SECOND DIVISION 

									mAMay 7, 2002

No. 1-00-2548

TODD S. COHS and JENNIFER COHS, 

	Petitioners-Appellants,

	v.

WESTERN STATES INSURANCE COMPANY,

	Respondent-Appellee.		 	

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Appeal from the

Circuit Court of

Cook County

98 CH 10193

Honorable

Stephen A. Schiller,

Judge Presiding.

	JUSTICE McBRIDE delivered the opinion of the court:

	This appeal arises out of a declaratory judgment action in which the trial court granted summary judgment in favor of

respondent-appellee, Western States Insurance Company (Western). 

In their complaint, petitioners-appellants, Todd and Jennifer

Cohs, sought a declaration that an insurance policy issued by

Western to DRW Services, Inc. (DRW), Todd Cohs' employer,

provided Cohs with underinsured motorist coverage for personal

injuries he sustained while at work.  The parties each moved for

summary judgment on the issue of coverage.  On June 28, 2000, the

trial court granted Western's summary judgment motion and denied

the summary judgment motion made by the Cohs.  The trial court

found there was not a sufficient nexus between Cohs' use of the

insured vehicle and the accident to trigger coverage under the

underinsured endorsement to the Western policy.  The Cohs

appealed.

	The sole issue on appeal is whether the trial court erred in granting Western's motion for summary judgment.  Our standard of

review on summary judgment dispositions is de novo.  Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349, 701 N.E.2d 493 (1998). 

	The following facts are undisputed.  In his deposition, Todd

Cohs testified that he worked as a service technician for DRW. 

DRW was engaged in the business of assisting gasoline service

stations with distributing gasoline from inside the service

station, to underground tanks, to pumps where the customers

received fuel.  On September 23, 1996, the record indicates that

Cohs was sent by DRW to service Ron's Marathon gas station

located at 1195 Rohlwing in Elk Grove Village, Illinois.  He was

instructed to install and program a tank monitoring system for

the four fuel tanks at Ron's Marathon.  The tank monitoring

system measured the volume of fuel in the gas tank and also

detected if the tank was leaking. 

	Cohs testified that he drove to the station in a Chevy van

that had been modified by DRW.  Specifically, the modifications

included dividers and shelving that were installed into the vans

for the purpose of holding certain parts.  Also, the vans were

equipped with hinged doors on the side and in the rear.  The

vans, including the one driven by Cohs, were lettered with a DRW

logo on each side.  

	When Cohs arrived at the station, he pulled up to the

premium gas tank, removed the manhole cover or cap, and installed  a probe into the tank.  In order to insert the  probe, Cohs

stated that he used a variety of hand tools that he retrieved

from his van.  Once the first probe was inserted, he then moved

the van to work on the remaining three tanks, which were within

close proximity to one another.  He then installed new probes

into the remaining three tanks.  He utilized the same type of

hand tools from the van that he had used on the first tank.  Cohs

testified that when he had inserted the probes into the remaining

three tanks, he completed the requisite wiring work with respect

to those tanks.  He then went inside the service station to begin

programming a computer system that showed the gas station what

tank was being monitored and how low the fuel was with respect to

that particular tank. 

	Cohs realized that he needed to return to the premium tank

to obtain a "rep rate."  Such a task required reopening the

premium fuel tank monitor cover.  Cohs testified that he did not

move the van and walked back to the premium tank, which was

located about 12 feet away from his vehicle.  After he had gone

over to the tank, he stated that he needed a "seal pack" and

returned to his van to obtain the part.  He then returned to the

tank.  At that point, he went down on one knee, reopened the

premium tank, and reached down into the hole about 12 to 15

inches.  Within approximately one minute from the time he moved

away from the van, he was struck by a motor vehicle owned and

operated by Victor Ceron.  Ceron was an underinsured motorist.

	In his affidavit, Cohs stated that he walked approximately

fifteen feet from the right rear corner of the van to the premium

fuel tank monitor cover, knelt down, and used his tools to remove

the tank cover.  He also stated that it was less than two minutes

between obtaining the seal pack from the van and being struck by

Ceron.

	The insurance policy, number WDS7-054243-21 (Western

Policy), was issued by Western to DRW for the period November 16,

1995, to November 15, 1996.  The Illinois underinsured motorist

coverage endorsement of Western Policy stated, in relevant part:

		"A. COVERAGE

			1.	We will pay all sums the 'insured' is legally entitled to recover as

compensatory damages from the owner

or driver of an 'underinsured motor

vehicle.'  The damages must result

from 'bodily injury' sustained by

the 'insured' caused by an

'accident.'  The owner's or

driver's liability for these

damages must result from the

ownership, maintenance or use of

the 'underinsured motor vehicle.'" 

	The endorsement also defined, in pertinent part:

		"B.   WHO IS AN INSURED

			1.  You

						* * *

					3.  Anyone else 'occupying' a covered

'auto' or a temporary substitute

for a covered 'auto.' ***.

						* * *

		F.  ADDITIONAL DEFINITIONS

						* * *

					2.  'Occupying' means in, upon, getting

in, on, out or off."

As we noted above, the trial court entered summary judgment in

favor of Western on the basis that it was not possible to

conclude that the injury to Cohs arose out of the use of the

vehicle.  We now address whether the summary judgment order

entered below was proper.  

	Before doing so, we note that in their opening briefs, the parties suggested that the issue to be decided on appeal was

whether Cohs was using the insured van at the time of the occurrence.  Neither party addressed whether Cohs was occupying the vehicle covered by the Western Policy endorsement.  As a result of this deficiency, the parties were ordered to file

supplemental briefs on the issue of whether Cohs was "occupying"

the van at the time of the accident.

	At the hearing below, plaintiff's counsel focused primarily

on the liability section in the principle Western Policy, which states:  

		"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'." 

	In their complaint, the Cohs also set forth the coverage section in the underinsured motorist endorsement to the Western

Policy, referred to above, which states that, "The owner's or

driver's liability must result from the ownership, maintenance, 

or  use  of  the  'underinsured  motor vehicle.' "  The trial

court also focused on this language when it stated, "[a]nd most

vehicle policies that I have read use the 'arising out of the use

of language.'"  We note however that the underinsured motorist

endorsement in the Western Policy provides that the "driver's

liability must result from the ownership, maintenance, or use of

the 'underinsured motor vehicle.'" (Emphasis added.)  Our reading of this provision indicates that it has nothing to do with how

Cohs, the insured, was using his van at the time of the accident. 

Instead, this language clearly applies to the liability of the

driver using the underinsured motor vehicle.  Here, that vehicle

was the one driven by Victor Ceron.  As a result, the arguments

and authorities relied upon by both parties in their original briefs are not dispositive of the issue on appeal.

	We determine that the correct question for purpose of

determining coverage under the underinsured motorist endorsement

is whether Cohs was "occupying" the van within the meaning of the Western Policy at the time of the accident.  This is the language

that we find triggers coverage for Cohs.  If Cohs was occupying

the vehicle as it is defined in the Western Policy, then summary

judgment should have been granted in his favor.  If, on the other

hand, Cohs was not occupying the vehicle at the time of the

collision, then summary judgment was appropriately entered in

favor of Western.  The record indicates that although this

question was addressed by Western in the summary judgment

pleadings below, it was not addressed by either party until this

court ordered the parties to do so.  In any event, the definition

of "occupying" contained in Western Policy endorsement has been

previously addressed by the Illinois courts.  See Mathey v. Country Mutual Insurance Co., 321 Ill. App. 3d 805, 814, 748 N.E.2d 303 (2001); Greer v. Kenilworth Insurance Co., 60 Ill. App. 3d 22, 25, 376 N.E.2d 346 (1978); Salinas, v. Economy Fire & Casualty Co., 43 Ill. App. 3d 509, 510, 357 N.E.2d 556 (1976); Allstate Insurance Co. v. Horn, 24 Ill. App. 3d 583, 590, 321 N.E.2d 285 (1974).

	In Greer, the plaintiff-insured was 10 to 15 feet away from the insured vehicle when she was struck by an uninsured motorist.

The Greer court evaluated policy language similar to the Western Policy applicable here.  In Greer, the policy contained uninsured motorist coverage for the insured while that person was

"occupying an insured automobile."  Greer, 60 Ill. App. 3d at 23.  "Occupying was defined as 'in or upon, entering into or alighting

from' the automobile."  Greer, 60 Ill. App. 3d at 23.   

	The Greer court found the policy language to be unambiguous because the words quoted above were ordinary and common words. 

Greer, 60 Ill. App. 3d at 25; Mathey, 321 Ill. App. 3d at 811.  The court further held that "the necessary elements for

imposition of liability upon the insurer are the existence of

some nexus or relationship between the insured and the covered

automobile and, in addition, either actual or virtual physical

contact with the insured vehicle."  Greer, 60 Ill. App. 3d at 25.  This test was recently applied by this court in Mathey, 321 Ill. App. 3d at 812, and we will implement it in the instant case. 

	Here, we conclude that a nexus existed between the insured,

Cohs, and the covered automobile.  The record makes clear that

Cohs drove his van to Ron's Marathon in the course of his

employment with DRW.  While installing the tank monitors, the

evidence demonstrated that Cohs constantly walked to and from the

van to obtain the parts, tools, and equipment needed. 

Additionally, Cohs' affidavit and deposition testimony establish

the existence of a nexus between Cohs and the insured vehicle.

	Our analysis does not end there, however, because we must

determine whether Cohs was in actual or virtual contact with his van at the time of the accident.  As we noted above, Cohs stated

in his affidavit that he was approximately 15 feet away from the

van at the time of the accident.  He further stated that it was

less than two minutes between getting the seal pack from his van

and the time he was run over by Victor Ceron.  In his deposition

testimony, Cohs said that his van was roughly 12 feet from where

the accident took place.  He also testified that only one minute

had elapsed between the time he obtained the seal pack from his

van and the moment he was hit.

	We observe that there are discrepancies between the facts

alleged in Cohs' affidavit and his deposition testimony. 

Regardless, we conclude that Cohs lacked the requisite contact

with the insured vehicle to trigger coverage pursuant to the

underinsured motorist endorsement to the Western Policy. 

	As we noted in Greer above, the plaintiff maintained an automobile insurance policy that provided coverage for injuries

caused by an uninsured motorist wherever she happened to be. 

This coverage was excess or secondary in that it only applied to

the extent that any other policy available to plaintiff had been

exhausted.

	The plaintiff and her coworker, Hannah Swanson, took turns

driving each other to work.  Swanson carried automobile insurance

with Aetna Life and Casualty Company (Aetna).  The Aetna policy

contained uninsured motorist coverage for any person occupying an

insured vehicle.  "Occupying" in that policy was defined as, " 'in or upon, entering into or alighting from' the automobile." 

	While returning from work, the plaintiff was a passenger in

Swanson's car when it was hit by another vehicle.  After the

accident, Swanson stopped her vehicle on the right-hand shoulder

of an exit ramp.  The driver of the other vehicle stopped on the

opposite shoulder.  The plaintiff, Swanson, and the other driver

then inspected the damages to Swanson's vehicle.  Finding no

apparent damage, the three elected to cross the ramp to view

damage to the other vehicle.  While waiting to cross the ramp,

the plaintiff stood about 10 to 15 feet from the rear of

Swanson's vehicle.  At that time, she was struck by an uninsured

motorist.  She made no contact with Swanson's car.

	In the trial court, the plaintiff filed separate actions for

declaratory judgment against her own insurer and Aetna seeking

declarations that each insurer owed her coverage under the

uninsured motorist provision in their respective policies.  The

insurers moved for summary judgment.  The trial court granted

Aetna's motion on the basis that the plaintiff was not an

occupant of the insured vehicle at the time of injury and denied

the motion of the plaintiff's insurer.  Plaintiff's insurer

appealed.

	As we noted above the appellate court in Greer held that the  policy language at issue was not ambiguous.  Greer, 60 Ill. App. 3d at 25.  It also established two elements necessary for the imposition of liability upon the insurer: (1) the existence of some nexus between the insured and the covered automobile; and

(2) either actual or virtual physical contact with the insured

vehicle.  Greer, 60 Ill. App. 3d at 25.  

	The appellate court found that the first element had been

satisfied because the plaintiff was a passenger in the insured

automobile.  However, it found that the second element had not

been met because the fact that the plaintiff was 10 to 15 feet

away from the insured vehicle at the time she was struck amounted

to a "total absence of contact between the claimant and the

insured vehicle."  Greer, 60 Ill. App. 3d at 25-26.  As a result, the Greer court found that the trial court's ruling in favor of Aetna was proper.  Greer, 60 Ill. App. 3d at 26.    

	Similarly, in Horn, cited above, the appellate court addressed the issue of whether the claimant was occupying the

vehicle for purposes of coverage.  Horn was a passenger in a

friend's vehicle that was insured by Allstate Insurance Company

(Allstate).  Horn made a claim for coverage under the uninsured

motorist provision in the Allstate policy.  The accident occurred

when Horn's friend parked the insured vehicle on the northeast

side of Clybourn Avenue, a six-lane street in Chicago.  The two

exited the vehicle and crossed the street and entered a

restaurant.  Upon leaving the restaurant, Horn attempted to cross

the street and was struck by an uninsured motorist approximately

24 feet from the insured vehicle.  The appellate court held that

"one who is 24 feet from a vehicle is not 'entering into' it, and therefore not 'occupying' it, within the meaning of the policy." 

Horn, 24 Ill. App. 3d at 590.     

	We find the instant case is analogous to the facts in Greer and Horn.  While we have determined that Cohs had a nexus with the insured vehicle, we conclude that the second prong set out in

Greer, requiring actual or virtual physical contact with the insured vehicle, was not met.  

	Cohs stated in his affidavit that he was 15 feet away from

his van and that he was struck by the underinsured motorist

within two minutes of getting the seal pack from the van.  In his

deposition, Cohs testified that he was 12 feet from the van and

that he was hit by Ceron within one minute after leaving it.  In

Greer, the claimant was between 10 to 15 feet away from the insured vehicle, and in Horn, the claimant was 24 feet away from the insured auto.  Here, Cohs was between 12 and 15 feet away

from the insured van.  We therefore conclude that Cohs lacked the

actual or virtual contact with the insured vehicle required for

invoking the underinsured motorist provision in the Western

Policy.

	Plaintiff suggests that the definition of an insured in the

underinsured motorist endorsement is unduly restrictive when

compared to the definition of who qualifies as an insured

contained in the liability coverage section.  Plaintiff bases

this argument  on section 143a-2(1) of the Illinois Insurance

Code, which requires that carriers offering liability coverage must provide underinsured motorist coverage "in an amount equal

to the insured's bodily injury liability limits unless

specifically rejected by the insured."  215 ILCS 5/143a-2(1)

(West 1998).  We agree with plaintiff that section 143a-2(1)

requires that the amount of underinsured motorist coverage be

equal to the amount of liability coverage provided.  Mijes v. Primerica Life Insurance Co., 317 Ill. App. 3d 1097, 1103, 740 N.E.2d 1160 (2000).  However, we disagree with plaintiff that the

definition of an insured in the underinsured motorist endorsement

was unduly restrictive. 

	Plaintiff contends that this case is analogous to Doxtater v. State Farm Mutual Automobile Insurance Co., 8 Ill. App. 3d 547, 290 N.E.2d 284 (1972).  In Doxtater, the appellate court held that an uninsured motorist exclusion in that policy, which excluded bodily injury coverage to an insured while occupying a vehicle not declared in the policy, was unduly restrictive under section 143a of the Insurance Code.  Doxtater, 8 Ill. App. 3d at 552.  Doxtater is not analogous to this case.  In the instant case, it is undisputed that the van at issue was covered by the

Western Policy.

	In addition, Doxtater was referred to by the supreme court in Heritage Insurance Co. of America v. Phelan, 59 Ill. 2d 389, 395, 321 N.E.2d 2257 (1974).  The court however declined to determine Doxtater's "correctness" because of its inapplicability to the facts in that case.  Phelan, 59 Ill. 2d at 395.  Nevertheless, the supreme court stated, section 143a does not place "any restriction on the right of the parties to an

insurance contract to agree on which persons are to be the

'insureds' under an automobile insurance policy."   Phelan, 59 Ill. 2d at 395. 

	We do not agree with plaintiff that the word "occupying" used in the Western Policy endorsement for the purpose of

defining an insured is unduly restrictive.  Plaintiff suggests

that the broader definition, that the driver's liability must

result from the "use" of the underinsured motor vehicle,

contained in the liability section governs under section 143a. 

However, plaintiff fails to provide any authority that the

uninsured motorist statute prohibits parties from defining who

are insureds under a particular insurance policy.  Because our

supreme court has provided that parties can designate who are

insureds without contravening the uninsured motorist statute, we

are unpersuaded by plaintiff's authority to the contrary from

other jurisdictions.  We therefore find that plaintiff was not an insured under the Western Policy endorsement because he was not

occupying the van at the time of the accident.

	Even if we accepted plaintiff's broader definition of "use"

of the underinsured vehicle set forth in the liability section of

the Western Policy, we determine that plaintiff was not using the

van when the injury occurred.  As the trial court noted, no nexus

existed between the use of the van and plaintiff's injury.  The record unequivocally demonstrates that plaintiff was between 12

and 15 feet away from the van at time the injury occurred. 

Plaintiff testified that he did not move the van in order to

obtain the "reprate" from the premium tank.  No cautionary cones

were placed around the work area.  When he was struck, defendant

testified that he was kneeling on the pavement and reaching into

the premium tank's opening.  We are in agreement with the trial

court that no nexus existed between the use of the van and

plaintiff's injury under these facts. 

	Having addressed the merits on the "use" question, we need

not address the waiver and estoppel arguments raised in

plaintiff's supplemental brief.  Moreover, our review of the

record satisfies us that the parties did not stipulate or agree

below that the definition of insured in the liability section of

the Western Policy controlled.  As a result, no  grounds exist

for a waiver or estoppel argument by Cohs against Western.  

	The trial court's order of June 28, 2000, is affirmed.

	Affirmed. 

	GORDON and CAHILL, J.J., Cconcur.