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THIRD DIVISION

November 27, 2002

JUSTICE WOLFSON delivered the opinion of the court:

SCR Medical Transportation, Inc. (SCR) provides para-medicaltransportation 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 casearises from the events of that day, with Browne's claim thatBritton sexually assaulted her in the van and in her home.

Browne sued SCR for money damages caused by the sexualassaults. That case is pending in the trial court. Of immediateconcern is the declaratory judgment action SCR filed againstEmpire Fire and Marine Insurance Company and Empire indemnityInsurance Company (Empire)--SCR's auto liability insurer, andBrowne. The issue in the trial court was whether Empire owes SCRa duty to defend it against Browne's complaint. The trial courtheld it did not. We agree, despite SCR's last-ditch attempt tolabel Britton's conduct as negligence.

FACTS

In her eight-count complaint against SCR, Browne allegedRobert Britton was transporting her from Michael Reese Hospitalto her home on July 14, 1995. Britton was employed as a driverfor SCR. Browne alleged Britton sexually assaulted her insidethe van and then entered her home where he sexually assaulted hera second time. In the related criminal case, Britton, also knownas Robert Vaughn, was convicted of the sexual assaults.

Counts I through VI of Browne's fifth amended complaintsought damages from SCR under theories of negligence, negligenthiring, assault, intentional infliction of emotional distress,and negligent supervision.⁽¹⁾ SCR then brought its declaratoryjudgment action, alleging Empire had a duty to defend andindemnify it in Browne's lawsuit.

Empire filed a motion for summary judgment, contending theautomobile liability policy it issued to SCR provided no coverageand no duty to defend against the allegations in Browne'scomplaint. The policy section at issue states:

"[w]e 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'."

The trial court granted Empire's motion, and SCR filed amotion for reconsideration. While that motion was pending,Browne filed her sixth amended complaint, adding a Count IX fornegligence against SCR and Britton. Count IX alleged Britton wasnegligent in that he:

"A. Failed to travel upon recognized streets using themost direct route possible;

B. Operated the SCR medical transportation vehiclethrough and upon an unnamed alley;

C. Failed to control his bodily movements so that hecaused AISHA to be in fear of her personal safety,although he knew or should have known that hisproximity to AISHA would have frightened and injuredher;

D. Failed to call her back-up support to assist AISHAwith her disembarkation from SCR medical transportationvehicle, although he knew or should have known that hisproximity to AISHA would have frightened and injuredher;

E. Negligently assessed the situation when he attemptedto assist AISHA with her disembarkation from the SCRmedical transportation vehicle, although he knew orshould have known that his words or actions would havefrightened and injured AISHA; and

F. Was otherwise negligent in placing AISHA in asituation which reasonably caused her to experiencestrong anxiety and fear."

Count IX alleged as a result of Britton's negligent acts,Browne was "physically and psychologically injured, has enduredand will in the future endure untold pain and suffering; and hasbeen deprived of the enjoyment of life."

The trial court denied the motion to reconsider. SCR andBrowne now appeal the trial court's order granting summaryjudgment in favor of Empire.

DECISION

Summary judgment is appropriate where, when viewed in thelight most favorable to the non-moving party, the pleadings,depositions, affidavits, and admissions on file show there is nogenuine issue as to any material fact, and the moving party isentitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)(West 2000); Sollami v. Eaton, 201 Ill. 2d 1, 6-7, 772 N.E.2d 215 (2002). Our review of a grant of summary judgment is de novo. Villarreal v. Schaumburg, 325 Ill. App. 3d 1157, 1160, 759 N.E.2d76 (2001).

In determining whether an insurer has a duty to defend itsinsured, the court must look to the allegations in the underlyingcomplaint and compare them to the relevant provisions of theinsurance policy. Outboard Marine Corp. v. Liberty MutualInsurance Co., 154 Ill. 2d 90, 107-08, 607 N.E.2d 1204 (1992). If the underlying complaint alleges facts within or potentiallywithin policy coverage, the insurer is obliged to defend itsinsured even if the allegations are groundless, false, orfraudulent. United States Fidelity & Guaranty Co. v. WilkinInsulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926 (1991). Aninsurer may not justifiably refuse to defend an action againstits insured unless it is clear from the face of the underlyingcomplaint that the allegations fail to state facts which bringthe case within, or potentially within, the policy's coverage. Wilkin, 144 Ill. 2d at 73. Moreover, if the underlying complaintalleges several theories of recovery against the insured, theduty to defend arises if only one such theory is within thepotential coverage of the policy. Wilkin, 144 Ill. 2d at 73.

Counts I-VIII of Browne's underlying complaint, for sexualassaults committed on her by the driver of the medical transportvehicle, clearly do not fall within the coverage of the policy. The policy provides the damages must be caused by an "accident,""resulting from the ownership, maintenance, or use" of thecovered vehicle.

In similar cases where injuries were caused by criminalassaults in and about a vehicle, but were not caused by thevehicle itself, courts have held the injuries did not arise outof the operation, maintenance, or "use" of a vehicle and were notcovered under an automobile insurance policy. See State FarmFire & Casualty Co. v. Rosenberg, 319 Ill. App. 3d 744, 750, 746N.E.2d 35 (2001); State Farm Mutual Automobile Insurance Co. v.Pfiel, 304 Ill. App. 3d 831, 836-38, 710 N.E.2d 100 (1999);Laycock v. American Family Mutual Insurance Co., 289 Ill. App. 3d264, 269, 682 N.E.2d 382 (1997); United States Fidelity &Guaranty Insurance Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533,539-42, 637 N.E.2d 1137 (1994).

A causal relation or nexus must exist between the accidentor injury and the ownership, use, or maintenance of the vehiclein order for the accident or injury to come within the policycoverage. Pfiel, 304 Ill. App. 3d at 836. We find there is aninsufficient nexus between the operation, use, or maintenance ofthe SCR vehicle and Browne's injuries alleged in Counts I-VIII totrigger a duty to defend under the terms of the insurance policy.

Browne contends SCR's special duty as a common carrier totransport and deliver disabled passengers safely to theirdestinations brought her injuries within the "use" of thevehicle. We considered and rejected a similar argument in JiffyCab, 265 Ill. App. 3d at 540-41. We held the taxicab's commoncarrier status was irrelevant where the cab driver stabbed apassenger during an argument. We similarly reject Browne'sargument and find her injuries from the sexual assaults did notarise out of the use, operation, or maintenance of the vehicle.

Count IX was rushed into the breach when it became obviousthe first eight counts of Browne's complaint would not support aduty to defend. The trial court had made it clear it was findingfor the insurance company. Summary judgment had been entered forSCR. Obviously, it would be in Browne's interest to have SCRcovered by Empire.

Count IX, part of Browne's sixth amended complaint, carvesout Britton's conduct during the harrowing car ride that precededthe assaults and dumps it into the count, dressing it up with"negligent" labels. The count alleged Britton negligentlyoperated SCR's van by driving the vehicle past Browne's home anddown an unmarked alley, causing her to experience anxiety andfear, thereby causing her injury. We conclude the count is adevice without substance.

When read in conjunction with Counts I-VIII, it is clearBrowne's alleged injuries were caused not by the way Brittondrove the vehicle, but by the sexual assaults. The reason thedriver drove down an unmarked alley behind Browne's house was tocommit the criminal sexual assaults. The mere fact that avehicle is the site of an injury or incident is insufficient tocreate a connection between the "use" of the vehicle and theinjury so as to bring the injury within policy coverage. Pfiel,304 Ill. App. 3d at 838.

SCR and Browne contend we should consider Count IX inisolation from the preceding counts because it is possible Brownewill drop the other counts and proceed to trial on Count IXalone. We are not required to read Count IX as if the othercounts do not exist.

Where a party has pleaded separate counts against variousdefendants but has not pleaded in the alternative, "there is norule which requires the court to consider each count in isolationand ignore facts pleaded in other counts." Illinois Casualty Co.v. Turpen, 84 Ill. App. 3d 288, 293, 405 N.E.2d 4 (1980) (allcounts could be considered in determining whether insurer hadduty to defend).

When deciding whether an insurance company had a duty todefend its insured in Lexmark International, Inc. v.Transportation Insurance Co. & American Motorists Insurance Co.,327 Ill. App. 3d 128, 136-137, 761 N.E.2d 1214 (2001), we did notseparately analyze each count of the two complaints. Rather, we"consider[ed] all the facts alleged in both complaints in asingle analysis of the duty to defend question," and "perform[ed]a textual exegesis on the complaints to determine whether theirfactual allegations trigger[ed] the insurance companies' duty todefend." (emphasis added.) Lexmark, 327 Ill. App. 3d at 136-37.In so doing, we gave "little weight to the legal label thatcharacterizes the underlying allegations." Lexmark, 327 Ill.App. 3d at 135-36.

In Browne's complaint, there are separate counts allegingseparate claims against three separate defendants--SCR, Britton,and Labor Leasing, Inc. Therefore, we may consider Count IX inlight of the complaint as a whole and need not ignore the rest ofthe complaint. Putting labels aside, we find Count IX does notallege a negligence claim. It alleges intentional conduct thatdoes not trigger a duty to defend.

SCR relies on Przybylski v. Yellow Cab Co., 6 Ill. App. 3d243, 247, 285 N.E.2d 506 (1972), in which the 13-year-oldplaintiff jumped out of a cab that was taking an unfamiliar routeto her destination and injured herself on some railroad tracks. The reviewing court held the question of proximate cause withrespect to the cab driver's actions was properly submitted to thejury. This case is distinguishable; Przybylski did not concernany insurance policy issues or the interpretation of an insurancecontract.

This court has said, "tort liability on the part of theinsured establishes contractual liability on the part of theinsurer only where the policy affords coverage, and thatdetermination is subject to the rules of contract construction,and not tort principles." Oakley Transport, Inc. v. ZurichInsurance Co., 271 Ill. App. 3d 716, 725, 648 N.E.2d 1099 (1995).

Our analysis is concerned solely with whether the insurancepolicy at issue provides coverage for SCR in defending theunderlying lawsuit. We do not look to negligence cases inassessing Empire's duty to defend. Rather, we look only at therelevant insurance policy provisions and compare them to theallegations in the underlying complaint. Outboard Marine, 154Ill. 2d at 107-08.

SCR and Browne also contend the trial court erred by prematurely determining the disputed question of negligent versusintentional conduct, a controlling issue in the underlying tortaction. In response, Empire contends the trial court's decisionto grant it summary judgment did not depend on whether Britton'sconduct was intentional or negligent. In determining whether aninsured's conduct is covered under a policy, a court must notdetermine disputed issues of fact which form the basis for theinsured's liability in the underlying tort action. Pfiel, 304Ill. App. 3d at 834.

In a declaratory judgment action, the construction of anautomobile insurance policy's language is an issue of law,independent of the ultimate issues to be resolved in theunderlying tort action. Pfiel, 304 Ill. App. 3d at 834-35; JiffyCab, 265 Ill. App. 3d at 537-38. We agree with Empire that thetrial court's grant of summary judgment did not improperlyresolve contested issues in the underlying tort litigation. There is no evidence in the record that the court did more thanproperly find the insurance policy at issue did not provide aduty to defend SCR in the underlying complaint.

Even if we were to consider Count IX as a separate cause ofaction, it does not trigger Empire's duty to defend becauseBrowne does not allege a "bodily injury," as required in theinsurance policy. Count IX alleges she suffered "strong anxietyand fear" as a result of the driver's actions. Although theprayer for relief in Count IX alleges she was "physically andpsychologically injured," there are no specific allegations ofany physical injuries. Our conclusion is buttressed by commentsmade by Browne's attorney during oral argument. He spoke ofBrowne being "scared when she was taken by her house" and ofBritton's conduct "exciting a brain-damaged woman with cerebralpalsy." He was asked: "What was the physical injury?" Hisanswer: "Primarily mental anguish and psychological suffering." The clear meaning of that answer, when taken with the questionthat was asked, is that there was no "bodily injury" alleged, asthat term is used in the insurance policy.

The insurance policy requires that the insured suffer a"bodily injury" resulting from an "accident" arising out of the"use, operation, or maintenance of the vehicle." "Bodily injury"is defined in the policy as "bodily injury, sickness or diseasesustained by a person including death resulting from any ofthese."

In construing an insurance policy, the main objective is toascertain and enforce the intentions of the parties as expressedin the agreement. Laycock, 289 Ill. App. 3d at 267. If theprovisions of a policy are clear and unambiguous, they must begiven their plain, ordinary, and popular meaning. Wilkin, 144Ill. 2d at 74; Rosenberg, 319 Ill. App. 3d at 746. A provisionis ambiguous if it is subject to more than one reasonableinterpretation. Wilkin, 144 Ill. 2d at 74. Doubts andambiguities will be construed in favor of the insured and againstthe insurer who drafted the policy. Outboard Marine, 154 Ill. 2dat 108-09.

In other duty to defend cases, this court has held where apolicy defines "bodily injury" as "bodily injury," and not just"injury," the definition is restricted to actual physical injury. See University of Illinois v. Continental Casualty Co., 234 Ill.App. 3d 340, 362, 599 N.E.2d 1338 (1992) (restricting term"bodily injury" in insurance policy to "actual physical injury,"as opposed to broadening it to include mental anguish and mentaldistress), citing Creamer v. State Farm Mutual AutomobileInsurance Co., 161 Ill. App. 3d 223, 224, 514 N.E.2d 214 (1987)("bodily injury" defined as "bodily injury to a person");Giardino v. Fierke, 160 Ill. App. 3d 648, 654, 513 N.E.2d 1168(1987) ("'Bodily injury' means bodily injury to any person"). Incases where "bodily injury" is not defined in the policy, thiscourt has looked to dictionary definitions to find the term'splain and ordinary meaning. See Fremont Casualty Insurance Co.v. Ace-Chicago Great Dane Corp., 317 Ill. App. 3d 67, 74, 739N.E.2d 85 (2000) (citing Black's Law Dictionary definition of"bodily injury": "Generally refers only to injury to the body, orto sickness or disease contracted by the injured as a result ofinjury." Black's Law Dictionary 175 (6th ed. 1990)).

We find the definition of "bodily injury" in the insurancepolicy is not ambiguous and by its clear terms defines "bodilyinjury" as actual physical injury. Browne concedes Count IXalleges no physical injuries, only fear and anxiety. The trialcourt correctly decided Count IX did not fall within insurancepolicy coverage because the allegations do not come within themeaning of the policy.

CONCLUSION

We affirm the decision and rulings of the trial court.

Affirmed.

SOUTH, P.J., concurs.

HOFFMAN, J., dissents.

JUSTICE HOFFMAN, dissenting:

I agree with the majority's conclusion that counts I throughVIII of Aisha Browne's underlying complaint do not allege factswhich bring that case within, or even potentially within, thecoverage afforded to SCR Medical Transportation Services, Inc.(SCR) under the policy of insurance issued by Empire Fire andMarine Insurance Company (Empire). The policy at issue providescoverage to SCR for "bodily injury" and "property damage" caused byan accident resulting from "the ownership, maintenance or use" ofa covered automobile. Counts I through VIII of Browne's underlyingcomplaint allege causes of action for damages sustained when shewas sexually assaulted by Robert Britton, the driver of an SCRvehicle in which she was a passenger. As the majority holds, thereis an insufficient nexus between the operation, use, or maintenanceof SCR's vehicle and the cause of Browne's injuries as alleged incounts I through VIII of her complaint to trigger a duty to defendunder the terms of Empire's policy of insurance. See United StatesFidelity & Guaranty Insurance Co. v. Jiffy Cab Co., 265 Ill. App.3d 533, 637 N.E.2d 1167 (1994). My disagreement with the majorityis based on its holding that the allegations set forth in count IXof Browne's sixth amended complaint do not fall within the coverageof Empire's policy and, thus, do not give rise to a duty on thepart of Empire to defend SCR in Browne's underlying action.

The majority has accurately set forth the charging allegationsthat appear in count IX of Browne's sixth amended complaint and thefact that she asserted that, as a proximate result of one or moreof the negligent acts alleged therein, she was "physically andpsychologically injured." It is important to note that there is noreference in count IX to the fact that Britton sexually assaultedBrowne. Nevertheless, by reading count IX in conjunction withcounts I through VIII, the majority concludes that Empire has noduty to defend SCR, finding that Browne's injuries were actuallycaused by her having been sexually assaulted by Britton.

The majority speculates that "[c]ount IX was rushed into thebreach when it became obvious that the first eight counts ofBrowne's complaint would not support a duty to defend." One mightvery well hold such an opinion as to Browne's motive for filingcount IX, but her motive is totally irrelevant to the issue to bedetermined in this case. The question before this court is not whyBrowne amended her underlying complaint to include count IX orwhether the allegation that she was "physically" injured as aresult of Britton's alleged negligent conduct is true. Rather, theissue in this case is whether the allegations in Browne'sunderlying complaint potentially fall within the coverage providedto SCR under Empire's policy. As our supreme court held in UnitedStates Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 73, 578 N.E.2d 926 (1991):

"To determine an insurer's duty to defend its insured,the court must look to the allegations in the underlyingcomplaints. If the underlying complaints allege factswithin or potentially within policy coverage, the insureris obliged to defend its insured even if the allegationsare groundless, false, or fraudulent. [Citation.] Aninsurer may not justifiably refuse to defend an actionagainst its insured unless it is clear from the face ofthe underlying complaints that the allegations fail tostate facts which bring the case within, or potentiallywithin, the policy's coverage. [Citation.] Moreover, ifthe underlying complaints allege several theories ofrecovery against the insured, the duty to defend ariseseven if only one such theory is within the potentialcoverage of the policy. [Citation.]" [Emphasis inoriginal.]

In count IX of her sixth amended complaint, Browne has alleged"physical" injury proximately caused by Britton's operation ofSCR's vehicle and by the manner in which he assisted in her"disembarkation" from the vehicle. Unlike the majority, I believethat she has thus asserted a theory of recovery which is separateand apart from the allegations of sexual assault set forth incounts I through VIII and which potentially falls within thecoverage provided by the insurance policy Empire issued.

The majority asserts that it is not required to read count IXas if the other counts do not exist and, as a consequence of thefacts alleged in counts I through VIII, concludes that count IXalleges intentional conduct which does not trigger Empire's duty todefend. I have found no authority for the proposition that, indetermining an insurance carrier's duty to defend its insured, acourt is at liberty to ignore one theory of liability alleged inthe underlying complaint because it may be inconsistent with othertheories of liability also alleged therein. To be sure, courtsmust consider all of the facts alleged in an underlying complaintin determining whether an insurance carrier has a duty to defend,but only for the purpose of ascertaining whether those factsallege even a single theory of liability which falls within thepotential coverage of the policy. See United States Fidelity &Guaranty Co., 144 Ill. 2d at 73.

Next, despite Browne's allegation in count IX that she was"physically" injured, the majority has determined that "Browne doesnot allege a 'bodily injury' as required in the insurance policy." The majority supports its conclusion in this regard, in part, bynoting that there are "no specific allegations of any physicalinjuries" set forth in count IX. However, the majority cites noauthority for the proposition that a court will not consider afactual conclusion in determining whether an underlying complainttriggers the duty of an insurance carrier to defend its insured. To the contrary, our supreme court has on several occasions heldthat the allegations contained in an underlying complaint must be"liberally construed in favor of the insured." Outboard MarineCorp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125, 607N.E.2d 1204 (1992); United States Fidelity & Guaranty Co., 144 Ill.2d at 74.

In further support of its conclusion that count IX fails toallege "bodily injury" and, as a consequence, facts which bringBrowne's underlying complaint potentially within the coverageafforded under Empire's policy, the majority asserts that Browne'sattorney "conceded her injuries in Count IX amounted to 'mentalanguish and fear'." Further on in its opinion, the majority statesthat "Browne concedes Count IX alleges no physical injuries, onlyfear and anxiety." I take issue with both the majority's relianceupon the statements of Browne's attorney at oral argument tosupport its conclusion and its interpretation of those statements.

First, I believe it is inappropriate to consider any extrinsicevidence which impacts on an ultimate fact upon which recovery inthe underlying complaint is predicated. See Thornton v. Paul, 74Ill. 2d 132, 157-59, 384 N.E.2d 335 (1978); Maryland Casualty Co.v. Peppers, 64 Ill. 2d 187, 197, 355 N.E.2d 24 (1976). Empire'sduty to defend should be determined by the allegations in Browne'sunderlying complaint, not by a statement made by her attorney inoral argument before this court. Second, the majority's statementthat Browne's attorney conceded that the injuries for which sheseeks recovery in count IX amount to mental anguish and fear is abit of an overstatement. As the majority notes, in response to aquestion during oral argument relating to the allegation ofphysical injury in count IX, Browne's attorney responded: "I thinkit is primarily mental anguish and psychological suffering." Primarily is not a synonym for exclusively. Rather, primarilymeans "for the most part." Merriam-Webster's Collegiate Dictionary925 (1998). It does not mean in the entirety. Therefore, even ifone were to consider the statement made by Browne's attorney atoral argument, I do not believe that it constitutes the unqualifiedconcession that the majority makes it out to be.

Although the trial court correctly granted summary judgment infavor of the defendants in the first instance, once Browne filedher sixth amended complaint including count IX, I believe that thetrial court erred in denying SCR's motion for reconsideration. Asa consequence, I would reverse the judgment of the trial court andremand the matter for further proceedings.

1. ¹Counts VII and VIII sought damages from Labor Leasing undertheories of negligent hiring and negligent supervision. LaborLeasing is not a party to this appeal.