Maxum Indemnity Co. v. Don Gillette

940 N.E.2d 78, 405 Ill. App. 3d 881, 346 Ill. Dec. 78, 2010 Ill. App. LEXIS 1265
CourtAppellate Court of Illinois
DecidedNovember 22, 2010
Docket3-10-0006
StatusPublished
Cited by9 cases

This text of 940 N.E.2d 78 (Maxum Indemnity Co. v. Don Gillette) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maxum Indemnity Co. v. Don Gillette, 940 N.E.2d 78, 405 Ill. App. 3d 881, 346 Ill. Dec. 78, 2010 Ill. App. LEXIS 1265 (Ill. Ct. App. 2010).

Opinion

JUSTICE McDADE

delivered the opinion of the court:

This appeal arises from a declaratory judgment action filed in the circuit court of La Salle County to resolve insurance coverage issues. Plaintiff, Maxum Indemnity Company, appeals arguing that the court erred in determining that it owed a duty to defend defendant Don and Betty Gillette, d/b/a Gillette Parade Products. We reverse and remand for further proceedings.

FACTS

Defendant is engaged in the business of preparing, providing and transporting parade floats for compensation. Plaintiff issued a commercial liability policy (the policy) to defendant with an effective policy period from October 10, 2007, through October 1, 2008. The policy provides in pertinent part:

“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. We will have the right and duty to defend the Insured against any ‘suit’ seeking those ‘damages.’ However, we will have no duty to defend the Insured against any ‘suit’ seeking ‘damages’ for ‘bodily injury’ or ‘property damage’ to which this insurance does not apply.

* * *

b. This insurance policy applies to ‘bodily injury’ and ‘property damage’ only if:

(1) The ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place in the ‘coverage territory’; and

(2) The ‘bodily injury’ or ‘property damage’ takes place during the policy period.”

The policy contains an “Aircraft, Auto or Watercraft” exclusion (auto exclusion) which excludes coverage for:

“ ‘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, including the supervision, hiring, employment, training or monitoring of, or failure to warn anyone in connection with, the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft. Use includes operation and ‘loading or unloading.’ ”

The policy defines “auto” as:

“[A] land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment.”

On August 3, 2008, Cecilia Kaler was a passenger on a parade float owned and operated by defendant. The parade float at issue was being pulled by defendant, by way of its agent driver, on a public road. While being pulled, Kaler was thrown from the float.

On April 24, 2009, Kaler filed a lawsuit against defendant alleging that defendant was guilty of one or more of the following negligent acts:

“a. Provided a parade float in an unsafe, defective and dangerous condition in that there were no side rails to prevent passengers thereon from being thrown from the float,

b. Provided a parade float in an unsafe, defective and dangerous condition in that there were insufficient hand rails for passengers to prevent them from being thrown from the float,

c. Permitted and allowed *** KAILER [sic] to sit upon the defective and unsafe float when they knew or should have known that the float provided inadequate safety devices to prevent passengers from being thrown from the float,

d. Failed to warn *** KAILER [sic] of the defective and unsafe condition of the float.

e. Pulled the float on a public way when the float was in an unsafe condition so as to endanger passengers thereon,

f. Failed to have the float equipped with a retaining device to prevent passengers from being thrown onto the pavement,

g. Failed to provide a safe and competent driver.”

The complaint also alleged that defendant, by and through their agent driver, was guilty of one or more of the following negligent acts:

“a. Pulled the float at a speed greater than reasonable,

b. Pulled the float at an excessive speed so that when pulled over a bump in the road, caused the float to violently lunge and buck,

c. Failed to decrease the speed at which the float was being pulled when he saw or should have seen the bumpy nature of the pavement ahead,

d. Failed to keep a proper look-out ahead for pavement imperfections that could or might cause the float to lunge and buck,

e. Failed to proceed cautiously when he saw or should have seen pavement imperfections ahead,

f. Failed to see and observe pavement imperfections ahead,

g. Swerved the float suddenly, when this movement could not be made with reasonable safety to passengers thereon.”

On June 3, 2009, plaintiff filed a declaratory judgment action seeking a determination that it was not required to defend and/or indemnify defendant Gillette in the Kaler lawsuit. In lieu of answering plaintiff’s complaint, defendant filed a motion for judgment on the pleadings. Upon hearing argument, the circuit court denied defendant’s motion as to the duty to indemnify, finding that the issue was premature. The court, however, granted defendant’s motion in part, finding that plaintiff owed a duty to defend defendant. Specifically, the court found that Kaler’s complaint involved a parade float, not an auto. The court also noted that Kaler’s complaint contained separate allegations pertaining to how the float was built, which did not relate in any way to an auto. Thus, the court concluded that the auto exclusion found in the policy did not apply. Plaintiff now appeals the court’s finding that it owes a duty to defend defendant.

ANALYSIS

Plaintiff argues that the circuit court erred in finding that it owed a duty to defend defendant. Plaintiff presents two specific arguments in support of this claim. First, plaintiff contends that the “parade float clearly falls within the definition of an ‘auto,’ as *** defined by the policy.” Plaintiff also contends that “Kaler’s allegations that [defendant] provided the parade float in an alleged unsafe and defective condition, failed to warn of the unsafe conditions, and failed to provide a safe and competent driver to pull the float, are merely a rephrasing of the fact that the claimant’s injuries arose out of the insured’s use of the ‘auto’ [pulling the float], and thus, are not wholly independent of the negligent operation of the ‘auto.’ ”

The supreme court in Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 620 N.E.2d 1073 (1993), explained the principles courts of review should apply when called to interpret an insurance policy and determine whether an insurer owes a duty to defend its insured by its terms. Specifically, the court stated:

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Bluebook (online)
940 N.E.2d 78, 405 Ill. App. 3d 881, 346 Ill. Dec. 78, 2010 Ill. App. LEXIS 1265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxum-indemnity-co-v-don-gillette-illappct-2010.