Menard, Inc. v. Country Preferred Ins. Co.

• Decision Date: 18 July 2013
• Docket Number: Docket No. 3–12–0340.
• Citation: 2013 IL App (3d) 120340,372 Ill.Dec. 801,992 N.E.2d 643
• Parties: MENARD, INC., a Foreign Corporation, Plaintiff–Appellee, v. COUNTRY PREFERRED INSURANCE COMPANY, and Ruby L. Bohlen, an Individual, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2013 IL App (3d) 120340

992 N.E.2d 643

372 Ill.Dec. 801

MENARD, INC., a Foreign Corporation, Plaintiff–Appellee,

v.COUNTRY PREFERRED INSURANCE COMPANY, and Ruby L. Bohlen, an Individual, Defendants–Appellants.

Docket No. 3–12–0340.

Appellate Court of Illinois, Third District.

July 18, 2013.

Keith G. Carlson (argued), of Carlson Law Offices, of Chicago, for appellants.

W. Anthony Andrews (argued) and Ericka J. Thomas, both of Ottosen Britz Kelly Cooper Gilbert & Dinolfo, Ltd., of Naperville, for appellee.

OPINION

Justice McDADE delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion.

[372 Ill.Dec. 803]¶ 1 This case is an insurance coverage dispute between Country Preferred Insurance Company and Menard, Inc. (Menard), which operates a chain of retail hardware stores doing business as Menards (Menards). The dispute arose after a personal injury plaintiff, Ruby Bohlen, fell and injured herself on the premises of a Menards store while a Menards employee was loading bricks into her car. Menard sought coverage as an insured under Bohlen's personal automobile insurance policy with Country Preferred. For the reasons that follow, we affirm the trial court's determination that Menard is covered as an insured under the policy and that Country Preferred has a corresponding duty to defend Menard in the underlying personal injury lawsuit.

¶ 2 FACTS

¶ 3 I. Accident and Underlying Lawsuit

¶ 4 On July 1, 2009, Ruby Bohlen drove to a Menards store in Champaign, Illinois, to buy bricks. She picked out bricks from a stack and a Menards employee loaded the bricks into her vehicle. At some point during the loading process, Bohlen allegedly tripped and fell over some debris or packing material on the ground near her vehicle.

¶ 5 On May 6, 2010, Bohlen filed a premises liability suit against Menard in the circuit court of Champaign County. In her complaint, Bohlen alleged that she purchased gravel and 40 bricks from the Menards store in Champaign, and that she backed her car up to the stacks of bricks for a Menards employee to load bricks into her car. Bohlen alleged that she looked for good bricks from the stack, then placed them within reach of the Menards employee to load into her vehicle. While the Menards employee was loading her car with the bricks, Bohlen alleged, her foot became tangled in debris or packing materials near her vehicle and she fell, sustaining multiple injuries.

¶ 6 Bohlen's complaint alleged that Menard was negligent by breaching its duty to maintain safe premises for its customers. Specifically, Bohlen alleged that Menard caused the aisles, sidewalks, parking lots, entrances, and exits at the store to accumulate debris and packing material, and that Menard failed to properly remove these materials or maintain the areas in a safe condition. According to Bohlen, Menard's negligence in maintaining safe premises caused her to fall and injure herself.

¶ 7 II. Country Preferred Insurance Policy

¶ 8 At the time of the accident, Bohlen maintained an automobile insurance policy on her car through Country Preferred Insurance Company. In this policy, Country Preferred agreed to indemnify an “insured” when the insured must pay for property damage or bodily injuries sustained by any person. Country Preferred also agreed to defend against any claims or lawsuits alleging bodily injury and property damage covered by the policy. The policy further details what is covered:

“The bodily injury or property damages must be caused by an accident resulting from the ownership, maintenance or use of an insured vehicle, including loading and unloading or of any nonowned vehicle.”

The policy defines an “insured vehicle” as the vehicle listed on the declarations page, which is Bohlen's automobile. The policy defines an “insured” as “anyone using an insured vehicle with your permission or the permission of an adult relative.”

¶ 9 The policy also contains provisions for determining the payment when other insurance is also applicable to the loss. In a section titled “Other Insurance,” the policy states:

“If there is other applicable liability insurance for a loss covered by this policy, we will pay only our share of the loss. * * * However, any insurance we provide with respect to a vehicle you do not own will be excess over any other collectible insurance.”

Under the policy, “you” is specially defined to mean only the person named as an insured or members of that person's household. Bohlen is the only person named as an insured on the policy.

¶ 10 III. Coverage Dispute

¶ 11 After Bohlen filed her complaint, Menard requested that Country Preferred defend and indemnify Menard in the lawsuit; Country Preferred determined that Menard was not covered under the policy and refused the tender of defense. On November 12, 2010, Menard filed a declaratory action against Country Preferred in the circuit court of Will County. According to Menard, it was an authorized user of Bohlen's automobile and therefore qualified as an insured under her policy with Country Preferred. Menard sought a declaratory judgment finding that Country Preferred had a duty to indemnify and defend Menard in Bohlen's premises liability action.

¶ 12 Menard moved for partial summary judgment on the issue of whether Country Preferred had a duty to defend Menard, and the trial court ruled in its favor. The court determined that Menard qualified as an insured under the policy, because the injuries to Bohlen allegedly were caused by the “use” of her vehicle to load and unload bricks. The court reasoned that but for the use of the vehicle to load and unload the bricks, Bohlen would not have been injured. It also concluded that it was reasonable and foreseeable that Bohlen might be injured while loading the vehicle. Therefore, the court determined that Country Preferred had a duty to defend Menard.

¶ 13 In response to Country Preferred's motion to reconsider, the court reaffirmed its ruling that Country Preferred had a duty to defend Menard. In addition, the trial court held that Bohlen's policy was the primary insurance coverage, not just excess coverage as Country Preferred had contended. The court relied on the policy's language stating that “any insurance we provide with respect to a vehicle you do not own will be excess over any other collectible insurance.” The court found that because “you” was defined as only the policyholder, the provision providing for excess coverage did not apply to Menard as an insured.

¶ 14 After denying Country Preferred's motion to reconsider on April 2, 2012, the trial court granted a motion to add Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to its order, stating that no just reason existed to delay either enforcement or appeal of the order. Country Preferred filed a notice of appeal on April 25, 2012.

¶ 15 ANALYSIS

¶ 16 Country Preferred has raised two issues on appeal. First, it argues that the trial court erred in ruling that it has a duty to defend Menard in Bohlen's lawsuit. Second, it argues that if Menard is covered under its policy, then Country Preferred must provide excess coverage only, not primary coverage as the trial court ruled.

¶ 17 The case before us was decided pursuant to a grant of summary judgment. Summary judgment is appropriate where the pleadings, depositions, admissions and affidavits on file, viewed in the light most favorable to the nonmoving party, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2010). An order granting summary judgment is reviewed de novo. Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill.2d 102, 106, 316 Ill.Dec. 238, 879 N.E.2d 305 (2007).

¶ 18 When interpreting the language of an insurance contract, we apply the general rules governing the interpretation of contracts. Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill.2d 11, 17, 291 Ill.Dec. 269, 823 N.E.2d 561 (2005). “A court's primary objective in construing the language of an insurance policy is to ascertain and give effect to the intentions of the parties as expressed by the language of the policy.” Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill.2d 352, 362, 307 Ill.Dec. 653, 860 N.E.2d 307 (2006). Like other contracts, a court should construe an insurance policy as a whole, giving effect to every provision. Swiderski Electronics, 223 Ill.2d at 362, 307 Ill.Dec. 653, 860 N.E.2d 307. If the words used in the policy are clear and unambiguous, then the court must give them their plain and ordinary meaning. Central Illinois Light Co. v. Home Insurance Co., 213 Ill.2d 141, 153, 290 Ill.Dec. 155, 821 N.E.2d 206 (2004). If, on the other hand, the policy's terms are reasonably susceptible to more than one meaning, they are ambiguous and will be strictly construed against the drafter. Central Illinois Light Co., 213 Ill.2d at 153, 290 Ill.Dec. 155, 821 N.E.2d 206. The construction of an insurance policy is a question of law and thus is an appropriate subject for disposition by way of summary judgment. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 391, 189 Ill.Dec. 756, 620 N.E.2d 1073 (1993).

¶ 19 I. Duty to Defend

¶ 20 Bohlen's policy with Country Preferred defines an insured as “anyone using an insured vehicle with your permission or the permission of an adult relative.” Therefore, to determine if Menard is an insured, we must determine if Menard was “using” Bohlen's vehicle when it was loading bricks into Bohlen's car with her permission.

¶ 21 In its brief, Country Preferred seems to argue that Menard was not using the vehicle when it was loading bricks because “Menard[ ] clearly was not using the vehicle in a vehicle sense, i.e., operating and driving it.” However, we reject any argument that Illinois law equates “use” of the vehicle with only operating or driving, as ...