SECOND DIVI SION DECEMBER 23, 2008

1-07-2601 STATE FARM FIRE AND CASUAL TY COMPANY, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) ) DALI A PEREZ, ) No. 06 CH 12268 ) Defendant-Appellant ) ) (Oscar Baeza and Migue l Espinoza, ) Honorab le ) Stuart Palmer, Defendants). ) Judge Presi ding.
JUSTICE CUNNI NGHAM de livered

the opinion of the c ourt: Defendant

Da lia Pere z (Pe rez) app eals from an orde r of the c ircuit co

urt of Cook

County issued August 1 6, 2007, di smissing w ith prejud ic e her mo tion for ju

dgment on the plea

dings. Perez’s motion alleged that the homeowner’s insuran ce policy did not exclude cove rage for a negligence

claim (count II

) of her lawsuit against the driver involved in the ca r accident that injured her onMay 15, 2005. On appeal, Perez alleged that plaintiff State Fa rm Fire & Casualty

Company (StateFa rm Ca su al ty) has a duty to defe nd and indemnify bec ause: (1) the homeowner’s insurance policy provides coverage for

the neg li gen ce c lai m (c oun t II); and (2) th e ne gli gen ce c lai m (c oun t II) does not allege bodily

injury arising out of

the ownership, maintenance, use, loading or unloading of the ve hicle so a s to trigger the mo tor vehic le exclusion. For th e followi ng rea sons, we a

ffirm.1-07-2601

1 The lawsuit also named HTF Enterprises, I nc. (HTF), and Sparco Motor Sports, I nc. (Sparco), as defendants. The Perez-Espinosa c omplaint alleged that HTF engaged in wrongful conduct under the Dramshop Act (235 I LCS 5/6-21 (West 2004)) (count III) and was negligent (count VI). S trict liab ility (count I V) and ne glige

nce cla ims (coun t V) wer e alleg ed aga

inst Sparco. 2 BACKGROUND On May 15, 2005, Perez was r iding in a car driven by

Oscar Baeza (Bae za) when he los t control of the vehicle and struck a tree. Perez, al ong with another passeng er, Mig

uel Espino sa (Espinosa), was seve

rely injured a s a resul

t of the crash. At t

he time of

the acc id ent, Bae za was insured by a ho me ow ne r’ s p ol ic y is su ed by S ta te Fa rm Ca su al ty t o Oliverio P izano (Pizano) and Alma Jungo (Jung o) for th eir resi dence a t 225 S. Clift

on Avenue , Elgin, Illinois. Bae za is the ad ult son of Piz ano an d Jun go and was living at their Elgin residence on Ma y 15, 2005. A

n automobi le insurance policy

issued by State Far

m Mutual Automobile Insurance Company (State Farm Auto) insured the vehicle involved in the accident. Both policies were in effect on May

15, 2005. OnOctober 7, 2005, Perez and Espinosa filed a civil action against Baeza in the circuit court of Cook Co unty, seeking

damages for injuries they sustained in the accident. The fifth amended complain t, file d Aug

ust 10 , 2006 , alle ged

two c ounts

aga inst B aeza 1 . Coun

t I a lleg ed th at Ba

eza neglig ently

operated the vehicle while under the inf luence of a lcohol (negligent operation claim). CountII alleged that Baeza negligently modified or alter ed the se ats in

the vehicle and failed to warn his passengers of the dangers and defec ts of the modified seats and safety restraint system

(negligent modification claim). Bae za then ga ve notice of the la wsuit to State F arm Auto and St ate Far m Casualty . State1-07-2601

2 Baeza a nd Espinos a are no t parties to this app eal. 3 Farm Auto acc epted the

tender a nd is curr ently defendi ng the la wsuit without a reservation of

rights. State Farm Ca sualt

y, ho wever, denied coverag e to Baeza under the motor vehicle exclusion (e xc lu si on ) o f t he ho me ow ne r’ s p ol ic y. OnJune 21, 2006, State Farm Casualty filed a c omplaint for declaratory judg me nt in the insta ntcase against Perez, as well as Ba eza and Espinoza, seeking a declaration t hat th e homeowner’s policy did not provide cover age to Baeza f

or th e civil action brought by Perez and Espinosa a

gainst B aeza, an

d that it ha

d no duty to defen d or indem

nify Baeza in the lawsu

it. Perez filed an answer to the declaratory judgment action, deny

ing that the exclusion applied to bar coverage. B oth Baeza and Espinos a fa iled to an swer the complain

t and def ault judg ments
we re en te re d a ga in st th em on No ve mb er 14 , 2 00 6, an d M ar ch 6, 20 07 , r es pe ct iv el y. 2 Perez subsequently filed a motion for judg ment on the pleadings, alleging that the negligent modification claim (count II ) was not excluded from coverage. State F arm Casualty filed a crossmotion fo r j ud gm en t o n t he pl ea di ng s a ll eg in g t ha t, on th e c on tr ar y, the neglig ent modifi cation c laim
arose out of Ba eza’s ownership a

nd use of the vehicle and

was thus excluded from coverage under the policy. On August 16, 2007, the circuit court granted State Far m Casualty’s motion for judgment
onthe pleadings, and denied Perez’s motio n, finding that the injuries arose out of the use and ownership of Baeza’s car. Perez now appe als the c ircuit co urt’s Aug ust 16, 2007 judgment, arguing that the neg ligent1-07-2601

3 On, July 13, 2007, the defendant conc eded in her response to the plaintiff’s motion for judgment on the pleadings and in reply to the plaintiff’s response to her motion for judgment on the pleadings that the negligent ope ration claim (count I) of he r complaint fell within the motor vehicle exclusion a

nd thus is no t an issue

on appea l. 4 modification claim (count II ) did not fall under the homeowner’s policy exclusion. 3 ANA LYSIS This case ste

ms from the defend ant’s appeal of the circui t cour t’s j udgmen t on t he ple adings infavor of the plaintiff. We have proper jurisdiction over the appeal of final

judgments entered by the circuit court and review de novo the circ uit court ’s order in favor of the plaintiff’s motion for judgment on the pleadings and the circuit court’s construction of the in surance policy terms. 155 Ill. 2d R. 301; 210 I

ll. 2d R. 303 ; Pekin Insurance Co. v. Be u , 376 Ill. App. 3d 294, 297, 876 N.E.2d 167, 170 (2007). A judgment on the pleadings is appropriate “whe re the plead ings disclose no genuine issue of material fact and the movan t is ent itled to judgment as a matter of law.” Gillen v. State Farm Mutual Automobile Insurance Co. , 215 Ill. 2d 381, 385, 830 N.E.2d 575, 577 (2005). All wel lpleaded facts and reasonable inferenc es in the pleading s are take n as true. Gillen v. State Farm Mutual Automobile Insurance Co. , 215 Ill. 2d at 385, 830 N.E.2d at 577. Only facts apparent on the face of the ple adings, matters subject to judicial notice, and admissions in the record are considere d by the court in ruling on a motion for judgment on

the pleadings. Gillen , 215 Ill. 2d at 385, 830 N.E.2d at 577. Th

us, in the absence of any

issues of material fact, we must determine whether the defendant was entitled to judgment as a matter of law
. As an initial matter, we note that Illinois public policy dictates that insurance is “not1-07-2601

5

necessa rily a private matter between

an insurer and its insured,” and as such, an injured party ’s righ

ts agains tthe liability insurer vests at the moment of the ac cident giving rise to the

underly ing cla im. Skidmore v. Throgmorton , 323 Ill. App. 3d 417, 422, 751 N.E.2d 637, 641 (2001); Record- A-Hit, Inc. v. National Fire Insura nce Co. of Hartford , 377 Ill. App. 3d 642, 645 , 880 N.E.2d 205, 207 (2007); Reagor v. Travelers I nsurance Co. , 92 Ill. App. 3d 99, 102-03, 415 N.E.2d 512, 514 (1980). Such vested r

ights may not be defe ated by the joint eff orts of the insured and the insurer. Skidmore , 323 Ill. App. 3d at 421, 751 N.E.2d at 640; see also Pratt v. Protective Insurance Co. , 250 Ill. App. 3d 612, 619, 621 N.E.2d 187, 192 (1993) (“[t]he insurer and the insured may

not conspire to defeat the rights of an injured party ”). The injured party’s r

elationship with the liability insurer is that of
a benefici ary, w

ho becomes a real party

in interest in the insurance contract at the time of the
occurrencegiving

rise to his injuries. Skidmore , 323 Ill. App. 3d at 421, 751 N .E.2d at 6 41; Reagor , 92 Ill. App. 3d at

103, 415 N.E.2d at 514. While the policy of the State prohibits direct a ctions by
aninjured party a

gainst an insurer

before judgment

has been rendered ag ainst its insured, such policy is notviolated as long as the issue of coverag e is effectively severed from any

issue of the insured’s liability and the assessment of damages. Reagor , 92 Ill. App. 3d at 103-04, 415 N.E.2d at 515 (“the rationa le underly ing thispolicy

is that disc losure of

liability covera ge at a trial against an insured for injuries resulting from his negligence constitutes prejudicial error”). Here, Perez’s rights a

gainst St ate Far m Casualty

, as an inj ured pas senge

r, veste d at the time of the car accident. The consequenc es of Baeza’s failure to answer State F arm Casualty’s complaint for declar atory jud gment, which resul ted in a defau lt ju dgment aga in st him, could not be imputed to Perez bec ause her

veste d rights against State Farm Casualty may not be defe ated by B aeza’s1-07-2601

6

behavior. Beca

use t he issue of coverage by the homeowner’s policy

is severed from the issue of Baeza’s liability

inthe underlying

personal injury

lawsuit filed by Perez, she has standing to defend herself in StateFarm Casualty’ s complaint for declar atory judgmen t, in which

she was named as a necessary party with sufficie

nt interest in the controversy . See Record-A-Hit, Inc. , 377 Ill. App. 3d at 645, 880 N.E.2d at 207 (“[a] tortclaimant in an underly ing action has a substantial right in the viability of a policy of insura

nce that might be the source of funds available t o satisfy the tort claim”). It is agai nst this backd rop that we determine whether the homeowner ’s policy exclusion applied to bar coverage so as to rende r a ju dg me nt on th e p le ad in gs in fa vo r o f S ta te Fa rm Ca su al ty. Aninsurer may not re fuse to defend an under lyin g claim “ unless the allegations in the underlying

complain

t clearl y f ail to stat e facts th at bri ng the case within or potentially within the policy covera

ge.” Beu , 376 Ill. App. 3d at 296, 876 N.E.2d at 170. The duty to defe nd is broader inscope than the duty to indemnity
. Beu , 376 I ll. App. 3d at 296, 876 N.E.2d at 170. To determine
aninsurer ’s duty

to defend its insured, we must compare the allegations in the underly ing complaint with the terms of the policy. Beu , 376 Ill. App. 3d at 296, 876 N.E.2d at 170. Policy construction functions to ascertain and honor the intention of the parties, as expressed inthe policy lang

uage. Gillen , 215 Ill. 2d at 393, 830 N .E.2d at 5 82. Both the policy terms and the allegations in the underlying complaint are liberall

y construe d in favor

of the ins ured, an d any doubts and ambiguities are resolved ag ainst the insurer. Beu , 376 I ll. App. 3d at 296, 876 N.E.2d at 170. Ambiguous terms in the policy include those that are prone to mo re than one rea sonab le mea ning. Gillen , 215 Ill. 2d at 393, 830 N.E.2d at 582. However, una mbiguous policy term s will be given1-07-2601

7

their plain and ordinary

meaning and will be applied as written. Beu , 376 Ill. App. 3d at 296-97, 876 N.E.2d at 170. Furthermore, a

ny undefined ter

ms in the policy

will be g iven thei

r “plain, ordinary and popular meaning”–in other words, they are to be construed in ligh t o f t he “a ve ra ge , o rd in ar y, normal, reasonable person.” Gillen , 215 Ill. 2d at 393, 8 30 N.E.2d at 582. Cou rts are a lso to
narrowly read any policy provision that purports to exclude or limit coverage, and apply themonly where the terms are “clea r, definite, and specific.” Gillen , 215 Ill. 2d at 393, 830 N.E.2d at 582. State Farm Casualty a

rgues it did not have a duty to defend under the exclus i ons listed i n section I I of t he homeow

ner’s po licy

issued to B aeza’s p arents, which sta te as foll ows: “1. Coverage L

[Liability] and Covera ge M [Medical Payments to Others] do not apply to:
e. bodily injury or propertydamage arising out of the ownership, maintenance, use, loading and unloading of: (2) a motor vehicl e owne d or operated by or rented
or lo an ed to an y insured .” The n egl igent mod

ific ation clai m (count I

I) of Perez’ s unde

rly ing t ort c laim a

gai nst B aeza allege d the f

ollo wing: “4. It was the duty of the defe ndant, OSC AR BAEZ

A, to use due care and c aution in desig ning, mod

ify ing and /or alter ing said vehicle so that others would not be injured. 5. Despite

said duty and in direct violation thereof, defenda nt,1-07-2601

8 OSCAR BAEZA, committed oneor more or all of the following neglig ent acts : (a ) designe d, modifie d and/or a ltered the vehicl e with sea ts that wer e inadeq uate for restrai ning pa ssenge

rs; (b) failed to design, modify and/or alter t he vehic le with proper s afety

belts and restrai nts; (c) failed to warn passengers of the risks, da

ngers a nd defec ts of the se ats[;] (d) failed to warn

passengers of the risks, dange rs and defe cts of the safety

restrai nt sy stem[;] (e) was otherwis e care less and neglig ent. 6. As a direct and

proximate result of one or more or all of the aforesaid negligent ac ts, the pl ain ti ff, DALIA PEREZ, sustained serious and permanent injuries.” We start by comparing

the language of the

policy exclusion with the negligent modification claim of Perez’s underly

ing lawsuit against Baeza. Perez argues that the exclusion was inapplicable because the neglig ent modificationclaim did not al lege bodily injury

arising out of the ownership, maintenance, use, loading or unloading of Baeza’s car. Specifi cally, she ar gues that the allegations under the neg ligent modification claim were “who lly ind ependent” from the allegation that Ba eza negligently

operated the vehicle, and, for support, relies on Mount Vernon Fire Insuranc e Co. v. Heaven’s Little Hands Da y Care , 343 Ill. App.1-07-2601

9

3d 309, 795 N.E.2d 1034 (2003), and United Services Automobile Ass’n. v. Dare , 357 I ll. App. 3d 955, 830 N.E.2d 670 (2005), which she contends were more instructive than Northbrook Property & Casualty Co. v. Transportation Joint Agree ment , 194 Ill. 2d 96, 741 N.E.2d 253 (2003), which was relied upon by the c ircuit court in this case. In Northbrook , many

studentswere injured and killed when a train collided with a school bus operated by the local school districts. Northbrook , 194 Ill. 2d at 97, 741 N.E.2d at 254. The insurer of the school districts sought a declar ation tha t it had no duty to defend a gainst the underly

ing lawsuitsfiled as a res ult o f the accident. Northbrook , 194 Ill. 2d at 98, 741 N.E.2d at 254. The policy at issue excluded bodily injury “ ‘arising out of the owner ship, maintenance, use or entrustment

to others of

any [motor vehicle] owned or oper ated or rented or loaned to any

insured.’

” Northb rook , 194 Ill. 2d at 98, 741 N.E.2d at 254. The Illinois Supreme Court rev ersed th e appella te court’s decision

and held that the in surer ha

d no duty to defen d becau se the al legati ons in the underlying

com plaints fa iled to state facts that bring the cases within or potentially within the p olicy coverage. Northbrook , 194 Ill. 2d at 98-99, 741 N.E.2d at 254. I t stated that alleg ation s agains t the school districts–namely, that they poorly planned bus routes a nd failed to wa

rn bu s drivers of potential hazards along those rou tes–wer e only “rephr asings” of the fact that the injuries
arose out of the school dis tricts’ u se of the motor vehicle and, thus, could not be said to be “ ‘wholly independent of any

negligent operation of the bus.’ ” Northbrook , 194 Ill. 2d at 99, 741 N.E.2d at 254-55. The appella

te court arrived at a different conclusion in MountVernon when it ruled that the insurer had a duty to defe

nd an underlying

co mplaint against its insured. Mount Vernon , 343 I ll.1-07-2601

10

App. 3d at 309, 795 N.E.2d at 1034. In MountVernon , an infant di ed fr om he at st ro ke wh en a d aycare center employee left the infant unattended in a van for more than eig hthours. Mount Vernon , 343 Ill. App. 3d at 311, 795 N.E.2d at 1036. The pare nts of the i nfant sued the day-care center, alleging wrongful death claims based on theories of ne gligent operation of a motor vehi cle and negligent supervision. Mount Vernon , 343 Ill. App. 3d at 312, 795 N.E.2d at 1037. The policy insuring the day-ca

re center excluded from coverag e bodily injury “ ‘arising out of the ownership, maintenance, use or entrustment to others of any [auto] owned or oper ated by or rente d or loane d to any insured.’ ” M ount Vernon , 343 Ill. A pp. 3d at 3 13, 795 N. E.2d at 10 38. The c ourt factually distinguished

the Northbrook

case because the Mount Vernon infant’s death occurred when the van
was not in use, a fact w

hich was attenua ted from t he actua l legitima t e purpose of the van. Mount Vernon , 343 Ill. App. 3d at 320, 795 N.E.2d at 1043. It further rea soned that the death arose from nonvehicular

conduct by day

-care center

employees in fa

iling to take a head

count of the children. MountVernon , 343 Ill. App. 3d at 319, 795 N.E.2d at 1043. The court then he ld that liability for the death did not arise out of the use of the van be cau se the vehicle served only as the situs of the infant’s death an

d was not b eing use d “in a ma nner con sistent wit

h its customary

use ” at t he time of the occurrence. Mount Vernon , 343 Ill. App. 3d at 319-20, 795 N.E.2d at 1043. As an example, if the day-c are center

employ ee had le ft the inf

ant in his car seat on the ground next to the van in the parkinglot, the infant may also have suffered heat stroke. I

n that scenario, clearly

the vehicle

would not have been “in use.” Infurther support of its position, the Mount Vernon courtcited State Farm Mutual Automobile

Insurance Co. v. Pfiel , 304 Ill. App. 3d 831, 710 N.E.2d 100 (1999). In Pfiel , the mother1-07-2601

11

of a murder victim, who was stabbed by a hunting knife in an automobile, sued the mur derer a nd his parents for damages based

on negligent supervision and negligent entrustment. Mount Vernon , 343 Ill. App. 3d at 317, 795 N.E.2d at 1041. Coverage under the automobile insurance policy extended to damage s for bodi ly in

jury “ ‘resu lting fr om the ownersh ip, maintenance or use’ ” of the car. MountVernon , 343 Ill. App. 3d at 31 7, 795 N.E. 2d at 1041 ; Pfiel , 304 Ill. App. 3d at 833, 710 N.E.2d at 103. This court found that the way the murderer “used” the car t o kill the vi ctim was “ ‘attenuated

from the a

ctual leg itimatepurpose of

an automobile and, therefore, not contemplated by the parties to the insurance contract.’ ” Mount Vernon , 343 Ill. App. 3d at 318, 795 N.E.2d at 1042, quoting Pfiel , 304 I ll. App. 3d at 836-37, 710 N.E.2d at 105. The Pfiel court reasoned that a “causal relation or nexu s must

exi st *** between the accident or injury and the ownership, use or maintenance of the vehicle in order for the acc ident or in

jury to come within the policy cove rage” andsu bsequently found that no such c ausal relations existed to trigger coverage becau se th e involvement

of the vehicle was only

incidental to the victim’s injuries. Mount Vernon , 343 Ill. App. 3d at 317, 795 N.E.2 d at 1041; Pfiel , 304 Ill. App. 3d at 836-37, 710 N.E.2d at 104-05. We find thatthe fac ts of the case at bar are more a nalogous to those in Northbrook than in MountVernon

and P fie l . Here, Perez’s negligent modifica tion claim against Baeza arose from injuries she sustained while the car wa s being u sed in a ma nner con sistent wit

h its customary use. The allege d problem

with the mo dified se ats and sa fety restraint system, and B aeza’s alleged failure to warn Perez about these alterations, only c reated a risk to Perez, as was the case here, when the car
was in motion and used as a mode of transportation–an actual legitimate purpose of th e car contemplated

b y the parties to the insurance contract. Bec ause the exclusion in the homeowner’s1-07-2601

12

policy did not def

ine the te rm “use, ” we must g

ive it its plain, ordin

ary and p opula

r mea ning . We thus construe

it in light of the reasonable person standard a nd note that a reasonable pe

rson woul d find the phrase “use of a motor vehicle” to mean dr iving and operating a vehicle. We cannot think of a more inherent activity

one may do with a c ar than to drive it. See All st ate In surance Co. v
. Smiley , 276 Ill. App. 3d 971, 977, 659 N.E.2d 1345, 1350 (1995) (“[t]he terms of an insurance policy must be re ad according to their plain and or dinar y meaning, and a court should not search for
anambiguity whe

re there is none”). Baeza w as drivin g the ca r at the ti me of the accide nt, an activity that squarely fa

lls under the “use of a motor ve hicl e” language in the e xclusion and was an actual legitimate purpose of the car. Unlike Pfiel , a causal relation existed here between Perez’sinjuries and Baeza’s use of the car, ca using her injuries to come within the policy’s exclusion because the involvement

of the ca

r was not i

ncidenta l to Perez’ s i nju ries, it w as the ca use of he r injurie s. Further, the neg ligent mo dificati on claim w as only a rephr asing of the fac t that Perez’s injurie s arose outof Baeza’s use of the car and, thus, was not wholly independent of the ne gligent operation of the
car. Theref

ore, we hold that the exclusion ap plies and State Farm Casualty has no duty to defend Baeza in the under

lyin g lawsu it. Perez posits that the Dare case was the most instructive to the case at bar. Dare , 357 Ill. App. 3d at 955, 830 N.E.2d at 670. We disagree. In Dare , t he in su re r s ou gh t a de cl ar at io n t ha t i t h ad no du ty to def end a law suit aga

inst its insured homeowner, who sold a horse trailer with a n a ll eg ed ly d efective horse restraint to the plaintiff. Dare , 357 Ill. App. 3d at 956, 830 N.E.2d at 672. The insurance policy ’s exclusion stated that medical payme

nts to others do not apply to bodi ly i njury arising out of “ ‘the ownership,1-07-2601

13

maintenance, use, load

ing or un loading of motor v ehicles

or all othe

r motorize d land con

vey ances, including trailers, owned or operated by or rente d or loaned to an Insured.’ ” Dare , 357 Ill. App. 3d at 959, 830 N.E.2d at 674. The appellate court in Dare held

that the exclusion did

not apply because there were some a llegations in the underly ing complaint that were potentially within the policy’s coverage. Dare , 357 Ill. App. 3d at 964, 830 N.E.2d at 678. Specifically , al legati ons that the restraint was defective, and

that was d

esigne d, modifie d, equipp ed, mark eted, dis tributed, and sold by the insured to the plaintiff, we re separate and

distinct claims from the allegations related to the insured’s ownership and maintenance of the trailer. Dare , 357 Ill. App. 3d at 965, 830 N.E.2d at 679. The Dare court, in construing the policy in favor of the ins ured, fo und the te rms “maintenance” and “ownership” ambiguous because it was unclear whe ther the insured had

to own the trailer

at the time of the plain tiff’s in juries an d whethe r th e meaning of “maintenance” departed fr om the common meaningof the word, as th e insurer suggested. I n Dare , the trailer had been sold by the original owner by the time the injurie s giving rise to the lawsuit occurred. We do not find the Dare case helpful in our analysis beca use the facts in the instant case are distingu ishable from the Dare facts. It is undisputed that Baeza owned the car he wa s driving when Perez was injured. Moreover, unlike Dar e , ther e were no alleg ations of

the sale of neg ligently modified products . Rather, Perez alle ged tha t B aeza neg ligently

operate d the car , neglig ently modified its seat r estraint sys tem, and f

ailed to w arn her

about the dange rs of such–allof

which fa ll under the unambiguous “use of a motor vehicle” exclusion of the homeowner’s policy
. Contrary to Perez’s assertion, neithe

r of thes e allegations in Perez’s negligent modification claim wa s a separ

ate and distinct claim from the allegations related to Baeza’s negligent use and operation of the c ar.1-07-2601

14

Perez further argues that State Far m Casualty had a duty

to defend based on this court’s analy sis in United Sta

tes Fide lity

& Guaranty Co. v. State F arm Mutual Automobile Insurance Co. , 152 Ill. App. 3d 46, 504 N.E.2d 123 (1987) ( USF&G ). In US F&G , a child being transported in a station wagon operated

by a day -care center was

injured w hen a pa ssenge

r door ope

ned and she fell fromthe movin g vehicle. USF&G , 152 Ill. App. 3d at 47, 504 N.E.2d at 124. The pare nts of the injured child sued the day- care center, alleg ing in two counts that its failure to provide sufficient and adequate sup ervision of the children, and its failure to operate and maintain the station wa gon properl y were both proximate causes of the injuries. USF&G , 152 Ill. App. 3d at 47, 504 N.E.2d at 124. At the time of the occurrence, a policy issued by USF& G to the day-c are center was in effe ct, whichexcluded “ ‘bodily injury arising out of the ownership, maintenance, operation [or] use of (1) any automobile *** owned or operated by *** any insured, or (2) any other automobile *** operated by any person in the course of his employment by an insured.’ ” USF&G , 152 Ill. App. 3d at 48, 504 N.E.2 d at 125. The USF&G court re asoned that the ne glige nt superv ision clai m, as a pr

oximat e cause of the child’s injuries, was not excluded under the policy . The court specifically held: “If a proximate

cause of an injury

is within the included coverage of
aninsuranc e policy

, the incl uded cov erage

is not voide d merely because an additional proximate cause of the injury is a cause w hich is excluded under the policy. Thus, in orde r for an injury

to be excluded from coverage under a

n insurance p olicy, the injury must have been caused s ol el y b y a proximate cause w hich is excluded under the policy.” USF&G , 152 Ill. Ap p . 3d at 48, 504 N.E.2d at1-07-2601

15 125. Under the reasoning in USF&G , Perez argues that while the neglig ent operation claim (count I) ag ai ns t B ae za wa s e xc lu de d u nd er th e p ol ic y, it did not serve to void the included coverage of the negligent modifica tion claim (count I I) be cause Pe

rez’s inju ries wer e not cau sed solel

y by Baeza’s negligent operati on of the c ar. Sta te Farm C asualty argue s that a pr

oximate ca

use anal ysi s is irrelevant in contract construction and that Perez’s re lian ce on USF&G is misplaced because the supreme court in Northbrook

rejected importing tort principles into a contract construction conte

xt. We do not agree with either of these contentions suggested by each party
. First, Northbrook

did not overrule USF&G . As discussed above, the Northbrook

court he ld that allegations against the school districts for poorly planning bus routes and for failing to forewarn bus drivers

o f po tential dangers of those routes were only rephrasings of the previously rejected
as serti ons and could not be deemed “ ‘wholly independent of any

negligent operation of the bus.’ ” Northbrook , 194 Ill. 2d at 99, 741 N.E.2d at 254-55. I n so holding, the supreme court ba sically said that the school districts’ allegedly poor planning and failure to warn the bus drivers were n o t proximate

causes of the injuri es. No ma

tter how p oorly

planned, a bus rout

e could not, on its own, proximatel

y cause injuries to the students without the actual operation of the bus. Likewise, failure to warn the bus drivers of the potential hazards of the chosen bus routes was not a proxima te cause of injuries to the students. In reaching its conclusion in Nor thbrook , the Illinois Supreme Court considered

some principles of

tort law when construing the insurance contra ct. See Mount Vernon , 343 Ill. App. 3d at 320, 795 N.E.2d at 1043 (“At no time in Northbrook did the supre me court state that it was ove

rruling all cases in Illinois that have applied tort principles when interpre ting insurance1-07-2601

16

contracts. *** [T]he supreme court was merely criticizing [the ap pellate] co urt’s rul ing in Northbrook

and was not overruling a long line of I llinois cases”). Se co nd ly, USF&G should be analyzed in conjunction with Allstate I nsuranc e Co. v. Pru

itt , 177 Ill. A pp . 3d 407, 532 N.E.2d 401 (1988). See Allstate Insurance Co. v. Smiley, 276 Ill. App. 3 d 971, 981, 659 N.E.2d 1345, 1353 (1995) (“ USF&G , howeve r, is comp letely

understo od onl y when it is read in conjunction

with [ Pruitt ]”); Western American Insura nce Co. v. Tovar , No. 01-C
2747, slip op. at 8, (N. D. Il l. Februa ry 21, 200 2), qu otin g Transamerica I nsuranc e Co. v. Sou

th , 95 F.2d 321, 330 (7th

Cir. 1992) (“In the Seventh Circuit’s view, Pruitt ‘limit[ed] the applicability of the [ USF&G ] principle to cases in which the two causes of injury are wholly indepe

ndent of one another’ ”). In Pruitt , a minor d riving a min ibike struckand injured the plaintiff. Pruitt , 177 I ll. App. 3d at 408, 532 N.E.2d at 402. The underlying

complaint included allegations against the minor for negligence and

recklessness, and allegations ag ainst the minor’s father for neglige nt supervision of his son. Pruitt , 177 Ill. App. 3d at 408, 532 N.E.2d at 402. The insurance policy at issue excluded coverage for bodily

injury “ ‘ar

ising out of the ownership, maintenance, use, loading or unloading of any motorized land vehicle or trailer.’ ” Pruitt , 177 Ill. App. 3d at 409, 532 N.E.2d at 402. The court held the exclusion applicable beca use the plaintiff’s theory of recovery

against the father–negligent

supervis ion–was b ase d so lely on the minor’s ownership and operation of the minibike. Pruitt , 177 Ill. App. 3d at 411, 532 N.E.2d at 404. Bec ause liability could not be imposed on the father without the minor’s alleged negligent use of the vehicle, the exclusion applied to bar coverage. Pruitt , 177 Ill. App. 3d at 413, 532 N.E.2d at 405. Negligent supervision in the USF&G
casecould hav e bee n the sole cause of the alleged injury even if no negligent vehicle use existed;1-07-2601

17

whereas the father’s negligent super vision in Pruitt

could not have been the sole cause of the alleged inju ry because liability against the fa ther could not stand alone apart from the minor’s neg ligent operation of the minibike. See, e.g. , Tovar , slip op. at4 (claimant’s injuries in [ USF&G ] could have been caused by ne glige

nt superv isi on apartfrom the operation of the vehicle–i.e., “the ce nter’s failure to prevent another child from pushing her from the car”). Here, the neg ligent mo dificati on claim w as based so lely on the neglig ent oper ation cla im, which fell under the policy exclusion. No matter how negligent Ba eza was in modify

ing the s eats and seat belt restraint syste

m, the modifications could not, on their own, proximately cause injuries to Perez without the actual operation of the car. Likewise, Baeza’s alleged fa ilure to warn Per ez about those modi fication s was not a proximate c ause of t

he injurie s without t

he alleged neglig ent operation of the ca r that resulted in the car striking a tree. We do not disag ree with the USF&G principle, cited by

Perez, that where both a cov ered an d uncove red cau se are a

lleged in a compl aint, the covere d cause

is not voided merely bec ause the uncovered cause is also an additiona l proximate
cause of th e i nj ur y. However, as in Pruitt , the negligent modification claim in Perez’s underly ing complaint was not a covere d cause b ecause

it was based solely on

Baeza’s alleged negligent use and operation of the car. Therefore, we hold that the exclusion applies to bar coverage and State F arm Casualty has no duty

to defen d Baeza in the unde

rly ing comp laint. State Farm Casualty’ s complaint for decla ratory judg

ment sought a declaration that it had neither a duty to defend nor

indemnify

Baeza in the underly

ing complaint filed by

Perez. We hold that State Fa rm C asualty has no duty

to defend or indemnify

Baeza. Steadfast Insurance Co. v. Caremark Rx, Inc. , 359 Ill. App. 3d 749, 762, 835 N.E.2d 890, 901 (2 005) ( quot ing Freemont1-07-2601

18

Casualty Insuranc e Co. v . Ace-C hicago Great Dane Corp. , 317 Ill. App. 3d 67, 73, 739 N.E.2d 85, 89 (2000) (“ ‘[a]n insured’s duty to defend *** is broade r than its duty to indemnify ’ ” and “ ‘where
no du ty t o d ef

en d e xi st s, no du ty to inde mnify cou ld eve r exi st’ ”) , and c itin g Crum & Forster Man agers Corp. v. Resolution Trust Corp. , 156 Ill. 2d 384, 398, 620 N.E.2d 1073, 1 081 (1993))
. We affirm the circuit court’s order g ranting the plaintiff’s motion for judgment on the pleadings and deny ing the d efenda nt’s motion

for judg ment on the

pleading s. Affirmed. KARNEZIS, P.J., and QUI NN, J., concur.