                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




         Menard, Inc. v. Country Preferred Insurance Co., 2013 IL App (3d) 120340




Appellate Court            MENARD, INC., a Foreign Corporation, Plaintiff-Appellee, v.
Caption                    COUNTRY PREFERRED INSURANCE COMPANY, and RUBY L.
                           BOHLEN, an Individual, Defendants-Appellants.



District & No.             Third District
                           Docket No. 3-12-0340


Filed                      July 18, 2013


Held                       In an action arising from a dispute over the insurance coverage for the
(Note: This syllabus       injuries defendant suffered when she tripped and fell while helping an
constitutes no part of     employee of plaintiff building supply store load brick into defendant’s
the opinion of the court   car, the trial court properly determined that the store was covered as an
but has been prepared      insured under the provision of defendant’s automobile liability policy
by the Reporter of         stating that it covered injuries caused by the use of the insured vehicle in
Decisions for the          “loading or unloading,” and had a duty to defend the store in plaintiff’s
convenience of the         personal injury action, since the store’s employee was using the insured
reader.)
                           vehicle in the loading process, the injury occurred during the loading and
                           was causally connected to the loading, and potentially, the fall and
                           resulting injuries could have been caused by the store’s negligence in
                           allowing debris to remain in the area where defendant fell.


Decision Under             Appeal from the Circuit Court of Will County, No. 10-MR-1141; the
Review                     Hon. Barbara Petrungaro, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Keith G. Carlson (argued), of Carlson Law Offices, of Chicago, for
Appeal                     appellants.

                           W. Anthony Andrews (argued) and Ericka J. Thomas, both of Ottosen
                           Britz Kelly Cooper Gilbert & Dinolfo, Ltd., of Naperville, for appellee.


Panel                      JUSTICE McDADE delivered the judgment of the court, with opinion.
                           Justices Carter and O’Brien concurred in the judgment and opinion.


                                             OPINION

¶1          This case is an insurance coverage dispute between Country Preferred Insurance
        Company and Menard, Inc. (Menard), which operates a chain of retail hardware stores doing
        business as Menards (Menards). The dispute arose after a personal injury plaintiff, Ruby
        Bohlen, fell and injured herself on the premises of a Menards store while a Menards
        employee was loading bricks into her car. Menard sought coverage as an insured under
        Bohlen’s personal automobile insurance policy with Country Preferred. For the reasons that
        follow, we affirm the trial court’s determination that Menard is covered as an insured under
        the policy and that Country Preferred has a corresponding duty to defend Menard in the
        underlying personal injury lawsuit.

¶2                                             FACTS
¶3                               I. Accident and Underlying Lawsuit
¶4          On July 1, 2009, Ruby Bohlen drove to a Menards store in Champaign, Illinois, to buy
        bricks. She picked out bricks from a stack and a Menards employee loaded the bricks into
        her vehicle. At some point during the loading process, Bohlen allegedly tripped and fell over
        some debris or packing material on the ground near her vehicle.
¶5          On May 6, 2010, Bohlen filed a premises liability suit against Menard in the circuit court
        of Champaign County. In her complaint, Bohlen alleged that she purchased gravel and 40
        bricks from the Menards store in Champaign, and that she backed her car up to the stacks of
        bricks for a Menards employee to load bricks into her car. Bohlen alleged that she looked for
        good bricks from the stack, then placed them within reach of the Menards employee to load
        into her vehicle. While the Menards employee was loading her car with the bricks, Bohlen
        alleged, her foot became tangled in debris or packing materials near her vehicle and she fell,
        sustaining multiple injuries.
¶6          Bohlen’s complaint alleged that Menard was negligent by breaching its duty to maintain
        safe premises for its customers. Specifically, Bohlen alleged that Menard caused the aisles,
        sidewalks, parking lots, entrances, and exits at the store to accumulate debris and packing
        material, and that Menard failed to properly remove these materials or maintain the areas in


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       a safe condition. According to Bohlen, Menard’s negligence in maintaining safe premises
       caused her to fall and injure herself.

¶7                              II. Country Preferred Insurance Policy
¶8          At the time of the accident, Bohlen maintained an automobile insurance policy on her car
       through Country Preferred Insurance Company. In this policy, Country Preferred agreed to
       indemnify an “insured” when the insured must pay for property damage or bodily injuries
       sustained by any person. Country Preferred also agreed to defend against any claims or
       lawsuits alleging bodily injury and property damage covered by the policy. The policy further
       details what is covered:
                 “The bodily injury or property damages must be caused by an accident resulting from
            the ownership, maintenance or use of an insured vehicle, including loading and
            unloading or of any nonowned vehicle.”
       The policy defines an “insured vehicle” as the vehicle listed on the declarations page, which
       is Bohlen’s automobile. The policy defines an “insured” as “anyone using an insured vehicle
       with your permission or the permission of an adult relative.”
¶9          The policy also contains provisions for determining the payment when other insurance
       is also applicable to the loss. In a section titled “Other Insurance,” the policy states:
            “If there is other applicable liability insurance for a loss covered by this policy, we will
            pay only our share of the loss. *** However, any insurance we provide with respect to
            a vehicle you do not own will be excess over any other collectible insurance.”
       Under the policy, “you” is specially defined to mean only the person named as an insured or
       members of that person’s household. Bohlen is the only person named as an insured on the
       policy.

¶ 10                                     III. Coverage Dispute
¶ 11       After Bohlen filed her complaint, Menard requested that Country Preferred defend and
       indemnify Menard in the lawsuit; Country Preferred determined that Menard was not covered
       under the policy and refused the tender of defense. On November 12, 2010, Menard filed a
       declaratory action against Country Preferred in the circuit court of Will County. According
       to Menard, it was an authorized user of Bohlen’s automobile and therefore qualified as an
       insured under her policy with Country Preferred. Menard sought a declaratory judgment
       finding that Country Preferred had a duty to indemnify and defend Menard in Bohlen’s
       premises liability action.
¶ 12       Menard moved for partial summary judgment on the issue of whether Country Preferred
       had a duty to defend Menard, and the trial court ruled in its favor. The court determined that
       Menard qualified as an insured under the policy, because the injuries to Bohlen allegedly
       were caused by the “use” of her vehicle to load and unload bricks. The court reasoned that
       but for the use of the vehicle to load and unload the bricks, Bohlen would not have been
       injured. It also concluded that it was reasonable and foreseeable that Bohlen might be injured
       while loading the vehicle. Therefore, the court determined that Country Preferred had a duty

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       to defend Menard.
¶ 13        In response to Country Preferred’s motion to reconsider, the court reaffirmed its ruling
       that Country Preferred had a duty to defend Menard. In addition, the trial court held that
       Bohlen’s policy was the primary insurance coverage, not just excess coverage as Country
       Preferred had contended. The court relied on the policy’s language stating that “any
       insurance we provide with respect to a vehicle you do not own will be excess over any other
       collectible insurance.” The court found that because “you” was defined as only the
       policyholder, the provision providing for excess coverage did not apply to Menard as an
       insured.
¶ 14        After denying Country Preferred’s motion to reconsider on April 2, 2012, the trial court
       granted a motion to add Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to
       its order, stating that no just reason existed to delay either enforcement or appeal of the order.
       Country Preferred filed a notice of appeal on April 25, 2012.

¶ 15                                        ANALYSIS
¶ 16        Country Preferred has raised two issues on appeal. First, it argues that the trial court erred
       in ruling that it has a duty to defend Menard in Bohlen’s lawsuit. Second, it argues that if
       Menard is covered under its policy, then Country Preferred must provide excess coverage
       only, not primary coverage as the trial court ruled.
¶ 17        The case before us was decided pursuant to a grant of summary judgment. Summary
       judgment is appropriate where the pleadings, depositions, admissions and affidavits on file,
       viewed in the light most favorable to the nonmoving party, 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. 735 ILCS 5/2-1005(c) (West 2010). An order granting summary judgment is reviewed
       de novo. Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227
       Ill. 2d 102, 106 (2007).
¶ 18        When interpreting the language of an insurance contract, we apply the general rules
       governing the interpretation of contracts. Hobbs v. Hartford Insurance Co. of the Midwest,
       214 Ill. 2d 11, 17 (2005). “A court’s primary objective in construing the language of an
       insurance policy is to ascertain and give effect to the intentions of the parties as expressed
       by the language of the policy.” Valley Forge Insurance Co. v. Swiderski Electronics, Inc.,
       223 Ill. 2d 352, 362 (2006). Like other contracts, a court should construe an insurance policy
       as a whole, giving effect to every provision. Swiderski Electronics, 223 Ill. 2d at 362. If the
       words used in the policy are clear and unambiguous, then the court must give them their
       plain and ordinary meaning. Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d
       141, 153 (2004). If, on the other hand, the policy’s terms are reasonably susceptible to more
       than one meaning, they are ambiguous and will be strictly construed against the drafter.
       Central Illinois Light Co., 213 Ill. 2d at 153. The construction of an insurance policy is a
       question of law and thus is an appropriate subject for disposition by way of summary
       judgment. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391
       (1993).


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¶ 19                                       I. Duty to Defend
¶ 20        Bohlen’s policy with Country Preferred defines an insured as “anyone using an insured
       vehicle with your permission or the permission of an adult relative.” Therefore, to determine
       if Menard is an insured, we must determine if Menard was “using” Bohlen’s vehicle when
       it was loading bricks into Bohlen’s car with her permission.
¶ 21        In its brief, Country Preferred seems to argue that Menard was not using the vehicle when
       it was loading bricks because “Menard[ ] clearly was not using the vehicle in a vehicle sense,
       i.e., operating and driving it.” However, we reject any argument that Illinois law equates
       “use” of the vehicle with only operating or driving, as “use” has a broader definition. As our
       supreme court has noted, “the use of an automobile has been held to denote its employment
       for some purpose of the user.” Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391,
       401, 402-03 (2010) (reviewing cases that conclude that “use” is not limited to operating a
       vehicle, and holding that a passenger qualifies as an insured because the passenger is a
       permissive user). Indeed, as the Schultz court noted, some jurisdictions have construed use
       to include loading and unloading of the vehicle. Schultz, 237 Ill. 2d at 402 n.3 (citing cases).
       See also Blasing v. Zurich American Insurance Co., 2013 WI App 27, ¶ 19, 346 Wis. 2d 30,
       827 N.W.2d 909 (where a Menards employee was loading lumber into plaintiff’s vehicle, she
       was using the vehicle and thus covered as a permissive user under plaintiff’s personal
       automobile insurance policy).
¶ 22        However, we need not look to other cases to determine if Menard was using the vehicle,
       because the policy itself indicates that “use” includes the loading of the vehicle. The policy
       states that “[t]he bodily injury or property damages must be caused by an accident resulting
       from the ownership, maintenance or use of an insured vehicle, including loading and
       unloading.” When construing an insurance contract, the court should give effect to the
       intention of the parties as expressed in the agreement and enforce plain and unambiguous
       terms. Schultz, 237 Ill. 2d at 400. This policy language indicates that the parties consider
       loading to be a use of the vehicle, and therefore we conclude that Menard was using Bohlen’s
       vehicle when the store’s employee was loading the car with bricks. Because it is undisputed
       that Menard had Bohlen’s permission to perform this action, Menard falls under the policy’s
       definition of an insured.
¶ 23        Having determined that Menard qualifies as an insured, we must now determine whether
       Country Preferred has a corresponding duty to defend Menard in Bohlen’s personal injury
       action. This issue will be resolved by determining whether Bohlen’s claim for bodily injury
       is potentially covered by the policy.
¶ 24        Under Illinois law, an insurer has a duty to defend the insured if the underlying complaint
       alleges facts that fall within, or potentially within, the policy’s coverage. Outboard Marine
       Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125 (1992). 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. Stoneridge Development Co. v. Essex Insurance Co., 382 Ill. App. 3d 731, 741
       (2008).


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¶ 25       To determine if loss is potentially covered under an insurance policy, a court must
       compare the allegations in the underlying complaint to the policy language. General Agents
       Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 154 (2005).
       “[I]t is the alleged conduct, and not the labeling of the claim in the complaint,” which
       determines whether there is a duty to defend. Steadfast Insurance Co. v. Caremark Rx, Inc.,
       359 Ill. App. 3d 749, 756 (2005). Both the underlying complaint and the insurance policy
       should be liberally construed in favor of the insured. United States Fidelity & Guaranty Co.
       v. Wilkin Insulation Co., 144 Ill. 2d 64, 74 (1991).
¶ 26       According to the policy, to be covered Bohlen’s injuries must be “caused by an accident
       resulting from the *** use of an insured vehicle, including loading and unloading.” To come
       within the coverage of a “loading and unloading” clause like the one at issue here, an
       accident “[(1)] must have occurred during the process of loading and unloading the vehicle
       in question and [(2)] must be causally connected with the act of loading or unloading.” Toler
       v. Country Mutual Insurance Co., 123 Ill. App. 3d 386, 389 (1984) (citing 7 Am. Jur. 2d
       Automobile Insurance § 208 (1980)). We conclude that Bohlen’s complaint alleges facts that
       potentially satisfy both requirements, and therefore find a duty to defend exists in this case.
¶ 27       First, we consider whether the accident which injured Bohlen occurred during the process
       of loading her vehicle. To determine whether an injury occurred while loading or unloading
       a vehicle, Illinois courts have applied the “complete operations” doctrine, in which loading
       includes the entire process of moving an article, including acts in preparation for loading.
       Toler, 123 Ill. App. 3d at 389. See also Estes Co. of Bettendorf, Iowa v. Employers Mutual
       Casualty Co., 79 Ill. 2d 228, 233 (1980) (applying complete operations doctrine in a
       commercial dispute). From a review of her complaint, it is apparent that Bohlen was injured
       while the Menards employee was loading bricks into her vehicle, as she specifically alleges
       that her “foot became entangled in the debris and/or packing material during the loading
       process and as a result, she fell.” Therefore, we conclude that Bohlen’s injury occurred
       during the complete operations of loading her vehicle with bricks.
¶ 28       Next, we must determine if the accident was causally connected to the use of Bohlen’s
       vehicle to load and unload bricks. To find coverage under an insurance policy, there must be
       some causal connection between the injury and the use of the vehicle. Aryainejad v. Economy
       Fire & Casualty Co., 278 Ill. App. 3d 1049, 1053 (1996). Strict proximate causation is not
       required, however. Woodside v. Gerken Food Co., 130 Ill. App. 3d 501, 507 (1985). In
       Aryainejad, we determined that to analyze the causal connection requirement, we should
       apply the “reasonable contemplation” test. Aryainejad, 278 Ill. App. 3d at 1054.1 This test
       affords coverage where the injury is the result of an activity that presented the type of risk


               1
                 Illinois courts have not adopted a uniform test to determine whether there is a sufficient
       causal connection between an injury and the use of a vehicle. Aryainejad, 278 Ill. App. 3d at 1053.
       Other courts have concluded that “but for” causation was sufficient to find coverage. See, e.g., Toler,
       123 Ill. App. 3d at 389. However, in Aryainejad we declined to apply but for causation and instead
       adopted the reasonable contemplation test. Aryainejad, 278 Ill. App. 3d at 1054. See also Ramirez
       v. State Farm Mutual Automobile Insurance Co., 331 Ill. App. 3d 77, 85 (2d Dist. 2002) (applying
       the reasonable contemplation test).

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       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)).
¶ 29        Thus, for Country Preferred to have a duty to defend, Bohlen’s injury must potentially
       have been the result of a negligent act which was a reasonable incident or consequence of the
       use of Bohlen’s car. We believe that Bohlen’s injury is potentially the result of an activity
       reasonably contemplated by the parties, because her injury potentially resulted from
       Menard’s use of her vehicle to load bricks. In her complaint, Bohlen alleged that before she
       fell, she was assisting the Menards employee load bricks into her car by placing bricks from
       the stack within the employee’s reach. She then tripped over debris or packing material near
       her vehicle during the loading process. The complaint does not allege whether this debris or
       packing material was there before the loading process started or if it originated from the
       loading process itself. Country Preferred argues that Bohlen’s complaint alleges that Menard
       negligently allowed debris to accumulate on its premises, which it argues has nothing to do
       with Menard’s use of the vehicle. However, we must liberally construe the underlying
       complaint (see Wilkin Insulation Co., 144 Ill. 2d at 74), and based on the facts alleged, it is
       possible that the debris which injured Bohlen came from loading her car with bricks. The
       debris or packing material could have been placed there by the Menards employee loading
       Bohlen’s vehicle, or been disturbed by the loading process. Because Bohlen’s 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. See Outboard Marine Corp., 154 Ill. 2d at 126-27 (where the
       underlying complaint did not allege intentional or knowing conduct by the insured, then the
       complaint alleged conduct which potentially could have been covered under the policy’s
       “sudden and accidental” provision).
¶ 30        We hold that under facts alleged in the complaint, Bohlen’s injury could have resulted
       from Menard’s use of the vehicle. Accordingly, her injury is potentially covered and Country
       Preferred has a duty to defend Menard in Bohlen’s lawsuit.

¶ 31                              II. Primary or Excess Coverage
¶ 32       Country Preferred has also challenged the trial court’s ruling that Country Preferred’s
       coverage would not be excess. The policy states that “any insurance we provide with respect
       to a vehicle you do not own will be excess over any other collectible insurance.” Country
       Preferred argues that because Menard does not own Bohlen’s vehicle, any coverage Menard
       receives as the insured should only be excess. However, “you” is defined to only include the
       named insured, and Bohlen is the only named insured listed on the policy’s declarations
       page. Therefore, this provision does not apply to Menard as a permissive user of Bohlen’s
       vehicle, so the trial court correctly ruled that Country Preferred would not be limited to
       providing excess coverage.



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¶ 33                                 CONCLUSION
¶ 34   For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 35   Affirmed.




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