## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Am erican Coun try Insu rance Co. v. Chicago Carriage Cab C orp. , 2012 IL App (1st) 110761

Appellate Court Caption A M E R I C A N C O U N T R Y I N SU RA N CE CO M PA

N Y
, Pl a in ti f f

- A p p e ll e e , v. CHI CAGO CARRI AGE CAB CORPOR ATI ON, AKI NWUMI WI L L I AMS, CHI CAGO EL I TE CAB CORPOR AT I ON, and STEVE CO X
, D e f e n d a n ts

- A p p e ll a n ts ( A k in w u mi Wi ll ia ms , T h ir d

- Pa

r ty Plain ti f f

Appellant; Hail Hac king Corporation, Third-Party Def endant- Appellee ).

District & N o. First District, Six th Division
Docke t Nos. 1-11-0761, 1-11- 0833 cons.

Filed Aug ust 17, 2012

Held (Note : Thi s syl lab us

con st it ute s no p art of the opi nio n of the cour t but has bee n pre

par ed by the Re

p ort er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The insurer of a taxi company had no duty to indemnify a passeng er who hailed an insured taxi only to have the driver stop the cab and assist a third person in robbing and battering the passeng er, since the passeng er’ s i njuries “did not arise out of the owner ship, maintenanc e, or use o f an auto,” a s provided by

the policy

at issue.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-CH-7807; th e Hon. Nanc y

J . Arnold, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Richard L

. Be rdelle, J r., of Richard L

. Be rdelle, J r., P.C., of Chicag o, for appellants.

L aw Of fice s of Maxwell H. Br

usky , of B atavia, f

or appe llees.

Panel PRES I DI NG J USTI CE GORDON delivered the jud gm ent of t he court, with opinion.
J ustices L ampkin and Palmer c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 The trial court g rante d summa ry j u d gm en t i n fa v or of plaintiff Americ an Country I nsuranc e C ompany in its action seeking a dec lara tion that it had no duty to indemnify the
passeng er of

an insured ta x i for inj uries sust ained in the course of a robbery

. I n a pre vious
tort suit, wher e the repor

t of proce eding s was included in the rec ord of this proce eding
, Steve Cox
, the taxi passeng er and one of the defe ndants in this decla ratory action, testified that he
g ave the taxi driver direc tions to his desti n at ion, only to observe the driver ignor e the direc tions and turn the wrong wa y down a one-w ay street. The driver stopped the t axi and a maske d man enter ed, robbing and batter ing Cox with t he par ticipation of the driver

. ¶ 2 Cox filed a tort complaint ag ainst Akinwumi Wil liams, the l essee of the taxi and a codefe ndant in this action, which alleg es that the driver was Wil liams’s fr i end, to whom Wil liams had loaned the taxi and who had no drivers license. The jury found Wil liams liable for neg lige nt entrustment and awa rded Cox damag es

. Ha i l Hac king Corp., the third-par ty defen d an t in this case , owned the medallion to the taxi and was the direc t insured of the Am erican Country policy

. Wil liams filed a third-par ty complaint ag ainst Hail Hac kin g, arg uing tha t, should the insurer deny cover ag e or pay less than the judg ment enter ed in the underlying tort action, Hail Hac king should pay any portion of the judgme nt not satisfied by the insurer beca

use the lease ag ree ment require d Hail Hac king to obta in liabilit y insurance

cover ag e to the lessee of the tax i

. T h e trial court g rante d summary judgme nt to Americ an Country and dismiss ed Wil liams’s third-par ty complaint ag ainst Hail Hac king for failure to state a c ause of

action. B oth Wi lliams and Cox appea l. We affirm.

¶ 3 BA CKGROUND ¶ 4 T his litigation involved a taxi driven by King sley Njemanze (King sley ). The taxi hel d medallion number 4855 and was lease d to the defe ndant/thir d -p ar t y plaintiff, Akinwumi Wil liams, by Chicag o Carria g e Corporation and Chicag o Elite Cab Corporation, additional codef endants in the decl ar atory action. W illiams allowed Kingsley to drive the taxi on the night in question. Hail Hac king Corporation, the third-par ty defe ndant, held the license and medallion for the taxi
, and procur ed the insurance policy cover ing the taxi from the plaintiff,

-2-Americ an Country I nsuranc e Company

. ¶ 5 Steve C ox ’s claims for assault and battery and neglig ent entrustment ag ainst Wil liams
proce eded to a jury trial. Be fo re t he jury
, Cox testified that on Dec ember 29, 2005, at approximately 2 a.m., he hailed a taxi at the corne r of Ra ndolph and Halsted Streets in Chicag o. Cox descr ibed the vehicle as a maroon Ford C ro wn Vi ctoria with its taxi dome illumi nated. The taxi contained license and reg istration for a driver, along with a photogr aph. Cox instructed the driver to proce ed north on Halsted to Milwaukee Avenue

. Cox could hear the driver talking on a cell phone in a for eig n lang uag e. I nexpli cably , the driver turned the
wrong way down W ay

man S t ree t, approximately three blocks befor e reac hing Milwaukee Avenue

. After turning down Way man, the d river stopped the taxi in an intersec ting alley

. When the driver stopped the taxi
, Cox spoke to the driver, but the driver did not respond. A
moment later, a man wea

ring a ski mask enter ed the backse at of the taxi with Cox and stated, “This is a robbery .” Cox beg an strug g ling with the masked man in the backse at of the vehicle. ¶ 6 Following the crime, Cox identifi ed W i l l i am s fr o m a p h o to lineup as having some involvement in the incident. Cox explained that he “re cog nized him fr o m t h e n i g ht of the incident.” He rec og nized Wil liams from the taxi license photo and testified he believed the

mas k ed robber was Wil liams based on the same build and complexion. Cox identified King sley in an in-person lineup as the taxi driver on the night of the robber y and assault. Cox identified the taxi as cab number 4855. ¶ 7 Wil liams testified that on Dec ember 29, 2005, he held a chauf feur ’s license. He had bee n driving a taxi for Chicag o Carria g e Cab Company since 2003. Wil liams testified that he lease d a taxi on a wee kly basis. He signe d a lease from Dec ember 24, 2005, to Dec ember 31, 2005, for cab number 4855, a maroon For d Crown Victoria. Wil liams testified he knew that, pursuant to both the lease and his chauf feur ’s license, he was the only one lawfully permitted to opera te the taxi. ¶ 8 Wil liams testified that he never theless let hi s friend King sley drive the taxi during the lease period. Wil liams drove during the day
, from 6 a.m. to 6 p.m., and allowed King sley to drive at night in exchang e for $200 per wee k. Wil liams knew that King sley ’s driver’ s license

was suspended. Wil liams left his photo and license posted in the taxi when King sley drove it, intending for passeng ers to think that someone with a valid license was driving

. Wil liams testified that King sley drove the taxi on the night of the incident. Wil liams te stified that he was not involved in the robbe ry of Cox ; that he was at home when it occ urre d. ¶ 9 Detec tive J od y L o n go s , a C h icag o police detec tive, testified and confirme d that Cox identified Wil liams a

n d K in g s le y in separ ate lineups. After Cox was unable to serve King sley with the tort complaint, King sley was dismiss ed as a defe ndant in the underly ing lawsuit and is not invol ved in this appea l. ¶ 10 At the close of all the evidenc e in the jury trial, the trial cour t entere d direc ted ver dicts in favor of the two cab companies. At the jury instructions confe renc e, with Wil liams as the only rema ining defe ndant, Cox and Wil liams disag ree d on how the jury should be instructed. The claim in count I was labeled “Ne g lige nce,” but alleg ed that Cox was assaulted, battere d, and ro b b ed in the rear of the t axi and on the s tree t by an unknown person in a ski mask or

-3-W i l l i am s in a ski mask, and others. The claim in count I I was labeled “Ne g l i gen t

Entrustment,” and alleg ed that Wil liams knew or should have known that King ley ’s license

was invalid a

nd that he would use the taxi in a manner that exposed others to unr easona ble risks. The disag ree ment over the instructions conce rned count I

. Wil liams claimed it asser ted

an intentional tort or willful and wanton conduct. Cox arg ued that it alleg ed neg lige nce. The trial court deter

mined that neg lige nce instructions on count I wer e appropr iate. The jury was instructed as f

ollows: “The plaint i ff cl ai m s that he was injured and sustained damag e and defe ndant[ ] [was] neg lige nt in one o r m o re o f the following respe cts: (A) failed to exercise the highe st deg ree of car e to protec t his passeng ers from the dang er of injury from assault of wh ich he knew or should have anticipated from the fac ts and circ umstances known t o [hi m] by the passeng er was travel i n g and alig hting from the taxi cab; (B ) failed to exercise the highe st deg ree of car e to protec t his passeng er from assault, ab u s e, or intentional harm to [hi m] by an employ ee of the car rier then on d u t y ; (C ) failed to exercise the highe st deg ree of car e in selec ting a place for the plaintiff to alig ht consistent wi t h t h e mode of convey ance ***; (D) knew or should have known that alig h t i n g plaintiff in the afor ementioned are a would p l ace him in dang er of being injured; (E) knew or should have known that King sley was to use Chicag o Carria g e Cab no. 4855 in

a manner involving unrea sonable risk of phy sical harm to others; and (F ) knew or should have known that King sley was unfit to operate Chicag o Carria g e Cab no. 4855 was [ sic ] incompetent, inexperience d, unqualified, and rec kless. The plaintiff further claims that

one or more of the for eg oing w as a pr ox imate ca use of his injuries.” ¶ 11 The c ourt instructed the jury on neg lige nt entrustment in count I Ias follows:
“I n Count I I
, Steve Cox seeks to rec over damag es from the defe ndant, Mr. Wil liams, for neg lige nt entrustment. I n order t o rec over damag es, the plaintiff has the burden of proving
, first, that King sley was incompetent, inexperience d, or rec kless driver; second,
t h at Mr. Wil liams knew or should have known that King sley was incompetent, inexperience d, or rec kless driver; third, that M r. Wil liams entrusted his vehicle to King sley ; and fourth, that the plaintiff was injured; and fifth, that the incompetenc y , inexperience
, or rec klessness of King sley as a driver was a proxi mate cause of plaintiff’s injury .” ¶ 12 The jury returne d a verdic t in favor of Wil liams on count I and ag ainst Wil liams on count I I

. I t awa rded Cox $275,585.08 in damag es. On May 18, 2010, the court denied Wil liams’s posttrial motion for judgment notwithstanding the ver dict. Wil liams did not appeal. ¶ 13 On Fe bruar

y 23, 2010, Americ an Country filed its decla r a tor y judgme nt action to absolve it of any obliga tion to pay the damag es the jury awa rded to Cox

. Americ an Country alleg es that the injuries Cox sustained wer e not cover ed by the policy issued to Hail Hac king, which

cover ed Wil liams as lessee of the taxi as well. The complaint asser ted five counts, only one of which is pertinent to the appea l befor e us. Count I I I asser ted Americ an Country owed no duty to indemnify Wil liams beca use the injuries to Cox “ did not arise out of the owner ship maintenanc e or use of an auto,” as provided by its policy

. W e s et out the controlling provision:

-4-“Section I I –L I AB I L I TY COVERAGE
A. COVERAGE
We will pay all sums an ‘insured’ leg ally must pay as damage s b ecause of ‘bodily injury ’ or ‘prope rty damag e’ to which this insurance applies, cause d by an ‘ac cident’ and resulting from the owne rship, maintenanc e or use of a c overe d ‘auto.’
We have the rig ht and duty to defe nd any ‘insu re d ’ against a ‘suit’ asking for such damag es. Howeve r, we have no duty to defe nd any ‘insured’ ag ains t a ‘suit’ seeking damag es for ‘bodily injury ’ or ‘prope rty damag e’ t o wh i ch this insurance does not apply .” ¶ 14 Wil liams and Cox eac h filed an answe r to the decla ratory action complaint denying tha t Americ an Country owed no duty to indemnify

. Americ an Country m o v ed fo r summary judgme nt on count I I I of its complaint. Wil liams and Cox filed response s opposing it. After hear ing oral arg ument, the trial court found n o q u es t ions of materia l fac t arose under the policy

. I t g rante d summary judgme nt to Americ an Country
, finding it had no duty under its policy to indemnify

Wil liams as lessee. ¶ 15 Wil liams also filed a third-par ty complaint ag ains t Ha i l Ha ck ing, alleg ing that if the policy it procure d from Amer ican Country did not indemnify

Wil liams for the neg lige ncebased judgme nt enter ed in favor of Cox
, then Hail Hac king brea ched its lease contra ct with Wil liams to provide compre hensive insurance cover ag e for the lease d taxi

. Wil liams’s thirdp ar t y complaint was consolidated with the decla ratory judgme nt action. The trial cour t dismiss ed Wil liams’s third-par ty complaint for failure to state a cause of action ag ainst Hail Hac king. Wil liams appea ls both judgme nts. Cox appea ls the g rant of summary judgme nt in favor of Amer ican Country

.

¶ 16 ANAL YSI S ¶ 17 Cox arg ues that a materia l question of fac t exis ts reg arding whether his injuries arose out of the ordinary use of the taxi as cover ed by the Americ an Country policy

. Alterna tively
, Cox and Wil liams both arg

ue that the fac ts show that King sley was neg lige nt in allowing Cox to be attac ked and the ref

ore Americ an Country was not e ntitled to summary judgme nt. I n the alterna tive, Wil liams arg ues that the Chicag o Municipal Code (the Code) require s insurance

cover ag e broade r than the cover ag e provided by the policy at issue in this case and, there fore
, the policy here should be rea d more broadly to co n fo rm to the Code, which would trig g er

cover ag e for the damag es sustained by Cox

. Chicag o Municipal Code § 9-112-220 (ame nded J uly 12, 1990). Wit h reg ard to the third-par ty claim, Wil liams arg ues that Hail Hac king failed
to obtain a policy that confor med with the require ments of the Code and conseque ntly brea ched the lease contra ct, which should make Hail Hac king responsible for the judgme nt won by Cox

.

¶ 18 I . J urisdiction ¶ 19 We first note the trial court’s order did not addre ss all the claims raised in the p arties’ motions pending befor e it, which compels a revie w of our jurisdiction to decide this appea l.

-5-Americ an Country filed its complaint seeking decla ratory judgme nt tha t it owed no duty to indemnify Wil liams for the damag es awarde d to Cox

. The complaint asser ted five counts, with counts I
, I I
, and I V voluntarily dismiss ed befor e the circ uit court. The trial court g rante d
summary judgme nt to Americ an Country on co u n t I I I
, which alleg es it owed no duty to indemnify

Wil liams under the terms of the policy

. Count V alleg es that, in the eve nt it had

a duty to indemnify Wil liams, Wil liams relieve d Americ an Country of that duty when Wil liams failed to provide timely notice of Cox’s claims. ¶ 20 As we detail ed ab o v e, W i l l iams filed an answe r and counter claim. The c ounterc laim

asser ted three counts. Count I alleg es Americ an Country brea ched the insurance contra ct by its ref usal to indemnify Wil liams. Count I I alleg es a violation of the I llinois I nsuranc e Code (215 I L CS 5/ 155 (West 2006)), base d on the s ame refusa l of American Country to pay the judgme nt. Count I I I alleg es Americ an Country acte d in bad faith by not offe ring to settle with Cox within t h e p olicy limit of $350,000. All three counts soug ht an order compelling Americ an Country to p a

y th e ju d g ment Cox won ag ainst Wil liams and to reimburse Wil liams for his attorney fee s. L ater , Wil liams filed hi s t h i rd -par ty complaint ag ainst Hail Hacking
, al leg ing that Hail Hac king should pay the judgme nt in the event Americ an Country i s n o t order ed to do so. The trial court g rante d summary judgme nt to Americ an Country on count I I I of its decla

ratory judgme nt action and dismiss ed Wil liams’s third-par ty complaint ag ainst Hail Hac king. L eft undecide d wer e the counter claim Wil liams filed ag ainst Americ an Country and count V of Americ an Country ’s complaint. We must deter mine whether these unresolved issues de fea

t our jurisdiction. ¶ 21 We have juri s d i ct i o n t o re v i ew o n l y order s that are “fina l and appea lable.” R.W

. Dunteman Co. v . C/G Enterprises, Inc. , 181 I ll. 2d 153, 159 (1998). “An or der is f inal and
appea lable if it terminates the litigation betwee n the parties on the merits or disposes of the rig hts of the parties, ei t h er o n the entire controve rsy or a separ ate part there of.” R.W

. Dunteman
, 181 I ll. 2d at 159. Whether an order disposing of few er than all claims pending is a ppeala ble is c ontrolled by I llinois Supreme Court Rule 304(a) (ef f. J an. 1, 2006). “[A]n
appea l ma

y be take n from a final judgme nt a s to one or more but f ewe r than all *** claims only if the trial court has made an express written finding that there i s n o j u s t re ason for delay ing either enfor ceme nt or appea l or both.” I ll. S. Ct. R. 304(a) (ef f. J an. 1, 2006). A claim is “any rig ht, liability or matter r aised in an a ction.” Marsh v. Ev angelical Covenant Church
, 138 I ll. 2d 458, 465 (1990). I n the context of summary judgme nt, a dismiss al order that does not dispose of all claims can be appea led if “ ‘the order g ranting summary judgme nt *** nece ssarily entailed the dispositi on of t he i s s u es raised in the counterclaim as well.’ ” 1350 Lake Shore Associates v. Casalino
, 352 I ll. App. 3d 1027, 1034 (2004) (quoting Lynch Imports, Ltd. v. Frey
, 200 I ll. App. 3d 781, 785 (1990))

. I n such a case , a court of revie w has jurisdiction e ven without Rule 304(a) lang uag e. 1350 Lake Shore Associates
, 352 I ll. App. 3d at 1034 (c iting Lynch Im ports, Lt d. , 200 I ll. App. 3d at 785). ¶ 22 I n this case, the tr ial court’s or der did not include Rule 304(a) lang uag e but its g rant of
summary judgme nt to Americ an Country nece ssarily disposed of all the issues rai s e d in c o u nt V o f i t s decla

ratory judgme nt complaint and Wil liams’s counter claim. 1350 Lake Shore Associates
, 352 I ll. App. 3d at 1034 (citi n g L yn ch Imports

, Ltd.
, 200 I ll. App. 3d at 785). Americ an Country ’s complaint alleg es that it was not obliga ted t o indemnify Wil liams for

-6-sever al rea sons. Wil liams’s co u n t erc laim alleg es that Americ an Country was obliga ted to

indemnify him, ag ain for sever al rea sons. Although eac h pleading g ave sever al bases for its claims, eac h pleading focuse d on only one reme dy : the duty to indemnify

. When the trial

co u rt ru led Americ an Country owed no duty to indemnify as alleg ed in count I I I o f i t s decla ratory action complaint, the court nece ssarily decide d the indemnification in toto

. The other relief soug ht by Wil liams in his counter claim of attorney fee s was inext rica bly tied to the decla ratory judgme nt action. Americ an Country owed no atto rney fee s once it was absolved of a duty to indemnify

. Thoug h not all counts of pending pleading s wer e ruled
upon, the g rant o f s u m m ary judgme nt to Americ an Country on count I I I of its decla ratory judgme nt complaint nece ssarily entailed the dis p o sition of all issues raised in the two pleading s. As a conse quence , we have jurisdiction to decide this appe al.

¶ 23 I I . Summary J udg ment ¶ 24 Turning to the substantive arg uments, Cox arg ues that materia l questions of fac t remain
t o rende r the g rant of summary judgme nt to Americ an Country err oneous. Acc ording t o Wil liams a

nd Cox
, the jury ’s verdic t finding Wil liams not liable for the assault and battery

means t h at W illiams’s liability rests solely on his neg lige nt conduct that g ave rise to the injuries sustained by Cox

. They contend the jury ’s finding o f l i ability on neg lige nt entrustment means the occur renc e was acc idental in nature

. To rebut this contention, Americ an Country points to the trial testimony that showed King sley was involve d in the attack. A merica

n Country contends the jury ’s verdic t should not be considere d in deciding whether it was en titled to summary judgme nt. I n any event, it arg ues that King sley was undeniably involved in the robber y and assault of Cox and his use of the taxi to commit the crimes f alls outside the ordinary

use of a n automobile, which bar s cover ag e. ¶ 25 Summary judgme nt is appropr iate when “the pleading s, depositions, and admissions on file, toge ther with aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.” 735 I L CS 5/2-1005(c) (West 2008)

. I n ruling on a summary judgme nt motion, a circuit court de termines whether issues of fac t exis t; it does not make fac tual deter minations. W

illiams v. Manche

ster , 228 I ll. 2d 404, 417 (2008). I n deter mining whether a question of fac t exis ts, “a court must construe the pleading s, depositions, admissions, and a f f id a v it s s tr ic tl y a g ainst the movant and liberally in favor of the opponent.” W illiams
, 228 I l l

. 2 d at 4 17. Summary judgme nt is “a drastic

means of disposing of litigation” and thus should only be awa rded when the moving party ’s rig ht to judgment as a matter of law is “ clea r and fr ee f

rom doubt.” W

illiams , 228 I ll. 2d at 417. We revie w g rants of summary judgme nt de novo

. W illiams
, 228 I ll. 2d at 417. De novo consideration means we perf orm the same a

naly sis that a trial judge would perf orm. Khan v. BDO Seidman, LLP , 408 I ll. App. 3d 564, 578 (2011). ¶ 26 Coverag e under the Americ an Country policy applies if the damag es wer e “ca used by an ‘ac ci dent’ and resulting from the owner ship, maintenanc e or use of a cover ed ‘auto.’ ” Gene rally
, the neg lige nt entrustm ent of a cab involves the “use of a cover ed auto” as provided by the policy

. The salien t question is whether what happene d to Cox that

commence d with the use of the taxi qualifies as an “ac cident” under the terms of the policy

.

-7-The circ uit court’s decision did not addre ss this question; nor do the briefs of the parties shed

much light on this. ¶ 27 W e k ee p i n m i n d t hat Wil liams is the additional insured to Hac king Hail under t h e Americ an Country policy

. To state the obvious, King sley
, the driver, is not seeking liability

cover ag e under

the policy . Americ an Country ’s ar g ument of no duty to inde mnify must be based on t he entire nature of the events that occur red. Wil liams’s involvement may be an unresolved que stion of fac t but Cox ’s involvement is not. ¶ 28 Rather than addre ss Wil liams’s involvement in the robber y and assaul t , t h e o p p osing sides focus on King sley ’s involvement. Americ an Country maintains that King sley was a n active participa

nt in the robber

y

. Cox and Wil liams maintain in this case that King sley was

an uninvolved driver who mere ly made a mistake in stopping the taxi in an unsafe location. Americ an C ountry discusses whether usi ng a tax i as an instrument to perpetra te a c rime i s “use of a cover ed auto.” On the other hand, Cox and Wil liams discuss whether the neg lige nt

ac t o f stopping in an unsafe are a constitutes a “use of a cover ed auto.” We thin k b o t h
arg uments miss the mark. I t is what hap p en ed t o Cox that is dispositi ve. Wil liams’s role
cannot be asce rtaine d on the rec ord befor e us. We cannot simply substitut e Wil liams for King sley and conclude that Wil liams had a role in the robber y and assault beca

use no other conclusion can be draw n than King sley helped perpe trate the crimes based on Cox ’s version of events. Wil liams denied any involvement; his contention i s that at worst h e n egli g ently entrusted the ta x i to Kingsley

. ¶ 29 The question we are confr onted wit h i s whether mere proof by Cox that a crime w as committed with the “use of a cove red a

uto” as a taxi should be resolve d as a ma tter of law
to prec lude cover ag e to one of t h e p o licy ’s insureds found neg lige ntly responsible for the damag es suffe red by the taxi p as s en ger or whether the answe r to that question should be resolved by

a trier of fa ct. ¶ 30 All parties cite three case s in which assaults arose out of in c ide nts involving automobiles. All three case s held that when criminal acts occur red that wer e rela ted to an auto but outside the rea lm of ty

pical use of an auto, there was no cover ag e. S C R Me d ical Transport ation Servic es, Inc. v. Browne
, 335 I ll. App. 3d 585 (2002); State Farm Mutual Automobile Insurance Co

. v. P

f iel
, 304 I ll. App. 3d 831, 836-37 (1999); United States Fidelity & Guaranty C o. v. Jiffy Cab Co.
, 265 I ll. App. 3d 533 (1994). Eac h case involved lang uag e identical to the policy

at issue her e. ¶ 31 I n SCR
, driver Br itton, an employ ee, was acc used of sexual assault. The court c oncluded: “I n simil ar case s wher e injuries wer e cause d by criminal assaults in and about a vehicle, but

wer e not cause d by the vehicle itself, courts have h el d t h e i n j u ries did not arise out of the
opera tion, maintenanc e, or ‘use’ of a vehicle and wer e not cover ed under an autom o b i le insurance policy .” SCR , 335 I ll. App. 3d at 588. ¶ 32 “A causa l connec tion or nexus must exis t b et we en t h e ac ci d en t or injury and the

owner ship, use, or maintenanc e of the vehicle in order for the acc ident or injury to come within the pol icy cover ag e.” SCR
, 335 I ll. App. 3d at 589. “The mere fac t that a vehicle i s the site of an injury or incident is insufficient to cre ate a connec tion betwee n the ‘use’ of the vehicle a nd the injury

so as to bring the injury

within policy

cover ag e.” SCR , 335 I ll. App.

-8-3d at 589. “[T]ort li ability on the par t of the insured e stablishes contrac tual liability on the part of the insurer only wher e the policy aff ords cover ag e, and that deter mination is subject
to the rules of contra ct constru ction, and not tort principles.” (I nterna l quotation marks omitted.) SCR , 335 I ll. App. 3d at 590. “Our analy sis is concerne d solely with whether

the insurance policy at issue provides cover ag e for SCR in defe nding the underly ing lawsuit. We do not look to neg lige nce case s in a ssessing Empire’s duty to defe nd. Rather, we look only
at the rele vant insurance policy provisions and compar e them to the alleg ations in the underlying complaint.” SCR
, 335 I ll. App. 3d at 590. “I n a decla ratory judgme nt action, the construction of an automobil e ins uranc e poli cy ’s l an guag e is an is sue of law, independent of the ultimate issues to be resolved in the underly ing tort action.” SCR
, 335 I ll. App. 3d at 591. ¶ 33 I n Pfiel
, the court held that injuries from a neg lige nt entrustment claim wer e not c overe d by the policy

. Pfiel
, 304 I ll. App. 3d at 836-37. A teena g er borrowe d his par en ts’ van, murdere d a y oung g irl inside, and drove to a desolate are a to dispose of her body

. Pfiel
, 304 I ll. App. 3d at 832-33. The g irl’s mother filed a claim ag ainst th e p ar en t s for neg lige nt entrustment. Pfiel
, 304 I ll. App. 3d at 832. Be cause the chil d’s criminal actions wer e not “consistent with the inhere nt nature o f t he vehicle,” no causa l nexus exis ted betwee n the ty pical use of a vehicle and the injuries. Pfiel
, 304 I ll. App. 3d at 836. “ ‘Automobiles are an indispensable part of many crimes, bank robber ies for example, y et it would most cer tainly be far fetc hed to say that these crimes result from the use of the automobile.’ ” (Emphasis in orig inal.) Pfiel
, 3 0 4 I ll. App. 3d at 837 (quoting Aetna Casualty & Surety Co. v. United States Fidelity & Guaranty Co.
, 806 F.2d 302, 303 (1st Cir. 1986)). “[T] he manner in which [t he teena g er] ‘used’ the vehicle to i n j u re [t he victim] was attenuate d from the actua l leg itimate pur

pose of an automobile.” Pfiel
, 304 I ll. App. 3d at 837. There fore
, the injuries

wer e not cove red by

the policy

. Pfiel , 304 I ll. App. 3d at 838. ¶ 34 Jiffy Cab
, 265 I ll. App. 3d 533, made clea r that the inquiry must fo cu s o n t h e driver’s actions eve n i n a ca s e against a third party

. I n Jiffy Cab
, a neg lige nt hiring case , the court stated, “[C] ourts will look to the acts of the individual who was hired in deter mining whether

cover ag e exis ts.” Jiffy Cab
, 265 I ll. App. 3d at 541. There fore
, the actions of the driver, not

nece ssarily the insured party or the defe ndant, are the key to deter mining cover ag e. Jiffy Cab
, 265 I ll. App. 3d at 541. For cover ag e to exis t, the driver’ s actions must confor m to the ty

pical

use of an automobile. Jiffy Cab
, 265 I ll. App. 3d at 541. King sley and Cox ’s involvement is absolutely

materia l to the disposit ion of the ca se. ¶ 35 I n the underlying case , Cox alleg es in his complaint that he was assaulted, battere d, and robbed in the taxi cab. Cox ’s testimony is provided in the underly ing case and included in the
summary judgme nt proce eding

. As a result of that testimony
, he is judicially estopped from now claiming that a material issue of fact ex ists. Cox testified t hat Kingsley took him int o

an are a wher e he did not want t o go , ex ited his cab and toge ther with the other man who

arr ived at the scene proce eded to beat and rob him. After the beating and robber y , King sley
, along with the other assailant returne d to the ir respe ctive vehicles and drove awa y , leaving Cox ly ing in the stre et. ¶ 36 Since cover ag e here is deter mined based on the undisputed fac ts of the case , Cox cannot

now say that summary judgme nt w as wrong fully decide d beca

use he is judicia lly estopped

-9-fr o m prese nting a new position in a leg al proce eding contra ry to a position that was

succe ssfully arg ued in a

n ear lier leg al proce eding

. Johnson v. Exx onMobil Corp.
, 426 F.3d 887, 8 9 1 (7 t h Cir. 2005). I f a party has (1) taken two positions (2) that are fac tually inconsistent (3) in separ ate judicial or quasi-judicial proce eding s, and (4) intended for t he trier of fac t to acc ept the truth of the fac ts alleg ed, and (5) succe eded in the first proce eding and rece ived s ome benefit fr o m it, the party may be judi cially estopped from asser ting the second fac tually inconsistent position. Gambino v. Boulevard Mortgage Corp.
, 398 I ll. App. 3d 21, 60 (2009) (quoting Barack Ferrazzano Kirshbaum Perlman & Nagelberg v. Loffr edi
, 342 I ll. App. 3d 453, 460 (2003))

. The Seventh C i rc u i t has specific ally found that the doctrine of judicial estoppel is meant to discourag e ly ing beca use it forc es parties to pick an

asser tion and stick with it. Cannon-Stokes v. Potter
, 453 F.3d 446, 448 (7th Cir. 2006). The
court in Jiffy Cab conclude d that the scope of cover ag e provided under an auto l i ab i l ity insurance policy must end at some point, and the perpe tration of a crime in or about an auto repr esents a point well bey ond the line that must rea sonably be draw n

. Ji f f y Cab
, 265 I ll. App. 3d at 541. There fore
, Cox ’s injuries “did not arise out of the owner ship, maintenanc e,

or use of an auto” as provided by t h e p o l i cy at issue here

. As a result, the trial court’s
summary judgme nt ag ainst Cox is affirme d. ¶ 37 The only question that now rema ins is whether the summary judgme nt ag ainst Wil liams is subject t o a factual d eter mination. Cox testified i n the underly ing case of an assault and battery perpe trated by King sley and others. There is no evidenc e in the rec ord of this case to ref ute that testimony to cre ate a fac tual issue. The result simply is that a crime occur red and

cover ag e is not applicable

. Although Wil liams claimed no involvement, his involvement is
not the issue, nor is the fac t that a jury found Wil liams liable for damage s for neg lige nt entrustment. The crime takes this case out of the purview of cover ag e and summary judgme nt ag ainst Wi lliams must be af firmed.

¶ 38 I I I . Wil liams’s Third Party Claim ¶ 39 Wil liams arg ues that Hail Hac king was defic ient in obtaining proper liability insurance

as require d under the Chicag o Municip al Code. This arg ument, which is unsupported by leg al pre cedent, is unpersua sive. The Municipal Code require s a minimum policy of $350,000 per occurr ence to cover injuries resulting from occurre nces ca u s ed b y or arising
out of the operation or use of the licensee ’s vehicles. Chicag o Municipal Code § 9-112-220 (ame nded J u l y 12, 1990). To hold that a crime committed by a third party falls under the “oper ation or use” clause would be to “extend the insurance cover ag e bey ond the bounds of

rea son.” Pfiel
, 304 I ll. App. at 837. An injury resulting from an assault inside the vehicle is
not a normal or reasonable conseque nce of the use or ope ration of a vehicle. Pfiel
, 304 I ll. App. 3 d at 838. The Municipal Code does not require licensee s car ry policies requiring
any thing bey ond insuring ag ainst occur renc es arising out of the normal opera tion or use of vehicles. Hail Hac king did obtain a policy with Americ an Country that provided liability

cover ag e for injuries cause d by acc idents resulting from the owner ship, maintenanc e, or use of cove red ve hicles. Ther efor e, we aff irm the holding of

the trial cour

t.

-10-¶ 40 CONCL USI ON

¶ 41 For the above rea sons, we find that the trial court’s holdings must be aff irmed. The trial court properly g rante d summa ry j u d gm en t to Americ an C ountry and Hail Hac king had no duty under the Municipal Code to provide g reater insura nce c overa g e than it did.

¶ 42 Affir

med.

-11-