ILLINOIS OFFICIAL REPORTS

Appellate Court

American Country Insurance Co. v. Chicago Carriage Cab Corp.,

2012 IL App (1st) 110761

Appellate Court

Caption

AMERICANCOUNTRYINSURANCECOMPANY, Plaintiff-Appellee,

v. CHICAGO CARRIAGE CAB CORPORATION, AKINWUMI

WILLIAMS, CHICAGO ELITE CAB CORPORATION, and STEVE

COX,Defendants-Appellants(AkinwumiWilliams,Third-PartyPlaintiffAppellant; Hail Hacking Corporation, Third-PartyDefendant-Appellee).

 District & No. First District, Sixth Division

Docket Nos. 1-11-0761, 1-11-0833 cons.

Filed August 17, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The insurer of a taxi company had no duty to indemnify a passenger who

hailed an insured taxi only to have the driver stop the cab and assist a

third person in robbing and battering the passenger, since the passenger’s

injuries “did not arise out of the ownership, maintenance, or use of an

auto,” as provided by the policy at issue.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-CH-7807; the

Hon. Nancy J. Arnold, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Richard L. Berdelle, Jr., of Richard L. Berdelle, Jr., P.C., of Chicago, for

appellants.

Law Offices of Maxwell H. Brusky, of Batavia, for appellees.

Panel PRESIDING JUSTICE GORDON delivered the judgment of the court,

with opinion.

Justices Lampkin and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 The trial court granted summary judgment in favor of plaintiff American Country

Insurance Company in its action seeking a declaration that it had no duty to indemnify the

passenger of an insured taxi for injuries sustained in the course of a robbery. In a previous

tort suit, where the report of proceedings was included in the record of this proceeding, Steve

Cox, the taxi passenger and one of the defendants in this declaratory action, testified that he

gave the taxi driver directions to his destination, only to observe the driver ignore the

directions and turn the wrong way down a one-way street. The driver stopped the taxi and

a masked man entered, robbing and battering Cox with the participation of the driver.

¶ 2 Cox filed a tort complaint against Akinwumi Williams, the lessee of the taxi and a codefendant in this action, which alleges that the driver was Williams’s friend, to whom

Williams had loaned the taxi and who had no drivers license. The jury found Williams liable

for negligent entrustment and awarded Cox damages. Hail Hacking Corp., the third-party

defendant in this case, owned the medallion to the taxi and was the direct insured of the

American Country policy. Williams filed a third-party complaint against Hail Hacking,

arguing that, should the insurer deny coverage or pay less than the judgment entered in the

underlying tort action, Hail Hacking should pay any portion of the judgment not satisfied by

the insurer because the lease agreement required Hail Hacking to obtain liability insurance

coverage to the lessee of the taxi. The trial court granted summary judgment to American

Country and dismissed Williams’s third-party complaint against Hail Hacking for failure to

state a cause of action. Both Williams and Cox appeal. We affirm.

¶ 3 BACKGROUND

¶ 4 This litigation involved a taxi driven by Kingsley Njemanze (Kingsley). The taxi held

medallion number 4855 and was leased to the defendant/third-party plaintiff, Akinwumi

Williams, by Chicago Carriage Corporation and Chicago Elite Cab Corporation, additional

codefendants in the declaratory action. Williams allowed Kingsley to drive the taxi on the

night in question. Hail Hacking Corporation, the third-party defendant, held the license and

medallion for the taxi, and procured the insurance policy covering the taxi from the plaintiff,

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American Country Insurance Company.

¶ 5 Steve Cox’s claims for assault and battery and negligent entrustment against Williams

proceeded to a jury trial. Before the jury, Cox testified that on December 29, 2005, at

approximately 2 a.m., he hailed a taxi at the corner of Randolph and Halsted Streets in

Chicago. Cox described the vehicle as a maroon Ford Crown Victoria with its taxi dome

illuminated. The taxi contained license and registration for a driver, alongwith a photograph.

Cox instructed the driver to proceed north on Halsted to Milwaukee Avenue. Cox could hear

the driver talking on a cell phone in a foreign language. Inexplicably, the driver turned the

wrong way down Wayman Street, approximately three blocks before reaching Milwaukee

Avenue. After turning down Wayman, the driver stopped the taxi in an intersecting alley.

When the driver stopped the taxi, Cox spoke to the driver, but the driver did not respond. A

moment later, a man wearing a ski mask entered the backseat of the taxi with Cox and stated,

“This is a robbery.” Cox began struggling with the masked man in the backseat of the

vehicle.

¶ 6 Following the crime, Cox identified Williams from a photo lineup as having some

involvement in the incident. Cox explained that he “recognized him from the night of the

incident.” He recognized Williams from the taxi license photo and testified he believed the

masked robber was Williams based on the same build and complexion. Cox identified

Kingsley in an in-person lineup as the taxi driver on the night of the robbery and assault. Cox

identified the taxi as cab number 4855.

¶ 7 Williams testified that on December 29, 2005, he held a chauffeur’s license. He had been

driving a taxi for Chicago Carriage Cab Company since 2003. Williams testified that he

leased a taxi on a weekly basis. He signed a lease from December 24, 2005, to December 31,

2005, for cab number 4855, a maroon Ford Crown Victoria. Williams testified he knew that,

pursuant to both the lease and his chauffeur’s license, he was the only one lawfully permitted

to operate the taxi.

¶ 8 Williams testified that he nevertheless let his friend Kingsley drive the taxi during the

lease period. Williams drove during the day, from 6 a.m. to 6 p.m., and allowed Kingsley to

drive at night in exchange for $200 per week. Williams knew that Kingsley’s driver’s license

was suspended. Williams left his photo and license posted in the taxi when Kingsley drove

it, intending for passengers to think that someone with a valid license was driving. Williams

testified that Kingsley drove the taxi on the night of the incident. Williams testified that he

was not involved in the robbery of Cox; that he was at home when it occurred.

¶ 9 Detective Jody Longos, a Chicago police detective, testified and confirmed that Cox

identified Williams andKingsleyin separate lineups. AfterCox was unable to serveKingsley

with the tort complaint, Kingsleywas dismissed as a defendant in the underlying lawsuit and

is not involved in this appeal.

¶ 10 At the close of all the evidence in the jury trial, the trial court entered directed verdicts

in favor of the two cab companies. At the jury instructions conference, with Williams as the

only remaining defendant, Cox and Williams disagreed on how the jury should be instructed.

The claim in count I was labeled “Negligence,” but alleged that Cox was assaulted, battered,

and robbed in the rear of the taxi and on the street by an unknown person in a ski mask or

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Williams in a ski mask, and others. The claim in count II was labeled “Negligent

Entrustment,” and alleged that Williams knew or should have known that Kingley’s license

was invalid and that he would use the taxi in a manner that exposed others to unreasonable

risks. The disagreement over the instructions concerned count I. Williams claimed it asserted

an intentional tort or willful and wanton conduct. Cox argued that it alleged negligence. The

trial court determined that negligence instructions on count I were appropriate. The jury was

instructed as follows:

“The plaintiff claims that he was injured and sustained damage and defendant[ ]

[was] negligent in one or more of the following respects: (A) failed to exercise the

highest degree of care to protect his passengers from the danger of injury from assault of

which he knew or should have anticipated from the facts and circumstances known to

[him] by the passenger was traveling and alighting from the taxicab; (B) failed to

exercise the highest degree of care to protect his passenger from assault, abuse, or

intentional harm to [him] by an employee of the carrier then on duty; (C) failed to

exercise the highest degree of care in selecting a place for the plaintiff to alight consistent

with the mode of conveyance ***; (D) knew or should have known that alighting

plaintiff in the aforementioned area would place him in danger of being injured; (E)

knew or should have known that Kingsley was to use Chicago Carriage Cab no. 4855 in

a mannerinvolving unreasonable risk of physical harm to others; and (F) knew or should

have known that Kingsley was unfit to operate Chicago Carriage Cab no. 4855 was [sic]

incompetent, inexperienced, unqualified, and reckless. The plaintiff further claims that

one or more of the foregoing was a proximate cause of his injuries.”

¶ 11 The court instructed the jury on negligent entrustment in count II as follows:

“In Count II, Steve Cox seeks to recover damages from the defendant, Mr. Williams,

for negligent entrustment. In order to recover damages, the plaintiff has the burden of

proving, first, that Kingsley was incompetent, inexperienced, or reckless driver; second,

that Mr. Williams knew or should have known that Kingsley was incompetent,

inexperienced, or reckless driver; third, that Mr. Williams entrusted his vehicle to

Kingsley; and fourth, that the plaintiff was injured; and fifth, that the incompetency,

inexperience, or recklessness of Kingsley as a driver was a proximate cause of plaintiff’s

injury.”

¶ 12 The jury returned a verdict in favor of Williams on count I and against Williams on count

II. It awarded Cox $275,585.08 in damages. On May 18, 2010, the court denied Williams’s

posttrial motion for judgment notwithstanding the verdict. Williams did not appeal.

¶ 13 On February23, 2010, American Countryfiled its declaratoryjudgment action to absolve

it of any obligation to pay the damages the jury awarded to Cox. American Country alleges

that the injuries Cox sustained were not covered by the policy issued to Hail Hacking, which

covered Williams as lessee of the taxi as well. The complaint asserted five counts, only one

of which is pertinent to the appeal before us. Count III asserted American Country owed no

duty to indemnify Williams because the injuries to Cox “did not arise out of the ownership

maintenance or use of an auto,” as provided by its policy. We set out the controlling

provision:

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“Section II–LIABILITY COVERAGE

A. COVERAGE

We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily

injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and

resulting from the ownership, maintenance or use of a covered ‘auto.’

We have the right and duty to defend any ‘insured’ against a ‘suit’ asking for such

damages. However, we have no duty to defend any ‘insured’ against a ‘suit’ seeking

damages for ‘bodily injury’ or ‘property damage’ to which this insurance does not

apply.”

¶ 14 Williams and Cox each filed an answer to the declaratory action complaint denying that

American Country owed no duty to indemnify. American Country moved for summary

judgment on count III of its complaint. Williams and Cox filed responses opposing it. After

hearing oral argument, the trial court found no questions of material fact arose under the

policy. It granted summary judgment to American Country, finding it had no duty under its

policy to indemnify Williams as lessee.

¶ 15 Williams also filed a third-party complaint against Hail Hacking, alleging that if the

policy it procured from American Country did not indemnify Williams for the negligencebased judgment entered in favor of Cox, then Hail Hacking breached its lease contract with

Williams to provide comprehensive insurance coverage for the leased taxi. Williams’s thirdparty complaint was consolidated with the declaratory judgment action. The trial court

dismissed Williams’s third-party complaint for failure to state a cause of action against Hail

Hacking. Williams appeals both judgments. Cox appeals the grant of summary judgment in

favor of American Country.

¶ 16 ANALYSIS

¶ 17 Cox argues that a material question of fact exists regarding whether his injuries arose out

of the ordinary use of the taxi as covered by the American Country policy. Alternatively, Cox

and Williams both argue that the facts show that Kingsley was negligent in allowing Cox to

be attacked and therefore American Country was not entitled to summary judgment. In the

alternative, Williams argues that the Chicago Municipal Code (the Code) requires insurance

coverage broader than the coverage provided by the policy at issue in this case and, therefore,

the policy here should be read more broadly to conform to the Code, which would trigger

coverage for the damages sustained byCox. Chicago Municipal Code § 9-112-220 (amended

July12, 1990). With regard to the third-partyclaim, Williams argues that Hail Hacking failed

to obtain a policy that conformed with the requirements of the Code and consequently

breached the lease contract, which should make Hail Hacking responsible for the judgment

won by Cox.

¶ 18 I. Jurisdiction

¶ 19 We first note the trial court’s order did not address all the claims raised in the parties’

motions pending before it, which compels a review of our jurisdiction to decide this appeal.

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American Country filed its complaint seeking declaratory judgment that it owed no duty to

indemnify Williams for the damages awarded to Cox. The complaint asserted five counts,

with counts I, II, and IV voluntarily dismissed before the circuit court. The trial court granted

summary judgment to American Country on count III, which alleges it owed no duty to

indemnify Williams under the terms of the policy. Count V alleges that, in the event it had

a duty to indemnify Williams, Williams relieved American Country of that duty when

Williams failed to provide timely notice of Cox’s claims.

¶ 20 As we detailed above, Williams filed an answer and counterclaim. The counterclaim

asserted three counts. Count I alleges American Country breached the insurance contract by

its refusal to indemnify Williams. Count II alleges a violation of the Illinois Insurance Code

(215 ILCS 5/155 (West 2006)), based on the same refusal of American Country to pay the

judgment. Count III alleges American Countryacted in bad faith by not offering to settle with

Cox within the policy limit of $350,000. All three counts sought an order compelling

American Countryto paythe judgment Cox won against Williams and to reimburseWilliams

for his attorney fees. Later, Williams filed his third-party complaint against Hail Hacking,

alleging that Hail Hacking should pay the judgment in the event American Country is not

ordered to do so. The trial court granted summary judgment to American Country on count

III of its declaratory judgment action and dismissed Williams’s third-party complaint against

Hail Hacking. Left undecided were the counterclaim Williams filed against American

Country and count V of American Country’s complaint. We must determine whether these

unresolved issues defeat our jurisdiction.

¶ 21 We have jurisdiction to review only orders that are “final and appealable.” R.W.

Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998). “An order is final and

appealable if it terminates the litigation between the parties on the merits or disposes of the

rights of the parties, either on the entire controversy or a separate part thereof.” R.W.

Dunteman, 181 Ill. 2d at 159. Whether an order disposing of fewer than all claims pending

is appealable is controlled by Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006). “[A]n

appeal may be taken from a final judgment as to one or more but fewer than all *** claims

only if the trial court has made an express written finding that there is no just reason for

delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. Jan. 1, 2006). A

claim is “any right, liability or matter raised in an action.” Marsh v. Evangelical Covenant

Church, 138 Ill. 2d 458, 465 (1990). In the context of summary judgment, a dismissal order

that does not dispose of all claims can be appealed if “ ‘the order granting summaryjudgment

*** necessarily entailed the disposition of the issues raised in the counterclaim as well.’ ”

1350 Lake Shore Associates v. Casalino, 352 Ill. App. 3d 1027, 1034 (2004) (quoting Lynch

Imports, Ltd. v. Frey, 200 Ill. App. 3d 781, 785 (1990)). In such a case, a court of review has

jurisdiction even without Rule 304(a) language. 1350 Lake Shore Associates, 352 Ill. App.

3d at 1034 (citing Lynch Imports, Ltd., 200 Ill. App. 3d at 785).

¶ 22 In this case, the trial court’s order did not include Rule 304(a) language but its grant of

summaryjudgment to American Countrynecessarilydisposed of all the issues raised in count

V of its declaratory judgment complaint and Williams’s counterclaim. 1350 Lake Shore

Associates, 352 Ill. App. 3d at 1034 (citing Lynch Imports, Ltd., 200 Ill. App. 3d at 785).

American Country’s complaint alleges that it was not obligated to indemnify Williams for

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several reasons. Williams’s counterclaim alleges that American Country was obligated to

indemnify him, again for several reasons. Although each pleading gave several bases for its

claims, each pleading focused on only one remedy: the duty to indemnify. When the trial

court ruled American Country owed no duty to indemnify as alleged in count III of its

declaratory action complaint, the court necessarily decided the indemnification in toto. The

other relief sought by Williams in his counterclaim of attorney fees was inextricably tied to

the declaratory judgment action. American Country owed no attorney fees once it was

absolved of a duty to indemnify. Though not all counts of pending pleadings were ruled

upon, the grant of summary judgment to American Country on count III of its declaratory

judgment complaint necessarily entailed the disposition of all issues raised in the two

pleadings. As a consequence, we have jurisdiction to decide this appeal.

¶ 23 II. Summary Judgment

¶ 24 Turning to the substantive arguments, Cox argues that material questions of fact remain

to render the grant of summary judgment to American Country erroneous. According to

Williams and Cox, the jury’s verdict finding Williams not liable for the assault and battery

means that Williams’s liability rests solely on his negligent conduct that gave rise to the

injuries sustained by Cox. They contend the jury’s finding of liability on negligent

entrustment means the occurrence was accidental in nature. To rebut this contention,

American Country points to the trial testimony that showed Kingsley was involved in the

attack. American Country contends the jury’s verdict should not be considered in deciding

whether it was entitled to summary judgment. In any event, it argues that Kingsley was

undeniably involved in the robbery and assault of Cox and his use of the taxi to commit the

crimes falls outside the ordinary use of an automobile, which bars coverage.

¶ 25 Summary judgment is appropriate when “the pleadings, depositions, and admissions on

file, together with affidavits, if any, show that there is no genuine issue as to anymaterial fact

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

(West 2008). In ruling on a summary judgment motion, a circuit court determines whether

issues of fact exist; it does not make factual determinations. Williams v. Manchester, 228 Ill.

2d 404, 417 (2008). In determining whether a question of fact exists, “a court must construe

the pleadings, depositions, admissions, and affidavitsstrictlyagainst the movant and liberally

in favor of the opponent.” Williams, 228 Ill. 2d at 417. Summary judgment is “a drastic

means of disposing of litigation” and thus should only be awarded when the moving party’s

right to judgment as a matter of law is “clear and free from doubt.” Williams, 228 Ill. 2d at

417. We review grants of summary judgment de novo. Williams, 228 Ill. 2d at 417. De novo

consideration means we perform the same analysis that a trial judge would perform. Khan

v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 26 Coverage under the American Country policy applies if the damages were “caused by an

‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ”

Generally, the negligent entrustment of a cab involves the “use of a covered auto” as

provided by the policy. The salient question is whether what happened to Cox that

commenced with the use of the taxi qualifies as an “accident” under the terms of the policy.

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The circuit court’s decision did not address this question; nor do the briefs of the parties shed

much light on this.

¶ 27 We keep in mind that Williams is the additional insured to Hacking Hail under the

American Country policy. To state the obvious, Kingsley, the driver, is not seeking liability

coverage under the policy. American Country’s argument of no duty to indemnify must be

based on the entire nature of the events that occurred. Williams’s involvement may be an

unresolved question of fact but Cox’s involvement is not.

¶ 28 Rather than address Williams’s involvement in the robbery and assault, the opposing

sides focus on Kingsley’s involvement. American Country maintains that Kingsley was an

active participant in the robbery. Cox and Williams maintain in this case that Kingsley was

an uninvolved driver who merely made a mistake in stopping the taxi in an unsafe location.

American Country discusses whether using a taxi as an instrument to perpetrate a crime is

“use of a covered auto.” On the other hand, Cox and Williams discuss whether the negligent

act of stopping in an unsafe area constitutes a “use of a covered auto.” We think both

arguments miss the mark. It is what happened to Cox that is dispositive. Williams’s role

cannot be ascertained on the record before us. We cannot simply substitute Williams for

Kingsley and conclude that Williams had a role in the robbery and assault because no other

conclusion can be drawn than Kingsley helped perpetrate the crimes based on Cox’s version

of events. Williams denied any involvement; his contention is that at worst he negligently

entrusted the taxi to Kingsley.

¶ 29 The question we are confronted with is whether mere proof by Cox that a crime was

committed with the “use of a covered auto” as a taxi should be resolved as a matter of law

to preclude coverage to one of the policy’s insureds found negligently responsible for the

damages suffered by the taxi passenger or whether the answer to that question should be

resolved by a trier of fact.

¶ 30 All parties cite three cases in which assaults arose out of incidents involving automobiles.

All three cases held that when criminal acts occurred that were related to an auto but outside

the realm of typical use of an auto, there was no coverage. SCR Medical Transportation

Services, Inc. v. Browne, 335 Ill. App. 3d 585 (2002); State Farm Mutual Automobile

Insurance Co. v. Pfiel, 304 Ill. App. 3d 831, 836-37 (1999); United States Fidelity &

Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533 (1994). Each case involved language

identical to the policy at issue here.

¶ 31 In SCR, driver Britton, an employee, was accused of sexual assault. The court concluded:

“In similar cases where injuries were caused by criminal assaults in and about a vehicle, but

were not caused by the vehicle itself, courts have held the injuries did not arise out of the

operation, maintenance, or ‘use’ of a vehicle and were not covered under an automobile

insurance policy.” SCR, 335 Ill. App. 3d at 588.

¶ 32 “A causal connection or nexus must exist between the accident or injury and the

ownership, use, or maintenance of the vehicle in order for the accident or injury to come

within the policy coverage.” SCR, 335 Ill. App. 3d at 589. “The mere fact that a vehicle is

the site of an injury or incident is insufficient to create a connection between the ‘use’ of the

vehicle and the injury so as to bring the injury within policy coverage.” SCR, 335 Ill. App.

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3d at 589. “[T]ort liability on the part of the insured establishes contractual liability on the

part of the insurer only where the policy affords coverage, and that determination is subject

to the rules of contract construction, and not tort principles.” (Internal quotation marks

omitted.) SCR, 335 Ill. App. 3d at 590. “Our analysis is concerned solely with whether the

insurance policy at issue provides coverage for SCR in defending the underlying lawsuit. We

do not look to negligence cases in assessing Empire’s duty to defend. Rather, we look only

at the relevant insurance policy provisions and compare them to the allegations in the

underlying complaint.” SCR, 335 Ill. App. 3d at 590. “In a declaratory judgment action, the

construction of an automobile insurance policy’s language is an issue of law, independent

of the ultimate issues to be resolved in the underlying tort action.” SCR, 335 Ill. App. 3d at

591.

¶ 33 In Pfiel, the court held that injuries from a negligent entrustment claim were not covered

by the policy. Pfiel, 304 Ill. App. 3d at 836-37. A teenager borrowed his parents’ van,

murdered a young girl inside, and drove to a desolate area to dispose of her body. Pfiel, 304

Ill. App. 3d at 832-33. The girl’s mother filed a claim against the parents for negligent

entrustment. Pfiel, 304 Ill. App. 3d at 832. Because the child’s criminal actions were not

“consistent with the inherent nature of the vehicle,” no causal nexus existed between the

typical use of a vehicle and the injuries. Pfiel, 304 Ill. App. 3d at 836. “ ‘Automobiles are an

indispensable part of many crimes, bank robberies for example, yet it would most certainly

be farfetched to say that these crimes result from the use of the automobile.’ ” (Emphasis in

original.) Pfiel, 304 Ill. 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

[the teenager] ‘used’ the vehicle to injure [the victim] was attenuated from the actual

legitimate purpose of an automobile.” Pfiel, 304 Ill. App. 3d at 837. Therefore, the injuries

were not covered by the policy. Pfiel, 304 Ill. App. 3d at 838.

¶ 34 Jiffy Cab, 265 Ill. App. 3d 533, made clear that the inquiry must focus on the driver’s

actions even in a case against a third party. In Jiffy Cab, a negligent hiring case, the court

stated, “[C]ourts will look to the acts of the individual who was hired in determining whether

coverage exists.” Jiffy Cab, 265 Ill. App. 3d at 541. Therefore, the actions of the driver, not

necessarily the insured party or the defendant, are the key to determining coverage. Jiffy Cab,

265 Ill. App. 3d at 541. For coverage to exist, the driver’s actions must conform to the typical

use of an automobile. Jiffy Cab, 265 Ill. App. 3d at 541. Kingsley and Cox’s involvement is

absolutely material to the disposition of the case.

¶ 35 In the underlying case, Cox alleges in his complaint that he was assaulted, battered, and

robbed in the taxicab. Cox’s testimony is provided in the underlying case and included in the

summary judgment proceeding. As a result of that testimony, he is judicially estopped from

now claiming that a material issue of fact exists. Cox testified that Kingsley took him into

an area where he did not want to go, exited his cab and together with the other man who

arrived at the scene proceeded to beat and rob him. After the beating and robbery, Kingsley,

along with the other assailant returned to their respective vehicles and drove away, leaving

Cox lying in the street.

¶ 36 Since coverage here is determined based on the undisputed facts of the case, Cox cannot

now say that summary judgment was wrongfully decided because he is judicially estopped

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from presenting a new position in a legal proceeding contrary to a position that was

successfully argued in an earlier legal proceeding. Johnson v. ExxonMobil Corp., 426 F.3d

887, 891 (7th Cir. 2005). If a party has (1) taken two positions (2) that are factually

inconsistent (3) in separate judicial or quasi-judicial proceedings, and (4) intended for the

trier of fact to accept the truth of the facts alleged, and (5) succeeded in the first proceeding

and received some benefit from it, the party may be judicially estopped from asserting the

second factually inconsistent position. Gambino v. Boulevard Mortgage Corp., 398 Ill. App.

3d 21, 60 (2009) (quoting Barack Ferrazzano Kirshbaum Perlman &Nagelberg v. Loffredi,

342 Ill. App. 3d 453, 460 (2003)). The Seventh Circuit has specifically found that the

doctrine of judicial estoppel is meant to discourage lying because it forces parties to pick an

assertion and stick with it. Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006). The

court in Jiffy Cab concluded that the scope of coverage provided under an auto liability

insurance policy must end at some point, and the perpetration of a crime in or about an auto

represents a point well beyond the line that must reasonably be drawn. Jiffy Cab, 265 Ill.

App. 3d at 541. Therefore, Cox’s injuries “did not arise out of the ownership, maintenance,

or use of an auto” as provided by the policy at issue here. As a result, the trial court’s

summary judgment against Cox is affirmed.

¶ 37 The only question that now remains is whether the summary judgment against Williams

is subject to a factual determination. Cox testified in the underlying case of an assault and

battery perpetrated by Kingsley and others. There is no evidence in the record of this case to

refute that testimony to create a factual issue. The result simply is that a crime occurred and

coverage is not applicable. Although Williams claimed no involvement, his involvement is

not the issue, nor is the fact that a jury found Williams liable for damages for negligent

entrustment. The crime takes this case out of the purview of coverage and summary

judgment against Williams must be affirmed.

¶ 38 III. Williams’s Third Party Claim

¶ 39 Williams argues that Hail Hacking was deficient in obtaining proper liability insurance

as required under the Chicago Municipal Code. This argument, which is unsupported by

legal precedent, is unpersuasive. The Municipal Code requires a minimum policy of

$350,000 per occurrence to cover injuries resulting from occurrences caused by or arising

out of the operation or use of the licensee’s vehicles. Chicago Municipal Code § 9-112-220

(amended July 12, 1990). To hold that a crime committed by a third party falls under the

“operation or use” clause would be to “extend the insurance coverage beyond the bounds of

reason.” Pfiel, 304 Ill. App. at 837. An injury resulting from an assault inside the vehicle is

not a normal or reasonable consequence of the use or operation of a vehicle. Pfiel, 304 Ill.

App. 3d at 838. The Municipal Code does not require licensees carry policies requiring

anything beyond insuring against occurrences arising out of the normal operation or use of

vehicles. Hail Hacking did obtain a policy with American Country that provided liability

coverage for injuries caused by accidents resulting from the ownership, maintenance, or use

of covered vehicles. Therefore, we affirm the holding of the trial court.

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¶ 40 CONCLUSION

¶ 41 For the above reasons, we find that the trial court’s holdings must be affirmed. The trial

court properly granted summary judgment to American Country and Hail Hacking had no

duty under the Municipal Code to provide greater insurance coverage than it did.

¶ 42 Affirmed.

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