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11/30/88 Merit Insurance Company, v. Parent Building Materials

November 30, 1988

MERIT INSURANCE COMPANY, PLAINTIFF-APPELLANT

v.

PARENT BUILDING MATERIALS, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

531 N.E.2d 1015, 176 Ill. App. 3d 965, 126 Ill. Dec. 388 1988.IL.1722

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

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiff Merit Insurance Company (Merit) appeals from a grant of summary judgment in favor of defendant Parent Building Materials, Inc. (Parent). We affirm the trial court's judgment.

In January 1980, Parent's employees transported sheets of plasterboard in Parent's trucks to a construction site. Parent was not an owner or the general contractor for the construction project. Parent's only involvement was the sale and delivery of the material. Once at the site, Parent's employees unloaded the plasterboard, placed it at its designated reception point and departed.

Kenneth Baker was employed by one of the subcontractors working on the construction project. Approximately one day after Parent completed its delivery, Baker was allegedly injured when the stack of plasterboard that Parent delivered fell on him. Baker filed a lawsuit against Parent in the circuit court of Cook County seeking damages for negligence. Parent's liability, if any, is alleged by Baker to stem from: (1) its failure to provide Baker with a safe place in which to work; (2) its failure to exercise control of the construction with reasonable care; and (3) its failure to properly stack the plasterboards.

Because Merit had issued an insurance policy to Parent, Parent tendered the defense of Baker's lawsuit to Merit. Merit accepted the defense under a reservation of rights. Merit thereafter filed a lawsuit in the circuit court of Cook County seeking a declaratory judgment that the insurance policy issued to Parent did not provide liability coverage for the occurrence in which Baker was allegedly injured. Both Merit and Parent argued motions for summary judgment. Following argument, the trial court granted summary judgment in favor of Parent. This appeal followed.

The policy issued by Merit is a "General-Automobile Liability Policy." The policy consists of two main categories of coverage, comprehensive automobile liability (auto liability) and comprehensive general liability (general liability). The auto liability portion of the policy contains the following endorsement:

"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

C. bodily injury or

D. property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile . . .." (Emphasis added.)

It is Merit's position that when proper meaning is given to the loading and unloading clause of the policy, no coverage exists for the occurrence in which Baker allegedly sustained injuries. Merit argues that not only had the unloading been completed but because the incident did not occur during nor did it arise ...


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