Mount Vernon Fire v. HEAVEN'S LITTLE HANDS, 1-02-1771.

• Court: United States Appellate Court of Illinois
• Citation: 277 Ill.Dec. 366,795 N.E.2d 1034
• Docket Number: No. 1-02-1771.,1-02-1771.
• Parties: MOUNT VERNON FIRE INSURANCE COMPANY, Plaintiff-Appellant and Counterdefendant, v. HEAVEN'S LITTLE HANDS DAY CARE, a not for profit Illinois Corporation, Leon Taylor, Individually, Minnie Taylor, Individually and as Employee and/or agent of Heaven's Little Hands Day Care, and Margaret Jones, Individually and as Special Executor of the Estate of Tyrelle Jones, deceased, Defendants-Appellees (Jefferson Insurance Company of New York, Intervenor and Defendant and Counterplaintiff-Appellee).
• Decision Date: 22 August 2003

795 N.E.2d 1034
277 Ill.Dec. 366

MOUNT VERNON FIRE INSURANCE COMPANY, Plaintiff-Appellant and Counterdefendant,
v.
HEAVEN'S LITTLE HANDS DAY CARE, a not for profit Illinois Corporation, Leon Taylor, Individually, Minnie Taylor, Individually and as Employee and/or agent of Heaven's Little Hands Day Care, and Margaret Jones, Individually and as Special Executor of the Estate of Tyrelle Jones, deceased, Defendants-Appellees (Jefferson Insurance Company of New York, Intervenor and Defendant and Counterplaintiff-Appellee)

No. 1-02-1771.

Appellate Court of Illinois, First District, Fifth Division.

August 22, 2003.

795 N.E.2d 1036

Tribler, Orpett & Meyer, P.C., Chicago (Mitchell A. Orpett and Kevin A. Titus, of counsel), for Appellant

Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers and David S. Osborne, of counsel), for Appellee.

Justice QUINN delivered the opinion of the court:

In this declaratory judgment action, Mount Vernon Fire Insurance Company (Mount Vernon) appeals the order of the trial court granting the motion for judgment on the pleadings filed by Jefferson Insurance Company of New York (Jefferson). This litigation stems from the death of Tyrelle Jones (Tyrelle), a nine-month-old infant who died as the result of heat stroke when left unattended in a van operated by Heaven's Little Hands Day Care (Heaven's Little Hands). In reliance upon exclusions contained in its policy with Heaven's Little Hands, Mount Vernon sought a declaration that it had no duty to defend or indemnify the day-care center or its employees in the lawsuit filed by Margaret Jones, Tyrelle's mother. Jefferson moved for judgment on the pleadings, which the trial court granted. After the trial court found there was no just reason for delaying enforcement or appeal of its ruling, Mount Vernon appealed. Based upon the automobile exclusions contained in its policy with Heaven's Little Hands, Mount Vernon contends that the trial court erred in granting Jefferson's motion for judgment on the pleadings. For the reasons set forth below, we affirm the judgment of the trial court.

BACKGROUND

In September 2000, Margaret, individually and as the special administrator of the estate of Tyrelle, filed a nine-count complaint against Heaven's Little Hands, Leon Taylor and Minnie Taylor. Leon was named as an employee of Heaven's Little Hands and Minnie as its manager. In the complaint, Margaret alleged that on August 29, 2000, Tyrelle and other infants and toddlers were picked up by a passenger van driven by Leon and owned and operated by Heaven's Little Hands. According to the complaint, Leon strapped Tyrelle in a car seat for his transport to Heaven's Little Hands. Once there, Leon removed all of the children from the van except Tyrelle, who died from heat stroke after being left unattended in the van for more than eight hours.

In her complaint, Margaret alleged negligent and careless acts against Leon based upon his: (1) failure to transport Tyrelle with the proper number of adult attendants; (2) failure to inspect the van after arriving at its destination to ensure that no children were left in the vehicle; (3) leaving Tyrelle unattended in the van; (4) failure to remove Tyrelle from the van; and (5) failure to maintain a safe environment for Tyrelle, who had been entrusted to Leon's care.

795 N.E.2d 1037

As for Minnie and Heaven's Little Hands, Margaret alleged that they had been careless and negligent based upon their: (1) failure to assign sufficient personnel to attend to children being transported to Heaven's Little Hands; (2) allowing use of the van when it had not been inspected and had not received an operating permit; (3) allowing Leon to operate the van when he had not satisfied driving requirements; (4) failure to monitor Leon in the performance of his duties; (5) failure to maintain a proper census of the children scheduled to attend Heaven's Little Hands; (6) failure to maintain proper procedures to ensure that children transported in the van were removed from the van and taken inside the day-care center; and (7) failure to maintain proper and sufficient procedures for the safety and care of children left in their care

On February 15, 2001, Mount Vernon filed a complaint for declaratory judgment naming Heaven's Little Hands, Leon, Minnie and Margaret as defendants. In the complaint, Mount Vernon sought a declaration of the trial court that Mount Vernon did not owe a duty to defend or indemnify for any claims relating to the Jones lawsuit. Mount Vernon argued that under coverage for both professional liability and bodily injury, its policy with Heaven's Little Hands provided for an exclusion for liability arising out of use of an auto.

After Mount Vernon filed its complaint for declaratory judgment, Jefferson, the auto insurance carrier for Heaven's Little Hands, was granted leave to intervene and filed a counterclaim for declaratory judgment against Mount Vernon. In its counterclaim, Jefferson stated that it was the insurer of Heaven's Little Hands under a commercial automobile policy and that Mount Vernon was an insurer of the day-care center under a commercial general liability (CGL) policy. Jefferson sought a declaration that Mount Vernon was obligated to share in the defense costs associated with the Jones litigation.

While the declaratory judgment action was proceeding, Margaret filed a first amended complaint, which contained allegations substantially similar to those in her original complaint. The primary distinction between the two complaints was that rather than alleging a single wrongful death action against Heaven's Little Hands as Margaret had done in her original complaint, the amended complaint alleged two counts of wrongful death. One was premised upon negligent operation of a motor vehicle and the other was premised upon negligent supervision.

On February 4, 2002, Jefferson filed a motion for judgment on the pleadings relating to its counterclaim against Mount Vernon. Margaret joined Jefferson's motion for judgment on its counterclaim. Later that month, Mount Vernon filed its motion for summary judgment on its complaint.

On May 21, 2002, the trial court entered a written order granting Jefferson's motion for judgment on the pleadings and denying Mount Vernon's motion for summary judgment. In its order, the trial court stated, "The court finds * * * that the death of Tyrelle Jones, deceased, was not the result of operation or use of, the loading of, or unloading of the vehicle, a van, but rather the child was left in the van because of negligence on the part of the driver of the van who had a responsibility for the safety of the child."

On June 12, 2002, the trial court entered an order stating that pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) there was no reason to delay enforcement or appeal of its ruling on Jefferson's motion on the pleadings. Mount Vernon now appeals.

795 N.E.2d 1038

ANALYSIS

Relating to professional coverage, the terms of the insurance agreement between Mount Vernon and Heaven's Little Hands provided:

"I. COVERAGE P. PROFESSIONAL LIABILITY

We will pay on behalf of you all sums which you shall become legally obligated to pay as damages because of liability arising out of any negligent act, error or omission in rendering or failure to render professional services * * * whether committed by you or any person employed by you or by others for whom you are legally responsible.

II. EXCLUSIONS

* * *

This Coverage Part does not apply:

* * *

(d) to liability arising out of the ownership, maintenance, operation, use, loading or unloading of any vehicle, watercraft or aircraft * * *."

Relating to coverage for bodily injury and property damage, the policy provided:

"Section I—Coverages

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies * * *."

The general liability coverage portion of the policy contains the following exclusion:

"2. Exclusions

g. Aircraft, Auto or Watercraft

`Bodily injury or `property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, `auto' or watercraft owned or operated by or rented or loaned to any insured. Use includes `loading or unloading'.

* * *

11. `Loading or unloading' means the handling of property:

a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or `auto';

b. While it is in or on an aircraft, watercraft or `auto'; or

c. While it is being moved from an aircraft, watercraft or `auto' to the place where it is finally delivered * * *."

A motion for judgment on the pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought in the complaint. Pekin Insurance Co. v. Allstate Insurance Co., 329 Ill.App.3d 46, 49, 263 Ill.Dec. 451, 768 N.E.2d 211 (2002). Although a motion for judgment on the pleadings is similar to a motion for summary judgment insofar as both suggest that no material issue of fact exists, a judgment on the pleadings must rely on the allegations of the complaint to establish the absence of material fact, whereas summary judgment may rely on affidavits and other documents. Waterfront Estates Development, Inc. v. City of Palos Hills, 232 Ill.App.3d 367, 371-72, 173 Ill.Dec. 667, 597 N.E.2d 641 (1992). In addition, the well-pleaded allegations in the nonmoving party's pleading and inferences therefrom are taken as true. See Mitchell v. Waddell, 189 Ill.App.3d 179, 182, 136 Ill.Dec. 486, 544 N.E.2d 1261 (1989). Our review of the disposition of a case on judgment on the pleadings is de novo. Pekin Insurance,

795 N.E.2d 1039

329 Ill.App.3d at 49, 263 Ill.Dec. 451, 768 N.E.2d 211

When construing an insurance policy, the primary function of this court is to ascertain and...