Menard, Inc. v. Illinois Farmers Insurance Co.

2024 IL App (3d) 230431, 257 N.E.3d 664

• Court: Appellate Court of Illinois
• Decided: December 30, 2024
• Docket: 3-23-0431
• Status: Published

Opinion

2024 IL App (3d) 230431

Opinion filed December 30, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

MENARD, INC., a Foreign Corporation, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellee, ) Will County, Illinois, ) v. ) ) ILLINOIS FARMERS INSURANCE CO., ) Appeal No. 3-23-0431 An Illinois Corporation, and PATRICK ) Circuit No. 17-MR-0609 CIRONE, ) ) Defendants ) ) Honorable (Illinois Farmers Insurance Co., Defendant- ) John C. Anderson, Appellant.) ) Judge, Presiding. ____________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justice Davenport concurred in the judgment and opinion. Presiding Justice McDade dissented, with opinion. ____________________________________________________________________________

OPINION

¶1 The circuit court granted a cross-motion for summary judgment by plaintiff-appellee,

Menard, Inc.’s (Menards), as to defendant-appellant Illinois Farmers Insurance Co.’s (Farmers)

duty to defend Menards in an underlying negligence suit. The underlying negligence suit

subsequently settled. Farmers, which funded the settlement, reserved the “right to a claw back on

the payment of the settlement funds should there be a ruling on appeal that Farmers had no duty to defend Menards.” Farmers appeals the circuit court’s finding that it had a duty to defend, arguing

that Menards was not “using” the insured vehicle, a cargo van, at the time of the injury. Also, for

the first time, Farmers argues that the circuit court should have adhered to the eight corners rule

and declined to consider extrinsic evidence in determining whether Menards was “using” the van.

We determine that the circuit court correctly found, for the purposes of establishing a duty to

defend, that Menards was “using” the van and that Farmers has forfeited its eight corners argument,

which is, in any event, without merit. We affirm.

¶2 I. BACKGROUND

¶3 In April 2014, the plaintiff in the underlying negligence suit, Patrick Cirone, drove his

insured cargo van to Menards to pick up an order of house siding. As will be detailed below,

Menards employees instructed him where to park and, according to Cirone, where to stand, and

planned to load the siding onto the roof of the vehicle. Cirone gave Menards permission to load

the vehicle. After Menards began executing its plan to load, but before the siding was removed

from the rack, a Menards employee drove over Cirone’s foot with a forklift.

¶4 In July 2016, Cirone filed the operative, underlying negligence complaint against Menards

and its employee, Juan Beltran. Cirone alleged that he was a business invitee at Menards when it,

through Beltran (1) carelessly and negligently operated a forklift in a manner that was unsafe and

dangerous for store patrons, including Cirone; (2) failed to secure the area where Beltran was

operating the forklift to prevent patrons, including Cirone, from being injured; (3) failed to warn

patrons, including Cirone, of the dangerous activity being conducted through the operation of the

forklift equipment on the premises; and (4) was otherwise careless and negligent. The underlying

complaint does not mention Cirone’s insured cargo van.

2 ¶5 On September 18, 2017, Menards filed the operative, three-count complaint for declaratory

judgment against Farmers. Menards alleged (1) a duty to indemnify (count I), (2) a duty to defend

(count II), and (3) a claim for reasonable attorney fees (count III). It attached the underlying

complaint; Farmers’ policy of insurance for the cargo van; and other evidence such as answers to

interrogatories, Cirone’s deposition testimony, and correspondence between Menards and

Farmers.

¶6 The attached evidence showed, and neither party disputes, that Cirone drove to Menards in

his 2006 Chevrolet Express cargo van to pick up an order of siding for his house. The Menards

gate guard told Cirone where to park and, generally, where his order was located. The space Cirone

was instructed to park in was “close” to his order. The guard further instructed that Cirone should

go inside and an employee would come out and get a forklift, take down the siding, and load the

siding on top of Cirone’s cargo van.

¶7 As instructed, Cirone went inside and showed his paperwork to Menards employee Jose

Gomez. Gomez then led Cirone back outside until another employee was able to get Cirone’s

order. A skid of landscaping cement blocked access to Cirone’s order. Therefore, Menards planned

to use two forklifts to retrieve Cirone’s order. The first forklift, driven by Beltran, would move the

landscaping cement. The second forklift, driven by Javier Granados, would then have the space to

retrieve Cirone’s order and bring it to Cirone’s cargo van. Beltran testified in his deposition that

he considered himself to be working in concert with other Menards employees to get Cirone’s

order onto the van. Beltran further testified that he understood Cirone to have consented to this

process:

“Q. [A] fair inference from what you observed, which is obviously him walking

out, going in, getting someone to help him, the subsequent moving of two forklifts, it’s

3 apparent to you that [he] was aware and acquiescing, if you will—maybe even asking that

it be loaded onto the van?

A. Correct.

***

Q. There is, in your world, no other option at this point of getting the load off the

rack onto his van other than the team of Menard employees to load it onto the van?

A. Nope.”

¶8 Cirone recalled watching the first forklift (Beltran) move the landscaping cement before

turning his attention to the second forklift (Granados). While Cirone watched the second forklift,

the first forklift backed up and stopped on Cirone’s foot and ankle. At the time Cirone was struck,

the second forklift driver had not yet touched Cirone’s order. As such, Menards never completed

its plan to move the order from the product rack, put it on the ground, and move it to the roof of

Cirone’s cargo van.

¶9 Another Menards employee, Gumaro Sanchez, testified in his deposition consistent with

Cirone. Sanchez witnessed the accident from approximately 60 feet away, a distance he

characterized as “far.” As Gomez had explained, Cirone had been standing near the product rack.

However, Cirone then moved into the path of Beltran’s forklift. Sanchez was about to shout a

warning, but he was afraid he would startle Cirone and make the situation “worse.” At the time of

the accident, Cirone was looking up at the forklift that was about to pick up his order. Sanchez

explained that Granados’s forklift had lined up with Cirone’s order: “The ends were already up

there.” Sanchez later elaborated:

“Q. Was Mr. Cirone looking up at the order that was being lowered?

A. All the guys were looking to the top. Yes.”

4 ¶ 10 While Cirone and Menards employees did not testify to exact measurements from the

accident to the van, Cirone testified that he was instructed to park the van “close” to his order.

Beltran testified that large orders such as Cirone’s were kept in the outside storage yard. The order

itself was 16 feet long and rested on product racks, attached to the wall, that were 22 feet long.

Cirone testified, “It’s not bays, it’s one wall that’s all it is.” (Emphasis added.) Beltran moved the

cement obstacle 10 to 12 feet from the wall to create space for the second forklift. After setting

down the cement, Beltran reversed less than two feet before hitting Cirone. Menards employees

saw Cirone standing by the product rack in a spot they considered “safe” before he moved several

feet to a spot they considered unsafe, at which point the accident unfolded within seconds.

¶ 11 The attached insurance policy provided in relevant part: “We will pay for damages for

which any insured person is legally liable because of bodily injury to any person and/or property

damage arising out of the ownership, maintenance or use of a private passenger car, utility car, or

utility trailer.” (Emphases added.) The policy further defined “insured person” as “you [(Cirone)]

or any family member” and “any other person using your insured car.” (Emphasis added.)

¶ 12 Menards argued that it was an “insured person” under Cirone’s insurance policy. It cited

the policy’s definition of “insured person” and further noted that section 7-317(b) of the Illinois

Vehicle Code (625 ILCS 5/7-317(b)(2) (West 2016)) provides that a motor vehicle liability policy

such as the owner’s policy in this case “[s]hall insure the person named therein and any other

person using or responsible for the use of such motor vehicle or vehicles with the express or

implied permission of the insured.” (Emphasis added.) It alleged that Cirone authorized Menards

employees to use the vehicle for the purpose of loading.

¶ 13 Menards asserted that Illinois follows the “complete operations” doctrine, which provides

that loading includes all actions and preparatory steps necessary to place an item in a vehicle. It

5 cited Estes Co. of Bettendorf, Iowa v. Employers Mutual Casualty Co., 79 Ill. 2d 228, 233 (1980)

(unloading includes all the operations necessary to effectuate a delivery), and Menard, Inc. v.

Country Preferred Insurance Co., 2013 IL App (3d) 120340, ¶ 27 (“loading includes the entire

process of moving an article, including acts in preparation for loading”). Menards argued that,

according to the complete operations doctrine, the acts taken toward obtaining Cirone’s order

constituted a part of the loading process and Cirone was injured during that loading process.

¶ 14 At a minimum, Menards continued, the facts alleged bring the action potentially within the

scope of Cirone’s insurance policy’s coverage, thus triggering a duty to defend the suit under a

reservation of rights or seek a declaratory judgment that there is no coverage. See Korte

Construction Co. v. American States Insurance, 322 Ill. App. 3d 451, 456-57 (2001). In this case,

of course, it was Menards, and not Farmers, who initially sought a declaratory judgment.

¶ 15 On October 5, 2018, Menards filed a motion for summary judgment as to count II (duty to

defend). In addition to Cirone’s deposition, it also attached the deposition testimony of Menards

employees, including Gomez, Sanchez, and Beltran. That same date, Farmers filed a cross-motion

for summary judgment as to all three counts. The parties agreed that, as to a duty to defend, the

dispositive question was whether Menards was “using” Cirone’s cargo van at the time of the injury.

Farmers further contended that, were it to prevail on the duty-to-defend issue, the other two counts

would resolve in its favor. Each party pointed to extrinsic evidence, such as the depositions and

answers to interrogatories referenced above, in support of its respective position.

¶ 16 On January 25, 2019, the circuit court entered the following order:

“Matter comes on having heretofore been taken under advisement on cross motions

for summary judgment now comes on for decision. Court finds that: Illinois Farmers

Insurance Company’s Cross Motion for Summary Judgment is denied. Court finds

6 Menards was loading the vehicle under the complete operations doctrine. Menards’ Motion

for Summary Judgment on Count II is granted. The Court finds the injury occurred during

Menards’ ‘use’ of the vehicle. Menards’ employees were authorized users and Cirone’s

injuries were causally connected. Defendant owes Menards a defense in Cook County Case

16L2011 under Farmers Policy #197312491. Case continued for status on remaining

claims/underlying litigation[.]”

¶ 17 On February 25, 2019, Farmers moved to reconsider. Primarily, it argued that the circuit

court erred in denying its motion for summary judgment as to count III, attorney fees. It noted that,

under Illinois law, a plaintiff in a declaratory judgment action could only receive attorney fees if

an insurer’s conduct was vexatious and unreasonable. Here, it continued, the evidence on record

did not meet that standard as a matter of law. Secondarily, Farmers reiterated its arguments

pertaining to counts I and II.

¶ 18 On April 2, 2019, the circuit court granted Farmers’ motion to reconsider on the issue of

attorney fees. It explained that it had inadvertently omitted discussion of count III in its January

25, 2019, order. It rejected Farmers’ arguments pertaining to counts I and II. It also denied

Farmers’ oral motion for a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8,

2016) to allow an immediate appeal of its ruling on count II, the duty to defend.

¶ 19 On August 23, 2019, Farmers again moved for a Rule 304(a) finding to allow an immediate

appeal of the circuit court’s ruling on count II, the duty to defend. It informed the court that, on

April 19, 2019, Cirone and Menards had settled the underlying negligence suit. Farmers “funded”

the underlying settlement, though it reserved the “right to a claw back on the payment of the

settlement funds should there be a ruling on appeal that Farmers had no duty to defend Menards.”

¶ 20 On August 24, 2019, the circuit court entered the following order:

7 “This cause coming before the Court for status and the Court being fully advised

in the premises, IT IS HEREBY ORDERED:

1. Count I of Plaintiff Menard, lnc.’s First Amended Complaint (‘Declaratory

Judgment-Duty to Indemnify’) is voluntarily dismissed with prejudice.

Each party shall bear their own costs and attorneys’ fees.

2. Having disposed of the sole remaining claim before the Court, this is a final

and appealable order as to all claims.”

This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 Farmers appeals the circuit court’s grant of summary judgment to Menards on count II, the

duty to defend. It argues that Cirone’s injuries did not, even potentially, arise out of the “use” of

the insured cargo van under either of the theories accepted by the circuit court: the complete

operations doctrine or the reasonable contemplation test (which looks for a sufficient causal

connection). Farmers also argues, for the first time on appeal, that the circuit court should have

adhered to the eight corners rule and declined to consider extrinsic evidence in determining

whether Menards was using the insured cargo van. However, Farmers forfeited its eight corners

argument, which is, in any event, without merit.

¶ 23 A. Summary Judgment, Insurance Policies, and the Duty to Defend

¶ 24 Summary judgment is appropriate only when pleadings, depositions, admissions, 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 2016). Here, the parties filed cross-motions, and thus, they agree

that no factual issues exist and that the disposition of the case turns on the circuit court’s resolution

8 of purely legal issues. Maryland Casualty Co. v. Dough Management Co., 2015 IL App (1st)

141520, ¶ 45. We review de novo the circuit court’s grant of summary judgment to Menards on

count II, the duty to defend. Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 399-400

(2010).

¶ 25 The construction of an insurance policy is also a question of law appropriate for disposition

by summary judgment and reviewed de novo. Id. at 399. Insurance policies are subject to the rules

of contract interpretation. Menard, 2013 IL App (3d) 120340, ¶ 18. The court’s primary objective

is to give effect to the intention of the parties as set forth by the policy’s language. Id. If the words

of a policy are clear and unambiguous, they will be given their plain and ordinary meaning. Id. If

the words of a policy are ambiguous, they will be construed against the drafter. Id.

¶ 26 “The duty to defend is much broader than the duty to indemnify, because the duty to defend

is triggered if the complaint potentially falls within the policy’s coverage; the duty to indemnify,

on the other hand, applies only when the resulting loss or damages actually come within the

policy’s coverage.” (Emphases in original.) Id. ¶ 24. An insurer has a duty to defend if the

underlying complaint alleges facts that fall within, or potentially within, the policy’s coverage. Id.

Both the underlying complaint and the insurance policy should be liberally construed in favor of

the insured. Id. ¶ 25. Here, the circuit court considered the underlying complaint, supplemented by

attached extrinsic evidence such as depositions, in determining that the alleged facts fell within, or

potentially within, the policy’s coverage. See Pekin Insurance Co. v. Pulte Home Corp., 404 Ill.

App. 3d 336, 344 (2010) (the circuit court determined, after considering the underlying complaint

and other evidence, that the alleged facts potentially brought the action within coverage).

¶ 27 B. Use Includes Loading and Unloading: Schultz and My Personal Taxi

9 ¶ 28 We first look to the language of the policy to determine whether use of the insured cargo

van includes loading. Motor vehicle insurance policies in Illinois must comply with Illinois

statutory requirements. Schultz, 237 Ill. 2d at 399. By statute, policies must insure not only the

persons named in the policy but also “any other person using or responsible for the use of such

motor vehicle or vehicles with the express or implied permission of the insured.” 625 ILCS 5/7-

317(b)(2) (West 2016). The statute does not define “user” or “use.” Schultz, 237 Ill. 2d at 401.

¶ 29 In Schultz, the supreme court relied upon the following plain and ordinary meaning of the

words user and use: “A user *** is simply one who makes use of a thing. ‘Use,’ in turn, is

synonymous with ‘EMPLOY, UTILIZE, APPLY, [and] AVAIL[. It] is general and indicates any

putting to service of a thing ***.’ ” Id. (quoting Webster’s Third New International Dictionary

2524 (1976)). The supreme court favorably quoted the New Jersey Supreme Court in Jaquez v.

National Continental Insurance Co., 835 A.2d 309, 314-15 (N.J. 2003), which held that use in the

context of motor vehicle insurance is broader than operation and that “[o]ne 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.” (Internal quotation marks omitted.) (Emphasis

added.) Schultz, 237 Ill. 2d at 401-02. Our supreme court concluded that this definition of use

clearly included passengers as well as drivers. Id. at 403.

¶ 30 In a footnote, it observed:

“Some 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.

See, e.g., Georgeson v. Fidelity & Guaranty Insurance Co., 48 F. Supp. 2d 1262, 1267-68

(D. Mont. 1998) (applying Montana law). It has been held, for example, that one is ‘using’

a vehicle, for purposes of insurance coverage, when loading personal belongings into it or

10 unloading personal belongings from it. See, e.g., Travelers Insurance Co. v. Aetna

Casualty & Surety Co., 491 S.W.2d 363, 365 (Tenn. 1973). The concept of use does,

however, have its limits. For example, one Illinois appellate decision held that an individual

who was acting as a spotter and directing the [movements] of the truck’s driver at the time

the truck struck and killed a pedestrian at a construction site was not, himself, using the

truck within the meaning of the insurance policy’s provisions. See Apcon Corp. v. Dana

Trucking, Inc., 251 Ill. App. 3d 973[, 979] (1993). Because none of these circumstances

are before us here, we express no view on them.” (Emphasis added.) Id. at 402 n.3.

¶ 31 In First Chicago Insurance Co. v. My Personal Taxi & Livery, Inc., 2019 IL App (1st)

190164, the First District was presented with one of the circumstances identified in the Schultz

footnote. There, the company that owned the insured vehicle provided nonemergency medical

transportation to the public. Id. ¶ 5. The company’s agent transported the plaintiff in the underlying

negligence suit to the hospital. Id. After arriving on the hospital grounds and exiting the insured

vehicle, the agent allegedly caused the plaintiff, who was blind, to walk into a cement pillar, and

the plaintiff was injured. Id. The insurer of the vehicle sought a declaratory judgment that it had

no duty to defend because the company was not “using” the vehicle at the time of the injury. Id.

¶ 6. In its view, the relationship between the plaintiff’s injury and the use of the insured vehicle

was “ ‘merely incidental’ ” and “ ‘too remote.’ ” Id. ¶ 9. The trial court agreed. Id. ¶ 15. It reasoned

that “there must be a rational connection of the vehicle to the alleged use and concluded that [the

plaintiff’s] use of the [insured] vehicle ended when he exited the vehicle.” Id.

¶ 32 The appellate court reversed, explaining, “[n]otably, the policy at issue does not expressly

exclude from coverage injuries arising from the ‘loading’ and ‘unloading’ of passengers.” Id. ¶ 24.

The policy expressly covered the loading process for property, and it defined the start and end

11 point, excluding coverage for injuries “ ‘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.” ’ ” Id. From this, the court concluded that the insurer knew how to draft a loading

exclusion but placed no exclusion on the loading or unloading of passengers. Id. Also, whether

unloading passengers or property, the policy did not exclude coverage for injuries arising before

the acceptance of the delivery, even if that delivery was outside the insured vehicle. Id. ¶ 25. The

court added: “[A]ssisting 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 [insured] livery vehicle to take the passenger most of the way there.” Id. ¶ 26.

¶ 33 In holding that “use” includes loading and unloading of passengers unless the policy states

otherwise, the My Personal Taxi court cited the same out-of-state cases cited by our supreme court

in Schultz: Jaquez and Travelers Insurance Co. v. Aetna Casualty & Surety Co., 491 S.W.2d 363

(Tenn. 1973). Jaquez, in turn, cited Kennedy v. Jefferson Smurfit Co., 688 A.2d 89, 91 (N.J. 1997),

which held that “use” of a vehicle includes loading and unloading. Travelers held the same.

Travelers, 491 S.W.2d at 365. Both Kennedy and Travelers went on to apply the complete

operations doctrine to decide whether the negligent acts at issue occurred during the loading and

unloading process despite the absence of an express loading and unloading provision. Kennedy,

688 A.2d at 92; Travelers, 491 S.W.2d at 365.

¶ 34 C. Loading Includes Acts in Preparation for Loading:

The Complete Operations Doctrine, Estes, and Menard

¶ 35 At oral argument, Farmers essentially accepted that use of an insured vehicle includes

loading and unloading unless the policy expressly provides otherwise. Instead, Farmers argued

12 that Menards’ alleged negligent actions did not constitute loading. Again, the alleged negligent

acts at issue here include not only the operation of the forklift but also the failure to secure the

loading area or otherwise warn patrons of the “dangerous” activities conducted through the

operation of forklift equipment. Illinois courts have used the complete operations doctrine to define

loading. For our purposes, Estes and Menard best illustrate the complete operations doctrine.

¶ 36 In Estes, the Illinois Supreme Court adopted the complete operations doctrine. There, the

policy insuring the vehicle used for the delivery of concrete provided coverage for bodily injury

“ ‘caused by an occurrence and arising out of the ownership, maintenance[,] or use, including

loading and unloading, of any [insured] automobile.’ ” Estes, 79 Ill. 2d at 231-32. The named

insured, Rock Island Ready Mixed Concrete Company (Ready Mix), sent its delivery driver in its

insured vehicle to deliver cement to a construction site. Id. at 231. Ready Mix placed the cement

in the receptacle provided at the construction site. Id. at 235. The cement was then delivered by a

crane operated by another company to locations on the construction site where the cement would

be poured into “forms.” Id. at 230-31. However, after Ready Mix deposited the cement in the

designated receptacle, the crane operator picked it up and came into contact with a high-voltage

electrical cable, injuring two employees of a subcontractor. Id. at 231.

¶ 37 The Estes court was tasked with deciding whether the injury occurred during the loading

process. Id. at 232-34. It considered two competing doctrines, the “coming to rest” doctrine and

the “complete operations” doctrine. Id. at 233. The “coming to rest” doctrine is narrow in scope in

that

“the unloading process includes only the actual moving of the article from the motor

vehicle until it first comes to rest. [Also], [w]hen the article has begun to move toward its

13 final destination, independent of the motor vehicle, the vehicle is no longer connected with

the process of unloading.” (Emphasis added.) Id.

¶ 38 The “complete operations” doctrine, in contrast, is broad in scope in that it “includes all

the operations necessary to effect a completed delivery.” Id. After defining each doctrine, the

supreme court summarily held: “[T]he ‘complete operations’ doctrine, which embraces all of the

operations necessary to effect a completed delivery of the article, is the preferred view.” Id.

¶ 39 The Estes court then went on to determine whether, under the complete operations doctrine,

the injury occurred during the loading process. Id. at 234. It found that it did not. Id. at 234-35. It

explained that

“ ‘unloading’ has been completed when, subsequent to removal of the material from the

[insured] vehicle, the deliverer has finished his handling of it, and the material has been

placed in the hands of the receiver at the designated reception point, despite the fact that it

is necessary to transport the material thereafter to another point.” Id. at 234.

¶ 40 In Menard, the vehicular insurance policy provided coverage for bodily injury “ ‘caused

by an accident resulting from the ownership, maintenance[,] or use of an insured vehicle, including

loading and unloading.’ ” (Emphasis omitted.) Menard, 2013 IL App (3d) 120340, ¶ 8. The

underlying plaintiff backed up her insured vehicle so that Menards employees could load the bricks

she had purchased into her vehicle. Id. ¶ 5. The plaintiff exited the vehicle, looked for good bricks

from the stack, and placed them in reach of a Menards employee to load them into the vehicle. Id.

While the Menards employee was loading the vehicle with bricks, the plaintiff’s “foot became

tangled in debris or packing materials near her vehicle and she fell, sustaining multiple injuries.”

Id.

14 ¶ 41 The Menard court first considered whether Menards was using the vehicle (with the

plaintiff’s permission). It noted, as had the supreme court in Schultz, that other jurisdictions had

construed the word “use” in vehicular insurance policies to be broader than “operation” and to

include “loading and unloading.” Id. ¶ 21. It determined, however, that it need not look to other

cases to determine whether the word “use” generally includes loading and unloading because the

policy itself instructed that it did. Id. ¶ 22.

¶ 42 The Menard court then considered whether the injury occurred during the process of

loading and unloading. Id. ¶ 26. It recited the complete operations doctrine as providing that

“loading includes the entire process of moving an article, including acts in preparation for

loading.” Id. ¶ 27. The Menard court determined that, because the plaintiff was injured while the

Menards employee was loading bricks, she was injured “during the complete operations of loading

her vehicle with bricks.” Id.

¶ 43 In support of its position that loading should be limited to handling or moving the article

to be loaded, Farmers focuses on the language in Menard that “loading includes the entire process

of moving an article, including acts in preparation for loading.” (Emphasis added.) Id. Farmers

then cites several cases where the injury occurred as a result of handling the article to be loaded.

See, e.g., Merit Insurance Co. v. Parent Building Materials, Inc., 176 Ill. App. 3d 965, 969 (1988)

(the insured unloaded plasterboards in a negligent manner, triggering the policy’s unloading

provision even though the injury occurred after the delivery vehicle left the scene); Woodside v.

Gerken Food Co., 130 Ill. App. 3d 501, 507 (1985) (the insured had not completed unloading the

potatoes when he left them in an improper location, causing an injury after the delivery vehicle

left the scene); Toler v. Country Mutual Insurance Co., 123 Ill. App. 3d 386, 390-91 (1984) (the

insured was “loading” a rifle onto his insured truck when he removed rifle shells outside the truck

15 in preparation for loading the rifle onto the truck and the rifle accidently discharged). Farmers

concludes that preparations for loading, unrelated to the actual handling of the intended product,

are not loading for purposes of the complete operations doctrine.

¶ 44 We disagree that the loading process is limited to the actual handling of the article to be

loaded. Importantly, when the supreme court in Estes adopted the complete operations doctrine, it

specifically rejected the coming to rest approach, which limited the unloading process to the actual

moving of the article. Estes, 79 Ill. 2d at 233. The supreme court favored coverage for “all the

operations” necessary to effectuate a completed delivery. Id. These operations would, as the

Menard court otherwise noted, include acts in preparation for loading. Menard, 2013 IL App (3d)

120340, ¶ 27. Indeed, the alleged facts in Menard were that the plaintiff tripped over debris or

packing materials that could have been placed by the Menards employee loading the vehicle. Id.

¶ 29. The alleged negligence in Menard did not concern the actual moving of the bricks being

loaded but, rather, preparatory or incidental moving of surrounding debris or packing material. Id.

¶¶ 5-6.

¶ 45 At oral argument, Farmers cited Heape v. Bituminous Casualty Co., 36 Ill. App. 2d 131

(1962), for the first time. There, the appellate court determined that the underlying defendant,

employed by United Electric Coal Company (United Electric), was not loading a vehicle when he

operated a bulldozer owned by United Electric to push mats into a position to be lifted onto the

truck of the insured, Keene Trucking Service, by a Keene Trucking Service crane. Id. at 135.

Initially, we observe that Heape is factually distinguishable. As the Heape court noted:

“We are not faced with the problem of determining whether pushing [the] mats into

position to be loaded, if this were in fact a part of [a] continuous act to be undertaken by

16 Heape which would be culminated by the act of loading [the] truck by Heape as a part of

his activities, would constitute ‘loading.’ ” Id. at 136.

Here, in contrast, Menards was responsible for the ultimate act of loading the siding onto the van.

More significantly, Heape was decided prior to our supreme court’s adoption of the complete

operations doctrine.

¶ 46 Contrary to Farmers’ position, courts applying the complete operations doctrine have

determined that preparatory steps necessary and integral to the loading process, including

preparing the area and/or preparing the supporting equipment for loading or unloading, can be part

of the loading process and therefore constitute use of the insured vehicle. Kennedy, 688 A.2d at 92

(the selection of loading pallets prior to the loading of goods was a necessary and integral part of

the loading activity); Drew Chemical Corp. v. American Fore Loyalty Group, 218 A.2d 875, 880

(N.J. Super. Ct. App. Div. 1966) (the process of unloading the acid from the insured vehicle

necessitated the preparatory act of the clearing of the line, which, in turn, caused the accident);

American Employers’ Insurance Co. v. Brock, 215 S.W.2d 370, 371, 373 (Tex. Civ. App. 1948)

(insurer was liable for injuries to a pedestrian who fell into an open sidewalk elevator shaft when

employees in charge of the insured truck left doors open while obtaining cross bars to guard the

shaft even though nothing had been either loaded onto or unloaded off of the truck at time of fall).

¶ 47 Farmers’ argument amounts to an assertion that the loading process had not yet begun,

because Menards had not yet touched Cirone’s siding order. However, the complete operations

doctrine includes acts in preparation for loading. Menard, 2013 IL App (3d) 120340, ¶ 27; see

Drew, 218 A.2d at 878 (the vehicle’s arrival at the site and initial attempt to hook up the hose were

sufficient to establish that unloading had begun, even though the hose was soon removed to clear

a blockage before any of the liquid left the vehicle); Pellicano v. Royal Indemnity Co., 229

17 N.Y.S.2d 654, 656 (Sup. Ct. 1962) (unloading of an insured truck began when it arrived at the job

site). In this case, Cirone drove the cargo van to the loading site. Menards allowed Cirone into a

guarded area that it had designated for storing and loading orders and told Cirone where to park

within the loading site. The house siding was in Menards’ possession, and Cirone showed

paperwork establishing that the siding was to be loaded onto his cargo van. According to Cirone,

Menards told him where to stand while the material was being loaded. Beltran believed himself to

be working in concert with Granados to load the order and that his work was integral and necessary

to the loading process, agreeing that there was “no other way.” Cirone was injured by a forklift

that had moved less than two feet after setting down material obstructing the siding while

Granados, who was assigned to lift the siding, had positioned his forklift and had begun to

approach the siding in order to retrieve it and load it onto Cirone’s vehicle. Farmers notes that

Cirone had yet to open the doors to his cargo van, but this argument ignores that Menards had

planned to place the material on the roof of the van. In total, these facts support that the injury

occurred during the loading process.

¶ 48 D. Sufficient Causal Connection: Menard and Aryainejad

¶ 49 Next, we consider whether the injury was causally connected to the use of the insured cargo

van. As noted, the instant policy provides coverage for damages due to bodily injury “arising out

of the *** use” of the cargo van. “The words ‘arising out of’ have been interpreted broadly to

mean originating from, incident to, or having a causal connection with the ownership, maintenance

or use of the vehicle.” Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App. 3d 1049, 1051

(1996). As such, there must be some causal relationship between the injury and the ownership,

maintenance, or use of the vehicle for there to be coverage. Id. at 1052. Strict proximate cause,

however, is not required. Menard, 2013 IL App (3d) 120340, ¶ 28. Instead, the Third District

18 applies the “reasonable contemplation” test to determine if there was a sufficient causal

connection. Id.; Aryainejad, 278 Ill. App. 3d at 1054. 1 Under the reasonable contemplation test,

the court considers whether the negligent act that caused the injury was a reasonable incident or

consequence of the use of the automobile. Menard, 2013 IL App (3d) 120340, ¶ 28. As such, the

reasonable contemplation test affords coverage when the injury results from an activity that

presented the type of risk that the parties reasonably contemplated would be covered by the policy.

Id. Menard and Aryainejad guide our analysis on this issue.

¶ 50 In Menard, we reasoned that the trip and fall injury potentially resulted from the reasonably

contemplated activity of loading the insured vehicle with bricks. We rejected the insurer’s

argument that the alleged negligent act, allowing debris to accumulate on the premises, had nothing

to do with the use of the vehicle. Id. ¶ 29. Instead, we recognized that

“[t]he debris or packing material could have been placed there by the Menards employee

loading [the] vehicle, or been disturbed by the loading process. Because [the] complaint

does not specifically allege that the debris existed independently of the loading, or that the

debris did not originate from the loading process, the injury potentially could have resulted

from Menard[s’] use of the vehicle.” (Emphasis added.) Id.

¶ 51 Aryainejad provides additional guidance for the causal connection sufficient to satisfy the

reasonable contemplation test and result in coverage. Aryainejad, 278 Ill. App. 3d at 1055; cf. id.

1 In Aryainejad, the Third District adopted the reasonable contemplation test over the more

permissive “but for” test used by the Fifth District in Toler, 123 Ill. App. 3d at 392 (sufficient causal

connection where an insured returning from a hunting trip accidentally discharged a rifle, shattering glass

and causing injury to another, when removing shells in preparation for loading the rifle back in the insured

vehicle).

19 at 1055-58 (Slater, J., dissenting). In Aryainejad, the vehicular insurance policy covered injuries

caused by the “use” of other, uninsured vehicles. Id. at 1050 (majority opinion). The policy owner

swerved to avoid a pedestrian walking down the middle of the interstate. Id. The act of swerving

caused the policy owner to lose control of his vehicle, and he suffered injury. Id. The pedestrian

had been driving an uninsured vehicle when the vehicle ran out of gas. Id. The pedestrian left the

vehicle to walk to a gas station. Id. The pedestrian later admitted he had been drinking when he

chose to walk in the traffic lane instead of on the shoulder of the road. Id. at 1050, 1055.

¶ 52 In determining whether the accident “arose out of” the pedestrian’s use of the uninsured

vehicle, the appellate court applied the reasonable contemplation test and answered in the

affirmative, explaining:

“Vehicles frequently break down or run out of gas. When this occurs, drivers must often

leave their vehicles to find help, thereby creating a risk to themselves and to other drivers

who may lose control of their vehicles while taking evasive action. Thus, [the pedestrian’s]

act of walking on the interstate after his car ran out of gas and the risk he posed to other

drivers were reasonable and foreseeable consequences of the use of his vehicle.

Accordingly, we hold that [the pedestrian’s] actions were within the risk for which the

parties to the contract reasonably contemplated there would be coverage, and thus, [the

policy owner’s] injuries arose out of [the pedestrian’s] use of his vehicle.” Id. at 1054.

¶ 53 In so holding, the appellate court rejected the insurer’s argument that the pedestrian’s

vehicle did nothing more than transport him to the site of the accident and the pedestrian’s decision

to walk in the traffic lane instead of on the shoulder of the road was an independent act that broke

the chain of causation. Id. at 1054-55. It reasoned that the pedestrian’s actions originated from and

were incident to the use of his vehicle regardless of the manner in which he walked. Id. at 1055.

20 ¶ 54 Turning to the instant case, we determine that the injury to plaintiff’s foot caused by the

forklift resulted from an activity reasonably contemplated by the parties, i.e., using a forklift to

load an insured cargo van with cargo. Surely, drafters of an insurance policy providing coverage

for a cargo van, which did not have windows or seating behind the driver, contemplated that the

cargo van would be used to load cargo and that forklifts were a likely method by which to load

cargo. See My Personal Taxi, 2019 IL App (1st) 190164, ¶ 23 (the company that insured a livery

vehicle should have contemplated that it would be used to load and unload passengers); see also

Blasing v. Zurich American Insurance Co., 2013 WI App 27, ¶ 19, 346 Wis. 2d 30, 827 N.W.2d

909 (where Menards injured the policy owner while loading the policy owner’s truck, the insurance

company could expect “use” to include loading, in part because the insured vehicle was a pickup

truck).

¶ 55 In at least one respect, the instant facts are more compelling than in Menard, where the

debris could have been placed during the loading process. Farmers and Menards agree that the

forklift ran over Cirone’s foot after just having removed an obstacle blocking the siding that was

to be loaded. Similarly, the instant facts are also more compelling than Aryainejad, in which the

dissenting justice argued that a pedestrian’s act of walking down the center of the interstate was

too attenuated from his past use of the vehicle to trigger the duty to defend. Aryainejad, 278 Ill.

App. 3d at 1057 (Slater, J., dissenting).

¶ 56 Here, the alleged negligent acts—securing the loading area, failing to warn Cirone of the

“dangerous” forklift activity, and operating the forklift—were directly related to loading the

insured vehicle and were not attenuated or remote to the injury; rather they occurred in a close,

related sequence. Cirone testified that Menards allowed him into a gated loading area and directed

him to position the van “close” to the product wall. The product racks were 22 feet long, and the

21 order was 16 feet long. Cirone initially stood between the product wall and Beltran’s forklift;

moving mere feet brought him into harm’s way. The large equipment, including two forklifts and

a cargo van, as well as the sizeable order, the siding, measured against testimony that 60 feet was

a comparatively far distance, creates the impression of a tight workspace. The related events

unfolded rapidly, with Sanchez testifying that, as Beltran reversed less than two feet, Granados’s

forklift had already lined up with the order. Menards employees and Cirone looked up at the order

in anticipation of its movement. Cirone was injured seconds later. The act of using two forklifts in

concert to bring cargo onto an awaiting cargo van is obviously connected to the intended use of

loading the cargo van as opposed to an independent act. In fact, the only deviation from the loading

plan was that Cirone apparently stepped several feet from the spot where he was told to stand while

he was looking at one of the two forklifts working to accomplish the loading. This occurred in the

middle of a series of steps orchestrated by Menards to load the insured cargo van. Again, those

steps included deciding the placement of the van; instructing Cirone where to stand during the

process; and using two forklifts in concert to remove an obstacle and lift the target article, transport

the target article to the cargo van, and place and secure the target article to the roof of the cargo

van.

¶ 57 We are not persuaded by Farmers’ argument that Cirone’s injury was not causally

connected to the use of the cargo van but instead was connected to the use of an entirely different

vehicle, the forklift. It matters not whether the Menards employee picked up the cement obstacle

with his hands and dropped it on Cirone’s foot or whether, as happened, he picked up the cement

obstacle with a forklift and drove the forklift over Cirone’s foot. That two or more vehicles may

have been working in concert to load the insured vehicle does not prevent the insured cargo van

from being a third vehicle in use. See Austin-White ex rel. Skow v. Young, 2005 WI App 52, ¶¶ 10-

22 15, 279 Wis. 2d 420, 694 N.W.2d 436 (the injury “arose out of” the use of loading the stationary,

insured pickup truck, even though the injury occurred when a separate vehicle, a Bobcat, moved

toward the insured truck and prematurely dropped its load).

¶ 58 The aforementioned distances and timeframes set forth in the record are at odds with the

dissent’s characterization of the evidence. In particular, we disagree with the dissent’s assertion

that there were no plans for how the order would be transported from the product rack onto the

cargo van—an assertion contradicted by Farmers’ own characterization of the Gomez deposition.

Without citation of authority, the dissent would seemingly require a detailed loading plan as

opposed to, as here, certain established steps and the assumption of responsibility for securing the

order to the vehicle while allowing room to troubleshoot. We also disagree with the dissent’s

assertion that the cargo van was not positioned close to the order awaiting an imminent delivery—

an assertion contradicted by Cirone’s express testimony that he parked the van “close” to the order

as well as Cirone’s and Sanchez’s testimony that Cirone was injured by the first forklift while

looking at the second forklift lining up with its order. The record does not support the dissent’s

contrary assertions that it is “clear” that the van was not close to the order (and, thus, the injury)

and that it is also “impossible to decipher” the van’s location in relation to the injury. Relatedly,

we disagree with the dissent’s repeated reference to “inside” or “enclosed” storage bays as though

the bays created barriers between the order, the injury, and the van. To the contrary, Beltran

testified that large orders such as Cirone’s were in the outside yard. Cirone testified that, after

showing his paperwork, he returned outside. He further testified, “It’s not bays, it’s one wall that’s

all it is.” So long as some evidence supports coverage, the trial court correctly determined that

Farmers had a duty to defend. Moreover, the duty to defend cannot be negated merely by

23 conflicting allegations of fact, even assuming arguendo those facts have some support in the

record.

¶ 59 While we appreciate the dissent’s reluctance to extend coverage for incidents occurring too

far down the causal chain, the facts here do not warrant this concern. In this case, Menards caused

the insured cargo van to be positioned in the loading area for the purpose of loading. Menards

instructed Cirone to stand in a spot it (incorrectly) considered safe while the loading occurred. It

is difficult to imagine that loading the type of large material that the insured cargo van was built

to accommodate could have been accomplished in a single step without other equipment, and here,

the steps during which the injury occurred are separated by mere feet and seconds. Forklift one

reversed two feet as forklift two was then lining up with the order. Simply put, for the purposes of

establishing a duty to defend, the alleged facts support that the injury occurred while Menards, a

permissive user, 2 was using the cargo van to load cargo, and the injury was causally connected to

said use.

¶ 60 E. Eight Corners Rule

¶ 61 Farmers seeks to avoid this result by arguing for the first time on appeal that the circuit

court should have applied the “eight corners rule.” To apply the eight corners rule, the court

compares the four corners of the underlying complaint with the four corners of the insurance policy

to determine whether the alleged facts potentially fall within the policy’s coverage. Farmers

Automobile Insurance Ass’n v. Danner, 2012 IL App (4th) 110461, ¶ 44. If the underlying

2 The dissent incorrectly states that Cirone was the “insured,” but Menards was the “insured” using

or responsible for the use of the insured vehicle with Cirone’s express or implied permission. Infra ¶ 99.

24 complaint fails to set forth facts that bring the case within, or potentially within, the policy’s

coverage, there is no duty to defend. Id.

¶ 62 Here, the insurance policy required Menards’ use of the cargo van to trigger coverage. The

underlying complaint did not describe Menards’ use of the cargo van. Instead, Menards submitted,

and each party pointed to, extrinsic evidence—such as depositions and answers to

interrogatories—to support its position as to whether Menards was using the cargo van at the time

of the injury. As such, and as Menards does not dispute, application of the eight corners rule does

not bring the case within, or potentially within, the policy’s coverage such that there would be a

duty to defend.

¶ 63 However, Farmers never objected when Menards attached extrinsic evidence to its motion

for declaratory judgment and/or its motion for partial summary judgment, nor did it ask the circuit

court to apply the eight corners rule. Issues not raised in the circuit court are forfeited. 1010 Lake

Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14. The purpose of the

forfeiture doctrine is to ensure that the circuit court is “given an opportunity to correct any errors

prior to appeal and that a party does not obtain a reversal through [its] own inaction.” Id. In this

case, not only did Farmers fail to object to Menards’ introduction of extrinsic evidence, it also later

pointed to the extrinsic evidence to further its own cross-motion for summary judgment.

¶ 64 Forfeiture aside, Farmers has not persuaded us that the circuit court would have been

required to apply the eight corners rule. Courts may bypass the eight corners rule and consider

factual matters external to the underlying complaint if the factual matters do not bear upon the

issues in the underlying litigation or impact the underlying plaintiff’s ability to pursue a theory of

liability. Pekin Insurance Co. v. St. Paul Lutheran Church, 2016 IL App (4th) 150966, ¶ 64. “[T]he

25 eight-corners rule bars extrinsic evidence only if, as a result of the proposed declaratory judgment,

the plaintiff in the underlying lawsuit could be hampered by collateral estoppel.” Id.

¶ 65 Collateral estoppel applies when a party, or someone in privity with a party, participates in

two separate and consecutive cases arising on different causes of action and some controlling fact

or question material to the determination of both causes has been adjudicated against that party in

the former suit by a court of competent jurisdiction. Nowak v. St. Rita High School, 197 Ill. 2d

381, 389-90 (2001). “Application of the doctrine of collateral estoppel must be narrowly tailored

to fit the precise facts and issues that were clearly determined in the prior judgment.” Id. at 390-

91.

¶ 66 Farmers does not define collateral estoppel or explain what collateral estoppel concerns

exist here other than to write that (1) “deciding factual issues via extrinsic evidence outside of the

allegations in the complaint did carry collateral estoppel concerns” (opening brief), and (2) the

deposition testimony pertained to the conduct of Cirone and Menards’ employees (reply brief).

These points fail to explain why a decision in this case that Menards was “using” the insured cargo

van would bear on any element of Cirone’s underlying negligence case against Menards. Farmers

has not shown why Cirone would have been hampered in his underlying negligence case.

¶ 67 At oral argument, Farmers appeared to concede that the procedural issue of whether the

circuit court erred in considering extrinsic evidence is forfeited. Farmers continued, however, that

it merely asks this court to apply the eight corners rule anew to decide the duty to defend issue.

Even if the argument that this court should apply the eight corners rule anew may not be forfeited,

it is unavailing. Farmers otherwise fails to explain how our consideration of extrinsic evidence

raises collateral estoppel concerns in an underlying lawsuit that has settled.

¶ 68 III. CONCLUSION

26 ¶ 69 The judgment of the circuit court of Will County is affirmed.

¶ 70 Affirmed.

¶ 71 PRESIDING JUSTICE McDADE, dissenting:

¶ 72 I respectfully dissent from the majority opinion based on its flawed forfeiture analysis and

unwarranted extension of the complete operations doctrine and its associated precedents. I begin

with the majority’s erroneous conclusion that Farmers has forfeited its “eight corners” argument.

¶ 73 Although the majority correctly notes that Farmers did not raise the eight corners argument

in the trial court, its conclusion that the “issue” has, therefore, been forfeited fails because it ignores

the critical distinction between the role “issues” and “arguments” play in the process of appellate

review. As the majority notes,

“[h]ere, the parties filed cross-motions and, thus, they agree that *** the disposition of the

case turns on the circuit court’s resolution of purely legal issues. Maryland Casualty Co.

v. Dough Management Co., 2015 IL App (1st) 141520, ¶ 45. ***

The construction of an insurance policy is *** a question of law appropriate for

disposition by summary judgment and reviewed de novo.” (Emphases added.) Supra ¶¶ 24-

25.

The majority also correctly states that the issue here is the proper construction of the language in

the duty to defend clause in the insurance policy, with that policy language being subject to our

usual rules of contract interpretation. Supra ¶ 25. Those rules of contract interpretation, in turn,

mirror the rules traditionally used to construe statutory provisions. See Village of Kirkland v.

Kirkland Properties Holdings Co., 2023 IL 128612, ¶ 63 (stating that, “[s]imilar to statutory

construction, when construing a contract, the primary objective is to give effect to the contracting

parties’ intent”).

27 ¶ 74 Where the majority goes astray in concluding that Farmers has forfeited the eight corners

argument is in deeming it to be an “issue” that may be forfeited. It is not. It is an argument that

Farmers made to aid in this court’s construction of the policy language, which is a legal issue.

Recognizing that fundamental distinction is critical when considering any forfeiture argument.

¶ 75 Menards’ argument further demonstrates its misunderstanding of forfeiture by asserting

that raising a new “argument” on appeal “results in forfeiture of that issue.” That assertion

improperly conflates the distinct legal concepts of “issues” and “arguments.” In support, Menards

cites In re Marriage of Farrell, 2017 IL App (1st) 170611, ¶ 24 (IRMO Farrell), which stated,

“ ‘It is well settled that an unsuccessful party may not advance a new theory of recovery on appeal’

[citation], and that doing so results in forfeiture of that issue (see, e.g., 1010 Lake Shore Ass’n v.

Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14 (issues not raised in the trial court are

forfeited).” (Emphasis added.) That statement in IRMO Farrell, however, misapprehends the

forfeiture rule as explained by our supreme court in 1010 Lake Shore.

¶ 76 In its statutory construction analysis in 1010 Lake Shore, the supreme court specifically

rejected the notion that “issues” and “arguments” are interchangeable and clearly enunciated the

distinctions in the treatment of the two concepts when reviewing a forfeiture claim. As the court

clarified:

“We now address the remaining issue in this appeal on the construction of section

9(g)(3) of the [Condominium Property Act (765 ILCS 605/9(g)(3) (West 2008))].

Defendant asserts its argument ‘mirrors’ the appellate court dissent. ***

Initially, plaintiff contends defendant forfeited its argument relying on canons of

statutory construction because it did not raise that argument in either the trial or the

appellate court. Plaintiff argues that defendant failed to even acknowledge the second

28 sentence of section 9(g)(3) in the trial and appellate courts, and it cannot now argue that

section 9(g)(3) conflicts with the Foreclosure Law.

Defendant’s contention based on canons of statutory construction is merely one

argument addressing the issue of the proper construction of section 9(g)(3). Even if

defendant did not make that specific argument in the trial or appellate court, defendant

has consistently disputed the issue of statutory construction. This court only requires

parties to preserve issues or claims for appeal. They are not required to limit their

arguments in this court to the same ones made in the trial and appellate courts. Brunton v.

Kruger, 2015 IL 117663, ¶ 76. Accordingly, defendant’s statutory construction argument

is not forfeited.” (Emphases added.) 1010 Lake Shore Ass’n v. Deutsche Bank National

Trust Co., 2015 IL 118372, ¶¶ 16-18.

Thus, despite quoting from this discussion, the appellate court in IRMO Farrell failed to apply the

critical distinction our supreme court made between “arguments” and “issues” for purposes of

applying the forfeiture rule and, instead, used the two terms interchangeably, misstating the

applicable law.

¶ 77 Here, the majority’s analysis suffers from the same fatal flaw. Viewed properly, the eight

corners rule is merely an argument addressing the proper construction of the duty to defend clause

in the insurance policy; it is not a new issue. If the supreme court’s explanation in 1010 Lake Shore

is applied correctly, Farmers did not forfeit the eight corners argument by raising it for the first

time on appeal. Accordingly, I dissent from the majority’s forfeiture discussion.

¶ 78 Turning to the merits of the parties’ arguments on the proper construction of the duty to

defend clause, the majority focused on whether “the circuit court correctly found, for the purposes

of establishing a duty to defend, that Menards was ‘using’ the van.” Supra ¶ 1. If Menards was

29 “using” the van at the time of Cirone’s injury, it was covered by the policy and entitled to a defense

provided by Farmers in Cirone’s underlying negligence case. The determination of whether

Menards is covered by Cirone’s auto insurance policy hinges on the proper construction of section

7-317(b) of the Illinois Vehicle Code (625 ILCS 5/7-317(b)(2) (West 2016)), as well as the

language in Farmers’ policy.

¶ 79 Section 7-317(b)(2) of the Code states:

“(b) Owner’s Policy.—Such owner’s policy of liability insurance:

2. Shall insure the person named therein and any other person using or

responsible for the use of such motor vehicle or vehicles with the express or implied

permission of the insured[.]” (Emphases added.) Id.

Similarly, coverage under Farmers’ auto policy also depends on Menards’ “use” of Cirone’s

vehicle at the time of the injury. Under that policy language, Farmers “will pay damages for which

any insured person is legally liable because of bodily injury to any person and/or property damage

arising out of the ownership, maintenance or use of a private passenger car, utility car, or utility

trailer.” (Emphasis added.) Unfortunately, neither the statute nor the policy defines the scope of

the covered “use.”

¶ 80 To resolve that question, we must apply the usual rules of construction, with our primary

objective being to effectuate the parties’ intentions. To do so, the policy language must be given

its plain and ordinary meaning if that meaning is clear and unambiguous. Menard, Inc. v. Country

Preferred Insurance Co., 2013 IL App (3d) 120340, ¶ 18; supra ¶ 25. In ascertaining that “ ‘plain,

ordinary, and popular meaning,’ ” the words used must “ ‘be construed with reference to the

30 average, ordinary, normal, reasonable person.’ ” Acuity v. M/I Homes of Chicago, LLC, 2023 IL

129087, ¶ 30 (quoting Sproull v. State Farm Fire & Casualty Co., 2021 IL 126446, ¶ 19).

¶ 81 Relevant to the instant appeal, our supreme court has already provided guidance on what

constitutes the “use” of an insured vehicle when it reviewed the un- and under-insured motorist

policies at issue in Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 401 (2010). The

language in those policies provided coverage for “ ‘any other person using or responsible for the

use’ of the subject vehicle with the express or implied permission of the insured. 625 ILCS 5/7-

317(b)(2) (West 2004).” (Emphasis added.) Id. As the court explained, “the use of an automobile

has been held to denote its employment for some purpose of the user.” Id. That definition is

consistent with our rule that policy language should be construed consistent with how it would be

understood by “the average ordinary, normal, reasonable person” and not in a fashion that

unreasonably distorts its common meaning. Those standards provide critical guidance for our

determination of whether Menards was, in fact, “using” Cirone’s van within the meaning of the

policy at the time of the injury.

¶ 82 Here, the facts are not in dispute. The Menards employees had decided to move the pallet

of landscape blocks with the first forklift to make Cirone’s order more accessible. That forklift

was never intended to be used in moving Cirone’s order. After that pallet was relocated, a second

forklift was to remove the order from the storage rack and place it on the ground inside the storage

bay. The workers had no definite plans for how the order would then be transported from inside

the storage bay to Cirone’s cargo van, which remained parked somewhere in the warehouse yard

outside. Even after the order was moved outside to the van, the workers were uncertain how it

would ultimately be loaded onto the van. It is clear that the workers did not know whether the

order would be placed inside or on top of the van; they had no set plan for the remainder of the

31 process. Thus, absolutely no evidence shows when and how the van would have been used during

the delivery process or even the extent to which Menards employees would be involved in that

process after they initially relocated the order from the rack to the floor of the storage bay.

¶ 83 In addition, the evidence shows that Cirone was standing inside the storage bay, as directed

by the Menards employees, waiting for his order, at the time he was injured. The majority asserts

that “Menards employees saw Cirone standing by the product rack in a spot they considered ‘safe’

before he moved several feet to a spot they considered unsafe, at which point the accident unfolded

within seconds.” Supra ¶ 10. It is clear from the record, however, that no Menards employee ever

instructed Cirone to remain in any particular spot. Moreover, neither Cirone nor his van was

involved in actually moving any material, and neither interacted with it in any way prior to his

injury. In fact, his order remained untouched by anyone prior to Cirone’s injury. The evidence also

clearly establishes that the first forklift driver had already completed his assigned task of moving

the pallet of landscape blocks and the forklift no longer had any contact with the pallet, when the

driver backed over Cirone’s ankle.

¶ 84 Having established the relevant facts, we are tasked with applying the law to them as

instructed by our supreme court. That task requires us to apply the plain and ordinary meaning of

“use” to the instant set of facts. It is clear that Cirone’s vehicle was positioned outside the storage

bay and was not close to either the order or the forklift when he was injured. It was not awaiting

an imminent delivery at that time, and the Menards employees made it clear that they had no plan

for how the order would eventually be moved out of the storage bay and into the warehouse yard,

where it could be loaded onto the vehicle. Under those facts, neither Cirone nor Menards was

“using” the van for any purpose within the plain and ordinary meaning of that word when the

injury occurred. Naturally, the van was intended to come into play in some way at some point in

32 the process, but that point was never reached. Because the van was not present at the site of the

injury and was not actively connected to any part of the distinct processes of removing of the order

from the storage rack and, subsequently, loading it outside, it was never “employ[ed] for some

purpose of the user,” as required to find a duty to defend. See Schultz, 237 Ill. 2d at 401.

Accordingly, under the plain and ordinary meaning of the relevant language, the van was not

actually being “used” by Menards when Cirone was injured, and Farmers was not contractually

obligated to provide Menards with a defense in Cirone’s negligence action.

¶ 85 Recognizing as it must that the van was not, in any real-world sense, actually being used

at the time of the accident, however, the majority maintains that Farmers had a duty to defend

because Menards was involved in “acts in preparation for loading” when the injury occurred. To

make that argument, the majority invokes the “complete operations” doctrine, citing Estes Co. of

Bettendorf, Iowa v. Employers Mutual Casualty Co., 79 Ill. 2d 228, 233 (1980), and Menard, 2013

IL App (3d) 120340. Supra ¶¶ 13, 35-47. When applied to the unique facts of the instant case,

however, that assertion fails to support the majority’s conclusion that coverage exists.

¶ 86 Indeed, multiple factors distinguish the facts in the instant case from those in Estes and

Menard. Critically, the policies in Estes and Menard expressly included loading and unloading a

vehicle as a covered “use.” Farmers’ policy contained no such provision. Moreover, nothing in

those decisions even hints that the complete operations doctrine would be equally applicable to

policies of insurance that do not expressly provide coverage via a loading clause. Nonetheless, the

majority relies on those disparate analyses and policy provisions to find a duty to defend here.

¶ 87 Even a cursory examination of the factual scenario in Menard demonstrates the

inapplicability of that analysis. There, the appellate court found coverage for the plaintiff’s injury

after she “tripped over debris or packing materials that could have been placed by the Menards

33 employee loading the vehicle.” Supra ¶ 44; Menard, 2013 IL App (3d) 120340, ¶ 29. Here,

Cirone’s injury was not even loosely connected to debris that was created during the loading

process. Under the majority’s rationale, coverage for damages that occurred during that process

included all prior related activities because “[t]he alleged negligence in Menard did not concern

the actual moving of the bricks being loaded but, rather, preparatory or incidental moving of

surrounding debris or packing material.” Supra ¶ 44.

¶ 88 What the majority failed to note in Menard, however, was that, “[w]hile the Menards

employee was loading her car with the bricks, [the plaintiff] alleged, her foot became tangled in

debris or packing materials near her vehicle and she fell, sustaining multiple injuries.” (Emphasis

added.) Menard, 2013 IL App (3d) 120340, ¶ 5. Thus, although the plaintiff was not directly

injured by bricks being actively loaded into her car, she was undoubtedly hurt while engaged in

“acts in preparation for loading.” Id. ¶ 27. In fact, the plaintiff was personally involved in the

loading process when she was injured. The court stated that the plaintiff was actively involved in

“look[ing] for good bricks from the stack, [which she] then placed *** within reach of the Menards

employee to load into her vehicle.” Id. ¶ 5. Thus, the plaintiff and the Menards employee were

both actively involved in critical parts of the loading process when the plaintiff was injured, even

if the injury did not occur directly due to “the actual handling of the article to be loaded” (supra

¶ 44). Here, however, the facts are quite different.

¶ 89 Cirone was not participating in the activity taking place within the storage bay in any way

when he was injured. He was merely waiting for his special order. Although the majority notes

that some employees saw Cirone move a few feet from one spot to another before he was hit by

the forklift (supra ¶ 10), employees also stated that Cirone had never been instructed to remain in

any particular spot. Nor was his van parked in the immediate vicinity of the material that would

34 eventually be loaded; instead, it was parked somewhere in the open warehouse yard outside that

enclosed storage bay. Under those circumstances, neither Cirone nor his van was actively engaged

in anything that could be rationally deemed to be a loading or “pre-loading” activity. Moreover,

Cirone’s order was not yet available, and none of the normal preloading and loading processes,

including selecting specific materials and making contact with and moving at least part of the

order, had even begun when the forklift unexpectedly ran over his ankle. Because the facts in

Menard are so easily distinguishable from those in the instant appeal, it offers no support for the

majority’s conclusion.

¶ 90 As previously noted (supra ¶ 80), this court’s primary goal in reviewing the applicable

policy language by applying our traditional rules of construction is to effectuate the parties’

intention, as expressed by that language when given its plain and ordinary meaning. Menard, 2013

IL App (3d) 120340, ¶ 18. Here, the policy did not define the loading and unloading of a vehicle

as a covered “use,” while the policies in Estes and Menard expressly included a loading clause.

Moreover, our supreme court has stated that the applicable point of reference when examining the

plain and ordinary meaning of policy language is that of “ ‘the average, ordinary, normal,

reasonable person.’ ” Acuity, 2023 IL 129087, ¶ 30 (quoting Sproull, 2021 IL 126446, ¶ 19).

¶ 91 Based on the undisputed facts in the instant appellate record, it is highly unlikely that “the

average, ordinary, normal, reasonable person” would conclude that Cirone’s van was being “used”

by Menards at the time he was injured. The van was stationary and parked outside the storage bay

that held Cirone’s order, making it inaccessible for loading when the injury occurred. Prior to

Cirone being injured, no Menards employee had had any contact with that vehicle. Despite the

majority’s claims to the contrary (supra ¶¶ 3, 56, 58), the Menards employees had no specific plan

on how to transfer the order to Cirone’s vehicle after getting it down from the rack and placing it

35 in the floor of the storage bay and were not even sure if it would ultimately be placed on the roof

or inside the van. As our supreme court has dictated, this court must apply the policy language to

the facts using the perspective of “ ‘the average, ordinary, normal, reasonable person.’ ” Acuity,

2023 IL 129087, ¶ 30 (quoting Sproull, 2021 IL 126446, ¶ 19). From that perspective, Cirone’s

vehicle was neither being employed for the user’s purpose nor “ ‘put[ ] to [any] service of a thing’ ”

when the injury occurred. See Kim v. State Farm Mutual Automobile Insurance Co., 2014 IL App

(1st) 131235, ¶ 19 (quoting Schultz, 237 Ill. 2d at 401). Thus, the facts failed to “support that the

injury occurred during the loading process” as the majority contends (supra ¶ 47).

¶ 92 Viewed from the proper perspective, Menards’ contrary argument distorts the ordinary

meaning of “use” beyond normal recognition. From the standpoint of an average reasonable

person, the connection between Menards’ purported “use” of the van and Cirone’s order was

simply too attenuated from any loading or preloading activity involving the order to support a

finding of coverage. Under the view of Menards and the majority, Menards would be entitled to a

defense from Farmers even if the forklift driver had injured a random customer as it went from

one end of the store to another to reach the storage bay because that, too, was part of the necessary

preloading activity. Indeed, a myriad of other distantly related activities would also necessarily be

covered, even though they most assuredly would not have been within the parties’ contemplation

when they entered into the insurance contract and reside well outside the realistic limits of the

average, reasonable person’s understanding of a loading activity. Without any cognizable limits,

it is difficult to imagine just how far down the causal chain coverage would extend. By adopting

Menards’ reasoning, the majority has unjustifiably, and unwisely, extended the completion

doctrine far beyond both everyday experience and any existing state precedents.

36 ¶ 93 In an effort to bolster its analysis, the majority seeks support from a purported causal

connection between Cirone’s vehicle and his injury under the “reasonable contemplation” test.

Under that test, coverage exists if the injuries were sustained as the result of an activity that fell

within the risk reasonably recognized by the parties. Aryainejad v. Economy Fire & Casualty Co.,

278 Ill. App. 3d 1049, 1055 (1996). In reaching that conclusion, the Aryainejad court recognized

that liability exists in only limited circumstances, explaining, for example, “an automobile must

do more than merely transport a person to the site where an accident occurs for coverage to apply.”

Id. at 1054.

¶ 94 Here, no evidence ties the van to the cause of the injury other than its use in transporting

Cirone to Menards. It was never used or even touched by Cirone or any Menards employee after

his arrival at the store. Moreover, in both Aryainejad and Menard, the court explained that the

reasonable contemplation test only

“affords coverage where the injury is the result of an activity that presented the type of risk

that the parties reasonably contemplated would be covered by the policy. Aryainejad, 278

Ill. App. 3d at 1054. Applying this test, the court must determine whether the negligent act

which caused the injury was a reasonable incident or consequence of the use of the

automobile. Aryainejad, 278 Ill. App. 3d at 1053 (citing Westchester Fire Insurance Co. v.

Continental Insurance Cos., 312 A.2d 664, 669 (N.J. Super. Ct. App. Div. 1973)).”

(Emphases added.) Menard, 2013 IL App (3d) 120340, ¶ 28.

It is unfathomable that a reasonable, ordinary person would recognize the risk of Cirone’s ankle

being run over by an errant forklift as “the type of risk that the parties reasonably contemplated

would be covered by the policy” or conclude that Menards’ negligent operation of the forklift “was

a reasonable incident or consequence of the use of the [van].” See id. It is undisputed that the van

37 was never implicated in any portion of the loading process or in the preparations undertaken by

Menards prior to start of that process. It was not even located near the site of the injury.

¶ 95 Aryainejad also offers additional rationale supporting the conclusion that coverage does

not exist here. In considering whether coverage applied, that court examined the impact of

intervening causes, noting that

“an assault by the driver of a vehicle is an act which is independent and unrelated to the

ownership, maintenance or use of a vehicle. Regardless of whether a vehicle creates a

condition that leads to an assault, injuries resulting from an assault are not a normal or

reasonable consequence of the use of a vehicle.” Aryainejad, 278 Ill. App. 3d at 1054–55.

Similarly, here the forklift driver’s failure to use standard safety protocols, such as simply looking

back before reversing the forklift, is an intervening causal factor in Cirone’s injuries. Injuries due

to a forklift driver’s failure to back up in a safe manner “are not a normal or reasonable

consequence of the use of a vehicle” such as Cirone’s van. Id. Nothing in the appellate record

supports the finding of a reasonable causal nexus that ties Cirone’s van to his injuries.

Consequently, no duty to defend exists, or potentially exists, under Farmers’ insurance policy.

¶ 96 In addition, the key to applying the reasonable contemplation test is determining “whether

the alleged negligent act that caused the alleged injury was a reasonable incident or consequence

of the use of the insured vehicle.” Here, however, the majority appears to rely on the generic nature

of the insured vehicle, focusing on the fact that Cirone drove a cargo van rather than on the actual

consequences of “the use of” that vehicle under the facts of this case (supra ¶¶ 49, 54). First

Chicago Insurance Co. v. My Personal Taxi & Livery, Inc., 2019 IL App (1st) 190164, ¶ 22.

¶ 97 The majority cites My Personal Taxi, 2019 IL App (1st) 190164, and a Wisconsin appellate

case, Blasing v. Zurich American Insurance Co., 2013 WI App 27, 346 Wis. 2d 30, 827 N.W.2d

38 909, to argue that “the injury to plaintiff’s foot caused by the forklift resulted from an activity

reasonably contemplated by the parties, i.e., using a forklift to load an insured cargo van with

cargo.” Supra ¶ 54. Further clarifying its reliance on the type of vehicle at issue instead of its actual

use in the case, the majority asserts that “[s]urely, drafters of an insurance policy providing

coverage for a cargo van, which did not have windows or seating behind the driver, contemplated

that the cargo van would be used to load cargo and that forklifts were a likely method by which to

load cargo.” Supra ¶ 54. That assertion misreads both My Personal Taxi and Blasing.

¶ 98 Although the decisions in both cases recognized the potential relevance of the type of

vehicle to the reasonable expectation that it would be used to load the cargo at issue, that factor

was merely incidental to the courts’ inquiry. See Blasing, 2013 WI App 27, ¶ 18; My Personal

Taxi, 2019 IL App (1st) 190164, ¶ 24. In each case, the type of vehicle being loaded was relevant

only to the extent that it could “reasonably” be expected to carry the intended load, presumably as

a subordinate factor in the critical inquiry of whether the “injury results from an activity that

presented the type of risk that the parties reasonably contemplated would be covered by the

policy.” (Emphasis added.) My Personal Taxi, 2019 IL App (1st) 190164, ¶ 22. Because any one

of a wide range of vehicles could potentially be capable of moving the materials at issue, the

insurance policies in My Personal Taxi and Blasing would have been applied equally to a broad

spectrum of vehicles. The classification of the insured vehicle as a pickup truck, a taxi, or even a

cargo van, simply provides evidence that is relevant to the reasonable expectations of the insurer

and the insured and constitutes a subsidiary part of the court’s analysis. In both cases, the heart of

the courts’ analysis was whether the injury occurred while the insured vehicle was being used

within the meaning of the policy and whether the parties to the insurance contract reasonably

contemplated the risk of that harm, not on the type of vehicle involved. Consequently, both courts

39 found coverage only where the injury occurred while the vehicle was actually being used in the

loading process, undermining the majority’s reliance on both My Personal Taxi and Blasing here.

¶ 99 Moreover, both cases are readily distinguishable on their facts. In My Personal Taxi, the

plaintiff, who was legally blind, alleged that he was injured when an agent of a livery service,

which offered nonemergency, medical transportation to the public, drove him to a hospital for a

medical appointment. On arrival at the hospital, the driver allegedly caused the plaintiff’s injuries

by walking him into a cement pillar while escorting him from the vehicle to the hospital entrance.

Id.. ¶ 5. In reviewing the case, that court adopted the rationale used by the Tennessee Supreme

Court in Travelers Insurance Co. v. Aetna Casualty & Surety Co., 491 S.W.2d 363, 365 (Tenn.

1973), which concluded that “ ‘the entire process involved in moving the goods is covered’ ‘[i]n

commercial situations *** from the moment the insured takes possession until delivered at the

point of destination.’ ” (Emphasis added.) My Personal Taxi, 2019 IL App (1st) 190164, ¶ 25

(quoting Travelers Insurance Co., 491 S.W.2d at 365). In contrast, here the “insured,” Cirone,

never took possession of his order because Menards did not even touch it prior to his injury,

distinguishing the analysis in My Personal Taxi.

¶ 100 Similarly, in Blasing, 2013 WI App 27, ¶¶ 1, 4, the plaintiff “was injured by an employee

of Menard, Inc. while the employee was loading Blasing’s truck with lumber” that she had

purchased at a Wisconsin Menards store. (Emphasis added.) The injury occurred when “a Menards

employee used a fork lift to load the boards into Blasing’s truck” while “Blasing was standing next

to her truck. During this loading process, a few boards fell and struck Blasing’s foot, causing

injury.” (Emphasis added.) Id. ¶ 4. Here, Cirone was not standing even remotely close to his

vehicle, and that vehicle was not even arguably engaged in any active loading process when he

was injured; indeed, Cirone’s order had not even been touched at that time.

40 ¶ 101 The key facts in the analyses in My Personal Taxi and Blasing clearly established the active

and contemporaneous loading or unloading of an insured vehicle, facts that stand in sharp contrast

to those in the instant case. The evidence readily demonstrates that Cirone’s van, located

somewhere outside the storage bay in the warehouse yard, had absolutely no connection to the

conduct of the forklift driver inside those bays that resulted in Cirone’s injury. Accordingly, the

conduct of Menards’ employees did not even potentially fall within Farmers’ duty to defend under

the stated rationales in both My Personal Taxi and Blasing. The majority’s reliance on those

decisions is misplaced.

¶ 102 Nonetheless, the majority maintains that “the alleged negligent acts—securing the loading

area, failing to warn Cirone of the ‘dangerous’ forklift activity, and operating the forklift—were

directly related to loading the insured vehicle and were not attenuated or remote to the injury;

rather they occurred in a close, related sequence.” Supra ¶ 56. Despite extensive evidence about

where the van was generally located in relation to the site of the injury, its precise location remains

impossible to decipher. Even the testimony about the general layout of the area was inconsistent,

with Menards employees repeatedly referring to storage bays that Cirone denied were present. In

addition, the majority also acknowledges that Cirone initially stood where he was directed by the

Menards employees and contends that “moving mere feet [from that spot] brought him into harm’s

way.” Supra ¶ 56. Although not noted by the majority, the deposition testimony establishes that

none of the Menards employees ever told Cirone not to move even a short distance from that

location. By instead focusing on the speed at which the injury occurred, the majority ignores

Menards’ inherent duty to operate its forklift in a safe manner, adhering to fundamental safety

principles such as requiring a forklift driver to look over his shoulder before backing up.

41 ¶ 103 Moreover, the deposition testimony shows that Menards’ “loading plan” was far from

comprehensive or well orchestrated, as the majority suggests. See supra ¶¶ 56, 58. The only fully

planned steps were using the first forklift to make Cirone’s order more accessible by moving the

pallet of landscape block that Menards had previously stored in front of it and then using a second

forklift to reach the order and place it on the ground inside the storage bay, a step that was never

attempted. After that, the evidence does not indicate whether the material would be moved from

the floor inside the storage bay to the van in the outside yard or whether the van would be brought

into the storage bay. What is clear, however, is that the employees did not plan to immediately

load Cirone’s van after removing the order from the rack. Even after the order was moved to be in

the vicinity of the van, the employees did not know how it would be loaded or even whether it

would be stowed inside or on the top of the vehicle.

¶ 104 The majority also attempts to tie the van physically to the location of the injury, but the

record does not support that assertion. Although Cirone was broadly instructed to park somewhere

outside the storage bay that held his order when he first entered the warehouse yard, he could not

have specifically parked his van “close” to that order because he had no idea where it was located

inside the large storage building at that point. He only learned the actual location of the order after

he left his parked vehicle, entered the storage building, and received directions on where to go. He

testified that he did not know where the van was in relation to where he was standing when he was

injured.

¶ 105 Even more importantly, the specifics of Menards’ “plan” to reach Cirone’s order is not one

of the two touchpoints to be considered when applying the reasonable contemplation test. Supra

¶¶ 49, 95, 97. The intended scope of coverage contemplated by the insured and the insurer here,

Cirone and Farmers, is one of those two mandated points, however. Menard, 2013 IL App (3d)

42 120340, ¶ 28 (explaining that the reasonable contemplation test “affords coverage where the injury

is the result of an activity that presented the type of risk that the parties reasonably contemplated

would be covered by the policy. Aryainejad, 278 Ill. App. 3d at 1054” (emphasis added)); supra

¶ 95. Because Menards’ alleged “plan” was developed much later, it had absolutely no impact on

the intended scope of the Farmers policy.

¶ 106 In addition to the foregoing legal analysis, practicality also strongly counsels the rejection

of the majority’s resolution of this case. Insurance providers are companies we love to criticize,

and yet they provide an invaluable service to people who are ill, injured, or victims of accidents or

violent crimes or identity theft—and the list goes on. We count on them to be there when we need

them and to charge reasonable premiums for that security. When courts demand coverage—

defense or indemnification—based not on the reasonable understanding of the parties but on the

inventiveness and verbal agility of lawyers and judges, we force these businesses to retain viability

by continually increasing their premiums to pay for unforeseen, and reasonably unforeseeable,

coverage extensions that they have been deemed obligated to provide. Here, Cirone purchased auto

insurance. It is not reasonable to believe that either he or Farmers contemplated an obligation to

pay for injuries caused by a Menards employee carelessly running over his ankle with a Menards

forklift while doing Menards work on a Menards site—coverage that Menards has, or reasonably

should have, already purchased for itself. See Aryainejad, 278 Ill. App. 3d at 1055 (explaining the

“reasonable contemplation” test).

¶ 107 For all these reasons, I reject the majority’s forfeiture analysis and its strained attempts to

string together a number of loosely related doctrines to find coverage in this case and respectfully

dissent.

43 Menard, Inc. v. Illinois Farmers Insurance Co., 2024 IL App (3d) 230431

Decision Under Review: Appeal from the Circuit Court of Will County, No. 17-MR- 0609; the Hon. John C. Anderson, Judge, presiding.

Attorneys Glenn F. Fencl and Garrett L. Boehm Jr., of Johnson & Bell, for Ltd., of Chicago, for appellant. Appellant:

Attorneys W. Anthony Andrews and John E. Motylinski, of Ottosen for DiNolfo Hasenbalg & Castaldo, Ltd., of Naperville, for Appellee: appellee.