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FIFTH DIVISION
August 22, 2003

1-02-1771

In this declaratory judgment action, Mount Vernon FireInsurance Company (Mount Vernon) appeals the order of the trialcourt granting the motion for judgment on the pleadings filed byJefferson Insurance Company of New York (Jefferson). Thislitigation stems from the death of Tyrelle Jones (Tyrelle), anine-month-old infant who died as the result of heat stroke whenleft unattended in a van operated by Heaven's Little Hands DayCare (Heaven's Little Hands). In reliance upon exclusionscontained in its policy with Heaven's Little Hands, Mount Vernonsought a declaration that it had no duty to defend or indemnifythe day-care center or its employees in the lawsuit filed byMargaret Jones, Tyrelle's mother. Jefferson moved for judgmenton the pleadings, which the trial court granted. After the trialcourt found there was no just reason for delaying enforcement orappeal of its ruling, Mount Vernon appealed. Based upon theautomobile exclusions contained in its policy with Heaven'sLittle Hands, Mount Vernon contends that the trial court erred ingranting Jefferson's motion for judgment on the pleadings. Forthe reasons set forth below, we affirm the judgment of the trialcourt.

BACKGROUND

In September 2000, Margaret, individually and as the specialadministrator of the estate of Tyrelle, filed a nine-countcomplaint against Heaven's Little Hands, Leon Taylor and MinnieTaylor. Leon was named as an employee of Heaven's Little Handsand Minnie as its manager. In the complaint, Margaret allegedthat on August 29, 2000, Tyrelle and other infants and toddlerswere picked up by a passenger van driven by Leon and owned andoperated by Heaven's Little Hands. According to the complaint,Leon strapped Tyrelle in a car seat for his transport to Heaven'sLittle Hands. Once there, Leon removed all of the children fromthe van except Tyrelle, who died from heat stroke after beingleft unattended in the van for more than eight hours.

In her complaint, Margaret alleged negligent and carelessacts against Leon based upon his: (1) failure to transportTyrelle with the proper number of adult attendants; (2) failureto inspect the van after arriving at its destination to ensurethat no children were left in the vehicle; (3) leaving Tyrelleunattended in the van; (4) failure to remove Tyrelle from thevan; and (5) failure to maintain a safe environment for Tyrelle,who had been entrusted to Leon's care.

As for Minnie and Heaven's Little Hands, Margaret allegedthat they had been careless and negligent based upon their: (1)failure to assign sufficient personnel to attend to childrenbeing transported to Heaven's Little Hands; (2) allowing use ofthe van when it had not been inspected and had not received anoperating permit; (3) allowing Leon to operate the van when hehad not satisfied driving requirements; (4) failure to monitorLeon in the performance of his duties; (5) failure to maintain aproper census of the children scheduled to attend Heaven's LittleHands; (6) failure to maintain proper procedures to ensure thatchildren transported in the van were removed from the van andtaken inside the day-care center; and (7) failure to maintainproper and sufficient procedures for the safety and care ofchildren left in their care.

On February 15, 2001, Mount Vernon filed a complaint fordeclaratory judgment naming Heaven's Little Hands, Leon, Minnieand Margaret as defendants. In the complaint, Mount Vernonsought a declaration of the trial court that Mount Vernon did notowe a duty to defend or indemnify for any claims relating to theJones lawsuit. Mount Vernon argued that under coverage for bothprofessional liability and bodily injury, its policy withHeaven's Little Hands provided for an exclusion for liabilityarising out of use of an auto.

After Mount Vernon filed its complaint for declaratoryjudgment, Jefferson, the auto insurance carrier for Heaven'sLittle Hands, was granted leave to intervene and filed acounterclaim for declaratory judgment against Mount Vernon. Inits counterclaim, Jefferson stated that it was the insurer ofHeaven's Little Hands under a commercial automobile policy andthat Mount Vernon was an insurer of the day-care center under acommercial general liability (CGL) policy. Jefferson sought adeclaration that Mount Vernon was obligated to share in thedefense costs associated with the Jones litigation.

While the declaratory judgment action was proceeding,Margaret filed a first amended complaint, which containedallegations substantially similar to those in her originalcomplaint. The primary distinction between the two complaintswas that rather than alleging a single wrongful death actionagainst Heaven's Little Hands as Margaret had done in heroriginal complaint, the amended complaint alleged two counts ofwrongful death. One was premised upon negligent operation of amotor vehicle and the other was premised upon negligentsupervision.

On February 4, 2002, Jefferson filed a motion for judgmenton the pleadings relating to its counterclaim against MountVernon. Margaret joined Jefferson's motion for judgment on itscounterclaim. Later that month, Mount Vernon filed its motionfor summary judgment on its complaint.

On May 21, 2002, the trial court entered a written ordergranting Jefferson's motion for judgment on the pleadings anddenying Mount Vernon's motion for summary judgment. In itsorder, the trial court stated, "The court finds *** that thedeath of Tyrelle Jones, deceased, was not the result of operationor use of, the loading of, or unloading of the vehicle, a van,but rather the child was left in the van because of negligence onthe part of the driver of the van who had a responsibility forthe safety of the child."

On June 12 2002, the trial court entered an order statingthat pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)) there was no reason to delay enforcement or appeal of itsruling on Jefferson's motion on the pleadings. Mount Vernon nowappeals.

ANALYSIS

Relating to professional coverage, the terms of theinsurance agreement between Mount Vernon and Heaven's LittleHands provided:

"I. COVERAGE P. PROFESSIONAL LIABILITY

We will pay on behalf of you all sums which you shall become legally obligated to pay as damages because ofliability arising out of any negligent act, error oromission in rendering or failure to render professionalservices *** whether committed by you or any personemployed by you or by others for whom you are legallyresponsible.

II. EXCLUSIONS

***

This Coverage Part does not apply:

(d) to liability arising out of the ownership, maintenance, operation, use, loading or unloading of any vehicle,watercraft or aircraft ***."

Relating to coverage for bodily injury and property damage,the policy provided:

"Section I -- Coverages

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomeslegally obligated to pay as damages because of'bodily injury' or 'property damage' to which thisinsurance applies ***."

The general liability coverage portion of the policycontains the following exclusion:

"2. Exclusions

g. Aircraft, Auto or Watercraft

'Bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment toothers of any aircraft, 'auto' or watercraftowned or operated by or rented or loaned toany insured. Use includes 'loading orunloading'.

11. 'Loading or unloading' means the handling ofproperty:

a. After it is moved from the place where it isaccepted for movement into or onto anaircraft, watercraft or 'auto';

b. While it is in or on an aircraft, watercraftor 'auto'; or

c. While it is being moved from an aircraft,watercraft or 'auto' to the place where it isfinally delivered ***."

A motion for judgment on the pleadings tests the sufficiencyof the pleadings by determining whether the plaintiff is entitledto the relief sought in the complaint. Pekin Insurance Co. v.Allstate Insurance Co., 329 Ill. App. 3d 46, 49 (2002). Althougha motion for judgment on the pleadings is similar to a motion forsummary judgment insofar as both suggest that no material issueof fact exists, a judgment on the pleadings must rely on theallegations of the complaint to establish the absence of materialfact, whereas summary judgment may rely on affidavits and otherdocuments. Waterfront Estates Development, Inc. v. City of PalosHills, 232 Ill. App. 3d 367, 371-72 (1992). In addition, thewell-pleaded allegations in the nonmoving party's pleading andinferences therefrom are taken as true. See Mitchell v. Waddell,189 Ill. App. 3d 179, 182 (1989). Our review of the dispositionof a case on judgment on the pleadings is de novo. PekinInsurance, 329 Ill. App. 3d at 49.

When construing an insurance policy, the primary function ofthis court is to ascertain and enforce the intentions of theparties as expressed in the agreement. de los Reyes v. TravelersInsurance Cos., 135 Ill. 2d 353, 358 (1990). When ascertainingthe meaning of the words used in the policy and the intent of theparties, we are to construe the policy as a whole, while takinginto account "the type of insurance for which the parties havecontracted, the risks undertaken and purchased, the subjectmatter that is insured and the purposes of the entire contract." Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 391 (1993).

Insurance policies are to be liberally construed in favor ofcoverage, and where an ambiguity exists in the terms of thecontract, the ambiguity will be resolved in favor of the insuredand against the insurer. State Security Insurance Co. v. Burgos,145 Ill. 2d 423, 438 (1991). The duty of an insurer to defendits insured is much broader than its duty to indemnify. OutboardMarine Corp. v. Liberty Mutual Co., 154 Ill. 2d 90, 125 (1992). When determining whether the insurer has a duty to defend, thecourt must compare the allegations contained in the underlyingcomplaint to the language contained in the policy. OutboardMarine, 154 Ill. 2d at 125. While liberally construing theunderlying complaint in favor of the insured, if the courtdetermines that the allegations fall within, or potentiallywithin, coverage under the policy, the insurer has a duty todefend the insured against the underlying complaint. OutboardMarine, 154 Ill. 2d at 125.

Mount Vernon contends that the trial court erred in grantingJefferson's motion for judgment on the pleadings. Initially, wenote that throughout Mount Vernon's original brief on appeal, itrepeatedly asserts that Tyrelle's death arose out of the "use,operation, loading or unloading" of the van. However, "loadingor unloading" is defined to include only the "handling ofproperty." Thus, because the injury at issue, the death ofTyrelle, has nothing to do with the handling of property, we findthat the auto exclusion relating to "loading and unloading" doesnot serve as a basis for finding that Mount Vernon does not havea duty to defend.

Mount Vernon first argues this case is controlled by thesupreme court's ruling in Northbrook Property & Casualty Co. v.Transportation Joint Agreement, 194 Ill. 2d 96 (2000), which wasa declaratory judgment action stemming from an accident where aMETRA train collided with a school bus, resulting in death andinjuries to students on the bus. The school districts' CGLpolicy excluded losses for bodily injury "arising out of the ***use *** of any *** 'auto.'" 194 Ill. 2d at 98. The trial courtgranted summary judgment in favor of the insurance carrier,finding that it had no duty to defend the school districts in thelitigation following the accident. The appellate court reversed,holding that the underlying complaints had adequately allegedthat the injuries could have arisen from causes other than theuse or operation of the bus, such as the failure of the schooldistricts to adequately plan and inspect the bus routes and warnthe bus drivers of potential hazards. The supreme court reversedthe judgment of the appellate court, ruling that the insurancecarrier had no duty to defend the school districts. The supremecourt explained:

"Here, the allegations of the underlyingcomplaints utterly fail to state facts which eitheractually or potentially bring the cases within thepolicy's coverage. The policy excludes injuriesarising from the school districts' use or operation ofa motor vehicle. Allegations that the school districtsinadequately planned and inspected bus routes or failedto warn bus drivers of potential hazards along theroutes are nothing more than rephrasings of the factthat the students' injuries arose from the schooldistricts' use or operation of a motor vehicle. Contrary to the appellate court's holding, thestudents' complaints failed to allege that the injuriesarose from events 'wholly independent of any negligentoperation of the bus.' 309 Ill. App. 3d at 266."Northbrook, 194 Ill. 2d at 98-99.

Mount Vernon argues that as in the Northbrook case, here,Margaret had failed to allege that Tyrelle's death arose fromevents "wholly independent" of any use, operation, loading orunloading of the van. It advances that because all theories ofalleged negligence in the underlying complaint, including thoserelating to a failure to supervise or maintain head counts, aredependent upon allegations of use or operation of the van, theauto exclusion applies.

Mount Vernon also directs this court's attention to St. PaulMercury Insurance Co. v. Chilton-Shelby Mental Health Center, 595So. 2d 1375 (Ala. 1992), where the Supreme Court of Alabamaconsidered a case in which a small child was left unattended in avan and subsequently died of heat stroke. The court ruled thatan automobile exclusion contained in a CGL policy precludedcoverage for the child's death. Although the underlyingcomplaint included allegations other than negligence in theoperation of the van, the court concluded that "the fact remainsthat [the victim] died in the van while it was being used by the[day-care center] to provide transportation services to thecommunities it serves." St. Paul Mercury, 595 So. 2d at 1377.

Jefferson argues that the Northbrook case is distinguishablefrom this case on the basis that in Northbrook, at issue wascoverage involving a "straightforward auto accident." Jeffersonrecognizes that both here and in Northbrook, the underlyingcomplaints alleged that the injuries arose from more than merelythe negligent operation of a vehicle, but asserts that in theinstant case, it cannot be said that the multiple allegations ofnegligence are "nothing more than rephrasings" that Tyrelle'sdeath arose out of operation of the van.

Jefferson argues that Tyrelle's death did not arise out ofoperation or use of the van because the vehicle was merely thesitus of the injury and that nothing in the inherent nature ofthe vehicle is alleged to have contributed to the child's death. In support of its position, Jefferson asserts that the instantcase is factually indistinguishable from United States Fidelity &Guaranty Co. v. State Farm Mutual Automobile Insurance Co., 107Ill. App. 3d 190 (1982) (USF&G). In USF&G, the insurance carrierbrought an action for declaratory judgment wherein it argued thatit owed no duty to defend a day-care center for injuries a childhad sustained when she fell from a station wagon owned by theday-care center. In the underlying complaint, it was alleged incount I that the defendants were negligent in the operation ofthe day-care center by failing to provide sufficient personnel toadequately care for the children and in failing to retainsufficient control and discipline over the children. In countII, it was alleged that the defendants had negligently operatedthe automobile. In reliance upon a provision of the insurancepolicy excluding coverage for "bodily injury arising out of theownership, maintenance, operation [or] use of *** any automobile*** owned or operated by *** any insured" (107 Ill. App. 3d at____), the insurance carrier moved for summary judgment, arguingthat it owed no duty to defend because the child's injuries couldnot have occurred without the operation or use of the stationwagon. This court disagreed, noting that "if the liability of aninsured arises from negligent acts which constitute non-auto-related conduct, the policy should be applicable regardless ofthe automobile exclusion or the fact that an automobile wasinvolved in the occurrence." USF&G, 107 Ill. App. 3d at 194. The court further noted that "the duty to defend extends to caseswhere the complaint alleges several causes of action or theoriesof recovery against an insured even if only one or some of themare within the policy coverage." USF&G, 107 Ill. App. 3d at 194.

Jefferson also argues that based upon the allegations in theunderlying complaint, the van was not being "used" at the time ofTyrelle's death. Jefferson asserts that Tyrelle's death occurredwhen the van was parked, with no driver, and that it was notperforming any of the functions normally associated with "use" ofan auto. In support of this argument, Jefferson directs thiscourt to State Farm Mutual Automobile Insurance Co. v. Pfiel, 304Ill. App. 3d 831 (1999), and a line of cases cited within thePfiel case. In Pfiel, the mother of a murder victim, who hadbeen stabbed by a hunting knife in an automobile, filed a lawsuitagainst the murderer and his parents. In her complaint, thevictim's mother sought damages based upon the negligentsupervision of the murderer on the part of his parents and theirnegligent entrustment of the hunting knife and automobile to him. After the parent-defendants tendered their defenses to theirinsurance carrier, the insurance carrier sought a declarationthat there was no coverage under the relevant automobile policy. Pursuant to the terms of the policy, coverage extended to damagesfor bodily injury "resulting from the ownership, maintenance oruse" of the car. Pfiel, 304 Ill. App. 3d at 833. The trialcourt granted summary judgment in favor of the insurance company. In affirming the trial court, this court stated:

"A causal relation or nexus must exist *** between theaccident or injury and the ownership, use ormaintenance of the vehicle in order for the accident orinjury to come within the policy coverage; where suchnexus or connection is absent, coverage is denied.Jiffy Cab, 265 Ill. App. 3d at 540 (although a disputeover the destination or route of a taxicab, resultingin a stabbing outside the taxicab, 'may well havecreated a hostile atmosphere between the parties,' 'themere creation of such an atmosphere is an insufficientcausal connection upon which to predicate coverageunder an automobile liability policy'). See alsoLaycock v. American Family Mutual Insurance Co., 289Ill. App. 3d 264, 682 N.E.2d 382 (1997); Aryainejad v.Economy Fire & Casualty Co., 278 Ill. App. 3d 1049, 663N.E.2d 1107 (1996) (Aryainejad). The resolution ofthis issue must be obtained by determining whether thealleged use of the vehicle is reasonably consistentwith the inherent nature of the vehicle. See, e.g.,Doe v. State Farm Fire & Casualty Co., 878 F. Supp. 862(E.D. Va. 1995) (when abductor pushed insured's headagainst interior automobile window, the injuries weresomewhat causally connected to the automobile, but werenot connected to use of the automobile as anautomobile); United Services Automobile Ass'n v. AetnaCasualty & Surety Co., 75 A.D.2d 1022, 429 N.Y.S.2d 508(1980) (the 'accident' causing injury, occurring insidethe vehicle, must be connected with the use of anautomobile qua automobile); Allstate Insurance Co. v.Furo, 588 So. 2d 61 (Fla. Dist. Ct. App. 1991)(passenger shot in vehicle was not entitled toinsurance recovery because injury did not result from'use of motor vehicle' and vehicle was mere situs ofinjury and not cause of it)." Pfiel, 304 Ill. app. 3dat 836.

Applying the rationale of these cases to the facts in thePfiel case, this court affirmed the trial court's granting ofsummary judgment in favor of the insurance company because thepolicy did not cover the conduct alleged in the complaint. Thiscourt found that the manner in which the murderer "used" thevehicle to injure the victim was "attenuated from the actuallegitimate purpose of an automobile and, therefore, notcontemplated by the parties to the insurance contract." Pfiel,304 Ill. App. 3d at 836-37. We additionally noted that"liability arose from nonvehicular conduct and existedindependent of the 'use' or 'ownership' of the vehicle" and thatactual involvement of the vehicle was "incidental to theinjuries" sustained by the victim. Pfiel, 304 Ill. App. 3d at837.

Mount Vernon argues that Jefferson's reliance upon the USF&Gcases is erroneous because under Northbrook, it is no longerproper to import tort law principles into contract construction. See also Allstate Insurance Co. v. Smiley, 276 Ill. App. 3d 971(1995) (criticizing USF&G for its "assimilation of principlesfrom tort law into the analysis of an insurance policy").

Mount Vernon further argues that the transportation ofchildren in a vehicle is reasonably consistent with the inherentnature of the vehicle. In support of this argument, Mount Vernondirects us to Aryainejad v. Economy Fire & Casualty Co., 278 Ill.App. 3d 1049 (1996), where the driver of a vehicle was injuredwhen he swerved to avoid hitting an uninsured motorist, who hadrun out of gasoline and was walking on an interstate highway enroute to a gas station. The injured driver sought coverage underthe uninsured motorist provision of his insurance policy, whichprovided that " 'the owner's or operator's liability for thesedamages must arise out of the ownership, maintenance, or use ofthe uninsured motor vehicle.' " Aryainejad, 278 Ill. App. 3d at1050. Finding that the accident which caused the motorist'sinjuries was unrelated to the ownership, maintenance or use ofthe vehicle of the man walking in the road, the trial court ruledthat the injured motorist's insurance company was not obligatedto cover his damages. On appeal, this court reversed thatruling. In addressing whether an injury arises out of "use" ofan automobile, we stated that injuries from physical altercationsdo not arise out of the "use" of an automobile because suchaltercations "are not a normal or reasonable consequence of theuse of a vehicle." Aryainejad, 278 Ill. App. 3d at 1054-55. Inreversing the trial court, this court stated, "walking down thehighway after a vehicle breaks down or runs out of gas is areasonable consequence of the use of a vehicle." Aryainejad, 278Ill. App. 3d at 1055.

In reliance on Aryainejad, Mount Vernon asserts that just aswalking down the interstate after running out of gas is areasonable consequence of the use of a vehicle, so is forgettingto remove a child from a vehicle. Mount Vernon further assertsthat there are no allegations in the underlying complaint thatTyrelle was in the van for any reason other than to betransported to the day-care center, which is clearly acontemplated use. Additionally, Mount Vernon argues thatallegations of systematic failure to maintain head counts aregeared toward ensuring that children are removed from automobilesin the first instance and, therefore, they also arise out of theuse of an automobile.

The Northbrook case is factually distinguishable from thiscase. Jefferson is correct in its assessment that at issue inNorthbrook was a common, albeit tragic, automobile accident. Theaccident there occurred when the bus was being used in a mannerconsistent with its customary use. Here, Tyrelle's deathoccurred when the van was not being used at all, rather than whenit was being used as a method of transportation. Unlike thesituation in Northbrook, the death of an infant from heat strokewhen left unattended in a vehicle for an eight-hour period isattenuated from the actual legitimate purpose of the van. Although the transport of children to Heaven's Little Hands iscertainly a legitimate purpose of the van, the deserting of asmall child in the vehicle for an extended period of time is not.

As in the Pfiel case, we find after reviewing theallegations in the underlying complaint that the victim's deathresulted from nonvehicular conduct on the part of Heaven's LittleHands and its employees. The allegations in the complaint assertmultiple theories of negligence including a failure to maintain aproper census of the children attending the day-care facility. Had Leon kept an accurate head count of the children inside thevan or if someone inside Heaven's Little Hands had noticedTyrelle's absence soon after the van in question had arrived atthe day care facility, Tyrelle would not have died. In short,the van is the situs, rather than the cause, of Tyrelle's death.

The Aryainejad case does little to support Mount Vernon'sposition. We do not dispute that walking down the interstateafter running out of gas is a reasonable consequence of use acar. In reliance on Aryainejad, Mount Vernon asks this court tohold that forgetting to remove a child from a vehicle once thatchild has been transported to a day-care facility is a reasonableconsequence of use of the vehicle. We decline to so hold. Simply put, leaving an infant in an automobile used to transporthim to a day-care facility is not a normal or reasonableconsequence of the use of the vehicle.

We also reject Mount Vernon's argument that Northbrook hasoverruled USF&G and all other cases importing tort principlesinto contract construction. At no time in Northbrook did thesupreme court state that it was overruling all cases in Illinoisthat have applied tort principles when interpreting insurancecontracts. Nor did the supreme court state that for theplaintiffs to recover, they must allege that the students'injuries arose from events "wholly independent of any negligentoperation of the bus." Considered in context, the supreme courtwas merely criticizing this court's ruling in Northbrook and wasnot overruling a long line of Illinois cases.

We recognize that the Supreme Court of Alabama reached adifferent conclusion in St. Paul Mercury different from the onewe have reached in the instant case. However, we are not boundby the holding in the St. Paul Mercury case because cases fromforeign jurisdictions are not binding upon this court. SeeVanPlew v. Riccio, 317 Ill. App. 3d 179, 184 (2000). Moreover,by stating that the victim died in the van "while it was beingused" by the day-care facility, the court in St. Paul Mercurymerely stated a conclusion in the absence of analysis. Wefurther note that the St. Paul Mercury court held that there wascoverage under the professional liability portion of the CGLpolicy at issue. The court held that the providing oftransportation services was within the meaning of "professionalservices" as contemplated by the parties to the insuranceagreement. Mount Vernon posits that, unlike the insurance policyat issue here, the professional liability coverage portion of thepolicy in St. Paul Mercury "apparently" contained no autoexclusion as the Supreme Court of Alabama did not discuss it. This omission also undercuts Mount Vernon's position that weshould follow St. Paul Mercury. Therefore, because theapplication of an exclusion that results in denying the duty todefend "must be clear and free from doubt," we affirm the trialcourt's granting of judgment on the pleadings. Oakley Transport,Inc. v. Zurich Insurance Co., 271 Ill. App. 3d 716, 721-22(1995).

Finally, Mount Vernon argues that the trial court's grantingof judgment on the pleadings should be reversed because in itsorder, the trial court found that Tyrelle's death occurredbecause he "was left in the van because of negligence on the partof the driver of the van." According to Mount Vernon, the trialcourt has "arguably" ruled on the ultimate issue of negligence,an issue that is only appropriately determined in the underlyinglitigation. Consequently, we should reverse the trial court'sjudgment relating to Mount Vernon's duty to defend. See StateFarm Fire & Casualty Co. v. Leverton, 289 Ill. App. 3d 855(1997).

While Mount Vernon appears to be correct that the trialcourt improperly stated that Tyrelle's death occurred "because ofnegligence" on the part of the van's driver, we need not reversethe trial court's judgment. A review of the trial court's May21, 2002, order makes clear that it was ruling only upon MountVernon's duty to defend. In its order, the trial court stated,"Mt. Vernon has brought an action for declaratory judgment toobtain a judicial declaration that Mt. Vernon is not obligated todefend Heaven's Little Hands in a wrongful death action." Thetrial court's written order further makes clear that its rulingwas based upon allegations contained in the underlying complaint. Nowhere in its order did the trial court state that it was rulingupon the indemnification issue. In fact, Mount Vernon does notassert that the trial court actually ruled on the indemnificationissue; rather, it asserts only that it "arguably" did. The trialcourt's choice of words cannot serve as a basis for reversing itsjudgment.

Accordingly, the judgment of the circuit court of CookCounty is affirmed.

Affirmed.

CAMPBELL, P.J., and REID, J., concur.