Appeal from the Circuit Court of Cook County. Honorable Stephen A. Schiller, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
SCR Medical Transportation, Inc. (SCR) provides para-medical transportation services in medicar vans to disabled passengers. On July 14, 1995, Aisha Browne was a passenger in the SCR van. SCR's driver was Robert Britton, a convicted felon. This case arises from the events of that day, with Browne's claim that Britton sexually assaulted her in the van and in her home.
Browne sued SCR for money damages caused by the sexual assaults. That case is pending in the trial court. Of immediate concern is the declaratory judgment action SCR filed against Empire Fire and Marine Insurance Company and Empire indemnity Insurance Company (Empire)--SCR's auto liability insurer, and Browne. The issue in the trial court was whether Empire owes SCR a duty to defend it against Browne's complaint. The trial court held it did not. We agree, despite SCR's last-ditch attempt to label Britton's conduct as negligence.
In her eight-count complaint against SCR, Browne alleged Robert Britton was transporting her from Michael Reese Hospital to her home on July 14, 1995. Britton was employed as a driver for SCR. Browne alleged Britton sexually assaulted her inside the van and then entered her home where he sexually assaulted her a second time. In the related criminal case, Britton, also known as Robert Vaughn, was convicted of the sexual assaults.
Counts I through VI of Browne's fifth amended complaint sought damages from SCR under theories of negligence, negligent hiring, assault, intentional infliction of emotional distress, and negligent supervision.*fn1 SCR then brought its declaratory judgment action, alleging Empire had a duty to defend and indemnify it in Browne's lawsuit.
Empire filed a motion for summary judgment, contending the automobile liability policy it issued to SCR provided no coverage and no duty to defend against the allegations in Browne's complaint. The policy section at issue states:
"[w]e will pay all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto'."
The trial court granted Empire's motion, and SCR filed a motion for reconsideration. While that motion was pending, Browne filed her sixth amended complaint, adding a Count IX for negligence against SCR and Britton. Count IX alleged Britton was negligent in that he:
"A. Failed to travel upon recognized streets using the most direct route possible;
B. Operated the SCR medical transportation vehicle through and upon an unnamed alley;
C. Failed to control his bodily movements so that he caused AISHA to be in fear of her personal safety, although he knew or should have known that his proximity to AISHA would have frightened and injured her;
D. Failed to call her back-up support to assist AISHA with her disembarkation from SCR medical transportation vehicle, although he knew or should have known that his proximity to AISHA would have frightened and injured her;
E. Negligently assessed the situation when he attempted to assist AISHA with her disembarkation from the SCR medical transportation vehicle, although he knew or should have known that his words or actions would have frightened and injured AISHA; and
F. Was otherwise negligent in placing AISHA in a situation which reasonably caused her to experience strong anxiety and fear."
Count IX alleged as a result of Britton's negligent acts, Browne was "physically and psychologically injured, has endured and will in the future endure untold pain and suffering; ...