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11/05/87 Charles E. Pratt, v. Rondell J. Andrews Et Al.

November 5, 1987





518 N.E.2d 184, 164 Ill. App. 3d 606, 115 Ill. Dec. 659 1987.IL.1640

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.


PRESIDING JUSTICE McMORROW delivered the opinion of the court. LINN and JOHNSON, JJ., concur.


Plaintiff Charles Pratt (Pratt) appeals from the order of the circuit court of Cook County that dismissed the second count of his amended complaint. The dismissed count sought damages from defendant Express Freight Lines, Inc. (Express Freight), on the theory that Pratt was a third-party beneficiary to Express Freight's lease agreement with Rondell Andrews (Andrews) regarding Andrews' operation of a tractor and semitrailer. Andrews had driven the semi in an allegedly negligent manner, causing Pratt to sustain personal injuries. We affirm.


According to the well-pleaded allegations in Pratt's complaint as ultimately amended, Pratt sustained personal injuries on March 19, 1980, when the tractor and semitrailer he was operating on a highway in Hammond, Indiana, was struck by a semi being driven by Andrews. Andrews was operating the vehicle under a lease agreement with Express Freight and under the authority of Express Freight's Interstate Commerce Commission permit. At the time, Express Freight was an authorized carrier pursuant to Federal regulations. See 49 C.F.R. § 1057.2(a) (1986).

After any tort liability that could be asserted against Express Freight or Andrews had been barred by the two-year statute of limitations, Pratt filed his complaint, in which he maintained that because of ICC regulations, Express Freight was required to clearly specify in its lease with Andrews that Express Freight had a legal obligation to maintain insurance coverage for the protection of the public. (49 C.F.R. § 1057.12(k) (1986).) Pratt also claimed that Express Freight's lease was required to state Express Freight's obligation "to be completely responsible for the operation and proper maintenance" of the semi which Andrews had been operating.

Pratt asserted that he was a third-party beneficiary of the lease between Andrews and Express Freight. He argued that if Andrews were not covered by Express Freight's insurance, then Express Freight breached the lease agreement by failing to obtain insurance. He also argued that Express Freight breached the lease by "failing to assume complete responsibility and control of the vehicle being operated by Andrews" and by "failing to properly maintain the equipment."

Express Freight filed a motion to dismiss the count of the complaint directed to it, relying upon section 2-615 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) In this motion, Express Freight asserted that at the time of the accident, Andrews was the owner and driver of the semitrailer vehicle. According to Express Freight, Andrews had leased the vehicle to Express Freight for a trip to deliver various goods. Express Freight was therefore the lessee of the vehicle, and Andrews was the driver. Thus, under pertinent Federal regulations, Andrews was the owner/trip lessor and Express Freight was the trip lessee. Express Freight argued that under Federal regulations, it was obligated, as trip lessee, to maintain insurance coverage for its benefit and the benefit of the public, but not for the benefit of Andrews, the owner/trip lessor. See 49 C.F.R. §§ 1057.11, 1057.12 (1986).

Express Freight also maintained that Pratt was attempting to circumvent his own error. It claimed that Pratt could have filed a tort action for bodily injuries against Express Freight, or Andrews as employee of Express Freight, within two years after the accident occurred. In fact, Express Freight argued, Express Freight had insurance coverage to defend and be indemnified for any judgment resulting from such a lawsuit. Express Freight further argued that even if the lease agreement required that it be generally liable for any operation of the semi, Pratt was not an intended beneficiary of the lease. Finally, Express Freight asserted that Pratt's action against Express Freight was premature because Express Freight had filed a declaratory judgment action to determine the extent of its insurance coverage and that the declaratory judgment action was still pending and unresolved. Express Freight also argues that Pratt's action was premature because judgment had not been entered in the personal injury suit Pratt filed against Andrews.

Following briefing and argument, the trial court allowed the motion and dismissed the count with prejudice, finding no just reason to delay enforcement of or appeal from the order. The trial court's order did not specify the basis for its allowance of ...

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