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Forest Tree Serv. v. Ill. Farm Ins. Co.





Appeal from the Circuit Court of Will County; the Hon. Rodney Lechwar, Judge, presiding.


This appeal arises from a claim for damages submitted by the plaintiff, Forest Tree Service, Inc., to its insurance carrier, Illinois Farmers Insurance Company, the defendant. The defendant denied coverage for the property loss, which occurred when the plaintiff, a tree trimmer, was pruning a tree and the boom on the crane bent and collapsed.

The basis for the defendant's denial of coverage was that its policy only insured the vehicle for loss caused by collision, including the "upset" of the vehicle. The trial court agreed with the defendant's interpretation that the term "upset" was inapplicable to this incident.

The plaintiff argues that the trial court erred in finding that the vehicle did not upset. We affirm the judgment below.

The insurance policy defines "collision" as: "collision of the automobile with another object or with a vehicle to which it is attached, or upset of the automobile." (Emphasis added.) The "automobile" insured under this policy was a 1961 Dodge flatbed truck equipped with a six-ton crane. It is undisputed that if coverage is to extend to the loss in question, it must be under the "upset" provision, since the truck did not collide with another vehicle or object.

Also undisputed is the following account of the accident. The crane was being used to remove a 25-foot-long, 900-pound limb from a tree. The limb had become entangled with other tree branches, and when the crane eventually pulled it free, the limb suddenly swung out. The weight of the limb caused the boom of the crane to bend and collapse.

With the sudden release of the limb, the truck "bucked" or bounced up 24 inches, at most. Although the outriggers on the sides of the truck may have left the ground, no witness actually saw them do so. The truck body itself never overturned, and the vehicle was able to be driven away after the accident.

The plaintiff's employee, Steve Avery, witnessed the accident. He testified that the bucking motion of the truck is common when the boom is holding a lot of weight or it jerks suddenly. The purpose of the outriggers is to stabilize the truck because there is "almost always a little bit of sway."

The only Illinois case cited to the court by the plaintiff for an interpretation of the meaning of the term "upset" is Sell v. Country Mutual Insurance Co. (1960), 23 Ill. App.2d 497, 163 N.E.2d 547. In that case, the court held that the defendant's policy covered the damages which resulted from a dump-bed trailer overturning due to an unbalanced load. The court focused on the policy's failure to place any limit on the cause of the upset, as long as it was accidental.

The issue before us concerns neither the cause of the loss nor its accidental nature. Rather, it is a question of what constitutes an upset. The defendant suggested to the trial court that according to the natural meaning of the term "upset," there must be an overturning or tipping over.

However, the plaintiff points to the fact that in Sell, the court held that the policy applied even though only the trailer bed overturned, not the entire truck body. (See also Leon D. McCormick & Sons v. Auto-Owners Insurance Co. (Fla. App. 1980), 382 So.2d 807.) Thus, the plaintiff submits that the collapse of the equipment attached to its truck is sufficient to constitute an upset, even though the truck, itself, remained upright.

• 1 The trial court ruled that, nonetheless, this accident did not constitute an upset. It concluded that for an upset within the meaning of the policy to occur, something must take the vehicle out of the operator's control. This interpretation appears to be consistent with the weight of authority from other jurisdictions that have addressed the issue.

It is the general rule that an upset occurs once a vehicle loses its equilibrium and the overturning process proceeds beyond the power of those in charge of the vehicle to stop its progress. See Mason v. Commercial Union Assurance Co. (Utah 1981), 626 P.2d 428.

• 2 The trial court found that the operator in the present case never lost control of the plaintiff's vehicle and that the bucking of the truck was no more than would be expected in the normal operation of the equipment. Therefore, it ...

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