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Preferred Risk v. U.s. Fidelity & Guar.





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


An action for declaratory judgment was brought to determine whether the automobile liability insurance policy of plaintiff and counter-defendant Preferred Risk Mutual Insurance Company (hereinafter Preferred Risk), or the general liability insurance policy of defendant and counterplaintiff United States Fidelity and Guaranty Company (hereinafter USF&G), provided coverage for the defense and liability of the named insured, Chicago Gospel Mission (hereinafter Mission), under both policies in connection with a claim for injuries suffered by Roman Westbrooks.

The trial court rendered a decision in favor of Preferred Risk and against USF&G, and it is from said declaratory judgment order that this appeal was taken. We affirm the trial court's holdings in favor of Preferred Risk and against USF&G, but reverse the judgment for attorneys' fees in the declaratory judgment action.

The issues presented for review are (1) whether the accident involving Roman Westbrooks arose out of the "ownership, maintenance or use" of the church bus or "operations necessary or incidental to such transportation" and (2) whether the court erred in awarding attorney's fees to the Mission in connection with its representation in the declaratory judgment action.

On June 4, 1972, Roman Westbrooks, then 11 years old, was attending Sunday school at the Mission. He had been picked up that morning by a school bus owned and operated by the Mission and taken to Sunday school where he attended class. When the class was dismissed, the students left the building and began boarding the school buses to return home.

Roman Westbrooks testified (as contained in a deposition that was taken and admitted into evidence) that he walked out of the Mission, located on the south side of Madison Street, in Chicago, and went immediately to the same bus that took him to school earlier that day. The door of the bus was open and some students had already boarded. He took a seat in the rear of the bus by himself. He stated that he remained in the bus between 1 and 5 minutes when he saw his brother, Boysie, about to enter a station wagon driven by one of the Sunday school teachers. The station wagon was parked on the north side of Madison Street, approximately across from the bus. Roman further testified that he got up from his seat and walked off the bus. Then, he walked along the sidewalk to the rear of the bus and waited for traffic to clear. He looked both ways before crossing the street and as he crossed he was struck by a city of Chicago police car.

Roman Westbrooks, through his father, filed suit in the circuit court of Cook County against the Mission, the city of Chicago, and the police officer whose vehicle struck him. The Mission tendered the defense of that lawsuit to both USF&G and Preferred Risk.

On December 7, 1976, a judgment of $72,500 was returned in favor of Roman Westbrooks and against all parties defendant in said cause of action.

In September 1977, the judgment entered on the verdict of $72,500 was vacated in accordance with a settlement agreement under which USF&G and Preferred Risk agreed to pay the sum of $14,500 each on behalf of the Mission in full satisfaction of its liability for Roman Westbrooks' claim. However, the settlement agreement did not affect the rights of USF&G and Preferred Risk to litigate the issue of which policy afforded coverage for the accident of Roman Westbrooks.

A complaint was filed in the circuit court of Cook County for declaratory judgment by Preferred Risk against USF&G.

The discovery depositions of Roman Westbrooks and Kenneth Bosgraf, the bus driver, were admitted into evidence in light of the fact they did not appear in court at the time trial was scheduled to commence.

Kenneth Bosgraf's testimony as contained in his discovery deposition was that he was a volunteer worker for the Mission. On the day of the accident, he was driving a school bus which transported children to and from Sunday school class. He returned to the bus before the classes had ended and was on the bus when the students began boarding. He stated he did not leave the bus any time before the accident involving Roman Westbrooks occurred, and that he was on the bus at the moment of the accident. He could not remember whether a boy the age of Roman Westbrooks left the bus before the accident occurred. Although, he also stated that on the date of the accident he did not know Roman Westbrooks and would not have recognized him if he saw him. He first became aware of the accident when he heard the sound of tires from the police car, at which time he was in the driver's seat of the bus. He also stated that it was his practice to question children who after boarding the bus attempted to leave before the bus left the Sunday school for its return route home.

Anna Marie Rhodes was called to testify by Preferred Risk as a witness to the accident. She testified that she was also a student at the school on June 4, 1972. When the session was over, she left the Mission and was standing in front of the building on Madison Street where she was waiting for a different bus to pick her up. She testified that Roman Westbrooks stood beside her for approximately 5 minutes, and when he ran across the street to join his brother, Boysie, at the station wagon, he was struck by the police car. She did not see him get on or off the bus during the time he stood next to her. She further stated that Roman was not on the bus before he stood by her because he came from behind her, which was from the direction of the church and not the bus.

At the close of all the evidence, the trial court entered a declaratory judgment order which held USF&G liable to the Mission for the accident. It was further ordered that USF&G pay one-half the defense costs, including attorneys' fees in the personal injury case; also, that Preferred Risk and USF&G reimburse the Mission on a 50-percent ...

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