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                                                                                                                   FOURTH DIVISION
                                                                                                                   FILED: 10/26/00

No. 1-00-0342

Fremont Casualty Insurance Company, formerly known as CasualtyInsurance Company, appeals from the trial court's determinationthat it is required to defend its insured, Ace-Chicago Great DaneCorporation (Ace), in an action for negligent spoliation ofevidence filed against it by Fred Grossman. Before discussing andanalyzing the issues presented, it is necessary to give a briefrecitation of the factual and procedural history of the case.

In 1992, Fred Grossman filed an action against Berg Ladders, Inc. (Berg), seeking damages for injuries he allegedly sufferedwhen, during the course of his employment with Ace, he fell from aladder manufactured by Berg. In December 1996, Grossman filed anamended complaint in that action, joining Ace as a defendant andasserting against it a claim for negligent spoliation of evidence.In support of that claim, Grossman alleged that, on July 26, 1991,the date of his fall, an Ace employee took the ladder and stored itfor safe-keeping and that, subsequently, an Ace agent informedGrossman's attorney that Ace was in possession of the ladder andwould keep it at its facility. Grossman further alleged that: Aceknew or should have known that the ladder was a material piece ofevidence in his suit against Berg; Ace had a duty to preserve theladder or turn it over to his attorney; Ace disposed of the ladderwithout notifying him or his attorney; as a proximate result ofAce's negligence, he would be unable to prove his allegations ofnegligence and product liability against Berg; and had Acepreserved the ladder, he would have been able to successfully provethose allegations.

Ace tendered defense of the Grossman action to CasualtyInsurance Company, which had issued a workers' compensation andemployers' liability insurance policy to it. Casualty accepted thetender subject to a reservation of rights. Subsequently, FremontCompensation Insurance Company (Fremont), as successor in interestto Casualty, filed the instant action against Ace and Grossman,seeking a declaration that it did not have a duty to defend orindemnify Ace in the Grossman litigation. Ace filed an answer anda counterclaim against Fremont seeking a declaration that Fremontdid have a duty to defend and indemnify it.⁽¹⁾

Subsequently, Grossman voluntarily dismissed his actionagainst Ace. In October 1998, he re-filed the action, this timenaming only Ace as a defendant, as summary judgment had beenentered in favor of Berg in the earlier action. The allegationsagainst Ace were the same as those contained in the earliercomplaint. Ace tendered defense of the re-filed action to Fremont,and Fremont again undertook Ace's defense under a reservation ofrights. On May 5, 1999, Fremont amended its complaint fordeclaratory judgment to seek a declaration that it was not requiredto defend or indemnify Ace with regard to Grossman's re-filedaction. Ace likewise amended its counterclaim to seek adeclaration regarding the re-filed action.

On July 22, 1999, Fremont filed a motion for summary judgment. On November 12, 1999, Ace filed a motion for partial summaryjudgment, seeking judgment only with respect to the issue ofFremont's duty to defend. On January 10, 2000, after hearing theparties' arguments, the trial court entered a written order:denying Fremont's motion for summary judgment; granting Ace'smotion for partial summary judgment, stating that Fremont has aduty to defend Ace; and reserving ruling on the question of whetherFremont has a duty to indemnify Ace. The order included SupremeCourt Rule 304(a) (155 Ill. 2d R. 304(a)) language. The instant,timely-filed appeal followed.

Before considering the merits of the parties' arguments, wemust discuss the source of our jurisdiction. Fremont contends thatthis court has jurisdiction over its appeal pursuant to SupremeCourt Rule 304(a) (155 Ill. 2d 304(a)). Rule 304(a) provides that,where a case involves multiple parties or multiple claims, "anappeal may be taken from a final judgment as to one or more butfewer than all of the parties or claims only if the trial court hasmade an express written finding that there is no just reason fordelaying either enforcement or appeal or both." 155 Ill. 2d R.304(a). Fremont contends that the order does finally dispose of aseparate claim, namely its duty to defend Ace, and that, because itcontains the language required by Rule 304(a), it is properlyappealable.

Ace correctly notes that the presence of Rule 304(a) languagedoes not make a nonfinal order final or appealable. Elkins v.Huckelberry, 276 Ill. App. 3d 1073, 1075, 659 N.E.2d 462 (1995). It contends that, in the instant case, the presence of Rule 304(a)language does not render the trial court's January 10 orderappealable because that order does not finally dispose of aseparate claim. According to Ace, the question of Fremont's dutyto defend and the question of its duty to indemnify comprise asingle claim, of which the trial court has not yet finallydisposed, having specifically reserved judgment on the question ofFremont's duty to indemnify.

Ace asserts that, if Fremont seeks a review of the trialcourt's January 10 order, its sole avenue to obtain that review isby application for leave to appeal pursuant to Supreme Court Rule308 (155 Ill. 2d R. 308). In support of that argument, Ace relieson Outboard Marine Corp. v. Liberty Mutual Insurance Co., 212 Ill.App. 3d 231, 570 N.E.2d 1154 (1991), aff'd in part, rev'd in part,154 Ill. 2d 90, 670 N.E.2d 1204 (1992). In Outboard Marine, theplaintiff filed a declaratory judgment action against multipleinsurers, alleging that they had a duty to defend and indemnify itwith regard to certain litigation. The plaintiff filed a motionfor partial summary judgment, seeking an order that the underlyinglitigation fell within the coverage of the insurance policies atissue, and the defendants filed cross-motions for summary judgment. The trial court denied the defendants' motions and granted theplaintiff's motion. It then entered an order, pursuant to Rule308, certifying for appeal the question of whether the underlyinglitigation sought damages falling within the policies' coverage. This court granted one of the defendants leave to appeal. OutboardMarine, 212 Ill. App. 3d at 238. Ace's reliance on Outboard Marineis misplaced, though, as that case does not state that Rule 308 isthe only avenue for obtaining review of an order such as the one atissue here, nor does it state that review of such an order cannotbe obtained pursuant to Rule 304(a) where the order contains therequisite finding.

As stated above, Rule 304(a) provides an avenue for appealfrom final judgments as to one or more but fewer than all theclaims involved in a case. A judgment is final if it terminatesthe litigation between the parties on the merits or disposes of theparties' rights with regard to either the entire controversy or aseparate part of it. R.W. Dunteman Co. v. C/G Enterprises, Inc.,181 Ill. 2d 153, 159, 692 N.E.2d 306 (1998). Our supreme court hasdefined the word claim, as used in Rule 304(a), as "any right,liability, or matter raised in an action." Marsh v. EvangelicalCovenant Church of Hinsdale, 138 Ill. 2d 458, 465, 563 N.E.2d 459(1990). It has been said that the test for determining whether theorder from which a party attempts to appeal pursuant to Rule 304(a)constitutes a final order on a claim is "whether the order appealedfrom constitutes a final determination of the parties' rights withrespect to a definite and separate portion of the subject matter." Krivitskie v. Cramlett, 301 Ill. App. 3d 705, 707, 704 N.E.2d 957(1998).

Ace contends that the duty to defend and the duty toindemnify, arising out of the same insurance policy and relating tothe same underlying litigation, "are not so separate and distinctthat a decision on only the duty to defend should be consideredtermination of a definite and separate claim." We disagree. It iswell-settled that an insurer's duty to defend and its duty toindemnify its insured are separate and distinct duties. ZurichInsurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23, 52, 514N.E.2d 150 (1987). As such, we find that an order disposing of theparties' right with respect to Fremont's duty to defend, butreserving judgment regarding its duty to indemnify, is a finaldetermination with respect to a definite and separate portion ofthe litigation. Accordingly, we find that we have jurisdictionover the instant appeal.

We now turn to the merits of the appeal. Fremont argues thatthe trial court erred in granting Ace's motion for partial summaryjudgment and denying its own motion for summary judgment. Althoughthe denial of a motion for summary judgment is ordinarily not afinal order and is not appealable standing alone (Arangold Corp. v.Zehnder, 187 Ill. 2d 341, 356, 718 N.E.2d 191 (1999)), we mayproperly review an order denying a motion for summary judgment if,as in the instant case, the appeal from that order is brought inconjunction with the appeal from an order granting a cross motionfor summary judgment on the same claim (see Colvin v. HobartBrothers, 156 Ill. 2d 166, 169-70, 620 N.E.2d 375 (1993)). We notethat Fremont moved for summary judgment on the questions of itsduty to defend and its duty to indemnify, while Ace moved forsummary judgment only with respect to Fremont's duty to defend. Accordingly, we would ordinarily be limited to reviewing the trialcourt's ruling on the denial of that portion of Fremont's motionfor summary judgment directed toward its duty to defend. Aninsured's duty to defend, however, is broader than its duty toindemnify. Crum & Forster Managers Corp. v. Resolution TrustCorp., 156 Ill. 2d 384, 398, 620 N.E.2d 1073 (1993). Therefore,where no duty to defend exists, no duty to indemnify could everexist. Crum & Forster Corp., 156 Ill. 2d at 398. In this case, ifFremont is entitled to the entry of summary judgment on the portionof its motion regarding its duty to defend, it is necessarilyentitled to the entry of summary judgment on the portion of itsmotion regarding its duty to indemnify. That being the case, wefind it appropriate to review the trial court's ruling on Fremont'smotion for summary judgment in its entirety.

Summary judgment is appropriate where the pleadings,depositions, admissions, and affidavits on file, when takentogether in the light most favorable to the nonmovant, show thatthere is no genuine issue of material fact and that the movant isentitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)(West 1998)); Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill.App. 3d 606, 613-14, 663 N.E.2d 1 (1995). By filing cross-motionsfor summary judgment, the parties invite the court to decide theissues presented as questions of law. Allen v. Meyer, 14 Ill. 2d284, 292, 152 N.E.2d 576 (1958). Our review of the trial court'sruling on a motion for summary judgment is de novo. In re Estateof Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993).

The question of whether an insurer has a duty to defend itsinsured against a lawsuit is answered by comparing the allegationsof that suit, liberally construed in favor of the insured, with thelanguage of the insurance policy. Outboard Marine Corp. v. LibertyMutual Insurance Co., 154 Ill. 2d 90, 125, 607 N.E.2d 1204 (1992). As a general rule, where the factual allegations of a complaintfall within, or even potentially within, the scope of an insurancepolicy's coverage, the insurer is obligated to defend its insured,even if the allegations are groundless, false, or fraudulent. Thornton v. Paul, 74 Ill. 2d 132, 144, 384 N.E.2d 335 (1978).

The allegations of the complaint in the Grossman action areset forth above. We must now compare those allegations to therelevant provisions of the insurance policy Fremont issued to Ace.

Although it is unclear from the record when the "WorkersCompensation and Employers Liability Insurance Policy" wasinitially issued to Ace, the policy was renewed on May 2, 1991, fora one year period. Ace does not contend, nor could itsuccessfully, that Fremont has a duty to defend it against theGrossman litigation pursuant to the policy's workers' compensationcoverage. Accordingly, we will not set forth the policy provisionspertaining to that coverage. Ace does, however, contend, and thetrial court found, that Fremont is obligated to defend it pursuantto the policy's employers' liability coverage. With respect to theemployers' liability coverage, the policy provides, in relevantpart, as follows:

"A. How This Insurance Applies

This employers liability insurance applies to bodilyinjury by accident or bodily injury by disease. Bodilyinjury includes resulting death.

1. The bodily injury must arise out of and inthe course of the injured employee'semployment by you.

* * *

B. We Will Pay

We will pay all sums you legally must pay as damagesbecause of bodily injury to your employees, providedthe bodily injury is covered by this EmployersLiability Insurance.

* * *

D. We Will Defend

We have the right and duty to defend, at our expense,any claim, proceeding or suit against you for damagespayable by this insurance. We have the right toinvestigate and settle these claims, proceedings andsuits.

We have no duty to defend a claim, proceeding or suitthat is not covered by this insurance. We have no dutyto defend or continue defending after we have paid ourapplicable limit of liability under this insurance."

Our resolution of the instant appeal comes down to this simplequestion: Whether the damages Grossman seeks in his negligentspoliation of evidence claim against Ace constitute damages forbodily injury by accident or bodily injury by disease. Theinsurance policy contained in the record does not define the termsbodily injury or accident. Terms which are used in an insurancepolicy but not defined therein must be given their plain andordinary meaning, and courts often refer to dictionaries to obtainthis meaning. Muller v. Firemen's Fund Insurance Co., 289 Ill.App. 3d 719, 725, 682 N.E.2d 331 (1997). With regard to the term"bodily injury," Black's Law Dictionary states, in part, thefollowing: "Generally refers only to injury to the body, or tosickness or disease contracted by the injured as a result ofinjury". Black's Law Dictionary 175 (6^th ed. 1990).

Fremont contends that Grossman's negligent spoliation actiondoes not seek damages for bodily injury but, rather, seeks damagesfor Grossman's alleged inability to prove its cause of actionagainst Berg, which inability was allegedly caused by Ace'snegligent handling of the ladder. Ace, however, argues that, inessence, the damages which Grossman seeks are for the injury hesuffered when he fell from the ladder.

We agree with Fremont that the damages that Grossman seeksfrom Ace are not damages for bodily injury. Grossman asserted aclaim of negligent spoliation of evidence against Ace. In Boyd v.Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995),our supreme court announced that spoliation of evidence is not anindependent cause of action but that it can be stated underexisting negligence law. The Boyd court noted that such an actionis predicated upon the breach of a duty to preserve evidence andthat the damage flowing therefrom is a resulting inability to provea cause of action in the absence of such evidence. Boyd, 166 Ill.2d at 195-96. In the instant case, Grossman alleged that Ace'smishandling of a piece of evidence, namely the ladder from which hefell, left him unable to prove his negligence and productsliability actions against Berg, the ladder's manufacturer. Grossman seeks damages resulting from his inability to prove thosecauses of action. The inability to prove a cause of action againsta third party does not fall within the plain and ordinary meaningof the term "bodily injury."

Ace contends that a finding that the damages Grossman seeksfrom it are not for bodily injury would emphasize "form oversubstance by focusing on the cause of action asserted rather thanthe measure of Grossman's injury." It asserts that, for ourpurposes, the spoliation action should be considered one seekingdamages for bodily injury because, if Grossman's action against Aceis successful, the measure of his damages "will be based in largepart, if not in whole, on the nature and extent of his bodilyinjury." We acknowledge that, if Grossman is successful, themeasure of damages in his negligent spoliation of evidence actionagainst Ace will be the amount of money which he could haverecovered against Berg for his personal injury. We find it oflittle consequence that the amount of damages is the same, however,because Illinois law makes it quite clear that the nature of and basis of liability for those damages is quite different.

In Cammon v. West Suburban Hospital Medical Center, 301 Ill.App. 3d 939, 950, 704 N.E.2d 731 (1998), the plaintiff appealed thedismissal of a count in which she asserted that the defendant'sloss or destruction of x-rays resulted in her inability tosuccessfully establish a medical malpractice action. In reversingdismissal of the count, this court held that neither the statute ofrepose nor the certificate of merit filing requirement applicableto medical malpractice actions applied to the spoliation action. We noted that, although, in order to succeed on her spoliationclaim, the plaintiff would be required to prove the merits of theunderlying medical malpractice claim, the damages sought in thespoliation action arose from the breach of a duty to preserveevidence, not the breach of a duty to provide proper medical care. Cammon, 301 Ill. App. 3d at 950-51. Further, in Jackson v. MichaelReese Hospital & Medical Center, 294 Ill. App. 3d 1, 7-8, 689N.E.2d 205 (1997), this court rejected the defendant's argumentthat a certificate of merit should be required in a spoliationaction arising from a medical malpractice action because thedamages in such an action are the same as the damages sought in amedical malpractice action.

In order to succeed in his spoliation of evidence claimagainst Ace, Grossman will be required to prove the merits of hispersonal injury action against Berg. Nonetheless, the fact remainsthat the damage Grossman allegedly suffered as a result of Ace'sbreach of duty to preserve evidence is an inability to prove acause of action against Berg, not bodily injury by accident ordisease. Accordingly, the allegations of Grossman's complaintagainst Ace do not bring the action even potentially within thecoverage provisions of the policy issued by Fremont.

Finally, Ace directs our attention to cases in which Illinoiscourts have looked to the nature of the underlying action todetermine whether a contribution action falls within the provisionsof an insurance policy. In Midland Insurance Co. v. Bell Fuels,Inc., 159 Ill. App. 3d 780, 513 N.E.2d 1 (1987), an employeeinjured during the course of his employment brought a personalinjury action against the manufacturer of the car he was driving atthe time of his injury. The manufacturer, in turn, asserted acontribution claim against the employer. The employer tendereddefense of the contribution action to its insurer, which instituteda declaratory judgment action. Midland Insurance Co., 159 Ill.App. 3d at 781-83. This court determined that the insurer was notrequired to defend or indemnify the employer against thecontribution action because the insurance policy at issue containedan exclusion for damages arising from bodily injury to an employeein the course of his employment. We noted that, although, in form,the contribution action was one for economic loss (i.e. to recoverwhatever dollar loss the manufacturer might suffer as a result ofa judgment or settlement in the underlying personal injury action),in substance the damages would be for the employee's personalinjury. Midland Insurance Co., 159 Ill. App. 3d at 783-84. Seealso Aetna Casualty & Surety Co. v. Beautiful Signs, Inc., 146 Ill.App. 3d 434, 496 N.E.2d 1229 (1986). Ace argues that we shouldsimilarly look to the "substance" of the damages Grossman isseeking, rather than the form. Ace's reliance on this line ofcases, however, is misplaced. A third party action seekingcontribution from an employer for damages paid to its employee forbodily injury is based on an allegation that the employer's owntortious conduct contributed to the employee's injury. See AetnaCasualty & Surety Co., 146 Ill. App. 3d at 436. Grossman'snegligent spoliation of evidence action against its employer Ace,however, is based not on allegations that Ace's negligencecontributed to his fall from the ladder but on allegations thatAce's negligent handling of the ladder deprived him of the abilityto recover in a cause of action against the ladder's manufacturer.

For the reasons stated above, we find that the trial courterred in granting Ace's motion for summary judgment, finding thatFremont had a duty to defend it in the Grossman litigation. Wealso find that the trial erred in denying Fremont's motion forsummary judgment with respect to the question of its duty to defendand, as no duty to indemnify can exist in the absence of a duty todefend (Crum & Forster, 156 Ill. 2d at 398), also erred in denyingFremont's motion for summary judgment with respect to the questionof its duty to indemnify. Accordingly, we reverse the trialcourt's order granting Ace's motion for partial summary judgment,reverse the trial court's order denying Fremont's motion forsummary judgment, and remand with instructions that the trial courtenter summary judgment in favor of Fremont on the issues of itsduty to defend and duty to indemnify Ace.

Reversed and remanded with directions.

SOUTH and BARTH, JJ., concur.

1. ¹ Ace also filed a third party claim against PotomacInsurance Company of Illinois, seeking a declaration that it wasrequired to defend and indemnify Ace. The trial court grantedPotomac's motion to dismiss pursuant to section 2-619 of the Codeof Civil Procedure (735 ILCS 5/2-619 (West 1998)). That orderwas appealed pursuant to Supreme Court Rule 304(a) (155 Ill. 2dR. 304(a)), and our decision is reported at 304 Ill. App. 3d 734(1999). Shortly after the trial court granted Potomac's motionto dismiss, Ace filed an amended complaint, adding as defendantsNew Hampshire Insurance Company, AIG Company, and AIG ClaimServices. Those defendants are not involved in the instantappeal.