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Willett Truck Leasing v. Liberty Mutual Ins.

OPINION FILED SEPTEMBER 2, 1980.

WILLETT TRUCK LEASING CO., PLAINTIFF-APPELLEE,

v.

LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Liberty Mutual Insurance Company (hereinafter Liberty Mutual) brings this appeal from the entry of a summary judgment on November 27, 1978, in favor of Willett Truck Leasing Company (hereinafter Willett). The sole issue raised in this appeal is whether the trial court properly concluded that Liberty Mutual had the duty to defend and indemnify Willett against any judgment entered in an underlying personal injury action.

For the following reasons, we affirm in part, reverse in part, and remand.

On November 8, 1977, Willett filed a declaratory judgment action against Liberty Mutual seeking coverage and defense in an action brought against it by Joseph Korabik. The Korabik complaint alleged that fumes entered the cab of a truck leased by Willett to Meinhardt Cartage Company (hereinafter Meinhardt) and that Korabik, a Meinhardt employee operating the truck, was injured. The complaint further alleged that the fumes would not have entered the cab except for the negligent acts and omissions of Willett in failing to adequately inspect, test, and maintain the truck or to warn the plaintiff of the dangerous condition of the truck.

Meinhardt carried a workmen's compensation, automobile liability, and general liability policy with Liberty Mutual. The policy in issue in this appeal is an automobile liability policy which Meinhardt obtained as the named insured and under which Willett is named as an additional insured. The policy provided coverage for all sums which the insured shall become legally liable for because of bodily injury or property damage arising out of the ownership, maintenance, or use, including loading and unloading of any automobile. The policy also provided that the company would have the right and duty to defend any suit against the insured even if the allegations of the suit are groundless, false, or fraudulent. The above stated coverage did not apply, however:

"(a) to liability assumed by the insured under any contract or agreement;

(b) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law;

(c) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to any such injury arising out of and in the course of domestic employment by the insured unless benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law;

(d) to property damage to

(1) property owned or being transported by the insured, or

(2) property rented to or in the care, custody or control of the insured, or as to which the insured is for any purpose exercising physical control, other than property damage to a residence or private garage by a private passenger automobile covered by this insurance;

(e) to bodily injury or property damage due to war, whether or not declared, civil war, insurrection, rebellion or revolution or to any act or condition incident to any of the foregoing, with respect to expenses for first aid under the Supplementary Payments provision;

(f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere, or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental."

This declaratory judgment action was filed when Liberty Mutual denied Willett coverage and rejected its tender of defense. After both parties had moved for summary judgment, the trial court granted a summary judgment in Willett's favor determining that none of the exclusions to the ...


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