                                                    FIRST DIVISION
                                                    May 12, 2008




No. 1-07-0121

JOAN A. WOLFENSBERGER and PARESH        )      Appeal from the
SONANI,                                 )      Circuit Court of
                                        )      Cook County.
     Plaintiffs-Appellants,             )
                                        )
          v.                            )
                                        )
DAVID EASTWOOD, and ILLINOIS            )
NATIONAL INSURANCE COMPANY, an          )
Illinois Corporation,                   )
                                        )
     Defendants-Appellees.              )
                                        )
-----------------------------------     )
                                        )
ILLINOIS NATIONAL INSURANCE COMPANY,    )
                                        )
     Counterclaimant/Cross-Appellant,   )
                                        )
          v.                            )
                                        )
JOAN A. WOLFENSBERGER and PARESH        )
SONANI,                                 )      Honorable
                                        )      James F. Henry,
     Counterdefendants/Cross-Appellees. )      Judge Presiding.

     JUSTICE WOLFSON delivered the opinion of the court:

     Joan Wolfensberger sued David Eastwood for injuries arising

out of a car accident that occurred in the early mornings hours

of March 8, 2002.   Wolfensberger was a passenger in the car

driven by Eastwood.   Wolfensberger filed a declaratory judgment

action against the liability insurance carrier for Eastwood’s

employer, seeking coverage for her injuries.   Both sides filed

motions for summary judgment.
 1-07-0121

     The primary question presented to the trial court was

whether Eastwood was acting within the scope of his employment at

the time of the accident.   The trial court denied Wolfensberger’s

motion and granted the insurance carrier’s motion.       We affirm the

order denying Wolfensberger’s motion, but we reverse the order

granting the insurance carrier’s motion and remand this cause to

the trial court for the determination of the factual issues.

FACTS

     In March 2002, Wolfensberger and Eastwood were employees of

Accenture, LLP (Accenture), a worldwide consulting business.

Accenture operated a training facility in St. Charles, Illinois,

for its employees.   The facility contained sleeping rooms,

conference rooms, and a cafeteria.       On the week of the accident,

Wolfensberger and Eastwood traveled from Philadelphia and Ohio,

respectively, to attend training programs at the facility.

Eastwood drove to the facility in his wife’s car.       Wolfensberger

was teaching a training session.       Eastwood was attending a

separate session.

     On the evening of March 7, 2002, Wolfensberger, Eastwood,

and another Accenture employee, Per-Anders Wendin, met in the

social center at the St. Charles facility.       They drank at the

social center until around midnight, when the center closed.

     The three left the facility and went to a bar called


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Scotland Yard.     Eastwood drove.    Scotland Yard was closing as

they arrived.     They then drove to a bar called the Cadillac

Ranch.     They stayed until about 3:30 a.m. on March 8, 2002.

After leaving the Cadillac Ranch, Eastwood crossed the median and

began driving in the opposite lane of traffic.       The car collided

with another vehicle.     Wolfensberger was injured.    Eastwood and

Wendin were unhurt.

     Wolfensberger filed a personal injury action against

Eastwood.     Eastwood tendered his defense to his personal

insurance carrier, Geico Insurance (Geico), and to Accenture’s

carrier, Illinois National Insurance Company (Illinois National).

Illinois National denied coverage and never filed an appearance

on behalf of Eastwood.

     The parties entered into a settlement agreement for a total

of $5 million to Wolfensberger and $20,000 to Paresh Sonani, a

separate party who was injured in the accident.1       The circuit

court approved the settlement.       The parties agreed Geico would

pay Wolfensberger $285,000 and Sonani $15,000, the total of the

$300,000 policy limit.     The remainder of the settlement was to be

satisfied under Accenture’s primary and umbrella auto liability

policies issued by Illinois National "to the extent another court

finds such policies applicable to David Eastwood and/or the


     1
         Sonani did not file a brief in this appeal.

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 1-07-0121

alleged occurrence."    The primary policy has a $1,000,000

liability limit.   The umbrella policy pays on behalf of the

insured “those sums in excess of the Retained Limit that the

Insured becomes legally obligated to pay,” up to $50,000,000.

Eastwood assigned his rights against Illinois National to

Wolfensberger.

     Wolfensberger filed a declaratory judgment action against

Illinois National.   Illinois National filed a counterclaim for

declaratory judgment.

     Both sides filed motions for summary judgment.    The trial

court denied plaintiff’s motion and granted the defendant’s

motion.

     The trial court found neither the umbrella policy nor the

primary policy provided coverage because Eastwood was not acting

within the scope of his employment at the time of the accident.

Wolfensberger appeals the court’s judgment.    Illinois National

cross-appeals the trial court’s factual finding that Eastwood was

a "named insured" under the umbrella policy.

DECISION

     Plaintiff contends the trial court erred in granting

Illinois National’s summary judgment motion.    Specifically,

plaintiff contends the trial court erred in determining Eastwood

was not acting in the "business or personal affairs" of Accenture


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 1-07-0121

at the time of the accident, as required by the “Employees as

Insureds” endorsement in Accenture’s commercial auto liability

policy, the primary policy.

     We review de novo a trial court’s grant of summary judgment.

Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 370, 875

N.E.2d 1082 (2007).    The construction of an insurance policy is

also a question of law we review de novo.    Rich, 226 Ill. 2d at

370-71.

     Our primary objective in construing the language of an

insurance policy is to determine and give effect to the intention

of the parties as expressed by the words of the policy.    Rich,

226 Ill. 2d at 371; Profitt v. One Beacon Insurance, 363 Ill.

App. 3d 959, 962, 845 N.E.2d 715 (2006).    “If the words used in a

policy are clear and unambiguous, they must be given their plain,

ordinary, and popular meaning, and the policy will be applied as

written, unless it contravenes public policy.”    Rich, 226 Ill. 2d

at 371; Profitt, 363 Ill. App. 3d at 962.    A contract is not

ambiguous, however, simply because the parties disagree on a

provision’s meaning.    Rich, 226 Ill. 2d at 371; Central Illinois

Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153, 821 N.E.2d

206 (2004).

     We consider only reasonable interpretations of the policy

language, and we will not strain to find an ambiguity where none


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exists.   Rich, 226 Ill. 2d at 371.   “ ‘Although policy terms that

limit an insurer’s liability will be liberally construed in favor

of coverage, this rule of construction only comes into play when

the policy is ambiguous.’ ”    Rich, 226 Ill. 2d at 371, quoting

Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11,

17, 823 N.E.2d 561 (2005).

I. Scope of Employment

     At issue in this case is whether Eastwood was using a

covered automobile in Accenture’s “business or personal affairs”

when he was driving back from the Cadillac Ranch.   The primary

policy includes an "Employees as Insureds" endorsement.   It

provides: "Any employee of yours [Accenture’s] is an ‘insured’

while using a covered ‘auto’ you don’t own, hire or borrow in

your business or your personal affairs."   A "covered auto"

includes a personal automobile owned by an employee or the

employee’s family.

     The use of the term “personal affairs” in the “employees as

insureds” endorsement makes this case unique in this State.

Plaintiff contends the “personal affairs” language added coverage

to the policy for employee activities that might not be strictly

business related, such as after-hours social networking for the

benefit of Accenture.    While Illinois has not considered the use

of the term “personal affairs” in an “Employees as Insured”


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 1-07-0121

endorsement, other jurisdictions have interpreted phrases such as

“in your business or your personal affairs” to protect “employees

while acting in the scope of their employment.”   See Wausau

Underwriters Insurance Co. v. Baillie, 281 F. Supp. 2d 1307, 1316

(M.D. Fla. 2002).    We agree with this interpretation and find the

relevant question here is whether Eastwood was acting in the

scope of his employment for some corporate purpose when the

accident occurred.

     Although not raised by the parties, we first address the

question of whether summary judgment is appropriate in this case.

     Summary judgment is appropriate only 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.”   735 ILCS 5/2-1005(c) (West 2006).   The

purpose is not to try an issue of fact, but rather to determine

whether a triable issue of fact exists.    Giannoble v. P & M

Heating and Air Conditioning, 233 Ill. App. 3d 1051, 1056, 599

N.E.2d 1183 (1992).

     Illinois courts have not discussed the propriety of granting

summary judgment on a scope of employment issue within the

context of an “Employees as Insured” endorsement.   However,

Respondeat superior cases, which both parties cite as relevant to


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 1-07-0121

this case, have uniformly held “[s]ummary judgment is generally

inappropriate when scope of employment is at issue.”       Pyne v.

Witmer, 129 Ill. 2d 351, 359, 543 N.E.2d 1304 (1989); Giannoble,

233 Ill. App. 3d at 1056.    “Only if no reasonable person could

conclude from the evidence that an employee was acting within the

course of employment should a court hold as a matter of law that

the employee was not so acting.”       Pyne, 129 Ill. 2d at 359;

Giannoble, 233 Ill. App. 3d at 1056.

     In this case, both sides submitted evidence on the issue of

whether Eastwood was using his car in Accenture’s "business or

personal affairs" at the time of the accident.

     Plaintiff presented evidence that:

     !    It was the practice for Accenture managers to take

          their teams out on a weekly basis for purposes of

          networking, team-building, and morale-boosting.         One

          purpose of networking was for employees to become

          staffed on future projects.       Eastwood and Wendin

          Depositions; Wendin Affidavit.

     !    Accenture encouraged traveling employees to socialize

          and recreate with fellow employees and with clients on

          a regular basis.    This type of networking also occurred

          during training.    Employees "networked" with fellow

          employees to exchange knowledge and experience.


                                   8
1-07-0121

         Eastwood and Wendin Depositions.

    !    Accenture managers and partners were entitled to

         reimbursement for expenses incurred at such events,

         including expenses for alcohol.    Eastwood, Wendin, and

         Wolfensberger were managers at Accenture.    Eastwood and

         Wendin Depositions.

    !    At the Cadillac Ranch on March 8, 2002, Eastwood was

         engaging in general "networking within the Accenture

         community."    He was not looking to get staffed on a

         project.   Eastwood Deposition.

    !    It was a "common occurrence" and a "tradition" for

         Accenture employees to go to the Cadillac Ranch on

         Thursdays during training.    Eastwood and Wendin

         Depositions.

    !    Wendin had been to the Cadillac Ranch on other visits,

         "when Accenture sponsored or encouraged the activity."

         Wendin Affidavit.

    !    Eastwood had the discretion to submit his entertainment

         expenses to Accenture for the events of March 7-8,

         2002, but he chose not to.    Eastwood Deposition.

         Wendin had the discretion to submit his expenses, but

         he did not remember if he did so.    Wendin Affidavit.

    !    Wendin discussed work-related topics with Eastwood and


                                 9
1-07-0121

         Wolfensberger at the Accenture social center and at the

         Cadillac Ranch.     Wendin Affidavit and Deposition.

    !    An employee in Wendin’s training group arranged for

         shuttle transportation to the Cadillac Ranch at 7 p.m.

         on March 7, 2002.    Wendin, Eastwood, and Wolfensberger

         missed the shuttle because they had to work.    When they

         left the St. Charles facility, they were attempting to

         catch up with other employees from the training

         facility.   They went to Scotland Yard first because

         they knew the group would be at one of the two bars.

         They saw and spoke with fellow employees at the

         Cadillac Ranch.     Eastwood and Wendin Depositions.

    !    In the opinions of Eastwood and Wendin, Accenture

         "sponsored" the outing at Cadillac Ranch on March 7-8,

         2002.   "It’s just a cultural thing.   It’s a thing that

         Accenture people go and do around training."    Eastwood

         Deposition.

    !    "[T]hey scheduled the training in a way that we could

         use the evening to go out.    Executive--Accenture

         managers invited the group to go out.    The

         transportation was paid for by Accenture, and *** more

         than 90 percent, if not 100, of everything that was

         consumed that evening was billed back to Accenture."


                                 10
1-07-0121

         Wendin Deposition.

    !    At the Cadillac Ranch, Wolfensberger heard Eastwood

         discussing technical work-related matters with other

         Accenture employees.   Wolfensberger Deposition.

    Defendant presented evidence that:

    !    Eastwood and Wendin admitted there was no formal

         announcement about a gathering or event at the Cadillac

         Ranch on March 7, 2002.     They did not remember who

         arranged for shuttle transportation for Accenture

         employees to go to a bar outside the campus.     Eastwood

         and Wendin Depositions.

    !    Eastwood and Wendin were scheduled to attend a training

         class at the St. Charles facility at 8 a.m. on Friday,

         March 8, 2002.   Wolfensberger was scheduled to attend a

         breakfast meeting at 6:30 a.m. on March 8, 2002.

         Eastwood and Wolfensberger Depositions; Wendin

         Affidavit.

    !    No employee attending or teaching a training class at

         the St. Charles facility was permitted a per diem

         allowance.   Affidavit of Mary Fulton, Accenture U.S.

         Employee Relations & Policy Lead.

    !    Eastwood was not entitled to reimbursement for any

         amounts incurred at the Cadillac Ranch, whether for


                                11
1-07-0121

         "networking," "talking shop," or socializing with other

         employees.   Fulton Affidavit.

    !    In March 2002 and for five years prior, "Accenture did

         not promote, endorse, encourage, sponsor, host,

         announce, or advertise any events, affairs or

         gatherings of Accenture employees, for any purpose, at

         the Cadillac Ranch in Bartlett, Illinois."    Fulton

         Affidavit.

    !    "Accenture *** understands that its employees will

         socialize and ‘network’ with other employees while

         either teaching or attending training programs and

         while in residence at the training facility. *** There

         was and is a Social Center within the training facility

         for the use of Accenture employees to socialize and

         network while in residence at the training facility."

         Affidavit of Andrew White, Accenture Director of

         Training Operations.

    !    "Since 1992, other than officially sponsored events,

         Accenture has not required or encouraged its employees

         to socialize and/or network at locations or

         establishments outside of the training facility

         particularly during early morning hours after the

         Social Center had closed."   White Affidavit.


                                12
1-07-0121

    !    "[A]s a matter of policy, Accenture directed the

         training instructors not to organize social events

         outside the training center where alcohol is served to

         the attendees."    White Affidavit.

    !    "To the best of my knowledge, Accenture has never

         sponsored, required or encouraged any social or

         networking event at the Cadillac Ranch tavern."       White

         Affidavit.

    !    "Accenture’s expectations and intent for purchasing the

         ‘Employees as Insureds’ endorsement to the Policy were

         that employees would be covered as additional

         ‘Insureds’ only while engaged in Accenture’s business

         affairs."    Affidavit of Amy L. Daniels, Accenture

         Director of Global Risk Management & Insurance.

    !    "At no time did Accenture expect or intend that

         employees attending training at its St. Charles,

         Illinois facility who left the Accenture training

         campus for recreational drinking or socializing would

         be covered as acting in the ‘business or personal

         affairs’ of Accenture."     Daniels Affidavit.

    !    The "employees as insureds" endorsement "is a standard

         insurance industry form" that "is not intended to

         extend coverage to employees who are engaged in their


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          own personal affairs or to employees who are acting

          outside the course and scope of their employment."

          Affidavit of Thomas Sheridan, underwriting consultant

          with American International Group Companies (AIG), of

          which Illinois National is a member.

     !    "The use of the language ‘personal affairs’ in the

          endorsement was included because this standard

          endorsement is used not only for corporations and

          larger business entities, but also for policies issued

          to individuals and sole proprietors."    Sheridan

          Affidavit.

     After reviewing the record, we find material questions of

fact and witness credibility exist on the question of whether

Eastwood was acting within the scope of his employment when

plaintiff was injured in the auto accident on March 8, 2002.    See

Davila v. Yellow Cab Co., 333 Ill. App. 3d 592, 601, 776 N.E.2d

720 (2002).

     Many of the facts presented by the parties stand in direct

contradiction to each other.   For example, Mary Fulton,

Accenture’s U.S. Employee Relations & Policy Lead, said Eastwood

was not entitled to reimbursement for any amounts incurred at the

Cadillac Ranch, whether for “networking,” “talking shop,” or

socializing with other employees.    Eastwood, however, said he had


                                14
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the discretion to submit his entertainment expenses to Accenture

for the event at the Cadillac Ranch, but chose not to do so after

the accident.   Wendin said he also had the discretion to submit

his expenses, but he did not remember if he did so.    Andrew

White, Accenture’s Director of Training Operations, said that,

“other than officially sponsored events, Accenture has not

required or encouraged its employees to socialize and/or network

at locations or establishments outside of the training facility

particularly during early morning hours after the Social Center

had closed.”    Wendin, however, said: “[Accenture] scheduled the

training in a way that we could use the evening to go out.

Executive–-Accenture managers invited the group to go out.      The

transportation was paid for by Accenture, and *** more than 90

percent, if not 100, of everything that was consumed that evening

was billed back to Accenture.”    Eastwood said that in his

opinion, Accenture “sponsored” the outing at Cadillac Ranch,

noting: “It’s just a cultural thing. It’s a thing that Accenture

people go and do around training.”

     Based on the totality of the evidence before us, we cannot

say that, as a matter of law, no reasonable person could conclude

Eastwood was acting within the scope of his employment when the

accident occurred.   The conflicting facts presented by the

parties in support of their respective summary judgment motions


                                 15
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required the trial court to make credibility determinations and

weigh the evidence in order to reach a decision, which is

inappropriate in summary judgment proceedings.      See AYH Holdings,

Inc. v. Avreco, Inc., 357 Ill. App. 3d 17, 42, 826 N.E.2d 1111

(2005).

     We reverse the trial court’s entry of summary judgment in

favor of Illinois National and remand for further proceedings

consistent with our opinion.    See Pyne, 129 Ill. 2d at 359;

Davila, 333 Ill. App. 3d at 603.

     While we are sending this case back for trial, we

acknowledge that other issues might have to be resolved,

depending on the outcome of the trial on the scope of employment

issue.    We will attempt to offer some guidance.

II. Umbrella Policy--Definition of Named Insured

     Illinois National cross-appeals the part of the trial

court’s order finding Eastwood was a "named insured" under

Endorsement #21 of the Umbrella Policy.    Because Illinois

National was a successful party, we decline to provide it with a

right to cross-appeal the trial court’s judgment.      Illinois

Central R.R. Co. v. Accident and Casualty Co. of Winterthur, 317

Ill. App. 3d 737, 744, 739 N.E.2d 1049 (2000) (“Even though a

successful party may not agree with the reasons, conclusions or

findings of the lower court, it is improper to provide that


                                 16
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successful party with a forum in a reviewing court.”)      However,

since the judgment is entirely in Illinois National’s favor, a

cross-appeal is not required in order for us to address specific

findings adverse to it.     See Illinois Central R.R. Co., 317 Ill.

App. 3d at 744.    We will address the issues presented by Illinois

National.

     There are two provisions of the Umbrella Policy that could

apply to Eastwood--the "named insured" provision in Endorsement

#21, and section E.5 of the definitions section.      Section E.5

defines an insured as:

            "Any of your partners, executive officers,

            directors, stockholders or employees but

            only while acting within their duties.

                  However, the coverage granted by this

            provision 5, does not apply to the ownership,

            maintenance, use, loading or unloading of any

            autos, aircraft, or watercraft unless such

            coverage is included under the policies

            listed in the Schedule of Underlying

            Insurance and then for no broader coverage

            than is provided under such underlying

            policies."   (Emphasis in original).

In other words, Accenture employees are covered by section E.5


                                  17
 1-07-0121

where they are using an auto "in the business or personal

affairs" of Accenture, or where they are acting “within their

duties.”

     In the trial court, the plaintiff argued Eastwood also was

covered as a "Named Insured" under Endorsement #21 of the

Umbrella Policy, without regard for whether Eastwood was acting

within the scope of his employment.   At the time of the accident,

Endorsement No. 21 ("Original Endorsement") defined the "named

insured" as:

           "Accenture, L.L.P. and all partnerships,

           firms, corporations, entities and

           individuals, wherever located, which together

           comprise ‘The Accenture Worldwide

           Organization’ whether by virtue of their

           member firm interfirm agreements with

           Accenture Partners Societe Cooperative (or

           any successor thereto acting to coordinated

           [sic] the business of such entities) or by

           vite [sic] of ownership, direct or indirect,

           by such an entity or otherwise being under

           the control of or under the common control,

           directly or indirectly, with such an entity

           and which are thereby deemed part of


                                18
 1-07-0121

            Accenture."

An amended version of Endorsement No. 21 ("Amended Endorsement")

was formally issued sometime after the accident.     It provides:

            "In consideration of the premium paid, it is

            hereby understood and agreed that Effective

            May 31, 2001 Item 1, on the Declarations

            Page, Named Insured is amended as follows:

                 Accenture shall mean Accenture Ltd,

            Accenture SCA and their affiliates.

                 An affiliate shall be defined as any

            entity wholly-owned, directly or indirectly

            by Accenture Ltd or which controls, is

            controlled by or is under the common control

            with Accenture or its successors or assigns.

            Control shall mean the ability, directly or

            indirectly to direct the affairs of another

            whether by way of contract, ownership of

            shares or otherwise."

Absent from the Amended Endorsement was any reference to

"individuals."    The parties agree the Amended Endorsement was not

officially issued until April 2002 at the earliest, after the

accident.

     The defendant contends the Amended Endorsement was


                                    19
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inadvertently omitted from the policy and supercedes the Original

Endorsement, that there was a "meeting of the minds" before the

accident.    Under the Amended Endorsement, Eastwood would not be

covered.    The plaintiff, of course, disagrees, urging the

vitality of the Original Endorsement.    Alternatively, defendant

contends the Original Endorsement excludes coverage for Eastwood

because the provision was not intended to cover employees, that

Section E.5 performs that task.

     We agree with defendant’s alternative argument.    The

Original Endorsement defines as a "named insured": "Accenture,

L.L.P. and all partnerships, firms, corporations, entities, and

individuals, wherever located, which together comprise ‘The

Accenture Worldwide Organization’."    It further describes the

above entities as "by virtue of their member firm interfirm

agreements *** or by [virtue] of ownership, direct or indirect,

by such an entity or otherwise being under the control of or

under the common control, directly or indirectly, with such an

entity."

     It is undisputed that Eastwood does not meet the

requirements in the latter part of the definition.    We find

Eastwood is not covered under the language of the Original

Endorsement.    The general rules governing interpretation of

contracts also govern interpretation of insurance policies.


                                  20
 1-07-0121

Illinois Farmers Insurance Co. v. Hall, 363 Ill. App. 3d 989,

993, 844 N.E.2d 973 (2006).    Because the policy language is

unambiguous, we will take the policy as written.      See, Hall, 363

Ill. App. 3d at 993.

     We agree with defendant that to hold Eastwood is covered

under the Original Endorsement without regard for whether he was

acting within the scope of his employment would render section

E.5 superfluous and meaningless.      A court will not interpret a

contract in a way that will render any provision meaningless.

Hall, 363 Ill. App. 3d at 996.

     If the trial court finds Eastwood was not acting within the

scope of his employment at the time of the accident, he would not

be covered under section E.5 or any other section of the Umbrella

Policy, including either version of Endorsement #21.      If the

court finds Eastwood was acting within the scope of his

employment, he would be covered under section E.5.

     Whether the Original Endorsement #21 or the Amended

Endorsement #21 was in effect at the time of the accident does

not matter.    Neither endorsement covers Eastwood’s actions as an

employee.    When possible, courts should construe a contract so

that different provisions are harmonized, not conflicting with

one another.    General Agents Insurance Co. of America, Inc. v.

Midwest Sporting Goods Co., 328 Ill. App. 3d 482, 487, 765 N.E.2d


                                 21
 1-07-0121

1152 (2002).   Our reading of the policy harmonizes the

provisions.

CONCLUSION

     We affirm the trial court’s order denying plaintiff’s motion

for summary judgment and reverse the order granting defendant’s

motion for summary judgment.   We remand the cause for trial on

the issue of whether Eastwood was acting within the scope of his

employment at the time of the accident and for further

proceedings consistent with this opinion.

     Affirmed in part, reversed in part, and remanded.

     GARCIA, and R. GORDON, JJ., concur.




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