Am. Country Ins. Co. v. Chi. Carriage Cab Corp.

• Decision Date: 17 August 2012
• Docket Number: Nos. 1–11–0761,1–11–0833.,s. 1–11–0761
• Citation: 2012 IL App (1st) 110761,364 Ill.Dec. 295,976 N.E.2d 573
• Parties: AMERICAN COUNTRY INSURANCE COMPANY, Plaintiff–Appellee, v. CHICAGO CARRIAGE CAB CORPORATION, Akinwumi Williams, Chicago Elite Cab Corporation, and Steve Cox, Defendants–Appellants (Akinwumi Williams, Third–Party Plaintiff–Appellant, Hail Hacking Corporation, Third–Party Defendant–Appellee).
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 110761

976 N.E.2d 573

364 Ill.Dec. 295

AMERICAN COUNTRY INSURANCE COMPANY, Plaintiff–Appellee,

v.CHICAGO CARRIAGE CAB CORPORATION, Akinwumi Williams, Chicago Elite Cab Corporation, and Steve Cox, Defendants–Appellants (Akinwumi Williams, Third–Party Plaintiff–Appellant, Hail Hacking Corporation, Third–Party Defendant–Appellee).

Nos. 1–11–0761, 1–11–0833.

Appellate Court of Illinois,

First District, Sixth Division.

Aug. 17, 2012.

Richard L. Berdelle, Jr., of Richard L. Berdelle, Jr., P.C., Chicago, for appellants.

Law Offices of Maxwell H. Brusky, Batavia, for appellees.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

[364 Ill.Dec. 297]¶ 1 The trial court granted summary judgment in favor of plaintiff American Country Insurance Company in its action seeking a declaration that it had no duty to indemnify the passenger of an insured taxi for injuries sustained in the course of a robbery. In a previous tort suit, where the report of proceedings was included in the record of this proceeding, Steve Cox, the taxi passenger and one of the defendants in this declaratory action, testified that he gave the taxi driver directions to his destination, only to observe the driver ignore the directions and turn the wrong way down a one-way street. The driver stopped the taxi and a masked man entered, robbing and battering Cox with the participation of the driver.

¶ 2 Cox filed a tort complaint against Akinwumi Williams, the lessee of the taxi and a codefendant in this action, which alleges that the driver was Williams's friend, to whom Williams had loaned the taxi and who had no drivers license. The jury found Williams liable for negligent entrustment and awarded Cox damages. Hail Hacking Corp., the third-party defendant in this case, owned the medallion to the taxi and was the direct insured of the American Country policy. Williams filed a third-party complaint against Hail Hacking, arguing that, should the insurer deny coverage or pay less than the judgment entered in the underlying tort action, Hail Hacking should pay any portion of the judgment not satisfied by the insurer because the lease agreement required Hail Hacking to obtain liability insurance coverage to the lessee of the taxi. The trial court granted summary judgment to American Country and dismissed Williams's third-party complaint against Hail Hacking for failure to state a cause of action. Both Williams and Cox appeal. We affirm.

¶ 3 BACKGROUND

¶ 4 This litigation involved a taxi driven by Kingsley Njemanze (Kingsley). The taxi held medallion number 4855 and was leased to the defendant/third-party plaintiff, Akinwumi Williams, by Chicago Carriage Cab Corporation and Chicago Elite Cab Corporation, additional codefendants in the declaratory action. Williams allowed Kingsley to drive the taxi on the night in question. Hail Hacking Corporation, the third-party defendant, held the license and medallion for the taxi, and procured the insurance policy covering the taxi from the plaintiff, American Country Insurance Company.

¶ 5 Steve Cox's claims for assault and battery and negligent entrustment against Williams proceeded to a jury trial. Before the jury, Cox testified that on December 29, 2005, at approximately 2 a.m., he hailed a taxi at the corner of Randolph and Halsted Streets in Chicago. Cox described the vehicle as a maroon Ford Crown Victoria with its taxi dome illuminated. The taxi contained license and registration for a driver, along with a photograph. Cox instructed the driver to proceed north on Halsted to Milwaukee Avenue. Cox could hear the driver talking on a cell phone in a foreign language. Inexplicably, the driver turned the wrong way down Wayman Street, approximately three blocks before reaching Milwaukee Avenue. After turning down Wayman, the driver stopped the taxi in an intersecting alley. When the driver stopped the taxi, Cox spoke to the driver, but the driver did not respond. A moment later, a man wearing a ski mask entered the backseat of the taxi with Cox and stated, “This is a robbery.” Cox began struggling with the masked man in the backseat of the vehicle.

¶ 6 Following the crime, Cox identified Williams from a photo lineup as having some involvement in the incident. Cox explained that he “recognized him from the night of the incident.” He recognized Williams from the taxi license photo and testified he believed the masked robber was Williams based on the same build and complexion. Cox identified Kingsley in an in-person lineup as the taxi driver on the night of the robbery and assault. Cox identified the taxi as cab number 4855.

¶ 7 Williams testified that on December 29, 2005, he held a chauffeur's license. He had been driving a taxi for Chicago Carriage Cab Company since 2003. Williams testified that he leased a taxi on a weekly basis. He signed a lease from December 24, 2005, to December 31, 2005, for cab number 4855, a maroon Ford Crown Victoria. Williams testified he knew that, pursuant to both the lease and his chauffeur's license, he was the only one lawfully permitted to operate the taxi.

¶ 8 Williams testified that he nevertheless let his friend Kingsley drive the taxi during the lease period. Williams drove during the day, from 6 a.m. to 6 p.m., and allowed Kingsley to drive at night in exchange for $200 per week. Williams knew that Kingsley's driver's license was suspended. Williams left his photo and license posted in the taxi when Kingsley drove it, intending for passengers to think that someone with a valid license was driving. Williams testified that Kingsley drove the taxi on the night of the incident. Williams testified that he was not involved in the robbery of Cox; that he was at home when it occurred.

¶ 9 Detective Jody Longos, a Chicago police detective, testified and confirmed that Cox identified Williams and Kingsley in separate lineups. After Cox was unable to serve Kingsley with the tort complaint, Kingsley was dismissed as a defendant in the underlying lawsuit and is not involved in this appeal.

¶ 10 At the close of all the evidence in the jury trial, the trial court entered directed verdicts in favor of the two cab companies. At the jury instructions conference, with Williams as the only remaining defendant, Cox and Williams disagreed on how the jury should be instructed. The claim in count I was labeled “Negligence,” but alleged that Cox was assaulted, battered, and robbed in the rear of the taxi and on the street by an unknown person in a ski mask or Williams in a ski mask, and others. The claim in count II was labeled “Negligent Entrustment,” and alleged that Williams knew or should have known that Kingsley's license was invalid and that he would use the taxi in a manner that exposed others to unreasonable risks. The disagreement over the instructions concerned count I. Williams claimed it asserted an intentional tort or willful and wanton conduct. Cox argued that it alleged negligence. The trial court determined that negligence instructions on count I were appropriate. The jury was instructed as follows:

“The plaintiff claims that he was injured and sustained damage and defendant [ ] [was] negligent in one or more of the following respects: (A) failed to exercise the highest degree of care to protect his passengers from the danger of injury from assault of which he knew or should have anticipated from the facts and circumstances known to [him] by the passenger was traveling and alighting from the taxicab; (B) failed to exercise the highest degree of care to protect his passenger from assault, abuse, or intentional harm to [him] by an employee of the carrier then on duty; (C) failed to exercise the highest degree of care in selecting a place for the plaintiff to alight consistent with the mode of conveyance * * *; (D) knew or should have known that alighting plaintiff in the aforementioned area would place him in danger of being injured; (E) knew or should have known that Kingsley was to use Chicago Carriage Cab no. 4855 in a manner involving unreasonable risk of physical harm to others; and (F) knew or should have known that Kingsley was unfit to operate Chicago Carriage Cab no. 4855 was [ sic ] incompetent, inexperienced, unqualified, and reckless. The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.”

¶ 11 The court instructed the jury on negligent entrustment in count II as follows:

“In Count II, Steve Cox seeks to recover damages from the defendant, Mr. Williams, for negligent entrustment. In order to recover damages, the plaintiff has the burden of proving, first, that Kingsley was incompetent, inexperienced, or reckless driver; second, that Mr. Williams knew or should have known that Kingsley was incompetent, inexperienced, or reckless driver; third, that Mr. Williams entrusted his vehicle to Kingsley; and fourth, that the plaintiff was injured; and fifth, that the incompetency, inexperience, or recklessness of Kingsley as a driver was a proximate cause of plaintiff's injury.”

¶ 12 The jury returned a verdict in favor of Williams on count I and against Williams on count II. It awarded Cox $275,585.08 in damages. On May 18, 2010, the court denied Williams's posttrial motion for judgment notwithstanding the verdict. Williams did not appeal.

¶ 13 On February 23, 2010, American Country filed its declaratory judgment action to absolve it of any obligation to pay the damages the jury awarded to Cox. American Country alleges that the injuries Cox sustained were not covered by the policy issued to Hail Hacking, which covered Williams as lessee of the taxi as well. The complaint asserted five counts, only one of which is pertinent to the appeal before us. Count III asserted American Country owed no duty to indemnify Williams because the injuries to Cox “did not arise out of the ownership maintenance or use of an auto,” as provided by its policy. We set out the controlling provision:

“...