicle. We cannot think of a more inherent activity one may do with a car than to drive it. [Citation.] *** [The driver] was driving the car at the time of the accident, an activity that squarely falls under the \u2018use of a motor vehicle\u2019 language in the exclusion and was an actual legitimate purpose of the car. *** [A] causal relation existed here between [the passenger\u2019s] injuries and [the driver\u2019s] use of the car, causing her injuries to come within the policy\u2019s exclusion because the involvement of the car was not incidental to [the passenger\u2019s] injuries, it was the cause of her injuries. Further, the negligent modification claim was only a rephrasing of the fact that [the passenger\u2019s] injuries arose out of [the driver\u2019s] use of the car and, thus, was not wholly independent of the negligent operation of the car. Therefore, we hold that the exclusion applies and [the insurer] has no duty to defend [the driver] in the underlying lawsuit.\u201d Perez, 387 Ill. App. 3d at 556-57, 899 N.E.2d at 1238.\nHere, Kaler\u2019s defective condition claims arose from injuries she sustained while the \u201cauto\u2019Yfloat was being used in a manner consistent with its customary use. Kaler\u2019s entire complaint revolves around her being \u201cthrown from the float\u201d while the float was being \u201cpulled.\u201d In light of these alleged facts, we find the alleged defective condition only created a risk to her when the float was in motion. Clearly, a causal relation exists between Kaler\u2019s injuries and the use of the \u201cauto\u2019Yfloat. We therefore find that the defective condition claims are not wholly independent of the alleged negligent operation or use of the float. Accordingly, we hold that the auto exclusion applies and plaintiff has no duty to defend defendant in the underlying lawsuit.\nFor the foregoing reasons, we reverse the judgment of the circuit court of La Salle County and remand for further proceedings.\nReversed and remanded.\nCARTER and SCHMIDT, JJ., concur.", "type": "majority", "author": "JUSTICE McDADE" } ], "attorneys": [ "Daniel J. Cunningham and Kathy Karaboyas Malamis, both of Tressler LLP, of Chicago, for appellant.", "Darrell K. Seigler, of Ottawa, for appellees Don and Betty Gillette." ], "corrections": "", "head_matter": "MAXUM INDEMNITY COMPANY, Plaintiff-Appellant, v. DON GILLETTE et al., d/b/a Gillette Parade Products, Defendants-Appellees.\nThird District\nNo. 3\u201410\u20140006\nOpinion filed November 22, 2010.\nDaniel J. Cunningham and Kathy Karaboyas Malamis, both of Tressler LLP, of Chicago, for appellant.\nDarrell K. Seigler, of Ottawa, for appellees Don and Betty Gillette." }, "file_name": "0881-01", "first_page_order": 897, "last_page_order": 904 }