Appeal from the Circuit Court of McHenry County. No. 97--MR--170 Honorable Michael J. Sullivan, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
(Jon Anfinsen, a Minor, by his Father and Next Friend, David J. Anfinsen, et al., Defendants).
Defendants Transportation Joint Agreement of School Districts No. 47 and No. 155 (TJA), Patricia Catencamp, and Westchester Fire Insurance Company (Westchester) appeal from the trial court's grant of summary judgment in favor of plaintiff Northbrook Property and Casualty Insurance Company (Northbrook) and its denial of the defendants' cross-motions for summary judgment. We reverse and remand.
Northbrook issued a commercial general liability policy to TJA on June 30, 1995. On October 25, 1995, a school bus driven by Catencamp was involved in an accident with a Metra train in Fox River Grove, Illinois, which resulted in 27 lawsuits against TJA and Catencamp filed by students and/or the families of students killed and injured in the collision. TJA and Catencamp tendered the defense of and sought indemnification from Northbrook for lawsuits under the general liability policy. Northbrook denied all insurance and refused to participate in the lawsuits, eventually filing a declaratory judgment action against TJA, Catencamp, Westchester (one of TJA's excess insurance carriers), and the complainants in the lawsuits. Northbrook, TJA, Catencamp, and Westchester all filed motions for summary judgment in the declaratory action; the court granted Northbrook's motion and denied the others. This appeal followed.
Defendants argue that the trial court erred in granting Northbrook's motion for summary judgment. Where the pleadings, depositions, and admissions on file, together with the affidavits, demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. McNamee v. State, 173 Ill. 2d 433, 438 (1996). The review of a summary judgment ruling is an issue of law and is therefore a de novo review. McNamee, 173 Ill. 2d at 438. This court's function is to determine whether the trial court correctly found that no genuine issues of material fact existed and, if none did, whether the trial court correctly entered judgment as a matter of law. Lake County Public Building Comm'n v. City of Waukegan, 273 Ill. App. 3d 15, 18 (1995).
An insurer's duty to defend arises where the complaint alleges facts that fall within, or potentially within, the policy's coverage. Massachusetts Bay Insurance Co. v. Unique Presort Services, Inc., 287 Ill. App. 3d 741, 744 (1997). It is the allegations of the complaint, not the findings of the underlying litigation, that are dispositive of the duty to defend. Massachusetts Bay, 287 Ill. App. 3d at 744. An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts that bring the case within, or potentially within, the coverage of the policy. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991). If the complaint raises multiple theories of recovery against the insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. United States Fidelity, 144 Ill. 2d at 73. The underlying complaints and the policy are to be liberally construed in favor of the insured, and any doubts or ambiguities must be resolved in the insured's favor. United States Fidelity, 144 Ill. 2d at 74.
The underlying lawsuits in this case allege improper driving against Catencamp and also allege against TJA:
"(1) that Defendants failed to adequately provide proper and sufficient training to its bus drivers, including Patricia Catencamp; (2) that Defendants failed to adequately inform and educate its bus drivers, including Patricia Catencamp, of the bus routes and the hazards present on such routes; (3) that Defendants failed [to] provide adequate route sheets to bus drivers; (4) that Defendants failed to inspect routes and notify drivers of hazardous conditions; (5) that Catencamp was not prepared or trained by the Schools to operate the school bus safely and prudently on the day of the accident; (6) that Defendants failed to provide Patricia Catencamp with the proper training, experience, and qualifications; (7) that Defendants failed to comply with federal, state and school district laws and regulations governing the conduct, training and procedures regarding the operation of school buses; (8) that Defendants failed to instruct Patricia Catencamp regarding the route to which she was assigned on October 25, 1995; (9) that Defendants failed to supervise properly the bus drivers and their supervisors; (10) that Defendants failed to warn the plaintiff's decedent and the general public that Patricia Catencamp was unfamiliar with the route, inexperienced and unqualified; (11) that Defendants failed to act as would a reasonable and prudent person under the same circumstances."
Northbrook denied insurance and participation in the lawsuit based on the following provision contained in the policy issued to TJA which excludes coverage for:
" '[b]odily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, 'auto,' or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and 'loading or unloading.' "
While it is not ambiguous as a matter of law, the phrase "arising out of" in an exclusionary clause of an insurance policy should be given a limited interpretation in favor of the insured. Allstate Insurance Co. v. Smiley, 276 Ill. Ap. 3d 971, 978 (1995). In ordinary usage, "arise" means "[t]o spring up, originate, to come into being or notice." See Black's Law Dictionary 108 (6th ed. 1990); Smiley, 276 Ill. App. 3d at 978.
Northbrook contends that the policy exclusion bars coverage because the injuries to the 27 children resulted from the use or operation of the bus and because the injuries could not have occurred without the operation or use of the bus. We disagree.
It is well established that, to be totally excluded from coverage under an insurance policy, an injury must have been caused solely by a proximate cause excluded under the policy. United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co., 152 Ill. App. 3d 46, 48 (1987) (USF&G).
" '[T]here may be more than one proximate cause of an injury. A proximate cause of an injury is any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time[ ] which[,] in combination with it, causes the injury.' " Faulkner v. ...