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SECOND DIVISION
May 7, 2002

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

The sole issue on appeal is whether the trial court erred ingranting Western's motion for summary judgment. Our standard ofreview on summary judgment dispositions is de novo. Ragan v.Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349, 701 N.E.2d493 (1998).

The following facts are undisputed. In his deposition, ToddCohs testified that he worked as a service technician for DRW. DRW was engaged in the business of assisting gasoline servicestations with distributing gasoline from inside the servicestation, to underground tanks, to pumps where the customersreceived fuel. On September 23, 1996, the record indicates thatCohs was sent by DRW to service Ron's Marathon gas stationlocated at 1195 Rohlwing in Elk Grove Village, Illinois. He wasinstructed to install and program a tank monitoring system forthe four fuel tanks at Ron's Marathon. The tank monitoringsystem measured the volume of fuel in the gas tank and alsodetected if the tank was leaking.

Cohs testified that he drove to the station in a Chevy vanthat had been modified by DRW. Specifically, the modificationsincluded dividers and shelving that were installed into the vansfor the purpose of holding certain parts. Also, the vans wereequipped with hinged doors on the side and in the rear. Thevans, including the one driven by Cohs, were lettered with a DRWlogo on each side.

When Cohs arrived at the station, he pulled up to thepremium gas tank, removed the manhole cover or cap, and installed a probe into the tank. In order to insert the probe, Cohsstated that he used a variety of hand tools that he retrievedfrom his van. Once the first probe was inserted, he then movedthe van to work on the remaining three tanks, which were withinclose proximity to one another. He then installed new probesinto the remaining three tanks. He utilized the same type ofhand tools from the van that he had used on the first tank. Cohstestified that when he had inserted the probes into the remainingthree tanks, he completed the requisite wiring work with respectto those tanks. He then went inside the service station to beginprogramming a computer system that showed the gas station whattank was being monitored and how low the fuel was with respect tothat particular tank.

Cohs realized that he needed to return to the premium tankto obtain a "rep rate." Such a task required reopening thepremium fuel tank monitor cover. Cohs testified that he did notmove the van and walked back to the premium tank, which waslocated about 12 feet away from his vehicle. After he had goneover to the tank, he stated that he needed a "seal pack" andreturned to his van to obtain the part. He then returned to thetank. At that point, he went down on one knee, reopened thepremium tank, and reached down into the hole about 12 to 15inches. Within approximately one minute from the time he movedaway from the van, he was struck by a motor vehicle owned andoperated by Victor Ceron. Ceron was an underinsured motorist.

In his affidavit, Cohs stated that he walked approximatelyfifteen feet from the right rear corner of the van to the premiumfuel tank monitor cover, knelt down, and used his tools to removethe tank cover. He also stated that it was less than two minutesbetween obtaining the seal pack from the van and being struck byCeron.

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

"A. COVERAGE

1. We will pay all sums the 'insured'is legally entitled to recover ascompensatory damages from the owneror driver of an 'underinsured motorvehicle.' The damages must resultfrom 'bodily injury' sustained bythe 'insured' caused by an'accident.' The owner's ordriver's liability for thesedamages must result from theownership, maintenance or use ofthe 'underinsured motor vehicle.'"

The endorsement also defined, in pertinent part:

"B. WHO IS AN INSURED

1. You

* * *

3. Anyone else 'occupying' a covered'auto' or a temporary substitutefor a covered 'auto.' ***.

* * *

F. ADDITIONAL DEFINITIONS

* * *

2. 'Occupying' means in, upon, gettingin, on, out or off."

As we noted above, the trial court entered summary judgment infavor of Western on the basis that it was not possible toconclude that the injury to Cohs arose out of the use of thevehicle. We now address whether the summary judgment orderentered below was proper.

Before doing so, we note that in their opening briefs, theparties suggested that the issue to be decided on appeal waswhether Cohs was using the insured van at the time of theoccurrence. Neither party addressed whether Cohs was occupyingthe vehicle covered by the Western Policy endorsement. As aresult of this deficiency, the parties were ordered to filesupplemental briefs on the issue of whether Cohs was "occupying"the van at the time of the accident.

At the hearing below, plaintiff's counsel focused primarilyon the liability section in the principle Western Policy, whichstates:

"A. COVERAGE

We will pay all sums an 'insured' legallymust pay as damages because of 'bodilyinjury' or 'property damage' to which thisinsurance applies, caused by an 'accident'and resulting from the ownership, maintenanceor use of a covered 'auto'."

In their complaint, the Cohs also set forth the coveragesection in the underinsured motorist endorsement to the WesternPolicy, referred to above, which states that, "The owner's ordriver's liability must result from the ownership, maintenance, or use of the 'underinsured motor vehicle.' " The trialcourt also focused on this language when it stated, "[a]nd mostvehicle policies that I have read use the 'arising out of the useof language.'" We note however that the underinsured motoristendorsement in the Western Policy provides that the "driver'sliability must result from the ownership, maintenance, or use ofthe 'underinsured motor vehicle.'" (Emphasis added.) Our readingof this provision indicates that it has nothing to do with howCohs, the insured, was using his van at the time of the accident. Instead, this language clearly applies to the liability of thedriver using the underinsured motor vehicle. Here, that vehiclewas the one driven by Victor Ceron. As a result, the argumentsand authorities relied upon by both parties in their originalbriefs are not dispositive of the issue on appeal.

We determine that the correct question for purpose ofdetermining coverage under the underinsured motorist endorsementis whether Cohs was "occupying" the van within the meaning of theWestern Policy at the time of the accident. This is the languagethat we find triggers coverage for Cohs. If Cohs was occupyingthe vehicle as it is defined in the Western Policy, then summaryjudgment should have been granted in his favor. If, on the otherhand, Cohs was not occupying the vehicle at the time of thecollision, then summary judgment was appropriately entered infavor of Western. The record indicates that although thisquestion was addressed by Western in the summary judgmentpleadings below, it was not addressed by either party until thiscourt ordered the parties to do so. In any event, the definitionof "occupying" contained in Western Policy endorsement has beenpreviously addressed by the Illinois courts. See Mathey v.Country Mutual Insurance Co., 321 Ill. App. 3d 805, 814, 748N.E.2d 303 (2001); Greer v. Kenilworth Insurance Co., 60 Ill.App. 3d 22, 25, 376 N.E.2d 346 (1978); Salinas, v. Economy Fire &Casualty Co., 43 Ill. App. 3d 509, 510, 357 N.E.2d 556 (1976);Allstate Insurance Co. v. Horn, 24 Ill. App. 3d 583, 590, 321N.E.2d 285 (1974).

In Greer, the plaintiff-insured was 10 to 15 feet away fromthe insured vehicle when she was struck by an uninsured motorist.The Greer court evaluated policy language similar to the WesternPolicy applicable here. In Greer, the policy contained uninsuredmotorist coverage for the insured while that person was"occupying an insured automobile." Greer, 60 Ill. App. 3d at 23. "Occupying was defined as 'in or upon, entering into or alightingfrom' the automobile." Greer, 60 Ill. App. 3d at 23.

The Greer court found the policy language to be unambiguousbecause the words quoted above were ordinary and common words. Greer, 60 Ill. App. 3d at 25; Mathey, 321 Ill. App. 3d at 811. The court further held that "the necessary elements forimposition of liability upon the insurer are the existence ofsome nexus or relationship between the insured and the coveredautomobile and, in addition, either actual or virtual physicalcontact with the insured vehicle." Greer, 60 Ill. App. 3d at 25. This test was recently applied by this court in Mathey, 321 Ill.App. 3d at 812, and we will implement it in the instant case.

Here, we conclude that a nexus existed between the insured,Cohs, and the covered automobile. The record makes clear thatCohs drove his van to Ron's Marathon in the course of hisemployment with DRW. While installing the tank monitors, theevidence demonstrated that Cohs constantly walked to and from thevan to obtain the parts, tools, and equipment needed. Additionally, Cohs' affidavit and deposition testimony establishthe existence of a nexus between Cohs and the insured vehicle.

Our analysis does not end there, however, because we mustdetermine whether Cohs was in actual or virtual contact with hisvan at the time of the accident. As we noted above, Cohs statedin his affidavit that he was approximately 15 feet away from thevan at the time of the accident. He further stated that it wasless than two minutes between getting the seal pack from his vanand the time he was run over by Victor Ceron. In his depositiontestimony, Cohs said that his van was roughly 12 feet from wherethe accident took place. He also testified that only one minutehad elapsed between the time he obtained the seal pack from hisvan and the moment he was hit.

We observe that there are discrepancies between the factsalleged in Cohs' affidavit and his deposition testimony. Regardless, we conclude that Cohs lacked the requisite contactwith the insured vehicle to trigger coverage pursuant to theunderinsured motorist endorsement to the Western Policy.

As we noted in Greer above, the plaintiff maintained anautomobile insurance policy that provided coverage for injuriescaused by an uninsured motorist wherever she happened to be. This coverage was excess or secondary in that it only applied tothe extent that any other policy available to plaintiff had beenexhausted.

The plaintiff and her coworker, Hannah Swanson, took turnsdriving each other to work. Swanson carried automobile insurancewith Aetna Life and Casualty Company (Aetna). The Aetna policycontained uninsured motorist coverage for any person occupying aninsured vehicle. "Occupying" in that policy was defined as, "'in or upon, entering into or alighting from' the automobile."

While returning from work, the plaintiff was a passenger inSwanson's car when it was hit by another vehicle. After theaccident, Swanson stopped her vehicle on the right-hand shoulderof an exit ramp. The driver of the other vehicle stopped on theopposite shoulder. The plaintiff, Swanson, and the other driverthen inspected the damages to Swanson's vehicle. Finding noapparent damage, the three elected to cross the ramp to viewdamage to the other vehicle. While waiting to cross the ramp,the plaintiff stood about 10 to 15 feet from the rear ofSwanson's vehicle. At that time, she was struck by an uninsuredmotorist. She made no contact with Swanson's car.

In the trial court, the plaintiff filed separate actions fordeclaratory judgment against her own insurer and Aetna seekingdeclarations that each insurer owed her coverage under theuninsured motorist provision in their respective policies. Theinsurers moved for summary judgment. The trial court grantedAetna's motion on the basis that the plaintiff was not anoccupant of the insured vehicle at the time of injury and deniedthe motion of the plaintiff's insurer. Plaintiff's insurerappealed.

As we noted above the appellate court in Greer held that the policy language at issue was not ambiguous. Greer, 60 Ill. App.3d at 25. It also established two elements necessary for theimposition of liability upon the insurer: (1) the existence ofsome nexus between the insured and the covered automobile; and(2) either actual or virtual physical contact with the insuredvehicle. Greer, 60 Ill. App. 3d at 25.

The appellate court found that the first element had beensatisfied because the plaintiff was a passenger in the insuredautomobile. However, it found that the second element had notbeen met because the fact that the plaintiff was 10 to 15 feetaway from the insured vehicle at the time she was struck amountedto a "total absence of contact between the claimant and theinsured vehicle." Greer, 60 Ill. App. 3d at 25-26. As a result,the Greer court found that the trial court's ruling in favor ofAetna was proper. Greer, 60 Ill. App. 3d at 26.

Similarly, in Horn, cited above, the appellate courtaddressed the issue of whether the claimant was occupying thevehicle for purposes of coverage. Horn was a passenger in afriend's vehicle that was insured by Allstate Insurance Company(Allstate). Horn made a claim for coverage under the uninsuredmotorist provision in the Allstate policy. The accident occurredwhen Horn's friend parked the insured vehicle on the northeastside of Clybourn Avenue, a six-lane street in Chicago. The twoexited the vehicle and crossed the street and entered arestaurant. Upon leaving the restaurant, Horn attempted to crossthe street and was struck by an uninsured motorist approximately24 feet from the insured vehicle. The appellate court held that"one who is 24 feet from a vehicle is not 'entering into' it, andtherefore not 'occupying' it, within the meaning of the policy." Horn, 24 Ill. App. 3d at 590.

We find the instant case is analogous to the facts in Greerand Horn. While we have determined that Cohs had a nexus withthe insured vehicle, we conclude that the second prong set out inGreer, requiring actual or virtual physical contact with theinsured vehicle, was not met.

Cohs stated in his affidavit that he was 15 feet away fromhis van and that he was struck by the underinsured motoristwithin two minutes of getting the seal pack from the van. In hisdeposition, Cohs testified that he was 12 feet from the van andthat he was hit by Ceron within one minute after leaving it. InGreer, the claimant was between 10 to 15 feet away from theinsured vehicle, and in Horn, the claimant was 24 feet away fromthe insured auto. Here, Cohs was between 12 and 15 feet awayfrom the insured van. We therefore conclude that Cohs lacked theactual or virtual contact with the insured vehicle required forinvoking the underinsured motorist provision in the WesternPolicy.

Plaintiff suggests that the definition of an insured in theunderinsured motorist endorsement is unduly restrictive whencompared to the definition of who qualifies as an insuredcontained in the liability coverage section. Plaintiff basesthis argument on section 143a-2(1) of the Illinois InsuranceCode, which requires that carriers offering liability coveragemust provide underinsured motorist coverage "in an amount equalto the insured's bodily injury liability limits unlessspecifically rejected by the insured." 215 ILCS 5/143a-2(1)(West 1998). We agree with plaintiff that section 143a-2(1)requires that the amount of underinsured motorist coverage beequal to the amount of liability coverage provided. Mijes v.Primerica Life Insurance Co., 317 Ill. App. 3d 1097, 1103, 740N.E.2d 1160 (2000). However, we disagree with plaintiff that thedefinition of an insured in the underinsured motorist endorsementwas unduly restrictive.

Plaintiff contends that this case is analogous to Doxtaterv. State Farm Mutual Automobile Insurance Co., 8 Ill. App. 3d547, 290 N.E.2d 284 (1972). In Doxtater, the appellate courtheld that an uninsured motorist exclusion in that policy, whichexcluded bodily injury coverage to an insured while occupying avehicle not declared in the policy, was unduly restrictive undersection 143a of the Insurance Code. Doxtater, 8 Ill. App. 3d at552. Doxtater is not analogous to this case. In the instantcase, it is undisputed that the van at issue was covered by theWestern Policy.

In addition, Doxtater was referred to by the supreme courtin Heritage Insurance Co. of America v. Phelan, 59 Ill. 2d 389,395, 321 N.E.2d 2257 (1974). The court however declined todetermine Doxtater's "correctness" because of its inapplicabilityto the facts in that case. Phelan, 59 Ill. 2d at 395. Nevertheless, the supreme court stated, section 143a does notplace "any restriction on the right of the parties to aninsurance contract to agree on which persons are to be the'insureds' under an automobile insurance policy." Phelan, 59Ill. 2d at 395.

We do not agree with plaintiff that the word "occupying"used in the Western Policy endorsement for the purpose ofdefining an insured is unduly restrictive. Plaintiff suggeststhat the broader definition, that the driver's liability mustresult from the "use" of the underinsured motor vehicle,contained in the liability section governs under section 143a. However, plaintiff fails to provide any authority that theuninsured motorist statute prohibits parties from defining whoare insureds under a particular insurance policy. Because oursupreme court has provided that parties can designate who areinsureds without contravening the uninsured motorist statute, weare unpersuaded by plaintiff's authority to the contrary fromother jurisdictions. We therefore find that plaintiff was not aninsured under the Western Policy endorsement because he was notoccupying the van at the time of the accident.

Even if we accepted plaintiff's broader definition of "use"of the underinsured vehicle set forth in the liability section ofthe Western Policy, we determine that plaintiff was not using thevan when the injury occurred. As the trial court noted, no nexusexisted between the use of the van and plaintiff's injury. Therecord unequivocally demonstrates that plaintiff was between 12and 15 feet away from the van at time the injury occurred. Plaintiff testified that he did not move the van in order toobtain the "reprate" from the premium tank. No cautionary coneswere placed around the work area. When he was struck, defendanttestified that he was kneeling on the pavement and reaching intothe premium tank's opening. We are in agreement with the trialcourt that no nexus existed between the use of the van andplaintiff's injury under these facts.

Having addressed the merits on the "use" question, we neednot address the waiver and estoppel arguments raised inplaintiff's supplemental brief. Moreover, our review of therecord satisfies us that the parties did not stipulate or agreebelow that the definition of insured in the liability section ofthe Western Policy controlled. As a result, no grounds existfor a waiver or estoppel argument by Cohs against Western.

The trial court's order of June 28, 2000, is affirmed.

Affirmed.

GORDON and CAHILL, JJ., concur.