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Cohs v. Western States Insurance Company

May 07, 2002

TODD S. COHS AND JENNIFER COHS, PETITIONERS-APPELLANTS,
v.
WESTERN STATES INSURANCE COMPANY, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County 98 CH 10193 Honorable Stephen A. Schiller, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

Released for publication.

This appeal arises out of a declaratory judgment action in which the trial court granted summary judgment in favor of respondent-appellee, Western States Insurance Company (Western). In their complaint, petitioners-appellants, Todd and Jennifer Cohs, sought a declaration that an insurance policy issued by Western to DRW Services, Inc. (DRW), Todd Cohs' employer, provided Cohs with underinsured motorist coverage for personal injuries he sustained while at work. The parties each moved for summary judgment on the issue of coverage. On June 28, 2000, the trial court granted Western's summary judgment motion and denied the summary judgment motion made by the Cohs. The trial court found there was not a sufficient nexus between Cohs' use of the insured vehicle and the accident to trigger coverage under the underinsured endorsement to the Western policy. The Cohs appealed.

The sole issue on appeal is whether the trial court erred in granting Western's motion for summary judgment. Our standard of review on summary judgment dispositions is de novo. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349, 701 N.E.2d 493 (1998).

The following facts are undisputed. In his deposition, Todd Cohs testified that he worked as a service technician for DRW. DRW was engaged in the business of assisting gasoline service stations with distributing gasoline from inside the service station, to underground tanks, to pumps where the customers received fuel. On September 23, 1996, the record indicates that Cohs was sent by DRW to service Ron's Marathon gas station located at 1195 Rohlwing in Elk Grove Village, Illinois. He was instructed to install and program a tank monitoring system for the four fuel tanks at Ron's Marathon. The tank monitoring system measured the volume of fuel in the gas tank and also detected if the tank was leaking.

Cohs testified that he drove to the station in a Chevy van that had been modified by DRW. Specifically, the modifications included dividers and shelving that were installed into the vans for the purpose of holding certain parts. Also, the vans were equipped with hinged doors on the side and in the rear. The vans, including the one driven by Cohs, were lettered with a DRW logo on each side.

When Cohs arrived at the station, he pulled up to the premium gas tank, removed the manhole cover or cap, and installed a probe into the tank. In order to insert the probe, Cohs stated that he used a variety of hand tools that he retrieved from his van. Once the first probe was inserted, he then moved the van to work on the remaining three tanks, which were within close proximity to one another. He then installed new probes into the remaining three tanks. He utilized the same type of hand tools from the van that he had used on the first tank. Cohs testified that when he had inserted the probes into the remaining three tanks, he completed the requisite wiring work with respect to those tanks. He then went inside the service station to begin programming a computer system that showed the gas station what tank was being monitored and how low the fuel was with respect to that particular tank.

Cohs realized that he needed to return to the premium tank to obtain a "rep rate." Such a task required reopening the premium fuel tank monitor cover. Cohs testified that he did not move the van and walked back to the premium tank, which was located about 12 feet away from his vehicle. After he had gone over to the tank, he stated that he needed a "seal pack" and returned to his van to obtain the part. He then returned to the tank. At that point, he went down on one knee, reopened the premium tank, and reached down into the hole about 12 to 15 inches. Within approximately one minute from the time he moved away from the van, he was struck by a motor vehicle owned and operated by Victor Ceron. Ceron was an underinsured motorist.

In his affidavit, Cohs stated that he walked approximately fifteen feet from the right rear corner of the van to the premium fuel tank monitor cover, knelt down, and used his tools to remove the tank cover. He also stated that it was less than two minutes between obtaining the seal pack from the van and being struck by Ceron.

The insurance policy, number WDS7-054243-21 (Western Policy), was issued by Western to DRW for the period November 16, 1995, to November 15, 1996. The Illinois underinsured motorist coverage endorsement of Western Policy stated, in relevant part:

"A. COVERAGE

1. We will pay all sums the 'insured' is legally entitled to recover as compensatory damages from the owner or driver of an 'underinsured motor vehicle.' The damages must result from 'bodily injury' sustained by the 'insured' caused by an 'accident.' The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the 'underinsured motor vehicle.'"

The endorsement also defined, in ...


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