No. 3--05--0524 

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Filed August 15, 2006. 

 IN THE 

 APPELLATE COURT OF ILLINOIS 

 THIRD DISTRICT 

 A.D., 2006 

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STANDARD MUTUAL INSURANCE 

COMPANY, 

Plaintiff-Appellee, 

v. 

JOHN D. MARX, 

Defendant, 

and 

M&S RENTALS, INC., and 

SPRINGFIELD FIRE & CASUALTY 

COMPANY, 

Defendants-Appellants. 

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Appeal from the Circuit Court of the 13th 

Judicial Circuit, Grundy County, Illinois, 

No. 03--CH--89 

Honorable 

Lance R. Peterson, Judge, Presiding. 

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JUSTICE SLATER delivered the opinion of the court: 

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After a fire occurred in a storage unit rented by defendant John Marx, 

plaintiff Standard Mutual Insurance Company filed a declaratory judgment action to 

determine its obligations to Marx under a homeowner's insurance policy. Also named 

as defendants were M&S Rentals, Inc. (M&S), the owner of the storage facility, and its 

insurer, Springfield Fire and Casualty Insurance Company (Springfield), which sought to 

recover from Marx for damage caused to the storage facility. The trial court granted 
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summary judgment in favor of plaintiff, finding that the motorcycle which caused the fire 

was excluded from coverage under the policy. On appeal, M&S and Springfield 

(hereinafter "defendants"1) contend that the trial court erred in finding that Marx's 

motorcycle was not in "dead storage." We affirm. 

Facts 

 1

 Defendant Marx did not file a notice of appeal. His motion for leave to 

adopt the brief and argument of M&S and Springfield was denied by this court. 

Marx rented two bays in a storage facility owned by M&S in Morris, Illinois. 

Among the items stored in the bays were four motorcycles which Marx considered to be 

collector's items: a 1976 Honda Goldwing; a 1980 Honda Goldwing; and two 1979 

Yamaha 750 cc motorcycles. Only the 1980 Honda was licensed and insured. Marx 

would occasionally operate the three unlicensed motorcycles in the parking lot of the 

storage facility. On September 1, 2003, Marx went to the storage facility and tried to 

start one of the 1979 Yamahas. He had last ridden it a month earlier. Marx used the 

foot pedal to prime the cycle and pushed the electric start button. There was an 

explosion and Marx was thrown from the motorcycle. After unsuccessfully trying to put 

out the ensuing fire with a towel, Marx called 911. The fire damaged both Marx's 

belongings and the storage facility. M&S, through its insurer, Springfield, subsequently 

made a claim against Marx for damages caused by the fire in excess of $177,000. 

Marx sought a defense and coverage under his homeowner's policy issued by plaintiff, 

which responded with a reservation of rights and a declaratory judgment action. The 

trial court granted summary judgment in favor of plaintiff, finding that the 
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motorcycle was excluded from coverage and that an exception to the exclusion for 

vehicles in "dead storage" did not apply. This appeal followed. 

Analysis 

In construing the language of an insurance policy, the primary objective is to 

ascertain and give effect to the intent of the parties; the policy must be construed as a 

whole, taking into account the type of insurance, the nature of the risks involved and the 

overall purpose of the contract. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 

197 Ill. 2d 278, 757 N.E.2d 481 (2001). Construction of the provisions of an insurance 

policy is a question of law subject to de novo review. Eljer, 197 Ill. 2d 278, 757 N.E.2d 

481. 

The homeowner's policy issued to Marx by plaintiff excluded liability and medical 

payments coverage for injury or property damage arising out of: 

"The ownership, maintenance, use, loading or unloading of motor vehicles 

or all other motorized land conveyances, including trailers, owned or 

operated by or rented or loaned to an 'insured'[.]" 

The policy further provided, however, that the exclusion did not apply to: 

"A vehicle or conveyance not subject to motor vehicle registration which is: 

* * * 

(c) In dead storage on an 'insured location'[.]" 

Defendants maintain that the trial court erroneously found 

that the motorcycle was not in dead storage. As there are no 

reported cases in Illinois construing that phrase, defendants rely 

on several cases from other jurisdictions for the proposition 
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that a vehicle can be in dead storage even when it is being 

started or is undergoing maintenance. See Allstate Insurance Co. 

v. Burns, 837 N.E.2d 645 (Ind. Ct. App. 2005) (unlicensed car 

which had been inoperable for over a month was in dead storage 

notwithstanding that fire occurred while insured was attempting 

to start car); Allstate Insurance Co. v. Geiwitz, 86 Md. App. 

704, 587 A.2d 1185 (1991) (car kept by insured as collectible 

rather than for transportation was in dead storage despite fact 

that car was occasionally driven on property where it was stored 

and accident occurred while repairing gas gauge); Nationwide 

Mutual Fire Insurance Co. v. Allen, 68 N.C. App. 184, 314 S.E. 2d 

552 (1984) (motorcycle which had been inoperable for six months 

prior to fire caused when insured was "inspecting" cycle in his 

living room was in dead storage); Sharpe v. State Farm Fire & 

Casualty Co., 558 F. Supp. 10 (E.D. Tenn. 1982) (old, unlicensed 

vehicles that were not driven on highway but were occasionally 

driven on insured's property were in dead storage). 

Plaintiff, on the other hand, relies on cases holding that a 

vehicle which is undergoing maintenance or is being started is 

not in dead storage. See, e.g., Nationwide Mutual Insurance Co. 

v. McMahon, 365 F. Supp. 2d 671 (E.D. N.C. 2005) (car undergoing 

maintenance by priming carburetor in attempt to start it was not 

in dead storage); David v. Tanksley, 218 F. 3d 928 (8th Cir. 

2000) (same); North Star Mutual Insurance Co. v. Carlson, 442 

N.W. 2d 848 (Minn. Ct. App. 1989) (same); Holliman v. MFA Mutual 
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Insurance Co., 289 Ark. 276, 711 S.W. 2d 159 (1986) (same); 

Broadway v. Great American Insurance Co., 465 So. 2d 1124 (Ala. 

1985) (same); see generally, Annotation, Liability Insurance: 

When is Vehicle in "Dead Storage", 48 A.L.R. 4th 591 (1986). Our 

review of these authorities leads us to the same conclusion 

reached by the trial court: a vehicle is not in dead storage when 

a person is attempting to start it. As the Minnesota Court of 

Appeals explained in Carlson: 

"We believe this determination appropriately highlights 

the distinction between homeowners and automobile 

insurance policies. Motor vehicles are inherently 

dangerous instrumentalities and homeowners policies 

generally do not contemplate coverage of injuries when 

the vehicle is maintained or used in one of its 

inherently dangerous capacities. One inherently 

dangerous aspect is a motor vehicle's use of highly 

volatile materials (gasoline) around ignition sources 

(spark plugs). This was precisely the cause of the 

accident in this case. Accidents caused by maintenance 

or use of a vehicle in such an inherently dangerous 

capacity are not appropriately covered in a homeowners 

policy, but rather in an automobile policy which 

requires consequently higher premiums for the increased 

risk of injury." Carlson, 442 N.W. 2d at 855. 

We believe that this analysis properly focuses on the 

vehicle's status at the time the accident occurred. For example, 
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if the fire at the rental facility had been caused by spontaneous 

combustion of oily rags while Marx was absent, the Yamaha might 

very well have been considered to be in dead storage. The same 

cannot be said for a vehicle which is being started. "The 'dead' 

in 'dead storage' suggests, at the least, that the engine would 

not be running." American Family Mutual Insurance Co. v. Van 

Gerpen, 151 F. 3d 886, 888 (8th Cir. 1998). 

Defendants insist, however, that the term "dead storage" is ambiguous, and 

therefore it must be construed against the plaintiff. If the language of an 

insurance policy is susceptible to more than one reasonable 

meaning, it is considered ambiguous and will be construed against 

the insurer. Gillen v. State Farm Mutual Automobile Insurance 

Co., 215 Ill. 2d 381, 830 N.E.2d 575 (2005). Conversely, if the words of a policy are 

clear and unambiguous, they must be afforded their plain, ordinary and common 

meaning. Eljer, 197 Ill. 2d 278, 757 N.E.2d 481. Ambiguity is not created merely 

because the parties disagree (RBC Mortgage Co. v. National Union Fire Insurance Co., 

349 Ill. App. 3d 706, 812 N.E.2d 728 (2004)), and a court will not strain to find 

ambiguity in an insurance policy where none exists (Eljer, 197 Ill. 2d 278, 757 N.E.2d 

481). 

Contrary to defendants' argument, the phrase "dead storage" is not rendered 

ambiguous merely because the courts in various jurisdictions have not interpreted it 

uniformly. In determining whether an ambiguity exists, a court must consider the 

disputed language in its factual context. American Family Mutual Insurance Co. v. 

Martin, 312 Ill. App. 3d 829, 728 N.E.2d 115 (2000). A vehicle which is periodically 
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driven by its owner, even briefly on private property, is not in dead storage, and an 

accident caused by an attempt to start that vehicle is not the type of risk contemplated 

by the parties to a homeowner's policy. We find no ambiguity under these 

circumstances. 

Moreover, even if we were to accept defendant's argument concerning the 

phrase "dead storage," that policy exception also requires the vehicle to be in storage 

on an "insured location." As defined in the policy, an insured location includes 

"premises occasionally rented to an 'insured' for other than 'business' use." (Emphasis 

added.) In State Farm Fire and Casualty Co. v. Wonnell, 178 Ill. App. 3d 823, 825, 533 

N.E.2d 1131, 1132 (1989), a homeowner's policy excluded liability and medical 

coverage for any injury arising out of the rental of the insured premises unless the rental 

was "on an occasional basis." The insured put her house up for sale and rented it to a 

tenant on a month to month basis for a seven month period, during which time the 

tenant was injured. This court held that the rental had not been occasional, defining the 

term as occurring or appearing at irregular or infrequent intervals. Wonnell, 178 Ill. App. 

3d at 825, 533 N.E.2d at 1133, quoting Webster's New Collegiate Dictionary 787 (1981). 

 We noted that the tenancy had not been irregular or infrequent, but had continued for 

seven months without interruption, an arrangement that "constituted a full- fledged 

rental of the subject premises." Wonnell, 178 Ill. App. 3d at 825, 533 N.E.2d at 1133. 

Similarly in this case, the storage units where the fire occurred cannot be said to 

have been rented to Marx on an irregular or infrequent basis. According to Marx's 

deposition testimony and his answers to plaintiff's request to admit facts, Marx had 

rented the same two storage bays for a period of three years prior to the fire. Such 
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extended and continuous use cannot be characterized as "occasional" and therefore, 

even if the motorcycle was considered to be in dead storage, it was not in an "insured 

location" within the terms of the policy. Accordingly, we affirm the trial court's order 

granting summary judgment to the plaintiff. 

For the reasons stated above, the judgment of the circuit 

court is affirmed. 

Affirmed.

O'BRIEN and HOLDRIDGE, J.J., concur.