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FIFTH DIVISION
June 30, 2003

JUSTICE QUINN delivered the opinion of the court:

Third-party plaintiffs Sears, Roebuck and Company (Sears)and Alfredo Jijon (collectively plaintiffs) appeal the trialcourt's grant of summary judgment (735 ILCS 5/2-1005 (West 2000))in favor of third-party defendants Acceptance Insurance Company(Acceptance) and Travelers Casualty and Surety Company(Travelers). This ruling had the effect of denying Sears andJijon indemnification for a nearly $15.7 million judgment they had entered against them stemming from a June 1, 1996, accidentwhere Rosa Kresin was injured when she was struck by a van drivenby Jijon while it was being backed out of a Sears AutomotiveCenter at Charlestowne Mall in St. Charles, Illinois.⁽¹⁾ Onappeal, plaintiffs contend that the trial court erred in grantingsummary judgment because it failed to consider the "parkingexception" contained in the policy. For the reasons set forth,we affirm the judgment of the trial court.

BACKGROUND

In January 2000, while the Kresin case was on appeal,plaintiffs filed their fourth amended third-party complaintcontaining five counts. Counts I and II were directed againstCharwil Associates, L.P. (Charwil), Sears' landlord, whichmanaged the Charlestowne Mall on behalf of an affiliated entity,Jamesport Associates (Jamesport). According to the terms of alease between Charwil and Sears, Charwil was required to obtainand maintain liability insurance naming Sears as an insured forthe common areas of the mall. In compliance with the lease,Jamesport purchased insurance from Acceptance and Travelers. Incount I of their complaint, plaintiffs alleged that Charwil hadbreached the indemnification clause contained in its lease withSears based upon Charwil's failure to defend Sears in the Kresinlitigation. In count II, plaintiffs alleged breach of contractin that Charwil had failed to obtain and maintain adequateinsurance as required by the lease. The counts against Charwilare not at issue in this appeal.

Counts III through V were directed against Acceptance andTravelers. In count III, plaintiffs alleged breach of contractagainst Acceptance because it had refused to defend Sears in theKresin lawsuit. In count IV, plaintiffs sought a declarationthat Acceptance had a duty to defend and indemnify Sears in theKresin lawsuit. In count V, plaintiffs sought a declaration thatTravelers, as its excess insurance carrier, had a duty toindemnify Sears. In response, Acceptance filed a counterclaimwherein it sought a declaration that it did not have a duty todefend any party involved in the Kresin lawsuit.

Acceptance subsequently filed a motion for summary judgment,wherein it asserted that it did not have a duty to defend

or indemnify Sears. Acceptance argued that the languagecontained in its policy with Sears did not require it to defendSears. Acceptance further argued that because the accidentcausing Kresin's injuries fell within the "automobile exclusion"of the policy, it had no duty to defend or indemnify.

Travelers also moved for summary judgment. In its motion,Travelers adopted Acceptance's argument that indemnification wasbarred based upon the automobile exclusion. Travelers arguedthat because it was an excess insurer, it had no duty toindemnify because Acceptance was not obligated to defend orindemnify.

In a written order dated February 16, 2001, the trial courtfound that Acceptance had a duty to defend based upon thelanguage contained in the policy's "Endorsements." However,after reviewing the language contained in the automobileexclusion and the allegations contained in Kresin's complaint,the trial court ruled that Acceptance was justified in itsrefusal to defend Sears in the Kresin lawsuit. This conclusionwas based upon its determination that the primary business of theautomobile center was maintenance and use of vehicles, which wasexpressly covered in the automobile exclusion. In its ruling,the trial court recognized that Sears had asserted that a liberalconstruction of the allegations contained in the Kresin complaintestablished that the allegations could have potentially fallenwithin the parking exception to the automobile exclusion withinthe policy.

Citing case law for the proposition that where no duty todefend exists, there is no duty to indemnify, the trial courtruled that Acceptance was entitled to judgment as a matter of lawon counts II and III of the amended third-party complaint. Regarding Traveler's motion for summary judgment, the trial courtgranted the motion, finding that because Acceptance had no dutyto indemnify, Travelers, as an excess carrier, could not have aduty to indemnify broader than Acceptance's duty.

In an order dated October 30, 2001, the trial court foundthat there was no just cause to delay enforcement or appeal ofits February 16, 2001, order. Plaintiffs now appeal.

ANALYSIS

On appeal, plaintiffs contend that the trial court erred ingranting summary judgment in favor of its insurance carriers. They argue that because Jijon was "unparking" the van when Kresinwas struck, the parking exception contained in the policyrequired coverage from its insurers.

Pursuant to the terms of the policy at issue, coverage didnot extend under the automobile exclusion to:

" 'Bodily injury' or 'property damage' arising outof the ownership, maintenance, use or entrustment toothers of any aircraft, 'auto' or watercraft owned oroperated by or rented or loaned to any insured. Useincludes operation and 'loading and unloading.' "

The policy provided an exception to the automobile exclusionfor: "Parking an 'auto' on, or on the ways next to, premises youown or rent, provided the 'auto' is not owned by or rented orloaned to you or the insured ***."

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). The construction of the provisions containedin an insurance policy is a question of law that can properly bedecided in a motion for summary judgment. Crum & Forster, 156Ill. 2d at 391. Summary judgment is appropriate when there is nogenuine issue of material fact and the moving party's right tojudgment is clear and free from doubt. Illinois Central R.R. Co.v. Accident & Casualty Co. of Winterthur, 317 Ill. App. 3d 737,744 (2000). When ruling on a motion for summary judgment, it isproper to construe all evidence in the light most favorable tothe nonmoving party and strictly against the moving party. Illinois Central R.R., 317 Ill. App. 3d at 744. Our review ofthe trial court's granting of summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102 (1992).

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, 154 Ill. 2d at 125. When determining whether the insurerhas a duty to defend, the court must compare the allegationscontained in the underlying complaint to the language containedin the policy. Outboard Marine, 154 Ill. 2d at 125. Whileliberally construing the underlying complaint in favor of theinsured, if the court determines that the allegations fallwithin, or potentially within, coverage under the policy, theinsurer has a duty to defend the insured against the underlyingcomplaint. Outboard Marine, 154 Ill. 2d at 125. A duty toindemnify arises if the insured's activity and the resulting lossor damage actually fall within a policy's coverage. OutboardMarine, 154 Ill. 2d at 128. The insurer bears the burden ofestablishing that a claim falls within a provision that limits orexcludes coverage. Pekin Insurance Co. v. L.J. Shaw & Co., 291Ill. App. 3d 888, 892 (1997).

At oral argument, plaintiffs raised for the first time onappeal that the automobile exclusion at issue may beunenforceable under State Farm Mutual Automobile Insurance Co. v.Smith, 197 Ill. 2d 369 (2001). In that case, the supreme courtheld that an automobile business exclusion of liability coveragein a motor vehicle liability policy was void because it violatesthe public policy requiring liability coverage for permissiveusers.

Initially, we note that pursuant to Supreme Court Rule341(e)(7) (188 Ill. 2d R. 341(e)(7)), arguments raised for thefirst time on appeal at oral argument are waived. See Hinshaw v.Coachmen Industries, Inc., 319 Ill. App. 3d 269, 275 (2001). Notwithstanding waiver, the Smith case does not supportplaintiffs' position.

In Smith, a man and his female companion went to Harrah'scasino, where they had the man's car valet parked. When the carwas retrieved, the woman was injured when it rolled back andstruck her. She filed suit against her companion, the valetdriver and Harrah's alleging various acts of negligence. Thecompanion's motor vehicle liability policy contained anexclusion, which the insurance company invoked to deny coverageto the valet driver and Harrah's. The court was called upon toconsider the exclusion, which provided:

" 'THERE IS NO COVERAGE:

1. WHILE ANY VEHICLE INSURED UNDER THIS SECTION IS:

***

b. BEING REPAIRED, SERVICED OR USED BY ANY PERSONEMPLOYED OR ENGAGED IN ANY WAY IN A CARBUSINESS. ******

Car Business -- means a business or job where thepurpose is to sell, lease, repair, service, transport,store or park land motor vehicles or trailers.' " (Emphasis in original.) Smith, 197 Ill. 2d at 372-73.

The supreme court agreed with the appellate court that thisexclusion is unenforceable because it directly conflicts withsection 7-317(b)(2) of the Illinois Vehicle Code (Vehicle Code),which provides that a motor vehicle liability policy "[s]hallinsure the person named therein and any other person using orresponsible for the use of such motor vehicle or vehicles withthe express or implied permission of the insured." 625 ILCS 5/7-317(b)(2) (West 1998).

The supreme court also relied upon its own holding in StateFarm Mutual Automobile Insurance Co. v. Universal UnderwritersGroup, 182 Ill. 2d 240 (1998), where the court considered section7-601(a) of the Vehicle Code, which requires that vehicles beinsured through a liability insurance policy, and section 7-317(b)(2) and concluded that when read together, the sectionsmandate that " 'a liability insurance policy issued to the ownerof a vehicle must cover the named insured and any other personusing the vehicle with the named insured's permission.' " Smith,197 Ill. 2d at 373, quoting Universal Underwriters, 182 Ill. 2dat 244. The court in Smith concluded that the automobilebusiness exclusion in the insurance policy violated the publicpolicy "mandat[ing] that a motor vehicle liability policy, or aliability insurance policy, cover the named insured and any otherperson using the vehicle with the named insured's permission." Smith, 197 Ill. 2d at 374. Because this public policy wasviolated, the supreme court ruled that the automobile businessexclusion provision was void and therefore, unenforceable. Smith, 197 Ill. 2d at 374.

We do not find that the Smith case mandates reversal of thetrial court's ruling. At issue in Smith was an interpretation ofprovisions of the Vehicle Code as they relate to a motor vehicleliability policy. The instant case does not involve a motorvehicle liability policy. Rather, it involves a comprehensivegeneral liability (CGL) policy purchased by Jamesport to insureagainst injuries occurring in the common areas of the mall. Nothing in the Vehicle Code requires Jamesport to insure driversunder a CGL policy.

Because indemnification is at issue, it is proper toconsider the evidence presented at trial. The evidence at trialestablished that prior to Jijon's entering the van, it had beenworked on at the automotive center and was in a bay on analignment rack. When asked at trial what his purpose in enteringthe van was, Jijon responded that he had been asked "to pull thevehicle out and road test it, make sure it drove straight, andthat was it." Jijon explained that before striking Kresin, hehad backed the van off the alignment rack and continued backingthe vehicle to a perimeter road. Once there, he waited until"several cars went by" and then proceeded to continue backing,until the van came to rest upon Kresin. Jijon explained thatwhen Kresin was struck, he had intended to back the vehicleacross the eastbound lane and dividing line of the perimeter roadinto the westbound lane.

Plaintiffs do not contest the trial court's determinationthat the primary business of the automotive center at Sears wasthe maintenance and use of vehicles. Rather, they look to thelanguage contained in the parking exception and insist that"backing out" a vehicle before being able to begin a road test issynonymous with "unparking." They argue that the process ofunparking must be "conceptually divorced" from the road test orthe parking exception would be rendered a nullity.

Acceptance argues that the interpretation advanced byplaintiffs stretches the meaning of the terms "parking" and"unparking" to encompass virtually every action of driving anautomobile. Acceptance believes that backing the van out of thebay and taking it for a road test is nothing more than acontinuation of the maintenance Sears was performing on the van. Therefore, Acceptance has no duty to defend plaintiffs as Jijon'sactions fell squarely under the automobile exclusion. Similarly,Travelers, in reliance upon the automobile exclusion in thepolicy, asserts that recovery by plaintiffs is barred because thefacts at trial establish that "maintenance" was being performedon the van that Jijon was "using" or "operating" at the timeKresin was injured.

In support of its claim that maintenance was being performedon the van at the time it struck Kresin, Travelers directs us tothe case of State Farm Mutual Automobile Insurance Co. v.McAnally, 49 Ill. App. 3d 475 (1977). In that case, after makingrepairs on an automobile, the repairman struck a pedestrian whilereturning it to the owner. The owner's insurance policy had anexclusion for damages that occurred while the vehicle was being " 'used by any person while such person is employed or otherwiseengaged in an automobile business ***.' " McAnally, 49 Ill. App.3d at 477. The definition of "automobile business" within thepolicy included the "repairing" of motor vehicles. The trialcourt granted summary judgment in favor of the insurance company,which argued there was no coverage under the above exclusion. Onappeal, the driver of the vehicle argued that because the"delivery" of the vehicle was not included in the definition of"automobile business," the trial court erred in denying coverageunder the policy. This court rejected the argument, stating that"Illinois courts have been in general accord that delivery of anautomobile is an integral part of the repair business." McAnally, 49 Ill. App. 3d at 478-79.

Recognizing that the instant policy does not define the term"parking," plaintiffs direct our attention to St. Louis County v.Taggert, 809 S.W.2d 476 (Mo. App. 1991), where the Missouri Courtof Appeals was called upon to distinguish between the terms"parking" and "storing." In so doing, the court explained that"Parking connotes transience while storage denotes a certaindegree of permanency." Taggert, 809 S.W.2d at 478.

Relying upon Taggert for the proposition that "parkingconnotes transience," plaintiffs further argue that the processof parking also includes "unparking," or put differently, movingthe vehicle from a stationary parking position. In support ofthis construction of the parking exception, plaintiffs direct ourattention to a series of cases that reference the process ofunparking. See, e.g., Becker v. Colonial Parking, Inc., 409 F.2d1130, 1136 n.31 (D.C. 1969) ("It was necessary to move the carsabout on the lot to enable parking and unparking"); Raffenspergerv. Towne, 59 Wash. 2d 731, 739, 370 P.2d 593, 597 (1962)(Donworth, J., concurring) ("The two cars had been stationary atthe curb for some time prior to appellant husband's attempt tounpark his car"); People v. Weber, 401 Ill. 584, 586 (1948)("defendant forced his way into the car as she was unparking inthe downtown area of Peoria").

We agree with Acceptance and Travelers that at the timeKresin was injured, maintenance was being performed on the vanthat struck her. Jijon testified at trial that he was moving thevan in order to take it on a road test. Clearly, if the"delivery" of a vehicle after repair work has been performed onit is an integral part of the repair business (McAnally, 49 Ill.App. 3d at 478-79), a test drive is "maintenance," as used in theautomobile exclusion in the policy at issue here.⁽²⁾ Therefore, wefind that the trial court properly ruled that the automobileexclusion in the policy at issue barred coverage.

Plaintiffs' citation to cases using the word "unpark" doesnothing to advance their claim of error. Webster's dictionarydefines "unpark" as "to remove from a parking place." Webster'sThird New International Dictionary 2505 (1993). It appears fromphotographs contained in the record that the location where thevan struck Kresin was more than just a few feet from its originalposition on the alignment rack. According to Acceptance, Jijonhad traveled about 34 feet before Kresin was hit. At the time ofthe accident, Jijon had already removed the van from its parkingplace, which was the bay of the automotive center, and continuedtraveling, albeit in reverse, across the apron until he came tothe perimeter road. Jijon then stopped, waited for traffic topass and then again started to move in reverse. It was at thispoint that Kresin was struck.

Contrary to plaintiffs' view, instead of characterizing thismovement as "unparking," we find it more appropriate under thefacts of this case to characterize it as backing up to get to adestination; the westbound lane of the perimeter road. Therefore, we find that the parking exception does not requireAcceptance and Travelers to indemnify plaintiffs. Thus, thetrial court did not err in granting summary judgment in favor ofthe insurance carriers.

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

Affirmed.

REID and HARTIGAN, JJ., concur.

1. The judgment of the trial court was affirmed in Kresin v.Sears, Roebuck & Co., 316 Ill. App. 3d 433 (2000).

2. We recognize that based upon the supreme court's holding inSmith, it does not appear that the insurance carrier in McAnallycould now deny coverage under the exclusion at issue in thatcase. However, because we are relying upon McAnally for itsanalysis with respect to the definition of "automobile business,"we find that the Smith case has no bearing upon our citation toMcAnally.