No. 3-06-0504

______ _______________________________________________________________ _________ Filed June 15, 2007. IN TH E AP PE LLATE COU RT OF ILLIN OIS

THIR D DI STRICT A.D., 2007
WILL IE JOHNSON, ) Appeal from the Circuit Court ) for the 12 th Judicial Cir cuit, Plaintiff -Appella nt, ) Will County, Illi nois ) v. ) No. 03-MR-022 ) SAMMI E HARRI S, AND TRA VELERS ) Honorable Herman Haase PROPERTY CAS UALT

Y IN SURANCE ) Judge, Presiding COMPANY O F IL

LI NOI S, )

) Defend ants-App ellees. )

______________________________________________________________________________ JUSTICE O’BRI EN delive

red the o pinion of t

he court :

______________________________________________________________________________ Plaintiff Willie Johnson was injured by an automobile that was kept on blocks in th e garage of d efenda nt Sammie H arris. T

his partic ular disp ute involv es wheth er the tr ial cour t erred i n granting summary judgme

nt to Harris’s homeowner’s insurance company , defendant Travelers Property Casualty I

nsurance Company

of Illinois, finding it had no duty to defend or indemnify Harris with respect to the underly ing injury suit filed by

Johnson. We reverse the trial court. FACTS Plai ntiff Will ie Jo hnson filed a comp laint agains t defen dant S ammi e Harri s, all egi ng tha t while Johnson was a pedestrian in a garag e, he had been injured by anautomobile in the garage that
was driven

b y Harr is. Johnson alleged, in part, that Harris had operated the motor vehicle in a negligent manner i n the conf

ined spac e of the g arage . Harris filed a d eclara tory ju dgment

action2

agains this homeowner’s insurance policy carrier, defendant Trave lers Property Casua lty I nsurance Company of Illinois. Travelers had dec lined covera ge under Harris’s homeowner’s policy , asserting the policy did not cover injuries ar ising out of the ownership, maintenance or use of a

motor vehicle. Under “ Exclusions, ” the poli cy issued by Travele rs to Har ris state s, in part : “Medical Payme

nts to Others do not apply to bodily injury or proper

ty damag e: *** arising out of: (1) the ownership, maintenance, use, loading or unloading of motor vehicles.” The polic y f urther s tates, in p art: “This ex cl us io n d oe s n ot ap pl y to ** * ( 4) a v eh ic le or co nv eya n ce not sub ject to motor vehicle registration

which is: * ** (c) in

dead storage on an insured location .” (Emphasis in original). Inresponse

to Harri s’s decl arator

y ju dgment a ction, Tr aveler s filed an

answer and coun tercomp lai nt, requestingthe trial court find it had no duty to def end or indemnify Ha

rris with respect to the underlying

complaint

filed by Johnson. Travelers also filed a moti on for judgm ent on the pl eadin gs (735 IL CS 5/2-615(e) (West 2002)), which the trial court stay ed. Johnson filed an amended complaint in the underly ing action. Without incorporating the allegations of his first plead ing, Johnson alleged in the amended complaint that Harris was the owner of an automobile that was purcha sed at least five ye ars before the occurrenc e, and that the autom obile had been towed on a flatbed to Harris’s g arage where it rema ined in “dead storage.” Johnson further alleged he was injured w hile standing in the garage when Harri s, among other “careless and neglig ent acts or omissions”: “Improperly

used the garage to a

ttempt repair on the automobile and test repairs on3

said automobiles [sic] without ensuring that the garage was saf e for suchactivitie s,
*** [p]laced the vehicle on blocks which failed to secure the vehicle in dead storage, [f]ailedto provide a mechanical lift for the dead storage of

the vehic le so that i

t would remain stationary, [and] [f]ailed t o properly sec ure the vehicle in dead storage.” Johnson alleged he was injured when he was struck by the ve hicle. Harri s filed an amended declaratory

judgment complaint and

Travelers amended its answer and countercomplaint. Trave lers also fi le d a mo ti on fo r s um ma ry jud gment. The trial court granted Tr avelers’ summary

judgment motion and Harris follows with this appeal. ANA LYSIS The issue on appeal is whether the trial court erred i n gran ting Tra velers’ summary

judgmen t, ineffect finding

no genuine issue of material fact with respect to whether the a utomobile that injured Johnson was at the time of the occurrence in “dead stora ge.” When ruling

on a motion for summary judgmen t, we con strue all

evidenc e in a lig

ht most favora ble to the nonmoving party. Connecticut Specialt y Insurance Co. v. Loop Paper Recy cling, Inc. , 356 Ill. App. 3d 67, 72, 824 N. E.2d 1125 , 1130 (2005). “Summary judg ment is appropriatewhen the pleadings, depositions, admissions and affida vits reveal there is no genuine issue of mate rial fact and the moving pa rty is entitle d to judgment as a matter of law.” Connectic ut Specia lty , 356 Ill. App. 3d at 71-72, 824 N.E.2d at 1129. We review a

trial court’s summary judg ment ruling de novo. Connectic ut Specia lty , 356 Ill. App. 3d at 72, 824 N.E.2d at 1130. “In determining whether an ins urer owes a duty to an insured to def end an action brought against [the] insured, the court must consider only the alleg ations in the underlying complaint and4

the relevant policy pr

ovisions.” Connecticut

Specialt y , 356 Ill. App. 3d at 72, 824 N.E.2d at 1130. “If [a] court determines the allega tions of the

underly ing comp laint fal l within, or potentially within,
covera ge under the policy, the insure r has a duty to def

end the insured against the complaint.” Connecticut

Specialt y , 356 I ll. App. 3d at 72, 824 N.E.2d at1130. Insurance policies are to be liberall y construe d in

favor of coverage , and the insurer bears the burden of establishing that a claim falls within a provision that limits or excludes coverage. Connectic ut Specia lty , 356 I ll. App. 3d

at 72, 824 N.E.2d at 1130. This court has previously c onstrued the meaningof the te rm “dea d storag e” as it a

pplies to insurance policies. Standard Mutual Insurance

Co. v. Marx , 367 Ill. App. 3d 512, 854 N.E.2d 710 (2006). In Marx , the insured stored four motorcy cles in two storage facilities. Marx , 367 Ill. App. 3d at 513, 854 N.E.2d at 712. Marx occasionally operated the three unlicensed motorcy cles in the parkinglo t of the facility
. Marx , 367 Ill. App. 3d at 513, 854 N.E.2d at 712. On the date of the occurrence, Marx attem

pted to start one

of the thr ee vehic les-he had last ri dden it amonth earlierby using the foot p edal to pr ime the cycle

and pushing the electric start button. Marx , 367 Ill. App. 3d at 513, 854 N.E.2d at 712. There was an explosion; Marx was thrown from the motorcycle a nd
a fire erupted, causi ng dama ge to Marx’s belongings and the storage f acility. Marx , 367 Ill. App. 3d at 513, 854 N.E.2d at 712. Ina ruling upholding the trial court’s gr ant of summary judgmen t to the insurer, this court found there was no ambiguity

in the term “dead storage” as a pplied to the fac ts at hand in Marx
. Marx , 367 I ll. App. 3d

at 516, 85 4 N.E.2d a

t 714. We concluded a

vehicle periodically drive

n by its owner, even briefly

on private property , is not in dead storage, and an accident c aused by an attempt to start that vehicle is not the type of r isk contemplated by the pa rties to a h omeowner’s1 Where a party files an amended pleading that does not refe r to or adopt the prior pleading, the earlier pleading ceases to be a part of the recor d. Pappas v. Pella Corp . 363 Ill. App. 3d 795, 800, 844 N.E.2d 995, 1000 (2006). 5 po li cy. Marx , 367 Ill. App. 3d at 516, 854 N.E.2d at 714. I n so finding, this court recognized that “‘[t]he “dead” in “dead storage ” suggests, at the least, that the engine would not be running.’” Marx , 367 Ill. App. 3d at 515, 854 N.E.2d at 714, quoting American Family Mutual Insurance Co. v. Van Gerpen , 151 F.3d 8 86, 888 (8 th Cir.1998). We also stated our agreement with the North Star Mutual Insurance Co. v. Carlson court that the distinction between homeowners’ and automobile insurance policies re co gn iz es th at mo to r v eh ic le s a re in he re nt ly d angero us instrumentalities-one of the inheren tly dangerous aspects of a motor vehicle is its use of hi gh ly volatile materials (gasoline) around ignition sources (spark p lu g s)-and homeowne rs’ polic ies generally

do not con

template
covera ge of injuries when the vehicle is maintained or used in one of its inhere nt ly dangerous capaci ties. Marx , 367 Ill. App. 3d at 515, 854 N.E.2d at 713-14, refe rring to North Star

Mutu a l Insurance Co. v. Carlson , 442 N.W.2d 848, 855 (Minn. App. 1989). Inthe instan

t case, i t is undispu

ted that u nder the releva nt provis ions of t he homeowner’s policy issued to Harris by Tra

velers, coverage is not

provided for injuries caused by the ownership, maintenance, use, loading or unloading of motor vehicles. It is also undisputed that this exclusion does not apply

to a vehic le not subj ect to motor vehicl e regi stration w hich is in d

ead sto rag e. We agreewith Harris that the exclusion to the exclusion provides for the “maintenance” of vehicles that
are in dead storage. To determine whethe r summary judg

ment was ap propriate, we consider the policy provisions in light of the allegations in the underly ing seco nd amend ed compla int. 1 In the second amended complain

t, Johnson al leged, in relev ant p art, that the automobile that was the instrumen tality of his injur

y ha d been towed on a fl atbed to H arris’s garage where

for five ye ars it6

remained situated onstationary

blocks. John son furth er alleged he wa s injured when Ha

rris improperly used the g arage to attempt repair and test re pairs on the automobile. Inhis second

amended complaint, Johnson did not allege Harris started or drove the vehicle. Thus, a f ter considering in a light most favorable to the nonmoving party the allegations in the underlying

complaint and the relevant provisions of the insurance policy , we are unable

to conclude Harriswas using the automobile, which had been stored on blocks for five years in his garage, in one of the inherently dangerous capacities that would preclude cover age under thehomeowner’s policy for any resultant injury . If, for instance, Harris was performing paint or body repair s on the ve

hicle
or changing a bulb in a head

lamp, and the vehic le slipped

off the s torage

blocks, the vehicl e could be considered to have been in dead storag e at the time of the maintenance. Moreo ver, al though T

ravele rs insists the automob ile at issue was sub ject to mot

or vehic le regist rati on, fu rther removing it from the dead storag e exception to the automobile exclusion, we find this argu ment unav ailing. Under se ction 3-4 01 of the I llinois Ve hicle Code

(the Code ), it is unlawful to drive or move upon any highway any vehicle

whichis not registered. 625 I LCS 5/3-401 (West 20 04). T herefore, unde r the Code , Harris ’s automo bile was n

ot neces sarily

subject to registration; the automobile was not being driven or moved upon the highway ; it was on stationary blocks in the garage. For these re asons, we believe there is a genuin e issue of materia l fact wi th respect to whethe

r the aut omobile in H arris’s

garage was in d

ead sto rage at the time of Johnson’s alleged injury. The tria

l court e rred in g ranting Travele rs’ motion

for summa

ry judgmen t and its ruling is reversed. For the foregoing r

easons, the judgment of the circuit court of Will County is reversed. Reversed.7

CARTER, J., c oncurs. JUS TICE SC HMIDT, d issen ting: Sammie Harris's vehicle was not in dead storag e and, therefore, I dissent from the majority's opinion to the contra ry. I n Standard M

utual Insu rance Co. v. Marx , this court stated that the te rm "dea d storag e" was

neither ambiguo us nor susc eptible to

more tha n one rea sonable meaning given the factual c ontext of that case. Standard M utual Insu rance Co. v. Marx , 367 I ll. App. 3d at 516. The court noted that a vehicle which spontaneously combusts while stored in a storage facility

may "ve ry well have

been considered to be in dead storag e. The same cannot be said for a vehi cle that is being started ." Marx , 367 Ill. App. 3d at 515. "'T he "dead" in "dea

d storage" suggests, at the least, t hat the engine w ould not b e running.'" Marx , 367 Ill. App. 3d at 515, q uoti ng American Family Mutual Insurance Co. v. Van Gerpen , 151 F. 3d 886, 888 ( 8th Cir. 1998). The majority holds that the g ive-back provision to the automobile exclusion in this matter "provides for the 'maintenance ' of the vehicles that are in dead stora ge." Slip op. at 5. I disag ree. Such a holding not only ig nores the policy lang

uage at issue at this case, but also ignore s the reasoning set forth in Marx
. Marx acknowl edged

that the r eason ho meowners' polic ies seek to exclude liability associated with automobiles centers around the unique and dangerous nature of all things associated with motor vehicles (such as the combustible fluids needed to oper ate them). Marx , 367 I ll. App. 3d

at 515. An

y mo tor vehic le that is b eing worked on, repair ed, or te sted is not a "dead" vehicle. Vehic les that are being repaired or tested are not in dead storage. Moreover, in the case at bar, the plaintiff has ple d not once, not twice, but more than 10 times that the vehicle which struck him was not only running at the time, but that it was being8

driven. T he plaint iff's origina

l injury complain t stated: "***SAMMIE HARRI S[] was the driver of an automobile ***. *** *** [T]he vehicle driven by Def endant ***.

*** *** [D]uty

of Defe ndant *** to opera

te his motor vehicle in such a manner *** he drove his motor vehicle in a careless and negligent manner. *** [He] collided with the person of Plaintiff. *** SAMMIE HARRIS[] operated his motor vehicle in a careless and neg ligent manner and

*** a. Drove his vehicle at a speed which was greater than reasona

ble and proper ***; b. Drove his vehic le without

brakes a dequate to control its movement and to stop ***; c. Faile d to sound the horn on said vehi cle to give warning to a pedestrian ***; d. Failed to avoid colliding with a pedestrian ***;9 e. Faile d to stop his

vehicle in time to avoid a collision with a pedestrian ***; [and] f. Negligently

operated his vehicle in the confined space of the gar age ***." Citi ng Pappas v. Pella Corp. , 363 I ll. App. 3d 795, 844 N .E.2d 995 (2006), the majority chooses to ignore these allega tions, claiming they " cease[] to be a part of the record." Slip op. at 5. The Pappas court did not accurately quote our supreme court when setting forth that proposition of law. The Pappas court stated: "Where a party files an amended pleading that does not refer to or adopt the prior pleadings, the e arlier pleadings cease to be a part of the record. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp. , 96 Ill. 2d 150, 153-54, 449 N.E.2d 125 (1983). " Pappas , 363 Ill. App. 3d at 801. That is a v ery

loose and

liberal c onstruct

ion of wha

t our supr eme cour t actuall y sa id in Foxcroft . The Foxcroft

court stated: "'Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading cease s to be a part of the record for most purposes , being in effect abandoned a nd withdrawn.'" (Emphasis added.) Foxcroft , 96 Ill. 2d at 154, q uoti ng Bowman v. County of Lake , 29 Ill. 2d 268, 272, 193 N.E.2d 833 (1963). In Foxcroft

, the original complaint filed by the plaintiff was dismissed and two of the legal theories upon which that complaint was based we re not pled in the plaintiff's amended complaint. Foxcroft

, 96 Ill. 2d at 153. When addressing the issue of w hether the plaintiffs may appeal issues arising from the original c omplaint, the Foxcroft court sta ted as fo llows: "Plaintiffs cite three appellate court10 cases for the proposition that the original complaint may never

theless be considered on review because they

did not manifest an intent to abandon the original counts. [Citations]. However, this court and a majority of the appellate court cases have adher ed to the well-established principle that a party who files an amended pleading waives any objection to the trial court's ruling on the former complain ts. [Citation s.] 'Wher

e an ame ndment is complete in itself and does not refer to or adopt the prior pleading, the earlier plea ding
ceases to be par t of the re cord for

most purposes, being in effect abandone d and withdrawn. ' *** ***Defendants would be disadvantaged by a rule which would, in effect, permit a plaintiff to proceed to trial on different issues contained in separate complaints.*** *** ***[W]e *** conclude that allegations and11 former complaints, not incorporated in the final amende d complain t, are deemed wai ved." Foxcroft , 96 Ill. 2d at 153-55. Foxcroft and its progeny

do not stand for the proposition that an original pleading cea ses to exist once it has been amended and cannot ever be conside red again. I

t has long been held that admissions

of a par ty in an unver ified ori ginal pl eading

can be u sed as ev

identiar y a dmissions in certain circumstances. City National Bank & Trust Co. of Chicago v. Oberheide Coal Co. , 307 Ill. A pp. 519, 30

N.E.2d 75 3 (1940); Robins v. Lasky , 123 Ill. App. 3d 194, 462 N.E.2d 774 (1984). C ertainly

, the fact that Johnson

pled nume

rous times

that Har ris was dr iving the vehicle when it hit him can be considered when determining whe ther the vehicle was in dead storage
. Marx makes it clear that "a vehicle that is being started" cannot be said to be in dead storag e. Marx , 367 Ill. App. 3d at 515. Even if we were only

to consider Johnson's final complaint in the personal injury action, it is clea r that Ha rris's vehicle was not in d

ead stor age. Joh nson's s econd a

mended c omplaint in the personal injury a

ction alleges that Harris "improperly used the garage to a

ttempt repairs on the automobile and test repairs on said automobile." Johnson originally said the vehicle was being driven at the time of the accident and, f aced with the declaratory

judgment action, amended his complaint removing any allegations of negligent ve hicle operation and then alleging that repairs to the vehicle were being "tested" when the loss occurred. Clea rly, a vehicle

being driven, repaired, or

tested to determine the effectiveness of re pairs is not a "dead" vehicle. Theref ore, the dead stor age give-bac

k provision in the exc lusion doe s not apply . I wo uld affir m.12