Laycock v. American Family Mutual Insurance Co.

No. 2--96--1385

___________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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STEVEN LAYCOCK and CHARLES ) Appeal from the Circuit Court
LAYCOCK, ) of Du Page County.
)
Plaintiffs-Appellants, ) No. 95--MR--529
)
v. )
)
AMERICAN FAMILY MUTUAL )
INSURANCE COMPANY, ) Honorable
) Robert E. Byrne,
Defendant-Appellee. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

Plaintiffs, Steven Laycock and Charles Laycock, appeal from
the orders of the trial court of Du Page County granting summary
judgment for defendant, American Family Mutual Insurance Company
(American Family). We affirm.
Plaintiffs brought a declaratory judgment action seeking
uninsured motorist coverage under a policy of insurance issued by
American Family to Charles. Plaintiffs alleged that on May 11,
1992, Charles' son, Steven, was involved in a near automobile
collision with a vehicle driven by Scott Jungles, an uninsured
motorist. Following this near collision, Jungles screamed at
Steven and Steven drove away to avoid any problems. Jungles' car
passed Steven's car and Jungles stopped his car in front of
Steven's car, forcing Steven to stop. Jungles then exited his car
and, shouting threats and obscenities, beat Steven on the face,
head, neck, and eyes through Steven's open window, causing injuries
to Steven. There was never any physical contact between the
vehicles operated by Steven and Jungles.
Charles told American Family's adjusters, Rosalyn Tanksley and
Hank Rassel, of the occurrence. Following an investigation, Rassel
told Charles that they found that the injuries arose out of the
fear and anger caused by the sudden stop and near collision, that
it was unrelated to any preexisting, independent dispute or fight,
and was, therefore, considered an accident covered by the policy.
American Family paid $2,103 in medical expenses and informed
Charles that such benefits were paid because it was an accident.
Thereafter, Charles notified Tanksley and Rassel that Jungles
was convicted of battery and that he was going to file suit against
Jungles for damages. On April 7 and 21, 1992, Charles sent letters
to Tanksley confirming this, believing that there was no dispute as
to coverage. Subsequently, Tanksley and Rassel told Charles that
they did not dispute coverage or object to the lawsuit, but did not
want to participate because it was not cost effective. Charles
believed that no additional consent or notice had to be given in
order to collect on the uninsured motorist claim.
On July 19, 1994, a civil judgment was entered against Jungles
for $15,000 in damages. American Family refused to pay on the
uninsured motorist claim or arbitrate. Plaintiffs then brought
this declaratory judgment action requesting the trial court to find
that their American Family automobile liability insurance policy
provided coverage for compensatory damages arising from the
occurrence and to order American Family to pay the $15,000 judgment
pursuant to the uninsured motorist claim, or in the alternative to
order arbitration.
The parties each filed motions for summary judgment concerning
whether the occurrence arose out of the use of the uninsured motor
vehicle. Plaintiffs' motion for summary judgment raised the issue
of estoppel on the theory that comments made by Tanksley and Rassel
led them to believe that, if they filed suit for damages, American
Family would make payments to plaintiffs pursuant to the uninsured
motorist provision of its policy. The trial court found that no
coverage existed unless it determined that American Family was
estopped from denying coverage. Thereafter, the trial court found
that estoppel did not apply and granted American Family's motion
for summary judgment. Plaintiffs filed a timely notice of appeal.
We begin our analysis by addressing the issue of whether the
trial court properly granted summary judgment. Since the parties
filed cross-motions for summary judgment, they agree that only a
question of law is involved and invite the court to decide the
issues based on the record. Aryainejad v. Economy Fire & Casualty
Co., 278 Ill. App. 3d 1049, 1051 (1996). On appeal from the entry
of summary judgment, the standard of review is de novo.
Aryainejad, 278 Ill. App. 3d at 1051.
On appeal, plaintiffs first contend that the trial court erred
in determining that the insurance policy issued by American Family
did not provide uninsured motorist coverage with respect to the
underlying action. The uninsured motorist provision of the policy
in question provides:
"We will pay compensatory damages for bodily injury
which an insured person is legally entitled to recover from
the owner or operator of an uninsured motor vehicle. The
bodily injury must be sustained by an insured person and
must be caused by accident and arise out of the use of the
uninsured motor vehicle."
Insurance policies are subject to the same rules of
construction that apply to other types of contracts. Morgan v.
CUNA Mutual Insurance Society, 242 Ill. App. 3d 1027, 1028 (1993).
In construing an insurance policy, the main objective is to
ascertain and enforce the intention of the parties as expressed in
the agreement. Milwaukee Guardian Insurance, Inc. v Taraska, 236
Ill. App. 3d 973, 974 (1992). Where the language of an insurance
policy is clear and unambiguous, it must be given its plain and
ordinary meaning. State Farm Fire & Casualty Co. v. Hatherley, 250
Ill. App. 3d 333, 337 (1993). Insurance policies must be liberally
construed in favor of the insured, and all doubts and ambiguities
must be resolved in favor of the insured. United States Fidelity
& Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 74 (1991).
Relying on Toler v. Country Mutual Insurance Co., 123 Ill.
App. 3d 386 (1984), plaintiffs state that, in order for coverage to
exist under the policy, there must be some causal relationship
between the injuries sustained and the uninsured motor vehicle.
They argue that there was a sufficient nexus between the uninsured
motorist vehicle and the injury to Steven for the policy to provide
coverage because it was the use of Jungles' uninsured vehicle that
stopped Steven, trapped him, and prevented his escape. Plaintiffs'
reliance on Toler is misplaced, as the insurance policy construed
in that case contained a "loading and unloading" clause. "Use" of
the motor vehicle was defined to include "loading and unloading" of
the motor vehicle. The policy in the present case does not contain
a "loading and unloading" clause. In Toler, the issue was whether
the act which resulted in injury constituted "loading or
unloading." Here, the issue is whether the assault by the driver
of an uninsured vehicle is an act that arose out of the use of the
uninsured motor vehicle.
We agree with American Family that the situation in the
present case is analogous to United States Fidelity & Guaranty Co.
v. Jiffy Cab Co., 265 Ill. App. 3d 533 (1994). There, the
passenger was fatally stabbed by a Jiffy cab driver after the
passenger exited the cab following an argument over the route the
driver was taking. The policy in question provided that the
insurer would pay all sums because of bodily injury " 'caused by an
accident and resulting from the *** use of a covered auto.' "
Jiffy, 265 Ill. App. 3d at 538. Similar to the argument presented
by plaintiffs, the cab company asserted that it was not necessary
that the automobile become the instrumentality that actually caused
the injury or that the type of conduct that caused the injury be
that which is foreseeably identified with the normal use of the
vehicle. The court did not agree and ruled against coverage,
relying on a majority of decisions throughout the country which
examined and rejected similar arguments when construing policies
containing similar language to that in the case at bar. Jiffy, 265
Ill. App. 3d at 539-40. The court noted that, in cases involving
altercations where an insured driver assaults another motorist or
a passenger as a result of hostility generated through the
operation of the vehicle, the use of the vehicle was too remote,
incidental, or tenuous to support coverage under an automobile
liability policy. See Jiffy, 265 Ill. App. 3d at 539-40 (and cases
cited therein).
In particular, the Jiffy court relied on the Florida Supreme
Court decision Race v. Nationwide Mutual Fire Insurance Co., 542 So. 2d 347 (Fla. 1989), which rejected coverage under an automobile
liability policy for injuries when an uninsured driver assaulted
another after a minor traffic collision. There, the policy
language provided that the insurer would pay damages resulting from
an " 'accident arising out of the ownership, maintenance or use of
the uninsured or underinsured vehicle.' " Race, 542 So. 2d at 348.
The court held that the mere creation of an atmosphere of hostility
between the parties was an insufficient causal connection upon
which to predicate coverage since the automobile itself did not
produce the injury. Race, 542 So. 2d at 351.
Our examination of the cases cited, as well as analogous cases
from other jurisdictions, persuades us that the conclusion in Jiffy
controls. While the words "arising out of" have been interpreted
broadly to mean originating from, incident to, or having a causal
connection with the use of the vehicle (Dash Messenger Service,
Inc. v. Hartford Insurance Co., 221 Ill. App. 3d 1007, 1012
(1991)), the act of leaving the vehicle and inflicting a battery is
an event of independent significance which is too remote,
incidental, or tenuous to support a causal connection with the use
of the vehicle despite the fact that the vehicle was used to stop
and trap another vehicle.
Moreover, the injuries that occurred here are not the risks
the parties to the insurance contract reasonably contemplated would
be covered. In Aryainejad, the plaintiff was injured when he
swerved his car to avoid a pedestrian who was walking in the
roadway after his uninsured car ran out of gas. Construing an
insurance policy with language similar to the policy at issue here,
and after extensive analysis of different tests applied by other
jurisdictions, the court adopted a test based on whether the
injuries resulted from an activity that presented the type of risk
the parties reasonably contemplated would be covered by the policy.
Aryainejad, 278 Ill. App. 3d at 1054. The court held that the
plaintiff's injuries arose out of the uninsured motorist's act of
walking on the highway after his vehicle ran out of gas; that the
risk posed to other drivers was within the risk for which the
parties to the contract reasonably contemplated there would be
coverage. Aryainejad, 278 Ill. App. 3d at 1054.
The court agreed, however, that an automobile must do more
than merely transport a person to the site where an accident occurs
for coverage to apply. Aryainejad, 278 Ill. App. 3d at 1054. The
court stated that an assault by the driver of a vehicle is an act
which is independent of and unrelated to the use of a vehicle.
Aryainejad, 278 Ill. App. 3d at 1054. "Regardless of whether a
vehicle creates a condition that leads to an assault, injuries
resulting from an assault are not a normal or reasonable
consequence of the use of a vehicle." Aryainejad, 278 Ill. App.
3d at 1054-55. We agree that an assault by the driver of a vehicle
is an act which is independent of and unrelated to the use of a
vehicle and is not a normal or reasonable consequence of the use of
a vehicle. Therefore, it is not a risk for which the parties to
the contract reasonably contemplated there would be coverage.
Accordingly, we hold that the trial court was correct in concluding
that the policy did not provide coverage.
Plaintiffs next argue that American Family is estopped from
denying coverage because American Family told plaintiffs that there
was coverage, knew of plaintiffs' belief that the filing of a suit
was required, and remained silent in the face of such knowledge.
American Family asserts that estoppel does not apply because
plaintiffs do not demonstrate how their reliance on American
Family's representations resulted in prejudice.
Estoppel refers to an abatement, raised by law, of rights and
privileges of the insurer where it would be inequitable to permit
their assertion; such relinquishment need not be voluntary,
intended, or desired by the insurer, but it necessarily requires
prejudicial reliance on the part of the insured. Western Casualty
& Surety Co. v. Brochu, 105 Ill. 2d 486, 500 (1985); Yandell v.
Church Mutual Insurance Co., 274 Ill. App. 3d 828, 832 (1995). The
burden of establishing prejudice rests with the insured and must be
proved by clear, concise, and unequivocal evidence. Brochu, 105 Ill. 2d at 500.
In this case, the record contains no evidence that plaintiffs
were prejudiced. Plaintiffs simply assert that they were induced
into filing a civil action against Jungles. However, prejudice
cannot be presumed from the mere allegation that plaintiffs were
lulled into a false sense of security without allegations or
evidence of a resulting loss or action to their detriment. Contra,
e.g., Sponemann v. Country Mutual Insurance Co., 98 Ill. App. 3d
352, 357 (1981) (loss to insured is prejudicial where insurer led
insured to believe that a settlement would be forthcoming and then
shifted its position and asserted that a limitations period had
expired). Here, there are no allegations or evidence that the
judgment obtained against Jungles has not been satisfied or that it
is uncollectible. Because plaintiffs do not assert how they were
prejudiced by pursuing an action against Jungles, plaintiffs fail
to establish a necessary element of estoppel. If a plaintiff fails
to establish a necessary element of a cause of action, summary
judgment in favor of the defendant is proper. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). Therefore, the trial court correctly
determined that estoppel did not apply.
We agree with the trial court that, as a matter of law, the
injuries at issue here were not covered by the American Family
policy and that plaintiffs failed to establish American Family was
estopped from asserting coverage. Accordingly, we affirm the grant
of summary judgment for American Family.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
McLAREN and HUTCHINSON, JJ., concur.