                              2019 IL App (2d) 180154
                Nos. 2-18-0154, 2-18-0159, 2-18-0860, 2-18-0861 cons.
                            Opinion filed March 29, 2019
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

STATE FARM MUTUAL AUTOMOBILE                 ) Appeal from the Circuit Court
INURANCE COMPANY,                            ) of Kendall County.
                                             )
        Plaintiff-Appellee,                  )
                                             )
v.                                           ) No. 17-MR-55
                                             )
MARY MURPHY, as Executor of the Estate of )
James Hollander, Deceased; SANDRA            )
WENDLAND; CHEYENNE FLOWERS;                  )
PAMELA SHEPPARD, as Guardian of the          )
Estate and Person of Alyssa Guarino, a       )
Disabled Person; KEITH KEIGHER; and          )
J-M TRANSPORTS, INC.,                        )
                                             )
        Defendants                           )
                                             )
(Mary Murphy, as Executor of the Estate of   )
James Hollander, Deceased; Sandra            )
Wendland; Cheyenne Flowers; Pamela           )
Sheppard, as Guardian of the Estate and      ) Honorable
Person of Alyssa Guarino, a Disabled Person; ) Robert P. Pilmer,
Defendants-Appellants).                      ) Judge, Presiding.
_____________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Hutchinson and Spence concurred in the judgment and opinion.

                                           OPINION

¶1     Defendants, Mary Murphy, as executor of the estate of James Hollander, deceased;

Sandra Wendland; Cheyenne Flowers; and Pamela Sheppard, as guardian of the estate and

person of Alyssa Guarino, a disabled person, (collectively, defendants), appeal the trial court’s
2019 IL App (2d) 180154


grant of summary judgment in favor of plaintiff, State Farm Mutual Automobile Insurance

Company. For the following reasons, we affirm.

¶2                                      I. BACKGROUND

¶3     On September 11, 2015, a multivehicle accident occurred at the intersection of Grove

Road and U.S. Route 52 in Kendall County. At the intersection, Grove Road was controlled by a

stop sign and Route 52 was a through-road without any traffic signals. When the accident

occurred, Hollander was driving Wendland’s 2015 Nissan Altima south on Grove Road.

Wendland and Guarino were passengers, with Wendland in the front passenger seat and Guarino

in the backseat, and they were en route to visit Wendland’s daughters in Iowa. Meanwhile,

Flowers was traveling east on Route 52 near Grove Road.             Keith Keigher was driving a

semitractor-trailer in the scope of his employment with J-M Transport, Inc. (J-M), traveling west

on Route 52 near Grove Road. The accident occurred when the Nissan collided with the tractor-

trailer, which then collided with Flowers’s vehicle. Hollander died as a result of the collision.

¶4                                A. The Underlying Complaints

¶5     Wendland, Sheppard, and Flowers each filed negligence actions against Hollander’s

estate, seeking to recover damages for injuries sustained in the accident. See Wendland v.

Murphy, No. 16-L-41 (Cir. Ct. Kendall County); Sheppard v. Murphy, No. 16-L-39 (Cir. Ct.

Kendall County); Flowers v. Murphy, No. 15-L-87 (Cir. Ct. Kendall County). Flowers also

named as defendants Keigher and J-M.          All of the underlying complaints alleged that the

collision was caused by Hollander’s negligent acts or omissions.          None of the underlying

complaints alleged that Hollander was vicariously liable for any acts or omissions by Wendland.

None of the complaints alleged that Wendland was liable in any manner.

¶6                           B. Complaint for Declaratory Judgment



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¶7     On July 11, 2017, plaintiff filed a declaratory judgment action, stating that it was

defending Hollander’s estate in the underlying lawsuits, under Wendland’s primary automobile

policy. Plaintiff acknowledged that Hollander was a “permissive user” of the Nissan. However,

plaintiff sought a declaration that it did not owe an obligation to defend or indemnify Hollander’s

estate under a $1 million umbrella policy it had issued to Wendland that was effective at the time

of the accident.

¶8     Plaintiff alleged and argued the following. Plaintiff had no duty to defend or indemnify

Hollander’s estate under the umbrella policy “because [Hollander] does not qualify as an

insured” under the umbrella policy. The policy provided in part:

                          “COVERAGE L—PERSONAL LIABILITY

               If a claim is made or a suit is brought against an insured for damages because of a

       loss for which the insured is legally liable and to which this policy applies, we will pay

       on behalf of the insured, the damages that exceed the retained limit. The most we will

       pay for such loss is the Coverage L Limit of Liability, as shown on the declarations page,

       regardless of the number of insureds who may be liable, claims made, or persons injured.

                                              ***

                                         DEFINITIONS

                                               ***

               6. ‘insured’ means:

                      a. you and your relatives whose primary residence is your household;

                      b. any other human being under the age of 21 whose primary residence is

               your household and who is in the care of a person described in 6.a.;




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                       c. any other person or organization to the extent they are liable for the use

               of an automobile, recreational motor vehicle or watercraft by a person included in

               6.a. or 6.b.

                                               ***

               12. ‘relative’ means any person related to you by blood, adoption, or marriage.

                                               ***

               15. ‘you’ and ‘your’ mean the person or persons shown as ‘Named Insured’ on

       the declarations page. If a named insured shown on the declarations page is a human

       being then you and your includes the spouse of the first person listed as a named insured

       if the spouse resides primarily with that named insured.”

¶9                              C. Motion for Summary Judgment

¶ 10   On July 11, 2017, plaintiff filed a motion for summary judgment pursuant to section 2-

1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2016)). Plaintiff alleged and

argued, in part, that Hollander did not fall within paragraph 6.c. of the umbrella policy, because

he was not liable or alleged to be liable for the use of a motor vehicle by a person described in

paragraph 6.a. or 6.b. Specifically, “[t]here are no allegations in the Underlying Lawsuits that

Hollander [was] alleged to be liable for anyone else’s use of an automobile who would fall

within Paragraphs 6.a. or 6.b.” According to plaintiff, these undisputed material facts established

that Hollander did not fall within the definition of an “insured” under the umbrella policy, and

therefore plaintiff was entitled to judgment as a matter of law.

¶ 11    Defendants filed separate responses to plaintiff’s motion. All defendants argued that

Hollander was an insured under paragraph 6.c. of the umbrella policy. Murphy argued that

paragraph 6.c. was ambiguous because “[r]ules of grammatical construction indicate that the

limiting phrase only modifies the final word before the phrase (i.e., watercraft) and not the word

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‘automobile.’ ” Therefore, Murphy concluded, paragraph 6.c. could be interpreted to include

Hollander because he was “any other person or organization to the extent [that he was] liable for

the use of an automobile.”

¶ 12    Sheppard argued that Hollander qualified as an insured under paragraph 6.c. of the

umbrella policy because the undisputed facts established that the “use” of the vehicle was by

Wendland to visit her daughters, as Wendland testified in her deposition. Thus, Hollander was

an “ ‘other person *** liable for the use of an automobile *** by a person included in 6.a.

[Wendland] ***.’ ” To the extent that plaintiff asserted that there was some other interpretation

of paragraph 6.c., the language should be deemed ambiguous, which required the trial court to

construe the policy in favor of the insured and against plaintiff.

¶ 13    Wendland argued that Hollander qualified as “any other person” under paragraph 6.c. As

for the remainder of paragraph 6.c., the underlying lawsuits sought to hold Hollander’s estate

“liable for use of an automobile *** by a person included in 6.a.,” namely, Wendland. The

umbrella policy did not limit the term “use” to “driving” or “operation.” “Use” was not defined

in the policy. Thus, Wendland concluded, a reasonable interpretation of the term “use” in the

context of “use of an automobile” included drivers and passengers alike, and Hollander qualified

as an insured under paragraph 6.c.

¶ 14    On November 8, 2017, the trial court denied plaintiff’s motion for summary judgment,

determining that “the definition of insured is sufficiently ambiguous as to whether Hollander is

entitled to coverage under the Umbrella Policy.”

¶ 15    Plaintiff filed a motion to reconsider, arguing that the trial court erred in its application of

existing law in denying plaintiff’s motion for summary judgment.

¶ 16    On January 30, 2018, after hearing argument on plaintiff’s motion to reconsider, the trial

court reversed its original ruling, stating, in its written order:

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2019 IL App (2d) 180154


               “The court finds that its previous interpretation of the insurance policy, and

       specifically the definition of the term ‘insured,’ was incorrect; and that under the

       language of the policy James Hollander does not qualify as an insured under the

       Umbrella Policy, nor does State Farm have a duty to defend or indemnify the Estate of

       James Hollander.”

The trial court therefore entered summary judgment in favor of plaintiff.

¶ 17   Defendants timely filed separate notices of appeal. 1      This court consolidated these

appeals.

¶ 18                                     II. ANALYSIS

¶ 19                                 A. Standard of Review

¶ 20   Defendants argue that the trial court erred by determining that, as a matter of law,

Hollander was not an “insured” under the umbrella policy plaintiff issued to Wendland.

¶ 21   Our review of the trial court’s grant of summary judgment is de novo. Home Insurance

Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). “Summary judgment is proper

where, when viewed in the light most favorable to the nonmoving party, the pleadings,

depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Id.; see 735

ILCS 5/2-1005(c) (West 2016). A genuine issue of material fact exists when the material facts

are disputed or when the material facts are undisputed but reasonable persons might draw


       1
           On February 23, 2018, Murphy filed her notice of appeal (No. 2-18-0154). On the same

day, Sheppard filed her notice of appeal (No 2-18-0159). On February 27, 2018, Flowers filed

her notice of appeal (No. 2-18-0860). On February 28, 2018, Wendland filed her notice of

appeal (No. 2-18-0861).


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different inferences from those undisputed facts. Carney v. Union Pacific R.R. Co., 2016 IL

118984, ¶ 25. “Although summary judgment can aid in the expeditious disposition of a lawsuit,

it remains a drastic means of disposing of litigation and, therefore, should be allowed only where

the right of the moving party is clear and free from doubt.” Williams v. Manchester, 228 Ill. 2d

404, 417 (2008).

¶ 22                            B. Duty to Defend and Indemnify

¶ 23   In a declaratory judgment action such as the case at bar, where the issue is whether the

insurer has a duty to defend and indemnify pursuant to an insurance policy, a court ordinarily

looks first to the allegations in the underlying complaint and compares those allegations to the

relevant provision of the insurance policy. Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455

(2010); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 107-08 (1992).

An insurer’s duty to defend arises when (1) the complaint is brought against an insured and

(2) the facts as alleged in the complaint fall, or potentially fall, within the policy’s coverage.

Pekin Insurance Co., 237 Ill. 2d at 455. Moreover, where an insurer has no duty to defend, the

insurer has no duty to indemnify. Id. at 456.

¶ 24                          C. Interpretation of Insurance Policies

¶ 25   Construing the provisions of an insurance policy involves a question of law, which we

review de novo. See Id. at 455; Outboard Marine, 154 Ill. 2d at 102. When construing an

insurance policy, a court’s primary objective is to ascertain and give effect to the intentions of

the parties as expressed in their insurance contract. Pekin Insurance Co., 237 Ill. 2d at 455. If

the words of the policy are clear and unambiguous, the court must afford them their plain and

ordinary meaning. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292

(2001); Outboard Marine, 154 Ill. 2d at 108.



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¶ 26   Where ambiguity exists, the policy will be construed strictly against the insurer, who

drafted the policy, and liberally in favor of coverage for the insured. Nicor, Inc. v. Associated

Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 417 (2006). Whether an ambiguity

exists turns on whether the policy language is subject to more than one reasonable interpretation.

Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). Creative possibilities

may be suggested, but only reasonable interpretations will be sufficient to establish an

ambiguity. Id. Thus, courts will not strain to find an ambiguity where none exists. McKinney v.

Allstate Insurance Co., 188 Ill. 2d 493, 497 (1999). Further, the fact that a term is not defined by

the policy does not render it ambiguous. Nicor, 223 Ill. 2d at 417.

¶ 27   Defendants contend that Hollander was an “insured” under paragraph 6.c. of the umbrella

policy because (1) Wendland was using her vehicle, as a passenger to visit her daughters, when

the accident occurred and (2) applying the last-antecedent rule provides a reasonable

interpretation of paragraph 6.c. or renders the term “insured” ambiguous. Plaintiff, on the other

hand, asserts that Hollander was not an “insured” under the policy, because the underlying

complaints do not allege that Hollander was liable for Wendland’s acts or omissions.

¶ 28   Again, the umbrella policy provided:

               “If a claim is made or a suit is brought against an insured for damages because of

       a loss for which the insured is legally liable and to which this policy applies, we will pay

       on behalf of the insured, the damages that exceed the retained limit.

                                               ***

                       6. ‘insured’ means:

                              a. [Wendland and]

                                               ***



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                             c. any other person *** to the extent they are liable for the use of an

                       automobile, recreational motor vehicle or watercraft by a person included

                       in 6.a. ***.” (Emphases added.)

¶ 29   We determine that the umbrella policy’s language is clear and unambiguous.               For

coverage to exist, a claim must be brought against an “insured” for damages for which the

insured is “liable.” Although Hollander’s estate was named as a defendant in the underlying

complaints, Hollander was not an insured under the policy. Further, none of the underlying

complaints alleged that Hollander was liable for Wendland’s use of the Nissan. The underlying

complaints alleged that Hollander was negligent in his use and operation of the Nissan. To be

clear, no party alleged that Wendland, the named insured, was negligent or liable in any manner.

Therefore, Hollander was not an insured under the policy and, thus, plaintiff had no duty to

defend or indemnify Hollander’s estate.

¶ 30   Defendants argue that the umbrella policy “simply required [Wendland] to be ‘using’ the

vehicle at the time of the occurrence.” Defendants’ interpretation ignores and eliminates the

connection between “liable for the use of an automobile” and “by [Wendland]” from the

definition above. If a named insured’s use of the vehicle is all that is necessary to trigger a duty

to indemnify under paragraph 6.c., then the phrase “to the extent they are liable for” is mere

surplusage. (Emphasis added.) See Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d

141, 154 (2004) (a court must strive to give each term in a policy meaning unless to do so would

render the clause or policy inconsistent or inherently contradictory (citing Outboard Marine, 154

Ill. 2d at 123)). Thus, Wendland’s use of the vehicle, without more, is not sufficient to trigger

coverage for Hollander. Rather, the underlying complaints must allege that Hollander was liable

for Wendland’s use. Because the underlying complaints do not contain any such allegations,

Hollander is not an “insured.”

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¶ 31   Our opinion comports with federal cases that have analyzed similar insurance-policy

language and underlying lawsuits and reached the same conclusion that we reach. For example,

in Vulcan Materials Co. v. Casualty Insurance Co., 723 F. Supp. 1263 (N.D. Ill. 1989), Michael

Giguere, an employee of a trucking company, was killed while delivering a load of scrap metal

to Vulcan Materials when he was struck by a magnet that fell from Vulcan’s crane. Id. at 1263-

64. The trucking company was insured by Casualty Insurance Company. Giguere’s ex-wife and

administrator of his estate sued Vulcan, and Vulcan tendered its defense to Casualty. Id. at 1264.

Casualty denied that it was required to defend Vulcan. Id. Vulcan sued Casualty, seeking

declaratory relief, arguing that Vulcan was an “insured” under Casualty’s automobile liability

policy issued to the trucking company. Id. The policy defined “insured” as (a) the trucking

company and, in pertinent part, “(d) any other person or organization but only with respect to his

or its liability because of acts or omissions of an insured under (a).” (Emphasis and internal

quotation marks omitted.) Id. Vulcan argued that the trucking company, the “named insured,”

negligently failed to train Giguere and, thus, the trucking company’s liability arose “because of

acts or omissions of an insured under (a).” (Internal quotation marks omitted.) Id. The court

rejected Vulcan’s interpretation. Instead, the court stated, “Paragraph (d) is plainly a vicarious

liability provision and nothing more. It insures all those who may be vicariously liable for acts

or omissions of the named insured.” Id. at 1265. Because there was no basis for finding Vulcan

vicariously liable for the trucking company’s acts, the court ruled that Casualty had no duty to

defend Vulcan. Id. at 1265-66.

¶ 32   Similarly, in State Farm Mutual Automobile Insurance Co. v. Burgin, 752 F. Supp. 877

(W.D. Ark. 1990), John Burgin was injured when a van in which he was a passenger―owned by

Phillip and Charlotte Steele and driven by Ron Casteel―collided with another vehicle. Id. at

879. Casteel sought coverage under a policy issued to the Steeles by Shelter Mutual Insurance

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2019 IL App (2d) 180154


Company (Shelter), under which the van qualified as a “non-owned auto.” Id. at 879-80. State

Farm brought a declaratory judgment action to determine which, if any, policy issued to the

Steeles provided coverage for Burgin’s injuries. Id. at 878. The Shelter policy included as

“insureds” “any other person or organization which does not own or hire the [nonowned] auto

but is liable for its use by one of the above persons.” (Emphases omitted.) Id. at 880. The

“above persons” included the Steeles and their relatives using the nonowned vehicle with their

permission. Id. The court, applying Arkansas law, held that, under the terms of the insurance

policy, Casteel was not an “insured,” because Casteel “cannot be ‘liable for [the van’s] use by

(the Steeles or their relatives).’ ” Id. In making this determination, the court looked to the

underlying complaint and stated that “Burgin does not present a theory of liability encompassing

[the Steeles or their relatives].” Id.

¶ 33    These cases are instructive to the extent that, because defendants in this case did not

present a theory of liability stemming from Wendland, Hollander is not an insured.

¶ 34    Defendants also argue that applying the last-antecedent rule provides a reasonable

interpretation of paragraph 6.c. or renders the term “insured” ambiguous. The last antecedent

rule, a grammatical canon, “provides that relative or qualifying words, phrases, or clauses are

applied to the words or phrases immediately preceding them and are not construed as extending

to or including other words, phrases, or clauses more remote.” In re E.B., 231 Ill. 2d 459, 467

(2008). Again, the umbrella policy provided:

                “6. ‘insured’ means:

                        a. [Wendland and]

                                               ***




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                       c. any other person *** to the extent they are liable for the use of an

                automobile, recreational motor vehicle or watercraft by a person included in 6.a.

                ***.” (Emphases added.)

Thus, by applying the last-antecedent rule, defendants contend that the final phrase, “by a person

included in 6.a.,” modifies only the word “watercraft” and not “automobile” or “recreational

motor vehicle.” Under defendants’ interpretation, an “insured” includes any person who is liable

for the use of any automobile regardless of their connection with the named insured or the

insured vehicle.

¶ 35    We reject defendants’ interpretation. The last-antecedent rule is a grammatical canon of

construction resorted to only when terms are ambiguous. We believe that the terms of the

umbrella policy are clear and unambiguous. As such, there is no need to resort to canons of

construction such as the last-antecedent rule. See Doctors Direct Insurance, Inc. v. Bochenek,

2015 IL App (1st) 142919, ¶ 26 (rejecting use of the last-antecedent rule where statute was clear

and unambiguous). Further, we reject defendants’ creative interpretation because it is strained,

forced, unnatural, and unreasonable and it leads to an absurd result. See Bozek v. Erie Insurance

Group, 2015 IL App (2d) 150155, ¶ 19. Indeed, defendants’ interpretation eliminates the phrase

“by a person included in 6.a. [(the named insured, i.e., Wendland)].”

¶ 36    Accordingly, we determine that the trial court properly granted summary judgment in

plaintiff’s favor.

¶ 37                                    III. CONCLUSION

¶ 38    For the reasons stated, we affirm the trial court’s order.

¶ 39    Affirmed.




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