State Farm Fire & Casualty Co. v. Zeien

2023 IL App (4th) 221100-U

• Court: Appellate Court of Illinois
• Decided: July 26, 2023
• Docket: 4-22-1100
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 221100-U This Order was filed under FILED NO. 4-22-1100 July 26, 2023 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

STATE FARM FIRE & CASUALTY COMPANY, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County NATHAN P. ZEIEN and GEORGE ODARCZENKO, as ) No. 22MR2 Administrator of the Estate of Victoria Odarczenko, ) Deceased ) Honorable Defendants ) C. Robert Tobin III, (George Odarczenko, as Administrator of the Estate of ) Judge Presiding. Victoria Odarczenko, Deceased, ) Defendant-Appellant.)

PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justices Cavanagh and Doherty concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, finding the circuit court properly granted plaintiff’s motion for summary judgment.

¶2 In February 2022, plaintiff, State Farm Fire & Casualty Company (State Farm),

filed a complaint for declaratory judgment, contending it had no duty to defend defendant,

Nathan P. Zeien, in the underlying lawsuit filed by defendant, George Odarczenko, as

administrator of the estate of Victoria Odarczenko, deceased, because policy exclusions

precluded coverage for the negligent acts alleged in George’s complaint. State Farm

subsequently filed a motion seeking summary judgment to that effect and, following a hearing in

October 2022, the circuit court granted State Farm’s motion. ¶3 George appeals, arguing the circuit court erred by granting summary judgment in

favor of State Farm. We affirm.

¶4 I. BACKGROUND

¶5 The allegations of the underlying tort action are not in dispute. In October 2020,

Zeien was driving his “2020 Polaris RZR XP 4 Turbo,” a 168-horsepower “motorized utility task

vehicle [(UTV)],” on an “improved unpaved public road in the Nicolet National Forest

(Township of Alvin, Forest County, Wisconsin).” As Zeien attempted to navigate a right-hand

curve, the UTV rolled over onto its driver’s side, slid off the roadway, and struck two poplar

trees alongside the road. Victoria was riding in the backseat of Zeien’s UTV at the time of the

accident and, consequently, suffered multiple injuries, resulting in her death.

¶6 In August 2022, George, as administrator of Victoria’s estate, filed a 14-count,

third amended complaint against Zeien and five other defendants not subject to the instant

appeal. With respect to Zeien, the third amended complaint invoked the Wrongful Death Act

(740 ILCS 180/0.01 et seq. (West 2022)) and the Survival Act (755 ILCS 5/27-6 (West 2022)),

alleging Victoria was mortally injured due to Zeien’s negligence. Specifically, the complaint

alleged Zeien owed a duty to Victoria to exercise reasonable care in the operation of the UTV,

and Zeien violated that duty by committing one or more of the following acts: (1) operating the

UTV carelessly so as to endanger Victoria, (2) failing to remain on the right side of the

roadway’s surface, (3) failing to exercise a reasonable degree of care and caution while operating

the UTV, and (4) failing to properly maintain the UTV. Furthermore, the complaint contained a

picture of a UTV “like the one Victoria was in when she was killed,” which depicted an open,

motorized vehicle having four deep-treaded tires with four seats positioned side-by-side and

enclosed within a roll cage structure.

-2- ¶7 Zeien sought coverage from the lawsuit under a homeowners policy issued to him

by State Farm. However, State Farm refused to accept Zeien’s tender of defense.

¶8 Zeien’s homeowners insurance policy included certain liability coverage.

“Coverage L—Personal Liability” provided

“If a claim is made or a suit is brought against an insured

for damages because of bodily injury or property damage to which

this coverage applies, caused by an occurrence, we will:

1. pay up to our limit of liability for the damages for

which the insured is legally liable. We will not pay for

criminal restitution; and

2. provide a defense at our expense by counsel of

our choice. We may make any investigation and settle any

claim or suit that we decide is appropriate. Our obligation

to defend any suit ends when the amount we pay for

damages, to effect settlement or satisfy a judgment

resulting from the occurrence, equals our limit of liability.

We will not provide a defense to any insured for criminal

prosecution or proceedings.” (Emphases in original.)

Zeien’s homeowners policy, however, also contained an “Exclusions” section, which provided:

“Coverage L *** do[es] not apply to:

***

f. bodily injury or property damage arising out of the

ownership, maintenance, use, loading, or unloading of:

-3- ***

(2) a motor vehicle owned or operated by or rented

or loaned to any insured.” (Emphases in original.)

“Motor vehicle” is a defined term under Zeien’s homeowners policy and provides, in relevant

part:

“ ‘motor vehicle’ *** means:

c. a ‘recreational or utility vehicle’ while off an

insured location. ‘Recreational or utility vehicle’ means a

motorized vehicle designed for recreation or utility

purposes, used principally off public roads, and that is

owned or leased by an insured. This includes, but is not

limited to, a motorized all-terrain vehicle, side-by-side

vehicle, utility work vehicle, amphibious vehicle, dune

buggy, go-cart, golf cart, snowmobile, trailbike, minibike,

and personal assistive mobility device.” (Emphases in

original.)

Zeien’s homeowners policy defines “insured location” as follows:

“ ‘insured location’ means:

a. the residence premises

b. the part of any other premises, other structures,

and grounds used by you as a residence. This includes

-4- premises, structures, and grounds you acquire while this

policy is in effect for your use as a residence;

c. any premises used by you in connection with the

premises included in 11.a. or 11.b. above.” (Emphases in

¶9 State Farm filed a complaint for declaratory judgment in February 2022, seeking a

ruling that it had no duty to defend or indemnify Zeien in the underlying lawsuit. In July 2022,

State Farm filed a motion for summary judgment to that effect, claiming it had “no duty to

defend or indemnify Zeien *** for the matters alleged in the Odarczenko complaint” and was

entitled to judgment as a matter of law. In support of its motion, State Farm identified the

pertinent policy provisions and exclusions for bodily injuries arising from the use of a

“recreational or utility vehicle” while away from an insured location. State Farm then argued that

since George’s complaint “plainly allege[d] that Zeien was operating the UTV on a gravel road

in Wisconsin,” then the above motor vehicle exclusion precluded “coverage for the liability

stemming from the *** accident” because the “undisputed facts *** establish[ed] that the injury

happened while off the ‘insured location.’ ”

¶ 10 On October 17, 2022, George filed a response to State Farm’s motion and

acknowledged State Farm “correctly argue[d] the accident occurred while the vehicle was ‘off an

insured location,’ ” but he asserted Zeien’s UTV was not a “ ‘recreational or utility vehicle.’ ”

Furthermore, George’s response sought leave to conduct discovery, claiming State Farm’s

summary judgment motion was a “Celotex-type motion,” and due to that characterization,

“[c]ompliance with Rule 191(b)’s affidavit requirement, applicable when the nonmovant still

requires discovery of material facts in order to respond, [was] not required.”

-5- ¶ 11 On October 25, 2022, the parties appeared before the circuit court for a hearing on

State Farm’s motion. On November 8, 2022, the court entered a three-page order granting State

Farm’s motion for summary judgment and denying George’s request to conduct preliminary

discovery, finding there were “no ambiguities ***, and the matter [could] be resolved by

reasonable interpretations given to the Third Amended Complaint and the Policy.” The court

then found:

“Under no reasonable interpretation of the policy do the

allegations in the Third Amended Complaint fall within the

coverage of the Policy. As defined by the Third Amended

Complaint[,] the UTV is a motor vehicle that is a recreational or

utility vehicle. The incident occurred in Wisconsin while the

insured premises are in Illinois. As a matter of law, Forest County,

Wisconsin is not a premise that is used by Zeien in connection with

the property in Illinois.”

Thereafter, George filed a motion to reconsider which the court ultimately denied.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, George asserts the circuit court erred by granting summary judgment

in favor of State Farm, alleging there is a clear ambiguity in the policy and, thus, the motor

vehicle exclusion cannot apply. He further asserts the court erred when it denied his request to

conduct preliminary discovery because State Farm’s motion for summary judgment was a

“Celotex-type motion” and, therefore, the affidavit requirement under Illinois Supreme Court

Rule 191(b) (eff. Jan. 4, 2013) did not apply.

-6- ¶ 15 A. Summary Judgment

¶ 16 Section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West

2022)) governs summary judgments, providing the circuit court must enter judgment where the

“pleadings, depositions, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” A defendant moving for summary judgment has two ways to meet

his initial burden of production: (1) by affirmatively showing some element of the case must be

resolved in his favor or (2) the “Celotex-type motion,” where the burden essentially moves to the

nonmoving party after the movant points out “the absence of evidence supporting the plaintiff’s

position.” Hutchcraft v. Independent Mechanical Industries, Inc., 312 Ill. App. 3d 351, 355, 726

N.E.2d 1171, 1175 (2000). In either case, “once defendant has satisfied [his] initial burden of

production, the burden shifts to plaintiff to present some factual basis that would arguably entitle

[him] to a judgment under the applicable law.” Hutchcraft, 312 Ill. App. 3d at 355.

¶ 17 The summary judgment procedure has been termed the “ ‘put up or shut up’ ”

moment in litigation, meaning the party opposing summary judgment must produce actual

evidentiary facts that would enable a jury to return a verdict in his or her favor and may not rely

on mere speculation or conjecture. Tafoya-Cruz v. Temperance Beer Co., LLC, 2020 IL App

(1st) 190606, ¶ 68, 178 N.E.3d 182. “Although a drastic means of disposing of litigation,

summary judgment is, nonetheless, an appropriate measure to efficiently dispose of a suit when

the moving party’s right to the judgment is clear and free from doubt.” U.S. Bank, National Ass’n

v. Reinish, 2020 IL App (2d) 190175, ¶ 10, 164 N.E.3d 673. “ ‘[W]here reasonable persons could

draw divergent inferences from the undisputed material facts or where there is a dispute as to a

material fact, summary judgment should be denied and the issue decided by the trier of fact.’ ”

-7- Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22, 131 N.E.3d 488 (quoting Espinoza v. Elgin, Joliet

& Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995)). “With a summary

judgment motion, courts construe the pleadings, depositions, admissions, and affidavits strictly

against the movant and liberally in favor of the opponent.” Smith v. Hancock, 2019 IL App (4th)

180704, ¶ 19, 133 N.E.3d 666. A circuit court’s ruling on a motion for summary judgment

presents a question of law, and thus we apply the de novo standard of review. Mayfield Cooper

Brotze v. City of Carlinville, 2021 IL App (4th) 200369, ¶ 27, 183 N.E.3d 251.

¶ 18 B. An Insurer’s Duty to Defend Its Insured

¶ 19 “If the facts alleged in the underlying complaint fall within, or potentially within,

the policy’s coverage, the insurer has a duty to defend.” Illinois State Bar Ass’n Mutual

Insurance Co. v. Leighton Legal Group, LLC, 2018 IL App (4th) 170548, ¶ 35, 103 N.E.3d 1087.

“It follows then, that ‘[a]n insurer may not refuse to defend an action against its insured unless it

is clear from the face of the underlying complaint that the allegations fail to state facts that bring

the case within, or potentially within, the insured’s policy coverage.’ ” Farmers Insurance

Exchange v. Cheekati, 2022 IL App (4th) 210023, ¶ 14, 196 N.E.3d 1209 (quoting Core

Construction Services of Illinois, Inc. v. Zurich American Insurance Co., 2019 IL App (4th)

180411, ¶ 25, 126 N.E.3d 694). “In a declaratory judgment action when the issue is whether the

insurer has a duty to defend, courts first look to the allegations in the underlying complaint and

compare those allegations to the relevant provisions of the insurance policy.” Core Construction

Services of Illinois, Inc., 2019 IL App (4th) 180411, ¶ 25. “Though the court’s analysis begins

with the underlying complaint, it may look beyond that document to the other pleadings and

evidence to determine an insurer’s duty to defend, so long as the court does not determine a

critical issue in the underlying action.” Farmers Insurance Exchange, 2022 IL App (4th) 210023,

-8- ¶ 14; see Core Construction Services of Illinois, Inc., 2019 IL App (4th) 180411, ¶ 26

(explaining when a circuit court may look beyond the underlying complaint and what the court

may look at).

¶ 20 “If an insurer relies on an exclusionary clause to deny coverage,” as State Farm

does here, and refuses its duty to defend its insured, “it must be clear and free from doubt that the

exclusionary clause applies.” Illinois State Bar Ass’n Mutual Insurance Co., 2018 IL App (4th)

170548, ¶ 37. “When an insurer invokes an exclusionary clause to deny coverage and its duty to

defend, it bears the burden of proving the exclusion applies.” Farmers Insurance Exchange,

2022 IL App (4th) 210023, ¶ 15.

¶ 21 C. Interpreting This Insurance Policy’s Motor Vehicle Exclusion

¶ 22 “When construing the language of an insurance policy, a court’s primary

objective is to ascertain and give effect to the intentions of the parties as expressed by the words

of the policy.” Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153, 821

N.E.2d 206, 213 (2004). “If the policy’s words are clear and unambiguous, they will be given

their plain and ordinary meaning, but if the policy terms ‘are reasonably susceptible to more than

one meaning, they are ambiguous and will be strictly construed against the drafter.’ ” Farmers

Insurance Exchange, 2022 IL App (4th) 210023, ¶ 17 (quoting Central Illinois Light Co., 213 Ill.

2d at 153). “Policy terms are ‘not rendered ambiguous merely because the parties disagree on

[their] meaning.’ ” Farmers Insurance Exchange, 2022 IL App (4th) 210023, ¶ 17 (quoting

Central Illinois Light Co., 213 Ill. 2d at 153). Likewise, reviewing courts “will not strain to find

ambiguity in an insurance policy where none exists.” (Internal quotation marks omitted.) Hess v.

Estate of Klamm, 2020 IL 124649, ¶ 16, 161 N.E.3d 183. “Courts will construe the policy as a

whole and consider the type of insurance purchased, the nature of the risks involved, and the

-9- overall purpose of the contract.” Illinois State Bar Ass’n Mutual Insurance Co., 2018 IL App

(4th) 170548, ¶ 40. As we do with decisions granting motions for summary judgment, we review

de novo a circuit court’s construction of an insurance policy. Illinois State Bar Ass’n Mutual

Insurance Co., 2018 IL App (4th) 170548, ¶ 40.

¶ 23 Beginning with “Coverage L—Personal Liability,” the policy “will *** pay up to

our limit of liability for the damages for which the insured is legally liable.” (Emphases omitted.)

But the personal liability coverage is subject to limitation. As set forth above, the policy’s motor

vehicle exclusion precludes coverage for “bodily injury or property damage arising out of the

ownership, maintenance, use, loading, or unloading of *** a motor vehicle owned or operated by

or rented or loaned to any insured.” (Emphases omitted.) Motor vehicles, as defined under this

homeowners policy, include “ ‘recreational or utility vehicle[s]’ while off an insured location.”

(Emphasis omitted.) The policy defines a “recreational or utility vehicle” as “a motorized vehicle

designed for recreation or utility purposes, used principally off public roads, and that is owned or

leased by an insured” (emphasis omitted), such as motorized all-terrain vehicles, side-by-side

vehicles, and utility work vehicles.

¶ 24 Here, after reviewing the insurance policy and George’s argument, we conclude

the circuit court correctly found that “[u]nder no reasonable interpretation of the policy do the

allegations in the Third Amended Complaint fall within the coverage of the Policy.” The parties

agree the accident occurred while off the insured location. Moreover, George’s complaint

acknowledges Zeien’s “2020 Polaris RZR XP 4 Turbo”—which the complaint depicts as an

open, motorized vehicle having four deep-treaded tires with four seats positioned side-by-side

and enclosed within a roll cage structure—was a “utility task vehicle.” That is exactly what the

policy’s motor vehicle exclusion excludes from coverage. See Farmers Insurance Exchange,

- 10 - 2022 IL App (4th) 210023, ¶ 17. Yet, in an effort to raise an ambiguity, George attempts to

sidestep application of the policy’s plain, ordinary language by directing our attention to the

phrase “used principally off public roads” in claiming the policy’s motor vehicle exclusion

cannot apply.

¶ 25 We reject George’s attempt to inject ambiguity into the policy and, to echo our

supreme court, “will not strain to find ambiguity in an insurance policy where none exists.”

(Internal quotation marks omitted.) Hess, 2020 IL 124649, ¶ 16. George offers no reasonable

alternative interpretation for the phrase “used principally off public roads,” apart from his claim

that, “because the term ‘on public roads’ is not defined in the insurance policy,” then, “[t]o fall

within the exclusion, the motor vehicle must have been ‘not on public roads’ at the time of the

accident.” (Emphasis omitted.) But even considering this language and the policy as a whole,

application of the policy’s motor vehicle exclusion does not turn on whether an accident

occurred on or off a public road. If this court were to simply employ that test, the definition of

“recreational or utility vehicle” would exclude many vehicles fitting squarely within the

definition, even if the accident occurred away from an insured location. For example, under

George’s interpretation, an accident involving an insured’s golf cart, which is expressly listed as

a “recreational or utility vehicle,” while off the insured location, would not fall under the

policy’s motor vehicle exclusion if the accident occurred on a public road. Looking at the policy

as a whole and considering the type of policy involved, we cannot conclude the parties intended

such a definition. See Central Illinois Light Co., 213 Ill. 2d at 153; Illinois State Bar Ass’n

Mutual Insurance Co., 2018 IL App (4th) 170548, ¶ 40.

¶ 26 In sum, the language and meaning of the policy could not be clearer—there is no

personal liability coverage for bodily injuries arising out of the “ownership, maintenance, use,

- 11 - loading, or unloading” of “a ‘recreational or utility vehicle’ while off an insured location.”

(Emphasis omitted.) Zeien’s “2020 Polaris RZR XP 4 Turbo” was a type of “utility vehicle,” and

the bodily injuries Victoria sustained were caused by an accident that occurred while Zeien was

driving the UTV in Forest County, Wisconsin, which is off the insured location. Accordingly, it

is “clear and free from doubt” that the motor vehicle exclusion here applied to preclude

coverage, State Farm had no duty to defend Zeien, and the circuit court rightly granted summary

judgment in favor of State Farm. Illinois State Bar Ass’n Mutual Insurance Co., 2018 IL App

(4th) 170548, ¶ 37; see Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 494, 475

N.E.2d 872, 876 (1985) (“If any one of the exclusions applies there is no coverage.”).

¶ 27 D. Additional Discovery

¶ 28 Finally, George argues he was entitled to discovery as a result of the filing of his

affidavit pursuant to Rule 191(b) (eff. Jan. 4, 2013). However, Rule 191(b) requires the affiant to

identify the persons who have knowledge of the material facts that would defeat summary

judgment, state why their affidavits could not be obtained, and specify what such persons “would

testify to if sworn,” along with the reasons for such belief. Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013).

The purported Rule 191(b) affidavit fails to comply with any of these requirements. George

argues strict compliance with Rule 191(b) is not required here because State Farm’s motion was

a Celotex-type motion—a motion which rests not on affirmative evidence from the movant but

on the assertion that the nonmovant cannot adduce evidence to support its case. See Crichton v.

Golden Rule Insurance Co., 358 Ill. App. 3d 1137, 1152-53, 832 N.E.2d 843, 857 (2005). State

Farm’s motion was not such a motion, as it asserted the policy and the underlying complaint

affirmatively established its right to summary judgment. Accordingly, the circuit court’s refusal

to permit additional discovery was within its discretion.

- 12 - ¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 31 Affirmed.

- 13 -