issued to Hooten provided coverage for the bodily injury and
property damage claims arising out of the February 6, 1999, motor
vehicle accident; (2) Plaintiff has an obligation to reimburse
West American Insurance Company the sum of $3,671.00 paid by it
to Campbell for the total loss of Campbell's 1991 Isuzu pickup
truck, and further has an obligation to reimburse Campbell the
sum of $500.00 paid by him to satisfy his deductible; and (3)
Plaintiff has a duty and obligation to defend Hooten and/or the
United States Postal Service in connection with any claims
arising out of the motor vehicle accident.
On February 2, 2000, West American, Campbell, Campbell-Lukens
and Griffet filed their Motion for Summary Judgment (#34) seeking
judgment in their favor on Plaintiff's First Amended Complaint
and on West American's Counterclaim. On February 17, 2000,
Plaintiff filed its Motion for Summary Judgment (# 40) and, on
February 18, 2000, the United States filed a Motion for Summary
Judgment (#42). Plaintiff and the United States filed a
Stipulated Statement of Undisputed Facts (#37). On February 28,
2000, Defendants West American, Campbell, Lukens-Campbell and
Griffet filed a Stipulation to Statement of Undisputed Facts
(#45) in which they stipulated and agreed to the Statement of
Undisputed Facts submitted by Plaintiff and the United States.
I. MOTIONS RELATED TO PLEADINGS
Plaintiff has filed two Motions related to pleadings in this
case. On February 16, 2000, Plaintiff filed a Motion to Amend
First Amended Complaint (# 38). Plaintiff stated that, in its
First Amended Complaint, it misquoted the language of the
exclusion in the policy issued to Hooten. Plaintiff asked for
leave to amend the First Amended Complaint by interlineation to
properly quote the language of the exclusion. Plaintiff's Motion
to Amend (# 38) is GRANTED.
Also on February 16, 2000, Plaintiff filed a Motion for Leave
to File an Answer to West American's Counterclaim (#39).
Plaintiff stated that, by inadvertance, no answer had been filed
on behalf of Plaintiff to the Counterclaim. West American has not
filed any document opposing this Motion. Accordingly, Plaintiff's
Motion for Leave to File an Answer (#39) is GRANTED.
II. SUMMARY JUDGMENT MOTIONS
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). In ruling on a motion for summary
judgment, a district court has one task and one task only: to
decide, based upon the evidence of record, whether there is any
material dispute of fact that requires a trial. Waldridge v.
American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In
this case, however, the parties have agreed to a Stipulated
Statement of Undisputed Facts, so it is agreed that there is no
genuine issue as to any material fact. Further, the construction
of an insurance policy is a question of law to be decided by the
court. DeBord v. United States, 870 F. Supp. 250, 252 (C.D.Ill.
1994); American States Ins. Co. v. Koloms, 177 Ill.2d 473, 227
Ill.Dec. 149, 687 N.E.2d 72, 75 (1997). Therefore, the
"interpretation of an insurance policy is a question of law that
is an appropriate subject for disposition by way of summary
judgment." Jupiter Aluminum Corp. v. Home Ins. Co.,
225 F.3d 868, ___, 2000 WL 1185514, at *4 (7th Cir. 2000).
B. INTERPRETATION OF EXCLUSION IN INSURANCE POLICY
The policy issued by Plaintiff to Hooten included the following
A. We do not provide Liability Coverage for any
5. For that person's liability arising out of the
ownership or operation of a vehicle while it is
being used to carry persons or property for a fee.
This exclusion (A.5) does not apply to a
share-the-expense car pool.
Plaintiff argues that it is evident Hooten was transporting
property for a fee at the time of the collision and the exclusion
should be held applicable to deny coverage.
The parties do not dispute that Illinois law governs the
interpretation of the insurance policy at issue. See River v.
Commercial Life Ins. Co., 160 F.3d 1164, 1168 (7th Cir. 1998). A
court's primary objective in construing the language of an
insurance policy is to ascertain and give effect to the
intentions of the parties as expressed in their agreement.
Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 75; see also American
Fire & Cas. Co. v. Broeren Russo Constr. Co., 54 F. Supp.2d 842,
846 (C.D.Ill. 1999). If the terms of the policy are clear and
unambiguous, they must be given their plain and ordinary meaning.
Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 75. However, if the
terms of the policy are susceptible to more than one meaning,
they are considered ambiguous. Koloms, 227 Ill.Dec. 149, 687
N.E.2d at 75. In such circumstances, the court must construe the
policy in favor of the insured and against the insurer that
drafted the policy. Employers Ins. of Wausau v. Ehlco
Liquidating Trust, 186 Ill.2d 127, 237 Ill.Dec. 82,
708 N.E.2d 1122, 1130 (1999). In addition, provisions that limit or exclude
coverage will be interpreted liberally in favor of the insured
and against the insurer. Koloms, 687 N.E.2d at 75. An
exclusionary clause will be applied to exclude coverage under the
insurance policy only if its applicability is clear and free from
doubt. DeBord, 870 F. Supp. at 252; see also River, 160 F.3d
at 1169 (insurance policy exceptions to liability must be
expressed in unequivocal language so that it is reasonable to
assume that the insured understood and accepted the limitations).
Accordingly, in order to prevail, Plaintiff must demonstrate that
the exclusion at issue here clearly and unambiguously excludes
coverage under the present facts. See Pender v. United States,
866 F. Supp. 1129, 1135 (N.D.Ind. 1994).
Plaintiff relies primarily on United States v. Milwaukee
Guardian Ins. Co., 966 F.2d 1246 (8th Cir. 1992). The court in
Milwaukee Guardian also considered the issue of insurance
coverage for a postal service employee delivering mail on a rural
route. Milwaukee Guardian, 966 F.2d at 1246. As in this case,
the postal service employee was involved in an accident while
driving his privately owned vehicle. The language of the
employee's insurance policy excluded coverage for "[b]odily
injury or property damage arising out of the ownership,
maintenance or use of a vehicle when used to carry persons or
property for a charge." Milwaukee Guardian, 966 F.2d at 1247.
The court held:
The postal service . . . is paid a fee by whoever
uses its delivery service. The fee paid covers the
costs of delivery of the mailed material. The postal
employee, here a rural mail carrier, carries out the
deliveries. The employee is not divorced from, but is
a part of, the postal service. Clearly, the employee
is carrying property for a charge. Thus, the policy
clause in question applies to exclude insurance
coverage for the accident arising out of the use of
[the employee's] vehicle to deliver mail. Milwaukee
Guardian, 966 F.2d at 1247 (footnote omitted).
A similar result has been reached by several other courts. See
Progressive Ins. Co. v. Nationwide Ins. Co., 1997 WL 461558, at
*3 (Ohio Ct.App. 1997) (coverage