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Dial Corporation v. Marine Office of America

January 12, 2001

DIAL CORPORATION,
PLAINTIFF-APPELLANT,
V.
MARINE OFFICE OF AMERICA AND EAGLE RIGGING SERVICES, INC.,
DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Quinn

Appeal from the Circuit Court of Cook County

Honorable Robert V. Boharic, Judge Presiding.

Plaintiff, Dial Corporation (Dial), filed a complaint for declaratory judgment against defendants, Marine Office of America Corp. (Marine), and Eagle Rigging, Inc. (Eagle), seeking a determination as to whether Marine, as insurer, owed a duty to indemnify Eagle, its insured, in an underlying suit. Dial appeals from the circuit court's order granting Marine's motion to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)) and contends that: (1) the circuit court erred in failing to consider whether Dial had standing to pursue a declaratory judgment action against Marine before a determination of Eagle's liability had been made; (2) the circuit court erred in determining Dial's date of loss as the date of the accident rather than the date Eagle was found liable; and (3) the circuit court erred in applying the limitation language in Eagle's policy to Dial, a third-party claimant under the policy. For the reasons that follow, we affirm.

On June 7, 1988, Dial sustained damages to its blowmolding machine and a vertical building beam when Eagle, engaged in its duties as cartage operator, dropped the blowmolding machine while loading it onto a flatbed truck.

Eagle's insurance policy with Marine was effective from March 12, 1988, to March 12, 1989. The policy covered, among other items, Eagle's motor truck cargo for scheduled vehicles. The policy included the following provisions:

"A. Coverage

We will pay for 'loss' to covered property from any of the covered Causes of Loss.

1. Covered Property *** means property of others in transit under a tariff, bill of lading or shipping receipt. Transit must be via a 'Scheduled Vehicle.' ***

Causes of Loss Insured:

1) Damage to the property while it is being

loaded on or unloaded from a vehicle or being hoisted or

carried into a building or lowered or carried from a

building."

Eagle's "Scheduled Vehicle" is listed on the declaration page of the insurance policy as a 1980 Kenworth tractor with an insurance limit of $100,000. The record does not disclose the vehicle on which the blowmolding machine was being loaded.

Eagle's insurance policy with Marine also contained the following suit ...


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