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Fuller's Car Wash Inc. v. Liberty Mutual Insurance Co.

July 31, 1998

FULLER'S CAR WASH, INC., OSCAR SALAZAR, AND AMERICAN STATES INSURANCE COMPANY, PLAINTIFFS-APPELLANTS,
v.
LIBERTY MUTUAL INSURANCE COMPANY, LAMKIN LEATHER AND RUBBER COMPANY, AND MILDRED KISEL, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice McLAREN delivered the opinion of the court:

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Du Page County.

No. 97--MR--0190

Honorable Robert E. Byrne, Judge, Presiding.

The plaintiffs, Fuller's Car Wash (Fuller's), Oscar Salazar, and American States Insurance Company (American States), appeal an order denying the plaintiffs' motion for summary judgment and granting the motion of the defendants, Liberty Mutual Insurance Company (Liberty Mutual), Lamkin Leather & Rubber Company (Lamkin Leather), and Mildred Kisel, to dismiss on the pleadings. The trial court found that defendant Liberty Mutual did not owe a duty to defend the plaintiffs in a personal injury suit. We affirm.

On May 20, 1993, Robert Lamkin, the owner of Lamkin Leather, brought his vehicle (owned by Lamkin Leather) to Fuller's to be washed. Allegedly, Salazar, a Fuller's employee, negligently drove Lamkin's vehicle and struck and injured another Fuller's customer, Mildred Kisel. At the time of the incident Fuller's was covered by an insurance policy issued to Fuller's by American States. Lamkin was covered by Liberty Mutual. Kisel sued Fuller's and Salazar for her injuries in the circuit court of Cook County, alleging negligence. As of April 2, 1998, the suit was still pending.

American States provided a defense to Fuller's and Salazar with respect to the Kisel suit pursuant to the garage keeper's liability coverage contained in the policy. On April 24, 1996, American States tendered Fuller's and Salazar's defense to Lamkin's automobile insurance carrier, Liberty Mutual. On June 25, 1996, Liberty Mutual declined the tender based on an exclusion to the permissive use provision of its policy.

On March 25, 1997, the plaintiffs, American States, Fuller's, and Salazar, filed a complaint seeking declaratory relief concerning the scope and nature of the obligations that Liberty Mutual owed to Fuller's and Salazar as permissive users under the policy issued to Lamkin. On May 30, 1997, Liberty Mutual and Lamkin filed a section 2--615 motion to dismiss, alleging that the plaintiffs failed to state a cause of action. 735 ILCS 5/2--615 (West 1996). On July 3, 1997, the plaintiffs filed a motion for summary judgment.

In Liberty Mutual's reply memorandum, in support of its motion to dismiss and in opposition to the plaintiff's motion for summary judgment, the defendant attached an affidavit of Walter Fuller, a part-owner of Fuller's Car Wash. The affidavit was first filed in the Kisel case in the circuit court of Cook County. In the affidavit, Walter Fuller stated that, when a customer brings his vehicle to Fuller's for a car wash, he allows Fuller's employees to vacuum the interior of the vehicle and then drive it from the vacuum area to the entrance of the car wash. The car is visible to the customer at all times and the customer retains authority to stop the cleaning at any time.

After hearing arguments on the cross-motions, the trial court granted the defendants' motion to dismiss and denied the plaintiffs' motion for summary judgment. On November 20, 1997, the plaintiffs filed a notice of appeal.

On appeal, the plaintiffs argue that the trial court erred in granting the defendants' motion to dismiss and in denying the plaintiffs' motion for summary judgment. More specifically, the plaintiffs claim that (1) the exclusion at issue does not apply to the plaintiffs; (2) the language in the exclusion at issue is ambiguous; and (3) the defendant Liberty Mutual is estopped from raising any defense to coverage because it wrongfully failed to defend the plaintiffs.

Summary judgment is proper when the pleadings, exhibits, affidavits, and depositions on file disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005 (West 1996); Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7 (1997). A motion for summary judgment and its supporting documents must be construed "strictly against the movant and liberally in favor of the opponent." Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996). We review a trial court's decision to grant or deny a motion for summary judgment de novo. Berlin, 179 Ill. 2d at 7.

The question presented by a section 2-615 motion to dismiss for failure to state a cause of action is "whether the plaintiff has alleged sufficient facts in the complaint, which, if proved, would entitle the plaintiff to relief." Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194 (1995). All well-pleaded facts in the complaint are taken as true (Boyd, 166 Ill. 2d at 194), but any Conclusions drawn from the facts as alleged should be disregarded (Bank of Northern Illinois v. Nugent, 223 Ill. App. 3d 1, 9 (1991)). For the purpose of a motion to dismiss, exhibits attached to the complaint become part of the complaint and will be considered. Abbott v. Amoco Oil Co., 249 Ill. App. 3d 774, 778-79 (1993). We review a trial court's decision to grant a motion to dismiss de novo. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084 (1994). Further, the reviewing court may affirm on any basis justified by the record, regardless of the trial court's reasoning. Becker v. Zellner, 292 Ill. App. 3d 116, 130 (1997).

The standards by which a court determines whether an insurer is obligated to defend its insured are clear. Ordinarily, a court looks to the allegations in the underlying complaint and compares those allegations to the relevant provisions of the insurance policy. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997). The insurer's duty to defend arises if the facts alleged in the complaint fall within, or potentially within, the language of the policy. Koloms, 177 Ill. 2d at 479. In interpreting the language of the policy, a court is to ascertain and give effect to the intentions of the parties as expressed in their agreement. Koloms, 177 Ill. 2d at 479. Further, a court must construe the policy as a whole, taking into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). A court must give clear and unambiguous terms their plain and ordinary meaning. Koloms, 177 Ill. 2d at 479. Terms that are susceptible to more than one meaning are considered ambiguous and must ...


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