Illinois Farmers Insurance Co. v. Walker

2023 IL App (1st) 221115-U

• Court: Appellate Court of Illinois
• Decided: May 10, 2023
• Docket: 1-22-1115
• Status: Unpublished

Opinion

2023 IL App (1st) 221115-U No. 1-22-1115 Order filed May 10, 2023 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ILLINOIS FARMERS INSURANCE COMPANY and ) Appeal from the FARMERS INSURANCE EXCHANGE, ) Circuit Court of ) Cook County. Plaintiffs-Appellees, ) ) No. 20 CH 7484 v. ) ) Honorable KENNETH WALKER and CLAUDIA WALKER, ) Caroline K. Moreland, ) Judge, presiding. Defendants-Appellants. )

JUSTICE BURKE delivered the judgment of the court. Presiding Justice McBride and Justice Reyes concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s grant of summary judgment in favor of plaintiff insurance providers, which denied coverage for damage to the defendants’ vehicle and refused to defend and indemnify defendants in an underlying negligence lawsuit arising out of a collision involving the vehicle.

¶2 Defendants, Kenneth and Claudia Walker, a married couple, appeal the circuit court’s grant

of summary judgment in favor of their automobile and homeowner’s insurance providers, Illinois No. 1-22-1115

Farmers Insurance Company and Farmers Insurance Exchange (collectively, Farmers). 1 In

September 2020, Kenneth, who suffers from dementia and Alzheimer’s disease, drove Claudia’s

vehicle without her knowledge or permission and struck another vehicle on I-55. The driver of that

vehicle was injured and sued the Walkers for negligence in Will County. Farmers denied coverage

for damage to Claudia’s vehicle, refused to defend or indemnify the Walkers in the underlying

Will County lawsuit, and sought declaratory judgment in the circuit court of Cook County that the

denials of coverage were proper. The circuit court of Cook County granted summary judgment in

favor of Farmers. On appeal, the Walkers argue that Claudia is entitled to coverage for the damage

to her vehicle, defense, and indemnification. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 On September 28, 2020, Kenneth drove Claudia’s vehicle on I-55 in Will County and

struck a vehicle driven by Bernabe Padilla head-on. 2 Padilla was injured and sued the Walkers in

the circuit court of Will County, alleging that Kenneth caused the collision by negligently driving

southbound in the northbound lanes of I-55. Padilla also alleged that Claudia negligently allowed

Kenneth to drive her vehicle despite knowing that he was unable to drive safely, and that she failed

to restrict his access to the vehicle.

¶5 The Walkers tendered Padilla’s complaint to Farmers, seeking defense and indemnification

in Padilla’s lawsuit and coverage for damage to Claudia’s vehicle. The Walkers sought coverage

1 The insurance carriers’ complaint states that Illinois Farmers Insurance Company is an Illinois corporation and Farmers Insurance Exchange is a California corporation. However, the complaint and all other filings in this case refer to the two corporations collectively as “Farmers,” so we will do the same. 2 Shortly after Kenneth struck Padilla, Padilla was allegedly rear-ended by an individual named Ryan Ellerbrock. Ellerbrock was named as a defendant in Padilla’s underlying lawsuit and in the declaratory judgment action that gave rise to this appeal. However, neither Padilla nor Ellerbrock are parties to this appeal.

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under two insurance policies: an automobile policy issued to Claudia by Illinois Farmers Insurance

Company, and a homeowner’s policy issued to both Kenneth and Claudia by Farmers Insurance

Exchange. The automobile policy states that Farmers “will pay for loss to your insured car caused

by collision” and, in a separate comprehensive coverage provision, “accidental means except

collision.” It also states that “[l]oss caused by *** theft or larceny *** is not deemed loss caused

by collision.” Claudia signed a named driver exclusion, effective December 17, 2018, which names

Kenneth as the “Person(s) Restricted” and states that “all coverage afforded by this policy shall

not, at any time on or after date shown, apply to the operation of any automobile by the person(s)

named above. This policy will not provide coverage for any person who entrusts a vehicle to the

person(s) named above.”

¶6 The homeowner’s policy insures Kenneth and Claudia and their home in Sauk Village. It

states that Farmers will “pay those damages which an insured becomes legally obligated to pay

because of *** bodily injury resulting from an occurrence.” An “occurrence” is as “an accident

*** which occurs during the policy period, and which results in bodily injury, property damage or

personal injury during the policy period.” The homeowner’s policy also states that Farmers “will

defend an insured against any suit seeking damages covered under” this section. The policy

contains several paragraphs in its “Liability Exclusions” section. Paragraph 14 states that Farmers

does “not cover bodily injury, property damage or personal injury arising from, during the course

of or in connection with the ownership, maintenance, operation, use, occupancy, loading or

unloading, moving or movement, or entry or exit of any *** motor vehicle.” Paragraph 15 of the

“Liability Exclusions” section is titled “Entrustment and negligent supervision – aircraft, motor

vehicles, or watercraft.” It states:

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“[Farmers does] not cover bodily injury, property damage or personal injury arising from,

during the course of or in connection with:

a. the entrustment of any aircraft, motor vehicle or watercraft to any person;

b. the negligent supervision of any person regarding the maintenance, operation, use,

occupancy, loading or unloading, moving or movement, or entry or exit of any aircraft,

motor vehicle or watercraft.”

¶7 Farmers denied coverage for damage to Claudia’s vehicle pursuant to the automobile

policy’s named driver exclusion. Farmers also denied coverage for Padilla’s lawsuit under the

homeowner’s policy pursuant to both the motor vehicle exclusion of paragraph 14 and the

entrustment/negligent supervision exclusion of paragraph 15. Farmers then sued the Walkers and

Padilla in the circuit court of Cook County, seeking a declaratory judgment that its denials of

coverage were proper.

¶8 Farmers moved for summary judgment pursuant to section 2-1005 of the Code of Civil

Procedure (735 ILCS 5/2-1005 (West 2020)). Farmers argued that the automobile policy’s named

driver exclusion and the homeowner’s policy’s motor vehicle and entrustment/negligent

supervision exclusions precluded coverage for damage to Claudia’s vehicle and defense and

indemnification in Padilla’s lawsuit. In response, Kenneth conceded that he was not entitled to

defense or indemnification under the automobile policy due to the named driver exclusion.

However, Claudia argued that she was entitled to the fair market value of her vehicle because the

automobile policy provided coverage for losses caused by theft, and Kenneth “essentially stole[ ]”

her vehicle on September 28, 2020. Claudia also contended that some of Padilla’s theories of

liability against her did not allege negligent supervision or entrustment of her vehicle; rather, they

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alleged that she did not properly restrict Kenneth’s access to the vehicle. Therefore, Claudia

argued, at least some of Padilla’s claims did not fall under the homeowner’s policy’s

entrustment/negligent supervision exclusion. Finally, Claudia contended that the homeowner’s

policy excluded claims for entrustment of her vehicle, but not negligent entrustment, which is what

Padilla alleged.

¶9 Claudia’s affidavit is attached to the Walker’s summary judgment response. 3 She attests

that, prior to the collision with Padilla’s vehicle, Kenneth’s neurologist diagnosed him with

dementia and Alzheimer’s disease and advised Claudia not to let him drive. Claudia took the keys

to her vehicle from Kenneth, told him not to drive it, and removed him from the automobile policy

as a covered driver. Claudia did not give Kenneth permission to drive her vehicle on the date of

the collision and immediately called police when she realized that he took the vehicle. Kenneth

was found unfit to stand trial in a Will County misdemeanor case arising out of the collision with

Padilla’s vehicle. A Will County circuit court order finding Kenneth unfit to stand trial is also

attached to the Walkers’ summary judgment response.

¶ 10 The circuit court granted summary judgment in favor of Farmers. The court concluded that

(1) the automobile policy’s named driver exclusion precluded coverage for any damages arising

out of Kenneth’s operation of Claudia’s vehicle, including damage to the vehicle itself, (2) Farmers

had no duty to defend or indemnify the Walkers under the automobile policy or the homeowner’s

3 Claudia’s affidavit refers to the date of the collision on I-55 as September 20, 2020. Except for one line in Farmers’ summary judgment reply, everything in the record indicates that the collision occurred on September 28, 2020. The parties’ briefs do not suggest that there is a dispute about the date on which the collision occurred, so we infer that references to September 20, 2020, are simply typographical errors. There is no dispute that the incident occurred within the coverage period of the insurance policies at issue.

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policy, and (3) neither policy covered Padilla’s negligent entrustment and supervision claims

against Claudia because they arose out of Kenneth’s operation of the vehicle.

¶ 11 The Walkers timely appealed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, the Walkers contend that we should reverse the circuit court’s grant of summary

judgment because Farmers must provide coverage for the damage to Claudia’s vehicle and defend

and indemnify her in Padilla’s underlying lawsuit.

¶ 14 Summary judgment is warranted when the pleadings, admissions, depositions, and

affidavits on file, viewed in the light most favorable to the nonmoving party, establish that there

is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of

law. 735 ILCS 5/2-1005(c) (West 2020); Thounsavath v. State Farm Mutual Automobile Insurance

Co., 2018 IL 122558, ¶ 15. We review the circuit court’s grant of summary judgment de novo

(Thounsavath, 2018 IL 122558, ¶ 16), meaning that we perform the same analysis as the circuit

court (Galarza v. Direct Auto Insurance Co., 2022 IL App (1st) 211595, ¶ 33 (not yet released for

publication and subject to revision or withdrawal)). We also review this matter de novo because it

involves the interpretation of insurance policies, which is a question of law. See Pekin Insurance

Co. v. Wilson, 237 Ill. 2d 446, 455 (2010).

¶ 15 A court’s primary objective in interpreting 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 (2006). If the

language of an insurance policy is clear and unambiguous, it must be enforced as written unless

doing so would violate public policy. Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391,

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400 (2010). By contrast, if the terms of the policy are susceptible to more than one meaning, then

they are ambiguous and must be construed strictly against the insurer. Pekin Insurance Co., 237

Ill. 2d at 456. Provisions that limit or exclude coverage must be interpreted liberally in favor of

the insured and against the insurer. Id. A court must construe the policy as a whole and account

for the type of insurance purchased, the nature of the risks involved, and the overall purpose of the

contract. Id.

¶ 16 A. Vehicle Coverage

¶ 17 The Walkers first contend that the automobile policy provides coverage for the damage

that Claudia’s vehicle sustained in this incident. The Walkers argue that the named driver exclusion

excludes coverage for Kenneth driving only if Claudia entrusted her vehicle to him, and that

Claudia did not entrust her vehicle to Kenneth. Rather, Kenneth essentially “stole” the vehicle by

taking it without Claudia’s knowledge or permission. The automobile policy covers losses

resulting from theft, so, according to the Walkers, damage from Kenneth’s “theft” of the vehicle

is covered despite the named driver exclusion excluding him from all coverage.

¶ 18 A named driver exclusion eliminates all coverage if the person named in the exclusion

operates the otherwise covered vehicle. Mercury Indemnity Co. of Illinois v. Kim, 358 Ill. App. 3d

1, 5 n. 2 (2005). Illinois law generally permits named driver exclusions. American Access Casualty

Co. v. Reyes, 2013 IL 115601, ¶ 15; see also St. Paul Fire & Marine Insurance Co. v. Smith, 337

Ill. App. 3d 1054, 1062 (2003) (holding that a named driver exclusion in an automobile liability

insurance policy does not categorically contravene Illinois public policy).

¶ 19 The automobile policy provides coverage for damage to Claudia’s vehicle caused by

“collision” and, separately, any “accidental means except collision.” The comprehensive coverage

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provision that provides coverage for loss by “accidental means except collision” states that loss

due to theft is “not deemed loss caused by collision.” We interpret this language to mean that loss

caused by theft falls under coverage for loss caused by “accidental means.” So, if someone stole

Claudia’s vehicle and caused loss, the automobile policy would cover that loss. However, the

named driver exclusion states that “all coverage afforded by [the automobile] policy shall not, at

any time on or after date shown, apply to the operation of any automobile” by Kenneth. (Emphasis

added). This language is unambiguous and all-inclusive. It means that any loss caused by Kenneth

driving any vehicle does not fall under any of the automobile policy’s coverage provisions.

Therefore, the automobile policy does not provide coverage for the damage to Claudia’s vehicle

that Kenneth caused by driving it in this incident.

¶ 20 The Walkers do not contend that the named driver exclusion is ambiguous or that it violates

public policy. However, they argue that Kenneth’s actions amounted to a “theft” of Claudia’s

vehicle, which falls under the automobile policy’s comprehensive coverage provision, and that the

named driver exclusion does not apply because Claudia did not entrust her vehicle to Kenneth. We

disagree. The named driver exclusion consists of two sentences, which state:

“It is agreed that all coverage afforded by this policy shall not, at any time on or after date

shown, apply to the operation of any automobile by the person(s) named above [i.e.,

Kenneth]. This policy will not provide coverage for any person who entrusts a vehicle to

the person(s) named above.”

The first sentence excludes from coverage any scenario in which Kenneth operates any

automobile, regardless of whether anyone entrusted the automobile to him. The second sentence

excludes from coverage any person who entrusts a vehicle to Kenneth. The entrustment of a

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vehicle to Kenneth does not trigger the first sentence of the named driver exclusion and it is not

required for the named driver exclusion to apply. There is no indication that Kenneth’s “theft” of

a vehicle can somehow negate the named driver exclusion and bring him back within the policy’s

coverage. The named driver exclusion unambiguously applies to this case to exclude Kenneth’s

operation of Claudia’s vehicle on September 28, 2020, from coverage, regardless of whether he

“stole” the vehicle. Moreover, everything in the record indicates that the intention of the

contracting parties – Claudia and Farmers – was specifically not to provide automobile insurance

for Kenneth because he would not be driving at all. Accordingly, we affirm the circuit court’s grant

of summary judgment with respect to the denial of coverage for damage to Claudia’s vehicle.

¶ 21 B. Duties to Defend and Indemnify

¶ 22 The Walkers also contend that, under the homeowner’s policy, Farmers is obligated to

defend and indemnify Claudia in Padilla’s lawsuit. The Walkers concede that Kenneth “is not

entitled to indemnification or a defense by Farmers to the Padilla Complaint under the automobile

policy,” and they do not argue that Kenneth is entitled to defense or indemnification under the

homeowner’s policy. Therefore, we will only address these duties with respect to Claudia.

¶ 23 “ ‘To determine whether an insurer has a duty to defend its insured from a lawsuit, a court

must compare the facts alleged in the underlying complaint to the relevant provisions of the

insurance policy.’ ” Sheckler v. Auto-Owners Insurance Co., 2022 IL 128012, ¶ 31 (not yet

released for publication and subject to revision or withdrawal) (quoting Valley Forge Insurance

Co., 223 Ill. 2d at 363). “ ‘If the facts alleged in the underlying complaint fall within, or potentially

within, the policy’s coverage, the insurer’s duty to defend arises.’ ” Sentry Insurance v.

Continental Casualty Co., 2017 IL App (1st) 161785, ¶ 36 (quoting Outboard Marine Corp. v.

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Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108 (1992)). We must liberally construe the

underlying complaint in favor of coverage. Valley Forge Insurance Co., 223 Ill. 2d at 363. An

insurer may only refuse to defend a lawsuit against its insured when it is clear that the underlying

complaint fails to state facts that bring the case within, or potentially within, the policy’s coverage.

Id.

¶ 24 We begin by setting out the relevant portions of Padilla’s complaint and the homeowner’s

policy. See Sheckler, 2022 IL 128012, ¶ 31. Padilla’s complaint alleges one count of negligence

against Claudia, which claims that, at all relevant times, the vehicle that Kenneth drove “was

owned and/or controlled by” Claudia. Paragraph 25 of Padilla’s complaint sets out six theories of

negligence, alleging that Claudia (a) allowed Kenneth to operate her vehicle when she knew or

should have known that he “lacked the requisite competence or skill to do so,” (b) failed to restrict

Kenneth’s access to the vehicle, (c) failed to properly secure the keys to the vehicle to prevent

Kenneth from obtaining them, (d) failed to adequately supervise Kenneth, (e) failed to timely

report Kenneth and the vehicle as missing, and (f) failed to employ reasonable safeguards to

prevent Kenneth from accessing the vehicle. All these theories allege that Claudia knew or should

have known that Kenneth operating her vehicle posed an unreasonable risk of harm to others on

the road, including Padilla.

¶ 25 The section of the homeowner’s policy titled “Liability Coverage” states that Farmers “will

defend an insured against any suit seeking damages covered under Coverage E (Personal

Liability).” Coverage E states that Farmers “will pay those damages which an insured becomes

legally obligated to pay because of” “bodily injury resulting from an occurrence,” but does “not

have any duty to defend or settle any lawsuit involving actual, alleged, threatened or declared

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bodily injury or property damage not covered under this liability insurance.” The policy contains

two exclusionary provisions at issue: a motor vehicle exclusion in paragraph 14, and an

entrustment/negligent supervision exclusion in paragraph 15. We address each exclusion in turn.

¶ 26 1. Motor Vehicle Exclusion

¶ 27 Padilla’s complaint alleges that Kenneth was negligent in “operating,” i.e., driving,

Claudia’s vehicle. It also alleges that Claudia was negligent in supervising Kenneth and restricting

his access to the vehicle. Paragraph 14 of the homeowner’s policy, the motor vehicle exclusion,

states that Farmers does “not cover bodily injury, property damage or personal injury arising from,

during the course of or in connection with the ownership, maintenance, operation, use, occupancy,

loading or unloading, moving or movement, or entry or exit of any *** motor vehicle.” This

language unambiguously precludes coverage for Kenneth’s negligent driving of Claudia’s vehicle.

The Walkers do not contend otherwise.

¶ 28 The motor vehicle exclusion also precludes coverage for Padilla’s claims regarding

Claudia’s allegedly negligent supervision of Kenneth and the vehicle. For a negligent supervision

claim arising from an automobile accident to withstand a motor vehicle exclusion, the injury

alleged must be “wholly independent of any negligent operation of the [motor vehicle].” (Internal

quotations omitted.) Northbrook Property & Casualty Co. v. Transportation Joint Agreement, 194

Ill. 2d 96, 99 (2000); see also Allstate Property and Casualty Insurance Co. v. Mahoney, 2011 IL

App (2d) 101279, ¶ 18.

¶ 29 Padilla alleges that Claudia negligently allowed Kenneth to use the vehicle, failed to restrict

his access to the vehicle, failed to secure the keys to the vehicle, failed to report Kenneth and the

vehicle missing, and failed to employ safeguards to prevent Kenneth from accessing the vehicle.

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None of these allegations, standing alone, could have proximately caused Padilla’s injuries. For

example, if Kenneth obtained the keys to the vehicle due to Claudia’s negligence, but merely sat

in the vehicle while it was parked rather than driving it, then Padilla would have no claim against

the Walkers. As the Walkers’ reply brief acknowledges, “but for Kenneth Walker not being of

sound mind and suffering from dementia and Alzheimer’s disease, taking the vehicle, and causing

a heart-breaking, tragic accident, there would be no lawsuit, no injuries, no claim.” Padilla alleges

no act of negligent supervision by Claudia that does not depend on Kenneth’s negligence in driving

her vehicle. Because the success of Padilla’s negligent supervision claim against Claudia is

premised on Kenneth’s negligent operation of the vehicle, the motor vehicle exclusion precludes

coverage. See Allstate Insurance Co. v. Pruitt, 177 Ill. App. 3d 407, 413 (1988) (in accident arising

out of minor’s use of motorbike, motor vehicle exclusion barred coverage for negligent supervision

claim against father because father’s liability was contingent on the minor’s negligent operation

of the motorbike).

¶ 30 The Walkers argue that the motor vehicle exclusion is “ambiguous” because it does not

define how an injury “aris[es] from” or “in connection with” a motor vehicle. There is nothing

ambiguous about the terms “arising from” or “in connection with” a motor vehicle incident in this

context. Padilla was injured in a motor vehicle accident on I-55 that was directly caused by

Kenneth’s use of Claudia’s vehicle. That is exactly what the motor vehicle exclusion excludes

from coverage. Moreover, language is ambiguous when it is susceptible to multiple meanings (see

Pekin Insurance Co., 237 Ill. 2d at 456), but the Walkers do not explain what multiple meanings

are possible in this case. Rather, they contend that all of Padilla’s allegations against Claudia

“involve the keys to the vehicle” instead of the vehicle itself and are not subject to the motor

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vehicle exclusion at all. That is not an accurate description of Padilla’s complaint. Paragraph 25(c)

of the complaint involves the vehicle keys, but Padilla’s five other theories of liability against

Claudia do not. Accordingly, we affirm the circuit court’s grant of summary judgment on the

grounds that the homeowner’s policy’s motor vehicle exclusion precludes defense of Claudia for

Padilla’s claims.

¶ 31 2. Entrustment and Negligent Supervision Exclusion

¶ 32 The Walkers also contend that Padilla’s claims against Claudia are not subject to the

entrustment/negligent supervision exclusion of paragraph 15 of the homeowner’s policy.

Paragraph 15 addresses “[e]ntrustment and negligent supervision” of motor vehicles and states that

Farmers does “not cover bodily injury” or “personal injury arising from, during the course of or in

connection with” “the negligent supervision of any person regarding the” “use,” “operation,” or

“entry or exit of any” “motor vehicle.” That is a description of Padilla’s claims against Claudia.

Padilla’s complaint alleges that Claudia “[f]ailed to provide adequate supervision of” Kenneth

“when she knew, or should have known, that such supervision was required to prevent an

unreasonable risk of harm to others, including” Padilla. (Emphasis added.). Paragraph 15

unambiguously excludes such a negligent supervision claim.

¶ 33 The Walkers argue that four of Padilla’s theories of liability against Claudia are not actually

claims for “negligent entrustment” or “negligent supervision,” so paragraph 15 does not exclude

them from coverage. Specifically, the Walkers point to paragraphs 25(b), (c), (e), and (f) of

Padilla’s complaint, which respectively allege that Claudia failed to restrict Kenneth’s access to

the vehicle, secure the keys to the vehicle, report Kenneth and the vehicle missing, and employ

reasonable safeguards to prevent Kenneth from accessing the vehicle. Even if these theories of

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liability are not claims for negligent entrustment or supervision, they all depend upon Kenneth’s

use of the vehicle and resulting injury of Padilla. So, the motor vehicle exclusion precludes

coverage for them for the reasons explained above, even if the entrustment/negligent supervision

exclusion does not.

¶ 34 In the alternative, the Walkers contend that Padilla does allege negligent entrustment

against Claudia, and that paragraph 15 of the homeowner’s policy only excludes claims for

“entrustment” and “negligent supervision,” but not “negligent entrustment.” This distinction is

immaterial. Negligent supervision is “in essence the same theory” as negligent entrustment in this

context, because “both involve negligence in relation to the motor vehicle.” See State Farm Fire

& Casualty Co. v. Mann, 172 Ill. App. 3d 86, 92 n. 1 (1988). The homeowner’s policy

unambiguously excludes claims for negligent supervision, so it excludes the equivalent theory of

negligent entrustment as well. See id. We also note that Claudia’s affidavit establishes that she did

not entrust her vehicle to Kenneth negligently, intentionally, or otherwise.

¶ 35 Finally, because Farmers has no duty to defend Claudia in Padilla’s underlying lawsuit, we

also find that Farmers has no duty to indemnify her. See West Bend Mutual Insurance Co. v.

Rosemont Exposition Services, Inc., 378 Ill. App. 3d 478, 486 (2007) (explaining that, because the

duty to defend is broader than the duty to indemnify, where a court “ ‘properly holds that an insurer

has no duty to defend, the court may also hold that the insurer has no duty to indemnify.’ ”) (

quoting State Farm Fire & Casualty Co. v. Hatherly, 250 Ill. App. 3d 333, 336 (1993)).

Accordingly, we affirm the circuit court’s grant of summary judgment finding that Farmers does

not owe Claudia a duty of defense or indemnification in Padilla’s underlying lawsuit.

¶ 36 III. CONCLUSION

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¶ 37 For the foregoing reasons, we affirm the circuit court’s grant of summary judgment.

¶ 38 Affirmed.

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