First Chicago Insurance Co. v. My Personal Taxi and Livery, Inc. , 2019 IL App (1st) 190164 ( 2019 )

2019 IL App (1st) 190164
FIRST DISTRICT
SIXTH DIVISION
October 11, 2019
No. 1-19-0164
FIRST CHICAGO INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
MY PERSONAL TAXI AND LIVERY, INC.; ) No. 17 CH 7778
RONALD DIXON; and JUAN RANGEL, )
)
Defendants )
) Honorable
(Ronald Dixon, Defendant-Appellant). ) Celia Gamrath,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Connors concurred in the judgment and opinion.
OPINION
¶1 This case concerns a declaratory judgment action by plaintiff-appellee First Chicago
Insurance Company (First Chicago) against defendant-appellant Ronald Dixon and defendants
My Personal Taxi and Livery Service, Inc. (Livery Service), and Juan Rangel. First Chicago
sought declarations that (1) First Chicago’s insurance coverage of Livery Service did not
encompass injuries to Livery Service passenger Dixon allegedly caused by the negligence of
Rangel, Livery Service’s agent, in assisting or escorting Dixon to a hospital entrance so that
(2) First Chicago had no duty to defend Livery Service or Rangel regarding Dixon’s claims.
Upon cross-motions for summary judgment by First Chicago and Dixon, the court granted
summary judgment for First Chicago. Dixon appeals, contending that the court erred in denying
him summary judgment and granting summary judgment for First Chicago. For the reasons
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stated below, we reverse the judgment of the circuit court and enter judgment in favor of Dixon
upon his summary judgment motion.
¶2 I. JURISDICTION
¶3 Upon cross-motions by First Chicago and Dixon, having entered defaults against Livery
Service and Rangel, the court granted summary judgment for First Chicago on January 4, 2019.
Dixon filed his notice of appeal on January 22, 2019. Accordingly, this court has jurisdiction
over this matter pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art.
VI, § 6) and Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017).
¶4 II. BACKGROUND
¶5 Dixon brought a personal injury action (lawsuit) against Livery Service, circuit court No.
16-L-66042, in June 2016 and later amended it to add Rangel as a defendant. Dixon alleged that
Livery Service provided nonemergency medical transportation to the public, including disabled
persons. Livery Service, through its agent Rangel, transported Dixon, who is legally blind, from
his home to a medical appointment at a Department of Veteran Affairs (VA) hospital on
February 9, 2016. As Rangel escorted or assisted Dixon to the hospital entrance, Rangel
allegedly caused Dixon to walk into a cement pillar. Dixon alleged that Livery Service and
Rangel owed him a duty of ordinary care in transporting and escorting him and then breached
that duty so that Dixon was injured as a proximate result.
¶6 First Chicago brought its declaratory judgment action (declaratory action) against Dixon,
Livery Service, and Rangel in June 2017 and amended it thereafter. Livery Service had a
business automobile insurance policy (policy) from First Chicago in effect on February 9, 2016,
and a copy of the policy was attached to the complaint. First Chicago noted that Dixon’s lawsuit
alleged that he was injured by an agent of Livery Service who was assisting or escorting him to a
hospital entrance while transporting Dixon to a medical appointment. First Chicago argued that
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Dixon’s alleged injuries were not caused by an accident “resulting from the ownership,
maintenance or use of a covered ‘auto’ ” as provided in the policy. First Chicago thus sought a
judgment that it was not obligated to defend Livery Service or Rangel regarding Dixon’s claims
against Livery Service and Rangel.
¶7 Dixon appeared and answered in the declaratory action. Dixon admitted that Livery
Service had the policy from First Chicago and that Dixon made the relevant allegations in his
lawsuit. Dixon denied that his alleged injuries were not caused by an accident “resulting from the
ownership, maintenance or use of a covered ‘auto’ ” as provided in the policy and denied that
First Chicago had no duty to defend Livery Service and Rangel.
¶8 With Livery Service and Rangel having been served with summons but not having
appeared and First Chicago having filed motions for default against Livery Service and Rangel,
the court found Livery Service and Rangel in default in the declaratory action in June 2018.
¶9 First Chicago filed its summary judgment motion in July 2018. First Chicago did not
dispute that Rangel drove Dixon to a medical appointment on February 9, 2016, in a vehicle
owned by Livery Service and leased to Rangel. Attached to the motion in support of the
aforesaid were the depositions of Dixon and Livery Service co-owner Deidre Pinnick. First
Chicago did not dispute that Dixon was blind and that Rangel escorted him to the hospital
entrance, and First Chicago noted Dixon’s deposition testimony that Rangel “slung” Dixon into a
pole while escorting him. First Chicago argued that the policy covered injuries “resulting from
the ownership, maintenance or use of a covered auto” but the insured vehicle was not being
operated at the time of the alleged injury, nor was either Dixon or Rangel inside the vehicle at
that time. First Chicago argued that various cases interpreting similar insurance policy language
required a causal relationship between the injury and ownership, maintenance, or use of the
vehicle for the policy to cover the injury. It argued that Dixon’s alleged injury by Rangel did not
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arise during use of the Livery Service vehicle because Rangel “had already transported Mr.
Dixon to his destination and Mr. Dixon had already exited the taxicab before the alleged injury
occurred.” In other words, the relationship between Dixon’s alleged injury and use of the insured
vehicle was “merely incidental” and “too remote.” First Chicago argued that the “policy insures
the risk of taxicab accidents and not all accidents to which the taxicab can be tied” and that
holding otherwise “would unduly and improperly equate any potential liability [of Livery
Service and Rangel] with the coverage afforded under the policy.”
¶ 10 Dixon replied to First Chicago’s summary judgment motion, arguing that Livery Service
transported veterans, including blind veterans, to medical appointments at a VA hospital
pursuant to an agreement with the VA providing in relevant part that blind veterans were to be
met at their door and escorted to the livery vehicle and then escorted from the vehicle into the
VA facility. A copy of said agreement was attached, and Dixon pointed to similar deposition
testimony by Pinnick. Dixon noted that the policy was a business auto policy covering multiple
Livery Service vehicles and multiple named Livery Service drivers including Rangel, and that
the policy did not define a “user.” Dixon argued that the policy expressly excluded damages
from handling property to or from an insured vehicle but did not similarly exclude damages from
escorting passengers to or from an insured vehicle. He also argued that the policy did not exclude
loading or unloading from use as Livery Service’s nonautomobile policy provided.
¶ 11 Dixon argued that the cases cited in First Chicago’s motion were distinguishable, except
for a 1942 case concerning the allegedly negligent carriage of ice from an ice truck. He argued
that other caselaw, including Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391 (2010),
interpreted similar insurance policies so that “user” includes the passengers of vehicles as well as
drivers and “use” means employing a vehicle for some purpose of a user. Thus, using a vehicle is
broader than operating it and encompasses loading and unloading personal property from a
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vehicle. Dixon argued that he was a user of the insured Livery Service vehicle, using it to reach
his VA appointment, which included being escorted into the VA facility. Dixon also argued that
the policy’s term “use” was ambiguous and should be construed strictly against First Chicago
and liberally in Dixon’s favor.
¶ 12 Dixon filed his cross-motion for summary judgment in August 2018, incorporating by
reference all arguments and evidence from his response to First Chicago’s motion.
¶ 13 First Chicago replied in support of its motion and responded to Dixon’s motion, arguing
that the cases cited by Dixon concerning “use” are distinguishable.
¶ 14 Dixon replied in support of his motion and against First Chicago’s motion, arguing that
the caselaw he cited, including Schultz, was controlling.
¶ 15 On January 4, 2019, the court granted First Chicago’s summary judgment motion and
denied Dixon’s summary judgment motion. The court noted that it was considering cross-
motions for summary judgment and that Livery Service and Rangel “have not participated in this
action.” The court compared the allegations of Dixon’s lawsuit as amended to the policy and
concluded that “even a liberal construction of the *** policy does not support a duty to defend”
Livery Service or Rangel. The court acknowledged Dixon’s caselaw that use of an insured
vehicle includes more than operation and encompasses passengers but found that there must be a
rational connection of the vehicle to the alleged use and concluded that Dixon’s use of the Livery
Service vehicle ended when he exited the vehicle. “To find coverage for an accident that
occurred after the auto was no longer being utilized would expand coverage under the business
auto policy exponentially and transform it into a comprehensive commercial general liability
policy, beyond the contemplation of the parties.” The court noted that there was “no indication
First Chicago had any knowledge of” the agreement between the VA and Livery Service and
found that it was the “intent of the parties to the insurance contract—not the contract with the
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VA—that is relevant to this coverage analysis.” In other words, “Rangel’s walking Dixon to the
entrance of [the VA hospital] was a distinct and independent act incidental from the use of the
auto and not a risk for which the parties contemplated coverage under the” policy. This appeal
timely followed.
¶ 16 III. ANALYSIS
¶ 17 On appeal, Dixon contends that the trial court erred in denying him summary judgment
and granting summary judgment for First Chicago. He notes the VA contract with Livery Service
and that the policy was not a general automobile policy but a business policy specifically for
livery vehicles and argues that the policy covers transporting a livery passenger such as Dixon to
the final place of delivery or destination, here the VA hospital entrance.
¶ 18 Summary judgment should be granted only where the pleadings, depositions, admissions,
and affidavits on file show that there is no genuine issue of material fact and the moving party is
clearly entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). Both
plaintiffs and defendants may file for summary judgment. Id. § 2-1005(a), (b). When parties file
cross-motions for summary judgment, they agree that there is no genuine issue of material fact
and that the case may be resolved as a matter of law. Oswald v. Hamer, 2018 IL 122203, ¶ 9.
Our review of a grant of summary judgment is de novo. Id.
¶ 19 Construction of the terms of an insurance policy is a question of law properly decided on
a motion for summary judgment. Thounsavath v. State Farm Mutual Automobile Insurance Co.,
2018 IL 122558, ¶ 15. An insurance policy is a contract, interpreted according to the rules of
contract interpretation, and the courts must ascertain and give effect to the intention of the parties
as expressed in the policy language. Id. ¶ 17. The clear and unambiguous terms of an insurance
policy must be enforced as written unless doing so would violate public policy. Id.
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¶ 20 An insurer has a duty to defend its insured when the underlying complaint against the
insured alleges facts that fall within, or potentially within, the policy coverage. Acuity Insurance
Co. v. 950 West Huron Condominium Ass’n, 2019 IL App (1st) 180743, ¶ 24. To determine if a
loss is covered under a policy, a court must compare the allegations in the underlying complaint
to the policy language, liberally construing both in favor of the insured while giving the policy
language its plain and ordinary meaning. Id.; Illinois Municipal League Risk Management Ass’n
v. City of Collinsville, 2018 IL App (4th) 170015, ¶ 30.
¶ 21 In a case involving the construction of a motor vehicle liability insurance policy and the
statutes governing such policies, our supreme court has stated that “the use of an automobile has
been held to denote its employment for some purpose of the user,” noting that using a vehicle is
broader than operating one. Schultz, 237 Ill. 2d at 401. “One uses an automobile whenever such
use ‘is rationally connected to the vehicle for the purpose of providing transportation or
satisfying some other related need of the user.’ ” Id. at 401-02 (quoting Jaquez v. National
Continental Insurance Co., 835 A.2d 309, 315 (N.J. 2003)). “[F]or purposes of motor vehicle
insurance policies, ‘use’ is not limited to operating or driving a motor vehicle. It also includes
riding in one as a passenger.” Id. at 402. While our supreme court refrained from addressing the
point as it did not need to in resolving the case before it, it noted that
“[s]ome courts have concluded that one can be ‘using’ a motor vehicle even when one is
not occupying it as either a driver or passenger at the time the injury is sustained.
[Citation.] It has been held, for example, that one is ‘using’ a vehicle, for purposes of
insurance coverage, when loading personal belongings into it or unloading personal
belongings from it.” Id. at 402 n.3 (citing Travelers Insurance Co. v. Aetna Casualty &
Surety Co., 491 S.W.2d 363, 365 (Tenn. 1973)).
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¶ 22 Following Schultz, this court has stated that “we reject any argument that Illinois law
equates ‘use’ of the vehicle with only operating or driving, as ‘use’ has a broader definition.”
Menard, Inc. v. Country Preferred Insurance Co., 2013 IL App (3d) 120340, ¶ 21. To find
coverage under an insurance policy, there must be some causal connection between the injury
and the use of the vehicle, though strict proximate causation is not required. Id. ¶ 28. This court
applies a reasonable contemplation test, finding coverage when an injury results from an activity
that presented the type of risk that the parties reasonably contemplated would be covered by the
policy. Id. This court must determine whether the alleged negligent act that caused the alleged
injury was a reasonable incident or consequence of the use of the insured vehicle. Id.
¶ 23 Here, Livery Service’s policy from First Chicago covers an accident “resulting from the
*** use of a covered ‘auto.’ ” We see no reason not to follow the aforesaid caselaw that use of a
vehicle is broader than operation for purposes of a vehicular insurance policy. First Chicago
offers various reasons for distinguishing these cases from the instant case, including that the
circumstances in Schultz were not the same as the instant case. However, that does not alter a
matter we consider key: the proposition that use is broader than operation is (1) eminently logical
according to the plain and ordinary meaning of both words, as explained by the Schultz court,
and (2) highlights that First Chicago could have, but did not, use “operation” or other clearly
narrower language in place of “use” in the relevant and above-quoted policy provision. Well
before Schultz, this court reversed summary judgment for an insurer and found that coverage for
injuries “[a]rising out of the ownership, maintenance or use of the owned automobile” includes
“use of the automobile in transporting and/or dropping off the children and her leaving of [a
child] in the car for a moment” because doing so was “ ‘reasonably consistent with the inherent
nature of the vehicle ***’ and, therefore, within the meaning of the term ‘use’ in the policy.”
(Emphases in original and internal quotation marks omitted.) Constitutional Casualty Co. v.
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Soder, 281 Ill. App. 3d 657, 660-61 (1996) (quoting Tasker v. Larson, 439 N.W.2d 159, 161
(Wis. Ct. App. 1989)). Thus, the broad meaning of the term “use” should have been firmly in the
contemplation of First Chicago in drafting the policy at issue.
¶ 24 Notably, the policy at issue does not expressly exclude from coverage injuries arising
from the “loading” or “unloading” of passengers, though First Chicago insured Livery Service’s
vehicles knowing that Livery Service and its agents would use those vehicles for livery service;
that is to transport people from their starting points to their destinations for hire. The policy does
exclude bodily injury and property damage “resulting from the handling of property [b]efore it is
moved from the place where it is accepted by the ‘insured’ for movement into or onto the
covered ‘auto’; or [a]fter it is moved from the covered ‘auto’ to the place where it is finally
delivered by the ‘insured.’ ” We reach two conclusions from this exclusion. First and foremost,
First Chicago was aware in drafting this policy of how to draft an exclusion for loading and
unloading but did not expressly exclude the “loading” or “unloading” of passengers.
¶ 25 Secondly, since the property loading and unloading exclusion only excludes injuries and
damage before Livery Service accepts property and after Livery Service delivers it, First
Chicago’s policy language does not exclude injuries or damage arising after Livery Service
accepted property and before Livery Service delivered it even if that acceptance or delivery was
outside the insured vehicle. Thus, the policy does not limit coverage of use of an insured vehicle
to operation of the vehicle nor exclude coverage for injuries or damage occurring outside the
vehicle. In Travelers Insurance Co., as noted by our supreme court in Schultz, the supreme court
of Tennessee concluded that use of an insured vehicle includes loading and unloading unless the
policy expressly provides otherwise. Travelers Insurance Co., 491 S.W.2d at 365. It also noted
that, similar to the property loading and unloading exclusion in this policy, “the entire process
involved in moving the goods is covered” “[i]n commercial situations *** from the moment the
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insured takes possession until delivered at the point of destination.” Id. While our supreme court
stated that it need not reach the issue of loading and unloading in Schultz, we do, and we agree
with the Travelers Insurance court.
¶ 26 This opinion addresses only whether First Chicago has a duty to defend in the underlying
lawsuit; the issue of indemnification is premature because the underlying lawsuit has not been
decided. That said, we do not consider it remote to the livery driver-passenger relationship that a
driver who just drove a passenger to the vicinity of his destination would assist a passenger who
needs assistance—whether blind, disabled, or merely overladen with luggage—the remainder of
the way to his destination. We do not consider such assistance as occurring “after that work has
been completed or abandoned” where the work of a livery driver is transporting a passenger
door-to-door. Stated another way, assisting a passenger the last few steps from the livery vehicle
to the destination itself is rationally connected to, and a reasonable consequence of, the livery
driver and passenger using the livery vehicle to take the passenger most of the way there.
¶ 27 None of the aforesaid can be said about a driver stabbing his passenger either inside
(State Farm Mutual Automobile Insurance Co. v. Pfiel, 304 Ill. App. 3d 831 (1999)) or outside
(United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533 (1994)) an insured
vehicle as in cases cited by First Chicago. Citing Schultz for the proposition that use of a vehicle
is broader than operation of a vehicle for insurance purposes, this court has stated that “in State
Farm Mutual ***, the vehicle[ ] involved merely provided the site where criminal activity
occurred and thus the court held that the injuries did not arise out of the operation, maintenance
or use of the insured vehicle.” Kim v. State Farm Mutual Automobile Insurance Co., 2014 IL
App (1st) 131235, ¶ 21. First Chicago also cites other cases decided before Schultz, including a
1942 opinion. Having found Schultz to be at least persuasive, we reach the same conclusion we
did in Kim: “The facts of these cases are distinguishable from the case at bar.” Id.
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¶ 28 The policy excludes bodily injury or property damage “arising out of your work after that
work has been completed or abandoned,” where “your work” includes “[w]ork or operations
performed by you or on your behalf.” For this exclusion, work is “deemed completed at the
earliest of *** [w]hen all of the work called for in your contract has been completed.” In this
case, Livery Service’s agreement with the VA called for assisting passengers like Dixon to the
hospital entrance, so that it is at least arguable that Livery Service’s work was not complete
regarding Dixon until Rangel did so. Moreover, it is reasonable to contemplate that a livery
driver would assist such a passenger as part of completing transportation of the passenger in the
insured livery vehicle whether or not the driver was legally or contractually obligated to do so.
¶ 29 Lastly, we reject First Chicago’s contention that there is no causal connection between
the insured Livery Service vehicle Rangel operated and Dixon’s injury. Dixon would not have
been assisted or escorted to the hospital entrance by Rangel when he was allegedly injured due to
Rangel’s negligence had Dixon not been using Livery Service’s vehicle insured by First Chicago
to go to the hospital. Stated another way, Rangel would not have allegedly injured Dixon had
Rangel not been using the insured vehicle to take Dixon to the hospital for hire. Dixon was not
being assisted to the hospital entrance by a random person nor was Rangel assisting a random
person to the hospital entrance, but Rangel and Dixon were completing the action of using the
insured vehicle to take Dixon to the hospital for hire.
¶ 30 IV. CONCLUSION
¶ 31 Accordingly, we reverse the judgment of the circuit court and enter judgment for Dixon
upon his summary judgment motion, only in that First Chicago has a duty to defend Livery
Service and Rangel regarding Dixon’s claims in case No. 16-L-66042 arising from the incident
of February 9, 2016.
¶ 32 Reversed.
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No. 1-19-0164
Cite as: First Chicago Insurance Co. v. My Personal Taxi and Livery,
Inc., 2019 IL App (1st) 190164
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-
7778; the Hon. Celia Gamrath, Judge, presiding.
Attorneys James P. Costello, Ronald J. Dixon, and Michael E. Crane, of
for Costello, McMahon, Burke & Murphy, Ltd., of Chicago, for
Appellant: appellant.
Attorneys Cynthia Ramirez, of Leahy, Eisenberg & Fraenkel, Ltd., of
for Chicago, for appellee.
Appellee:
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