NO. 5-99-0418

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

COUNTRY MUTUAL INSURANCE COMPANY,	)	Appeal from the

								)	Circuit Court of

	Plaintiff-Appellee, 					)	Jefferson County.  

								)

v.								)	No. 97-MR-34

								)

TEACHERS INSURANCE COMPANY,		)

								)	

	Defendant-Appellant,				)  

								)

and								)

								)

RUTH JOHNSTON, Individually and as Next		)

Friend of Jamie Johnston, a Minor, JO CHAPMAN,	)

and SANDOVAL COMMUNITY HIGH SCHOOL	)

DISTRICT 501,						)	Honorable

								)	George W. Timberlake,

	Defendants.						)	Judge, presiding.

________________________________________________________________________

	JUSTICE WELCH delivered the opinion of the court:

	This case comes before us on remand from the Illinois Supreme Court, which

reversed our decision in Country Mutual Insurance Co. v. Teachers Insurance Co., 312 Ill. App. 3d 566 (2000).  The Illinois Supreme Court directs us to determine whose automobile

insurance policy provides primary coverage for the claim made following an automobile

accident.  Country Mutual Insurance Co. v. Teachers Insurance Co., 195 Ill. 2d 322 (2001).  

	Country Mutual Insurance Company (plaintiff) insures the Sandoval Community

High School District No. 501 (Sandoval) under a business automobile insurance policy that

contains an "Other Insurance" provision as follows: 

	"For any covered auto you own[,] this policy provides primary insurance.  For any covered auto you don't own, the insurance provided by this policy is excess over any other collectible insurance."  (Emphasis in original.)  

Endorsement 14506 to the policy provides as follows:

	"It is agreed that such insurance as is afforded by the policy for bodily injury liability

and property damage liability with respect to an insured automobile is extended to

insure any member of the board of education, or any employee, teacher, volunteer,

personnel authorized in Sections 10-22.34, 10-22.34a[,] and 10-22.34b of the School

Code of Illinois[,] or any student teacher of the named insured, but only while acting

within the course or scope of his duties, as such, or under the direction of the board

of education, subject to the following provisions:

		***

		2.  The insurance afforded by this endorsement with respect to any hired or

nonowned automobile shall be excess insurance over any other valid and

collectible insurance."

Endorsement 14546 to the policy provides:   

	"The following is added to WHO IS INSURED: Any employee of yours is an insured while using a covered auto you don't own, hire[,] or borrow in your business or your personal affairs."  (Emphasis in original.)  

	Jo Chapman, a teacher at Sandoval, was involved in an automobile accident in her

owned automobile while she was in the course of her employment.  In the accident, a student

was injured.  This student sued Chapman, who tendered the defense of the claim to her

insurer, Teachers Insurance Company (defendant).  Defendant's policy provided that

defendant will pay damages which the insured becomes liable to pay because of bodily

injury to others and that defendant will defend any suit brought against the insured for such

damages.  However, defendant tendered the defense of the claim to plaintiff, arguing that plaintiff's policy provided primary coverage.  

	We are now directed to determine which policy provides primary coverage to

Chapman for the claim made as a result of the accident.  As our review of the case hinges

on the construction of the insurance policies, it is de novo.  See Hartford Insurance Co. of Illinois v. Kelly, 309 Ill. App. 3d 800, 804 (1999). 

	On appeal, defendant argues that endorsement 14546 to plaintiff's policy, which

modified who is an insured under the policy to include any employee while using a covered

auto not owned by Sandoval, makes plaintiff the primary insurer.  Under this endorsement,

Chapman, an employee of Sandoval who was driving a covered auto not owned by

Sandoval, is an insured under the policy.  Defendant argues that this endorsement is not

expressly limited in scope to providing excess coverage in the event there is other insurance. 

Defendant further argues that a provision in an insurance policy which seeks to limit or

exclude coverage must be construed liberally in favor of the insured and against the insurer

and that any ambiguity or uncertainty in the policy must be construed in favor of the insured

and against the insurer.

	Plaintiff responds that endorsement 14546 only served to broaden the definition of

an insured but did not otherwise change the policy.  Endorsement 14546 did not revoke

endorsement 14506; it merely broadened the definition of who is an insured.  According to

plaintiff, there is no inconsistency or contradiction between the two endorsements, and the

policy should be construed as a whole.  When so construed, it is clear that defendant's

policy, and not plaintiff's, provides primary coverage to Chapman.

	We agree with plaintiff and see little room for disagreement.  Plaintiff's policy states

that it provides primary coverage only for autos owned by Sandoval; for any covered auto

not owned by Sandoval, the policy provides only excess coverage over any other collectible

insurance.  Neither endorsement to the policy changes this provision.  Endorsement 14506 expressly provides that coverage with respect to a nonowned auto is excess over any other

collectible insurance.  Endorsement 14546 does not modify endorsement 14506, and it does

not modify the "Other Insurance" provision of the policy.  Endorsement 14506 modifies only

the definition of who is an insured, which is contained in part IV(D) of the policy.

	Contracts of insurance are subject to the same rules of construction applicable to

other types of contracts.  Hall v. Country Casualty Insurance Co., 204 Ill. App. 3d 765, 773 (1990).  When construing an insurance contract, it is our duty to ascertain and give effect

to the intent of the parties.  Wallis v. Country Mutual Insurance Co., 309 Ill. App. 3d 566, 571 (2000).  The best indicator of the parties' intent is the language used in the agreement. 

Wallis, 309 Ill. App. 3d at 571.  Thus, if the terms of the policy are clear and unambiguous, they must be given their plain and ordinary meaning.  Kelly, 309 Ill. App. 3d at 806.  In doing so, a court is to construe the policy as a whole and take into account the type of

insurance policy purchased, the nature of the risks involved, and the overall purpose of the

contract.  Kelly, 309 Ill. App. 3d at 806.

	An insurance policy is said to be ambiguous if it is subject to more than one

reasonable interpretation.  Continental Casualty Co. v. Roper Corp., 173 Ill. App. 3d 760, 767 (1988).  In our view, the pertinent provisions of plaintiff's insurance policy are not

subject to more than one reasonable interpretation.  Accordingly, we must enforce the policy

as written, taking into account the type of policy and its overall purpose.  We conclude that

plaintiff's policy does not provide primary coverage for Chapman's accident but provides

only excess coverage over any other collectible insurance which might apply.

	For the foregoing reasons, we affirm the judgment of the circuit court of Jefferson

County in favor of plaintiff.

	Affirmed.  

	CHAPMAN, P.J., and GOLDENHERSH, J., concur.

	NO. 5-99-0418

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

COUNTRY MUTUAL INSURANCE COMPANY,	)	Appeal from the

								)	Circuit Court of

	Plaintiff-Appellee, 					)	Jefferson County.  

								)

v.								)	No. 97-MR-34

								)

TEACHERS INSURANCE COMPANY,		)

								)	

	Defendant-Appellant,				)  

								)

and								)

								)

RUTH JOHNSTON, Individually and as Next		)

Friend of Jamie Johnston, a Minor, JO CHAPMAN,	)

and SANDOVAL COMMUNITY HIGH SCHOOL	)

DISTRICT 501,						)	Honorable

								)	George W. Timberlake,

	Defendants.						)	Judge, presiding.

___________________________________________________________________________

Opinion Filed:	August 14, 2001

___________________________________________________________________________

Justices:	Honorable Thomas M. Welch, J.

	Honorable Charles W. Chapman, P.J., and

	Honorable Richard P. Goldenhersh, J.,

	Concur

___________________________________________________________________________

Attorneys	Jerome E. McDonald, Matthew K. Wollin, Campbell, Black, Carnine,

for	Hedin, Ballard & McDonald, P.C., 108 South 9th Street, P. O. Drawer

Appellant	C, Mt. Vernon, IL  62864

___________________________________________________________________________

Attorney	Katherine M. Smith, Reed, Armstrong, Gorman, Mudge & Morrissey, 

for	P.C., 115 North Buchanan, P. O. Box 368, Edwardsville, IL  62025

Appellee	

___________________________________________________________________________