## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Metzger v. Country Mut ual In suran ce Co , 2013 IL App (2d) 120133

Appellate Court Caption J EFF REY L

. METZ GER, Plaintiff and Counterdef endant- Appe l l ee, v. COUNTRY MUTUAL I NSU R ANC E COMPANY, Def endant and C o u n t erp l aint iff-A

ppellant (Tric ia L

. Mackie, as I n d ep en d en t Administrator of the Estate of Br ian J

. McKe e, Dec ease d, and McKe e Custom M asonry , Def

endants).

District & N o. Second District
Docke t No. 2-12-0133

Filed Marc h 21, 2013

Held (N ote : Thi s syl lab us

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

par ed by the Repo rt e r 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

. ) I n an action arising from a collision in which plaintiff’s vehicle was struck by a truck persona lly owned by the dr iver, who used t he truck in his business, the trial court err ed in enter ing su mmary judgme nt for plaintiff decla

ring that the truck was cover ed under the bus i n es s policy issued by defe ndant, since the business policy provided cover ag e for any “non-ow ned auto,” the policy provided that a

cover ed vehic le is neither owned, lease d, hired nor borrowe d, the truck involved in the acc ident was titled in the driver’ s name, and it was “bo rr o wed” by the business, and there fore , under those circ umstances, it was not a “non-owne d” vehic le for purposes of the business policy
, and defe ndant insurer had no duty to defe nd or indemnify

.

Dec ision Under
Review Appea l f rom the Circuit Court of De Kalb County
, No. 10-MR-145; the Hon. Kurt A. K lein, J udg e, pre siding.

J udg ment Reverse d and re manded with dire ctions.Counsel on

Appea l Keith G. Carlson, of Ca rlson L aw Of

fice s, of Chicag o, for a

ppellant.

Richard L . Turner , of Turne r L aw Of fice s, of Sy camor e, for

appellee

.

Panel J USTI CE BI RKETT deliver ed the judg ment of the c ourt, with opinion
J ustices Hutchinson and Schos to k c o n c u r r e d in th e judg ment and opinion.

OP INION

¶ 1 Def

endant Country Mutual I nsuranc e Co. appea ls from the g rant of summary judgme nt in favor of plaintiff, J eff rey L

. Metzger, o n h i s complaint for a decla ratory judgme nt construing an insurance policy issued by defe ndant. Def endant had filed a cross-motion for
summary judgme nt, which the trial court denied. For the following rea sons, we reve rse and

rema nd for the tr ial court to ente r summary judgme nt in favor of

defe ndant.

¶ 2 I . GENERAL BA CKGROUND ¶ 3 I n S ep t em b er 2009, a vehicle driven by plaintiff collided with a For d F- 250 driven by Br ian McKe e. At the time, Br ian was vice- president of McKe e Custom Masonry (McK ee Masonry ), a subchapte r S corpor ation whose sole share holders wer e Br ian an d h is wife, Tricia Mc Kee

. Br ian was fatally injured in the ac cident. Subsequently , plaintiff filed a tort lawsuit ag ainst both McKe e Masonry and Br ian’s estate. No pleading s from that lawsuit are in the rec ord. Acc ording to plaintiff’s complaint in the prese nt ac t ion, the underlying complaint alleg es “in e ssence ” that
“on September 21, 2009, [Brian], acting individually and as ag ent of [McKee Masonry],

was operating his persona lly owned [Ford F- 250] in a northernly direc tion on Hinckley Road, near the intersec tion of Perry Road, in the Township of Pierce
, County of DeKa lb, State of I llinois
, and that [Brian] f ailed to stop at the stop sig n on Hinckley Road at the intersec tion of Perry

Road, and to y

ield to traff

ic on Perry

Road, pulling out direc tly in front of the path of the vehicle being driven by [pl aintiff], causin g t h e vehicles to violently collide.” Def endant doe s not contest this repre sentation. ¶ 4 Def

endant, for its part, repr esents on appea l, consistent with its submissi ons below, that “the defe nse for [McKee Masonry and Br ian’s estate] was undertaken by State Fa rm, which had issued a policy of automobile insurance
, specific ally insuring the truck or motor vehicle driven by [Brian] a

t the time of the acc ident.” Plaintiff doe s not dispute this. W e point out, h o weve r, that the State Fa rm policy is not in the rec ord. Moreove r, while ther e ar e o t h er documents in the rec ord sug g esting that Br ian was a named insured u n d er t he State Fa rm

-2-policy
, nothing indicates whethe r the F ord F -250 wa s specific ally named in the policy as a

cover ed vehicle. There also is no documentation in the rec ord to confirm that State Fa rm is defe nding the underlying lawsuit, or that the suit is still pendi n g as of this appea l. Since, howeve r, the parti es ap p ea r to be in agree ment as to these background fac ts, and the
proce eding s below seem consistent with thei r re p re sentations, we acc ept them as true for purposes of our

revie w. ¶ 5 The prese nt action was commence d on October 4, 2010, when plaintiff filed a complaint for a decla

ratory judgme nt that poli cy n umber AM 9004552 000 (the business policy ), on which McKe e Masonry was the named insured, provided liability cover ag e for the For d F250 with reg ard to the September 2009 acc ident. The business policy was in eff ect at the time of the acc ident, and it cover ed, as we explain in more detail below, any “non-owned” vehicle
operated in t h e b u s i n es s. Plaintiff soug ht a decla ration that the For d F- 250 was a “nonowned” vehicle. Plainti ff furth er re q u ested that defe ndant, “by virtue of the determination
pray ed for,” be order ed “to undertake defe nse at its expense” of the underly ing tort lawsuit, “and that the limit s of the [busi ness policy ] be app l i [ ed] to any judgme nt, settlement, compromise or othe rwise of said suit within t he said limits of the [bus iness policy ].” ¶ 6 Def

endant filed an answe r and, later , a motion to dism iss. The court denied the motion
to dismiss

. Plaintiff subsequently moved for summary judgme nt on the g round that there was

no dispute of materia l fac t that the For d F- 250 was a “non-owned” vehicle under the business policy

. ¶ 7 Def

endant filed a countercla im for declar atory judgme nt and, later, a cr o s s -m o t i on for
summary judgme nt. I n the mo t i o n , defe ndant asser ted first that, since State Fa rm was defe nding the underlying lawsui t, th e c u r rent suit prese nted “only the question of indemnity ,” and the “duty to defe nd” was “n o t even an i ssue.” (Presumably
, defe ndant was sug g esting that State Fa

rm’s curr ent involvement meant that def endant would not nee d to unde rtake a defe nse even if there appea red to be covera g e under

the business policy .) Citing Travelers Insurance Co. v. Eljer Manufacturing, Inc.
, 197 I ll. 2d 278 (2001), defe ndant arg ued further that the issue of indemnity was “pre mature” beca use there was y et n o j u d gm ent in the underlying action. S ec o n d
, defe ndant argued that the undisputed fac ts established that the For d F- 250 was not a “ non-owne d” vehic le. ¶ 8 At the hear ing on the motion, plaintiff agree d with defe ndant that any cover ag e under the business policy

would be “se condar

y or excess.” ¶ 9 The trial court gra nted s ummary judgme nt for plaintiff. First, the cour t ag ree d that any

c overa g e under the business policy would be “sec ondary or excess,” but nonetheless hel d th a t defe ndant had both a duty to defe nd and a duty to indemnify

. Second, the court held that, as a matter of law, the For d F- 250 was a “non-owned” ve hicle under the business policy

. ¶ 10 Def

endant timely

appea ls.

¶ 11 I I . ANALYSI S ¶ 12 A. Principles Gover ning Re view of Summary J udg ment Rulings ¶ 13 The purpose of summary judgme nt is not to try a question of fac t, but to deter mine if one

-3-exis ts. Adams v. Northern Illinois Gas Co.
, 211 I ll. 2d 32, 42-43 (2004). Summary judgme nt

should be g rante d only wher e the pleading s, depositions, admissions, and aff idavits on file, when viewed in the light most favor able to the n o n m o v ing party , show that there is no g enuine issue as to any materia l fac t and that the moving party is clea rly entitled to a judgme nt as a matter of la w. 735 I L CS 5/ 2-1005(c ) (West 2010); Adams , 211 I ll. 2d at 43. Summary judgme nt should not be g rante d if the materia l fac ts are in dispute or if the materia l fac ts are not i n d i s p u te but rea sonable persons might draw differ ent infere nces from the undisputed fac ts. Adams
, 211 I ll. 2d at 43. Although summary judgme nt is to be encour ag ed

as an expeditious manner of disposing of a lawsu i t , it is a drastic measure and should be allowed only wher e the rig ht of the moving party is clea r and fre e from doubt. Id. I n appea ls from summary

judgme nt rulings, the sta ndard of revie w is de novo

. Id. ¶ 14 “When parties file cross-motions for summary judgme nt, they ag ree that only a question

o f l aw is involved and invite the court to decide the issues based on the rec ord.” Pielet v. Pielet
, 2012 I L 112064, ¶ 28. “Howe ver, the m ere filing of cross-motions for summary judgme nt does not establish that there is no issue of materia l fac t, nor does it obliga te a court to rende r summary

judgme nt.” Id.

¶ 15 B. D uty to Defe nd/Duty

to I ndemnify ¶ 16 This is an action for a dec laratory judgme nt on insurance cover ag e. The suit is broug ht by neither the insurer nor the insured, but by

a third party injured t hroug h the allege d fault of the i n sured. There is curr ently pending a tort suit by that third party ag ainst the insured based on the same incide nt. ¶ 17 The court below held that defe ndant has both a duty to indemnify and a duty to defe nd. The c ourt err ed on both points. ¶ 18 I n Central Illinois Light Co. v. Home Insurance Co.
, 213 I ll. 2d 141 (2004), the supreme court e x plained that the duty to indemnify

and the duty

to defe nd
“ ‘diffe r in their trig g ering

. Wherea s the duty to indemnify can arise only afte r damag es

are fix ed in their amount [citations]
, the duty to defe nd may arise as soon as damag es are soug ht in some amount [citations] .’ ” Id. at 158 (quoting Certain Underwriters at Lloyd’s of London v. Superior Court , 16 P.3d 94, 102 (Cal. 2001)).
Central Illinois Light states prec onditions for when the duties “ar ise.” Other case s appea r to have the same issue in mind, but frame it in terms of when the du t i es are “ripe ” for adjudica tion. For instance, the court in Gregory v. Farmers Automobile Insurance Ass’n
, 392 I ll. App. 3d 159, 161 (2009), said: “[A]l though a decla

ratory judgme nt action b rought to deter mine an insurer’ s duty to defe nd is ripe upon the filing of a complaint ag ainst the insured, a decla ratory judgme nt

ac t i o n b ro u ght to deter

mine an insurer’ s duty to indemnify an insured is not ripe for adjud i cation until an insured become s leg ally obliga ted to pay the damag es in the underlying a ction.”
Her e, the duty to de fend is r ipe for adjudication beca use a complaint has been filed ag ainst the insured.

-4-¶ 19 “To deter mine whether an insurer has a duty to defe nd, the court m u s t co m p are the alleg ations in the underly

ing complaint to the rele vant provisions of the insurance policy and liberally construe both in the insured’s favor .” American Family Mutual Insur ance Co. v. Niebuhr
, 369 I ll. App. 3d 517, 521 (2006). “I f the underly i n g co m p l ai n t’s alleg ations fall within, or potentially within, the policy ’s co v er age, the insurer is obligated to defe nd its insured.” Id. “The duty to indemnify arises only if the insured’s activity and the resulting damag e actua lly fall within the policy ’s cover ag e.” Id. “B eca use the duty to defe nd is broade r than the duty to indemnify
, if an insurer owes no duty to defe nd, it o we s no duty to indemnify .” W

estfield National Insurance Co. v. Continental Community Bank & Trust Co.
, 346 I ll. App. 3d 113, 124 (2003). ¶ 20 Thu s , i f t h er e i s even potential cover ag e, the insurer must assume the defe nse of the underlying lawsuit, unless the insurer is seconda ry or excess, in which case the insurer’ s duty
to defe n d will not arise until the limit s in the primary policy are rea ched. See American States Insurance Co. v. L i b ert y Mutual Insurance Co.
, 291 I ll. App. 3d 336, 339 (1997); Northbrook Property & Casualty In s u r a nce Co. v. United States Fidelity & Guaranty Casualty Co.
, 150 I ll. App. 3d 479, 485 (1986 ). I f, howeve r, there is not even potential

cover ag e, the insurer, whether primary or seconda ry , need not defe nd the underly ing lawsuit. ¶ 21 Her e, the parties agr ee tha t the business policy

is secondar

y or excess. While we could hold on this basis that there is no prese nt duty to defe nd, and so defe r the issue of cover ag e, we choose i nstead to rea ch the issue of coverag e, which is ripe for our consideration since the insured unde r the business policy has bee n sued.

¶ 22 C. “Non-owne d” Ve hicle ¶ 23 Fo r t h e fo l l o wi ng rea sons, we hold that the business policy does not even pote ntial l y

cover the For d F- 250 g iven the circ umstances surrounding the acc ident. Acc ording ly
, there neither is, nor c ould there be , a duty to defe nd or duty

to indemnify

. ¶ 24 Def

endant argues that the trial court err ed in holding that the For d F- 2 5 0 was a “nonowned” vehicle unde r the business policy . We ag ree

. ¶ 25 “Th e i n t erp re t at ion of an insurance policy is a question of law that may proper ly be decide d on a motion for summary judgme nt.” DeSaga v. W est Bend Mutual Insurance Co.
, 391 I ll. App. 3d 1062, 1066 (2009). “When interpre ting an insurance policy or an y o ther
contra ct, the [court’s] primar y g oal is to g ive ef

fec t to the intent of the parties as expressed in the ag ree ment.” Id. “I f the terms of an insurance policy are clea r and unambiguous, they

m u s t be g iven their plain and ordinary meaning and enfor ced as written, unless to do s o would violate public policy .” Id. “Insuranc e policies are to be liberally construed in favor of the insured [citation] and in favor of cover ag e.” Id. “Any am b i gu i t y t h at exis ts in the lang uag e of a policy mu s t b e re solved ag ainst the insurer, since the insurer draf ted the policy .” Id. “In addition, a ny provision in a policy that limit s or excludes cover ag e must be construed liber ally

in favor of

the insured a

nd ag ainst the insurer.” Id. ¶ 26 We note that the trial court, in d ec i d ing the issue of cover ag e, considere d not only the alleg ations of the underlying complaint (as r epre sented by the par ties, since that complaint is not in the rec ord) and the busin es s p o l i cy , but also the three depositions attache d to

-5-plaintiff’s m o t i o n fo r summary judgme nt. As in the court below, both parties rely on the

deposition testimony for their respe ctive positions. A court may look beyond the alleg ations of t h e underlying complaint in deter mining the exis tence of a duty to defe nd. See Pek in Insurance Co. v. W

ilson
, 237 I ll. 2 d 446, 458-62 (2010); Fidelity & Casualty Co. of New Y ork v. Env irodyne Enginee rs, Inc. , 122 I ll. App. 3d 301, 304-05 (1983). ¶ 27 The pertinent fac ts are undisputed. We beg in with the terms of the business policy . The named insured is McKe e Masonry

. As rele vant here
, the business policy provides cover ag e for
“ ‘bodily injury ’ or ‘prope rty damag e’ arising out of the use of any ‘non-owne d auto’ in
y our business by

any person.”
“ ‘N on-Owne d Auto’ ” is def ined as “any ‘auto’ you do not own, lease
, hire or borrow which is used in connec tion with y our business.” ¶ 28 Other rele vant documentar y evidenc e consists of (1) a November 13, 2007, invoice for the purcha se of the For d F- 250, which lists “B rian McKe e” as purcha ser; (2) a cer tificate of title f or the For d F- 250, issued Dec ember 17, 2007, naming “B rian McKe e” as owner ; a nd (3) a tax form, dated Dec ember 13, 2008, listi ng the For d F- 250 as among the business assets of McKe e Masonry
, and desig nating the truck as having 100% “busines s u s e. ” As noted above, McKee M as o n ry i s a subchapte r S corpor ation for fede ral taxation, and its sole share holders we re B rian a nd Tricia. ¶ 29 There was deposition testimony on t h e Fo rd F- 2 5 0 an d its use in McKe e Masonr y ’s business. ¶ 30 Tricia testified that she acc ompanied Br ian when he pu rc h as ed t h e Fo rd F- 2 5 0 in November 2007. When Tricia was asked if she and Br ian discussed whether to place the title in the name of McKee Masonry or in one or both of

their name s, Tricia r eplied, “T he only discussion was reg arding putting it in Br ian’s name alone and establishing the loan in Br ian’s

name alone beca

use his c redit score wasn’t as high as mine.” Br ian and Tricia decide d that the For d F- 250 would be purcha sed and titled in Br ian’s name. They intended, howeve r, that the For d F- 250 would be used “solely” as “a work truck for the business,” McKe e Masonry

. Acc ording to Tricia, Br ian kept his business rec ords and work equipment in the For d F- 250. McKe e Masonry was operated from the family home, with some equipment being stored offsite. ¶ 31 Tricia testified that the purcha se of t h e Fo rd F- 2 5 0 al so involved a trade -in, namely
, another For d truck. This older For d was titled in both Tricia’ s and Br ian’s names and had been used “exclusively in bus in e s s, not for other purposes.” The trade -in allowanc e of $5,000

was used as a down pay

ment on the For d F- 250, and the rema inder of the purcha se price was financ ed. McKee Masonry had it s own checking acc ount as well as debit and credit car ds. All loan pay

ments on the For d F- 250 wer e made from the business chec king acc ount beca use the truck “wa s intended to be used by the business.” Repair expenses wer e also paid from the chec king acc ount. Gas for the truck was purcha sed with the business’s cre dit or debit car ds. The For d F- 250 was desig nated as a 100% business asset fo r t ax p urposes, and Br ian and T ri ci a kept trac k of business expenses associate d with the truck in order to claim tax

-6-deductions.

¶ 32 Tricia further stated t hat t he family had vehicles that wer e for persona l or nonbusiness

use. These vehicles and the For d F- 250 wer e insured by the same car rier, State Fa

rm, but the

cover ag e for

the F- 250 was billed sepa rate ly and paid by

the business. ¶ 33 Tricia testified that Br ian was en route in the F- 250 to a masonry job when the ac cident that claimed his life oc curr ed. ¶ 34 Br

y an Penrod, an employ ee of McKe e Masonry at the time of the acc ident, testified that Br ian used no vehicle for work other than the For d F- 250, except when it was being repa ired. Br ian kept his tools, equipment, and work doc uments in the truck. ¶ 35 I n the brief statement it g ave in ruling on the issue of cover ag e, the trial court focuse d on the issue of owner ship of the For d F- 250. The court asked, “[T] hey had insurance persona lly

on the vehicle[,] wher e is the intent to transfe r [ownership] or say that the corpor ation owns it? ” The court c oncluded that B rian, not McKe e Masonr y , owned the F -250. ¶ 36 We hold that the For d F- 250 was not a “non-owned” vehicle under the business policy

. Under that policy , a cove red ve hicle is neither ( 1) “own[ed] ,” (2) “lea se[d] ,” (3) “hire [d] ,”

nor (4) “borr ow[ed]” by McKe e Masonry

. The trial co u rt s pecif ically found that the truck

was not “own[ed]” by McKe e Masonry but did not consider, at least expressly
, whether the truck was nonetheless “lea se[d] ,” “hire [d] ,” or “borr ow[ed]” by McKe e Masonry

. Whil e the parties argue at l en gt h over whether McKe e Masonry eff ectively owned the For d F- 250 though i t wa s titled in Br ian’s name, we need not addre ss that controve rsy , beca use, assuming that Br ian, not McKe e Masonry
, owned the For d F- 250, the undisputed evidenc e shows that the cor

poration borr owed it from B rian. ¶ 37 To explain, we note that the business policy define s neither “lea se,” “hire ,” nor “bor row.” “Where a term in a

n insurance policy

is not defined, we aff

ord that term its plain, ordinar y and popular

meaning
, i.e. , we look to its dictionar y definition.” Founders Insurance Co. v

. Munoz
, 237 I ll. 2d 424, 436 (2010). I n asce rtaining the meaning s of these terms, we note that M cK ee M asonry was a leg al entit y that exis ted i ndepende ntly of Tricia and Brian, its so l e share holders. Thus, it was analy tically and leg ally possible for Br ian, in his persona l capa city as owner of the t ruck, to convey possession and use of i t to McKe e Masonry

. “L ease ” and “hire ” both involve pay

ment for service s or use. See Bla ck’s L aw Dictionary 735, 898 (7th ed. 1999) (“hire ” is “[t] o eng ag e the labor or service s of another for wag es or other pay ment,” and “le ase” is “[a] contra ct by which a rig htful possessor of pe rsonal prope rty convey s the rig ht to use that proper

ty in exchang e for consideration”). An item of persona l proper ty can be “borr ow[ed],” howeve r, without a promise of pay ment. See Bla ck’s L aw Dictionary 178 (7th ed. 1999) (“bor

row” is “[t] o take something for temporar y use”) ; Webster’s Third New I nternational Dicti o n ar y 256 (1993) (“bor row” is “to rec eive temporar ily from another
, impl y i n g o r expressing the intention either of returning the thing rec eived or of g iving its equivalent to the lender : obtai n the temporar y use of”)

. Her e, there is no evidenc e that McKe e Masonry paid or promised consideration for its use of the For d F- 250. There fore
, we cannot conclude that the use constitut ed a lease or hire. The use did, howeve r, constitute borrowing . On whethe r the F -250 wa s borrowe d, plaintiff say s: “The truck was not *** borrowe d by the corpor ation, in that [Brian] had the sole use of

-7-the truck, though he used it for business purp o ses, and there is no evidenc e that any employ ee of the corpor ation used the vehicle for corpor ate purposes or in any other way borrowe d *** the t ruck on behalf of t he corporatio n

. T h e truck invol ved was simply a vehicle owned by [Brian] individually that he used in his business venture s, whether to do masonry

work or plow snow .” Def endant r esponds:
“I f a vehicle is owned by another and regularly used and then returne d to that individual, that is the prec ise definition of borrow. *** [A] t a minimum
, [t he For d F- 25 0 ] wa s borrowe d, entitling [defenda nt] to summary

judgme nt.” ¶ 38 P l ai ntiff emphasizes that Br ian had “sole use of the truck,” but ignor es the rea lity t h at Br ian’s use of the truck for business was actua lly the corpor ation’s use of it. We note further that the definition of “borr ow” that we are using does not re q u i re t h at the lending

arr ang ement be formali z ed
, wh i ch appar ently it was not here

. Also, though the lending

arr ang ement was, appar ently
, continuous from the purcha se of the For d F- 250 in 2007 to the

acc ident in 2009, Br ian reta ined title to the vehicle, imply ing that the business was still using it at his pleasure

. We ag ree with the Court of Appea l s o f Oreg on, which, in construing an identical definition of “non-owned,” held t h at “[f]requency of use is not deter minative–or

even pertinent” in deter

mining whether a vehicle has been “borr owed.” (Emphasis in orig inal.) Gold v. Casserly Landscape, Inc.
, 812 P.2d 33, 34 (Or. Ct. App. 1991) ( Gold II ), modifying 801 P.2d 844 (Or. Ct. App. 1990) ( Gold I ). In the Gold

case s, an employ ee of a corpor ation “re gularly used” for business purposes a vehicle titled in the name of an office r and stockholder of the corpor ation. Gold I
, 801 P.2d at 846. App ly ing the “non-owned” vehicle provision in the corpor ation’s insurance policy
, the appellate court rema nded for the trial court to make fac tual finding s on wheth er t h e vehicle was “borr ow[ed]” from the
corpor ation. Id. at 846-47. In rema nding, the court provide d g uidance for the tr ial court on how to apply the term “borr ow.” The court consulted the same dictionary definition we have employ ed here

. Gold II

, 812 P.2d at 34. The court commented that the trial court’s rema rks might be construed to sug g est that the vehicle “wa s used too fre quently by [t he corpor ation]
to be considere d borrowe d,” which, the revie wing court noted, would be a misunderstanding of the conce pt of “borr ow.” Id. The court then continued: “Onc e the fre quency of use conce pt is rec og nized as having nothing to do with the definition of ‘borr owed,’ it would follow from the trial court’s theory that the vehicle was b o rrowe d and, there fore
, that cover ag e of the

acc ident was excluded by the endorse ment.” (Emphasis added.) Id. The court rema nded for the trial cour

t to make “that de termination *** in the first instance .” Id. ¶ 39 None of the case s upon which the parties rely is pertinent to the mea n i n g o f “bor row” under the exclusion. Fo r in s tance , American States Insurance Co. v. Gawlicki & Hussey, Inc.
, 231 I ll. App. 3d 199 (1992), dealt with an insuranc e cla use that wa s near ly

the conve rse of the one in this case

. The automobile cover ag e in the business policy in Gawlicki cover ed only “non-ow ned” automobiles, defining them as “ ‘autos’ you lease
, hire, rent, or borrow that are used in connec tion with y our business.” (Interna l quotation marks omitted.) Id. at 200. Thus, while the cover ed vehicles in Gawlicki wer e limit ed to those that the insured lease d, hired,
rente d, or borrowe d (esse ntially
, only owned vehicles wer e not cover ed), the policy at hand

cover s only vehicles that the insured does not own, hire, lease
, rent, or borrow (henc e many

-8-more exclusions apply than in Gawlicki ). The appellate court in Gawlicki held that there was

no issue of materia l fac t that the vehicle, despite its extensive use by the insured corpor ation,

was owned by the business owner persona lly

. Id. at 202. There fore
, beca use the vehicle was not owned by the corpor ation, there was cover ag e. Gawlicki
, which focuse d exclusively on the conc ept of owne rship, is inapposite here

. ¶ 40 Ba sed on the fore g oing, we hold that, even if, as the trial court deter mined, Br ian owned the For d F- 250, the undisputed materia l f acts establish that McKe e Masonry “borr ow[ed]” the truck from Br ian. There fore
, the Fo rd F- 250 was not a “non-owned” vehicle, and the exclusion of cover ag e applies. We hold that, as a matter of law, there is not even potential

cover ag e u n d er the business policy for the For d F- 250. Since there is no possibili ty that defe ndant will have a duty to defe nd the underly ing lawsuit, there wil l ar i s e no duty to indemnify reg arding that suit. See Crum & Forster Managers Co r p

. v. Resolution Trust Corp.
, 156 I ll. 2d 384, 398 (1993) (“I n case s *** wher e no duty to defe nd exis ts and the fac ts alleg ed do not e ven fall potentially within the insurance cover ag e, such fac ts a lleg ed could obviously never actually fall within the scope of cover ag e. Under no scena rio could a duty to indemnify

arise.” (Emphase s added.) ).

¶ 41 I I I . CONCL USI ON ¶ 42 For the fore g oing rea sons, we reve rse the judgme nt of the trial court and re m an d with direc tions to enter summary judgme nt in favor of

defe ndant on plaintiff’s c omplaint.

¶ 43 Reverse d and re manded with dire ctions.

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