THIRD DIVISION

								Filing DateMay 22, 2002	

No. 1-00-3335									

SEARS, ROEBUCK AND			) 

COMPANY,					)		Appeal from the 

						)		Circuit Court of

	Plaintiff-Appellant,	)		Cook County.

						)

	v.					)

						)

NATIONAL UNION,			)		The Honorable 	 						)		Julia M. Nowicki

Defendant-Appellee.		)		Judge Presiding

	PRESIDING JUSTICE HALL delivered the opinion of the

court:

	On November 19, 1999, Sears, Roebuck & Company (Sears),

the insured, filed a three-count complaint for declaratory

judgment and other relief seeking a judicial determination

as to whether, pursuant to a commercial general liability

policy (Policy), its insurer, National Union, had a duty to

defend and indemnify it in an underlying lawsuit filed by

Crystal D. Bland.  In her complaint, Bland alleged that she

was assaulted and raped by Arthur V. Lanier, who was hired

to clean her carpets as an employee of Flagship Cleaning

Services (Flagship), a Sears licensee.

	Count I of Sears’ complaint sought a declaratory

judgment that National Union had a duty to defend and

indemnify Sears in the Bland lawsuit pursuant to the

Policy’s coverage for "bodily injury."  Count II sought a

declaratory judgment that, under the Policy, Sears was

entitled to "insured contract" coverage.  In count III,

Sears sought damages for National Union’s alleged breach of contract for refusing to defend and indemnify Sears in the

Bland lawsuit.

	On February 17, 2000, Sears filed an amended complaint

containing four counts. The amended complaint also gave

notice that on December 15, 1999, Sears had reached a

settlement agreement in the Bland lawsuit. Count III in the

amended complaint now alleged breach of contract only for

the failure to indemnify.  The newly added count IV alleged

breach of contract for the failure to reimburse defense fees

and costs.

	On April 19, 2000, National Union filed a motion to

dismiss the amended complaint pursuant to section 2-615 of

the Illinois Code of Civil Procedure (Code)(735 ILCS 5/2-615

(West 1998)), along with a supporting memorandum of law.   

	On June 27, 2000, the circuit court issued a memorandum

opinion in which it granted National Union’s motion to

dismiss as to count II (declaratory judgment that Sears was

entitled to insured contract coverage) and count IV (breach

of contract for failure to reimburse fees and costs).

However, the court denied the motion to dismiss as to count

I (declaratory judgment that National Union had duty to

defend and indemnify Sears) and count III (breach of

contract for failure to indemnify), where Sears sought

coverage for "bodily injury."  The court found that based on

the holding in Nationwide Mutual Fire Insurance Co. of Ohio v. Pipher, 140 F.3d 222 (3d Cir. 1998), Bland’s claims alleging negligent conduct on the part of Sears fell within the Policy’s coverage for "bodily injury" and, therefore,

National Union could not claim that there was no coverage

for Sears’ potential liability. 

	On June 28, 2000, the circuit court issued a corrected

memorandum opinion stating that its June 27 memorandum opinion mistakenly indicated that the court had granted

National Union’s motion to dismiss count IV.  The court then

corrected the error, stating that National Union’s motion to

dismiss count IV was denied.

	On July 10, 2000, Sears filed a motion for partial

summary judgment, contending that the circuit court’s June

27 and 28 memorandum opinions were tantamount to a finding that National Union should have defended and indemnified

Sears in the Bland lawsuit. 

	On July 17, 2000, Sears’ motion for partial summary

judgment was entered, but it was continued when National

Union filed a motion to reconsider the denial of its motion

to dismiss as to counts I, III, and IV of Sears’ amended

complaint.

	On September 13, 2000, the circuit court entered a

memorandum opinion granting National Union’s motion to

reconsider, thereby dismissing counts I, III, and IV of

Sears’ amended complaint.  The court granted National

Union’s motion principally on the ground that it found that

the holding in Moscov v. Mutual Life Insurance Co. of New York, 387 Ill. 378, 56 N.E.2d 399 (1944), prevented the court from exercising its discretion to follow the Third

Circuit's decision in Pipher.

	On September 19, 2000, Sears filed a timely notice of

appeal from the September 13, 2000, final order dismissing

its amended complaint.  On appeal, Sears argues that: (1)

the trial court erred when it determined that, based on the

holding in Moscov, the court did not have the discretion to follow the Third Circuit's decision in Pipher; and (2) National Union should have defended Sears in the Bland

lawsuit.  For the following reasons we affirm the circuit

court’s final order dismissing Sears’ amended complaint. 

FACTUAL BACKGROUND

	This declaratory judgment action arose from a lawsuit

filed by Bland against Flagship, Sears, and Lanier, a

Flagship employee.  Bland’s lawsuit was filed in the circuit

court of Prince George’s County, Maryland.  The Bland

complaint alleged that she was assaulted and raped by Lanier

when he came to her home to clean her carpets.  Bland’s

complaint contained 18 counts against Sears.

	In the Policy that National Union issued to Flagship,

Sears was named as an additional insured.  National Union

defended Flagship in the Bland lawsuit and ultimately

settled it on behalf of Flagship. However, National Union

refused to extend coverage to Sears.

	On December 15, 1999, Sears reached a settlement

agreement with Bland, fully resolving that underlying

litigation.  National Union has refused Sears’ request for reimbursement of its settlement and defense costs, thus

giving rise to the present action.

ANALYSIS

Applicable Law

	The parties agree that pursuant to the terms of the

Policy at issue in this case, Pennsylvania substantive law

applies.  However, the parties have cited and relied on the

procedural law of Illinois.

Standard of Review

	Where a trial court dismisses a complaint under either

section 2-615 or section 2-619 of the Code (735 ILCS 5/2-

615, 2-619 (West 1998)), this court applies a de novo standard of review. R-Five, Inc. v. Shadeco, Inc., 305 Ill. App. 3d 635, 712 N.E.2d 913, 915 (1999).  Additionally, the

determination of rights and obligations under an insurance

policy is a question of law for the court to determine.

Crawford Laboratories, Inc. v. St. Paul Insurance Co. of Illinois, 306 Ill. App. 3d 538, 715 N.E.2d 653, 656 (1999).

I. Illinois Trial Court’s Authority to Exercise its

Discretion to Follow Federal Court Decisions in Predicting

How a Sister State’s Supreme Court Would Rule on a Matter Atat

Issue  

	Sears contends that the trial court erred in holding

that under Moscov the court had no discretion to follow the Third Circuit's decision in Pipher, in determining whether Bland's sexual assault constituted an accidental

"occurrence" under the Policy.  Sears maintains that the holdings in West v. American Telephone & Telegraph Co., 311 U.S. 223, 85 L. Ed. 139, 61 S. Ct. 179 (1940), and Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern National

Insurance Group, 750 F.2d 619 (7th Cir. 1984), allow Illinois state courts to rely on persuasive authority,

including federal diversity cases such as Pipher, in predicting how a sister state’s supreme court would rule on

a particular issue.

	In response, National Union contends that the trial

court correctly determined that it had no discretion to

follow Pipher, because under the Uniform Judicial Notice of Foreign Law Act (Uniform Foreign Law Act) (735 ILCS 5/8-1003

through 8-1008 (West 1994)), as interpreted by the Illinois Supreme Court in Moscov, an Illinois trial court has no discretion to rely upon a federal diversity case when

applying a sister state’s law, if the sister state’s

intermediate court has already addressed the matter at issue

and there is no controlling decision by that state’s highest

court of review.  National Union argues that, therefore, the

Pennsylvania Superior Court’s decision in Britamco Underwriters, Inc. v. Grzeskiewicz, 433 Pa. Super. 55, 639 A.2d 1208 (1994), and not Pipher, provides the rule of law to be followed in this case.

	Illinois adopted the Uniform Foreign Law Act in 1939.

See O’Neal v. Caffarello, 303 Ill. App. 574, 25 N.E.2d 534 (1940).  In Cliff v. Pinto, 74 R.I. 369, 375, 60 A.2d 704, 707 (1948), the court stated that it adopted its version of the Uniform Foreign Law Act to provide a simple method of

enabling courts of the forum to ascertain the law of every

state, territory and other jurisdiction of the United

States.  In Strout v. Burgess, 144 Me. 263, 68 A.2d 241 (1949), the court stated that it adopted its version of the

Uniform Foreign Law Act to simplify the method of

appropriately bringing to the consideration of the court

applicable principles of foreign law and to leave its

determination to the court rather than the jury.  In Franzen v. Equitable Life Assur. Soc., 130 N.J.L. 457, 33 A.2d 599 (1943), the New Jersey Supreme Court stated that apart from

the principle of uniformity, it adopted its version of the

Uniform Foreign Law Act to achieve certainty in the

ascertainment and application of foreign law.

	In Moscov, the Illinois Supreme Court held that the Uniform Foreign Law Act along with the reasoning employed by

the United States Supreme Court in its application of

section 34 of the Judiciary Act of 1789, 28 U.S.C. §725

(1941) in West v. American Telephone & Telegraph Co, 311 U.S. 223, 85 L. Ed. 139, 61 S.Ct. 179 (1940)1 produced a change where Illinois courts would now give greater weight

to the decisions of a sister state’s intermediate court.

Moscov, 387 Ill. at 382, 389.  In an action to recover disability benefits under a life insurance policy governed

by Pennsylvania law, the Moscov court held that if no decision of the Pennsylvania Supreme Court was decisive of

the issue, an Illinois court must accept the decision of an

intermediate court of review as stating the law of

Pennsylvania in the absence of any conflicting decision by

another appellate court of coordinate jurisdiction in

Pennsylvania or by its highest court of review. Moscov, 387 Ill. at 389.

	In reaching its decision, the Moscov court renounced the doctrine set forth in Royal League v. Kavanagh, 233 Ill. 175, 84 N.E. 178 (1908), which held that in advance of an

announcement by a sister state’s supreme court, an Illinois

court could not assume that a sister state’s common law

would be declared different from the common law as construed

in Illinois; the Moscov court found that the reason for this rule’s existence had been abolished by the Uniform Foreign

Law Act, adding that when "the reason for a rule disappears

the rule should likewise disappear." Moscov, 387 Ill. at 389.

	Moscov was followed by Continental-Midwest Corp. v. Hotel Sherman, Inc., 13 Ill. App. 2d 188, 196, 141 N.E.2d 400 (1957), where the court stated that when Illinois state

courts are required to ascertain and apply the law of a sister state, Illinois state courts follow the example of

federal courts, and in the absence of other convincing

reasons (i.e., persuasive authority), an Illinois state court will accept an intermediate court decision of a sister

state as the law of that state, if the decision has not been

appealed and is that state’s only decision regarding a

particular issue.

	Additionally, in Illinois, state courts are not

prohibited from utilizing federal court decisions applying

state law. See In re Consolidated Objections to Tax Levies of School District No. 205, 306 Ill. App. 3d 1104, 1113, 715 N.E.2d 1212 (1999) (federal court’s interpretation of

Illinois law while not binding is persuasive); People v. Criss, 307 Ill. App. 3d 888, 900, 719 N.E.2d 776 (1999) (holding that even though decisions of the United States

District Court and the Court of Appeals are not binding on

state courts and are no more than persuasive authority,

these decisions can provide guidance)

	Based on the holdings in Moscov and Continental-Midwest Corp. and applying the principles set forth above, this court holds that Illinois state courts have the discretion

to rely on persuasive federal diversity decisions in

predicting how a sister state’s supreme court would rule on

a matter at issue, in the absence of controlling authority

from the sister state’s supreme court or intermediate

appellate court.

	In the present case, since the trial court found that

the Pennsylvania Superior Court’s decision in Grzeskiewicz was controlling Pennsylvania authority, it applied the proper standard and therefore did not err.

II. An Insurer’s Duty to Defend its Insured

	Under Pennsylvania law, an insurer’s duty to defend is

distinct from, and broader than, its duty to indemnify an

insured. Aetna Casualty & Surety Co. v. Roe, 437 Pa. Super. 414, 421, 650 A.2d 94, 98 (1994).  An insurer’s duty to

defend its insured is determined by the allegations of the

underlying complaint. Wilson v. Maryland Casualty Co., 377 Pa. 588, 594-95, 105 A.2d 304, 306-07 (1954).  If the

factual allegations of the complaint state a claim that

potentially falls within the policy’s coverage, then the

insurer has a duty to defend. Biborosch v. Transamerica Insurance Co., 412 Pa. Super. 505, 603 A.2d 1050 (1992).

	The duty to defend is triggered even if the complaint

against the insured is "groundless, false, or fraudulent."

Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55, 58, 188 A.2d 320, 321 (1963).  Where a claim may

potentially come within the scope of the policy, an

insurer’s refusal to defend its insured is a decision it

makes at its own peril, because the duty to defend remains

with the insurer until it is clear that the claim has been

narrowed to one beyond the terms of the policy. Britamco Underwriters, Inc. v. Weiner, 431 Pa. Super. 276, 282-83, 636 A.2d 649, 651 (1994).  However, if there is no possibility that any of the underlying claims of the

complaint could be covered by the policy, then the insurer

has no duty to defend. Germantown Insurance Co. v. Martin, 407 Pa. Super. 326, 332-33, 595 A.2d 1172, 1175 (1991).

	In order to determine whether a claim may potentially

come within the policy’s coverage, the court must ascertain

the scope of the coverage and then analyze the allegations

in the complaint. Grzeskiewicz, 433 Pa. Super. at 59, 639 A.2d at 1210.  Under Pennsylvania law it is well established

that where an insurance policy provides coverage for damages

resulting from an "occurrence" (i.e., an accident), an insurer does not have a duty to defend its insured if the

acts complained of are intentional and not accidental.

Gene’s Restaurant v. Nationwide Insurance Co., 519 Pa. 306, 548 A.2d 246 (1988).  However, in cases where the complaint

alleges that the conduct causing the harm may have been

committed negligently as well as intentionally, courts have

held that there is an "occurrence" within the meaning of the

policy and the insurer has a duty to defend. Weiner, 431 Pa. Super. at 283, 636 A.2d at 652.

	In the instant case, Sears contends that because it was

sued for its own alleged negligence in connection with

Bland’s sexual assault, coverage existed under the terms of

the Policy, notwithstanding the intentional nature of the

sexual assault.  Bland’s complaint alleged that Sears failed

to conduct a criminal background check of Lanier or, in the

alternative, having conducted such a background check still allowed Lanier to enter the homes of customers thereby

subjecting them to significant risk of violent crime; failed

to adequately supervise Lanier; failed to cause its

employees to refrain from assaulting and battering the

plaintiff; failed to assure that its employees obeyed the

criminal laws of the State of Maryland; and negligently

represented that Lanier was trustworthy, trained, qualified,

professional, safe, and competent.         

	Under the terms of the Policy, National Union agreed to

defend and indemnify Sears against all claims for "bodily

injury" caused by an "occurrence."  The Policy defines

"occurrence" as an "accident, including continuous or

repeated exposure to substantially the same general harmful

conditions."  Therefore, the primary issue is: can

intentional conduct, such as sexual assault, ever be

interpreted as accidental conduct within the meaning of an

occurrence-based insurance policy?  The Pennsylvania Supreme

Court in Gene’s Restaurant and the Pennsylvania Superior Court in Grzeskiewicz have said that it cannot.

	In cases where the underlying complaint alleges that

the conduct causing the bodily harm was solely intentional,

Pennsylvania courts have found that there was no

"occurrence" or "accident" within the meaning of the

insurance policy, and therefore the insurer had no duty to

defend.  The leading Pennsylvania case regarding this issue

is the Pennsylvania Supreme Court case Gene’s Restaurant.   In Gene’s Restaurant, the restaurant sued its insurer for the insurer’s refusal to defend it against a suit brought by

a patron who was assaulted in the restaurant. Gene’s Restaurant, 519 Pa. at 308, 548 A.2d at 246.  The plaintiff’s underlying complaint alleged that while she was

a patron in the restaurant, she was willfully and

maliciously assaulted. Gene’s Restaurant, 519 Pa. at 308, 548 A.2d at 246.  The court held that the "willful and

malicious assault alleged in the complaint is not an

accident but rather is an intentional tort. As such, it is

not covered by the policy and, therefore, the insurer owed

no duty to defend." Gene’s Restaurant, 519 Pa. at 309, 548 A.2d at 247. 

	The conclusion reached by the Pennsylvania Supreme

Court in Gene’s Restaurant -- that an assault and battery cannot be characterized as an "occurrence" for insurance

coverage purposes -- was extended by the Pennsylvania

Superior Court in Grzeskiewicz to situations where the insured itself is accused of negligence in connection with

an intentional tort committed by a third party.  In

Grzeskiewicz, a patron of the insured pub sued the pub for injuries the patron received in an assault by another

patron. Grzeskiewicz, 433 Pa. Super. at 57, 639 A.2d at 1209.  The court found that since the underlying complaint

alleged that the conduct causing the bodily harm was solely

intentional, there was no "occurrence," and thus no duty to

defend. Grzeskiewicz, 433 Pa. Super. at 61, 639 A.2d at 1210.  The court also found that allegations and claims that the insured was negligent in failing to prevent the assault

did not bring these claims within the policy’s coverage

because the policy contained an assault and battery

exclusion that specifically excluded claims for negligent

failure to prevent an assault and battery. Grzeskiewicz, 433 Pa. Super. at 63, 639 A.2d at 1211.

	Sears contends, however, that Gene’s Restaurant and Grzeskiewicz do not apply in this case.  Sears argues that Grzeskiewicz does not apply because even though the court in that case found that the underlying incident did not

constitute an "occurrence," the court’s sole ground for

denying coverage was the assault and battery exclusion,

which is an exclusion that is not relevant in this case. 

Sears’ argument must be rejected because a reading of the

Grzeskiewicz case shows that the court denied coverage not only on the ground of the applicability of the assault and

battery exclusion but also on the separate and independent

ground that the underlying incident was not an accident and,

therefore, did not constitute an "occurrence" under the

terms of the policy. Grzeskiewicz, 433 Pa. Super. at 61, 639 A.2d at 1210. See also Terra Nova Insurance Co. v. North Carolina TED, Inc., 715 F. Supp. 688, 691-92 (E.D. Pa. 1989) (finding that coverage was excluded on ground of assault and

battery exclusion as well as on ground that the assault was

not an "occurrence" as defined by the policy)

	Sears contends that Gene’s Restaurant is inapplicable because the underlying complaint in that case contained no allegations of negligence on the part of the insured.  Sears

argues that since it was sued for its own alleged negligence

in connection with Bland’s sexual assault, National Union

therefore had a duty to defend Sears against Bland’s

underlying complaint.  In support of this argument, Sears

relies on the Pennsylvania Supreme Court decision in Mohn v. American Casualty Co., 458 Pa. 576, 326 A.2d 346 (1974), and Pipher, where both courts held that a third party’s intentional act was a covered "occurrence" if, from the

insured’s perspective, the intentional act was unexpected

and unintended.

	In Mohn, the plaintiff sought recovery under two medical insurance policies for expenses incurred as a result

of his son’s hospitalization. Mohn, 458 Pa. at 577, 326 A.2d at 347.  The plaintiff’s son was fatally wounded when he was

shot by a police officer as he was attempting to flee from

the scene of a burglary he was in the process of committing.

Mohn, 458 Pa. at 577, 326 A.2d at 347.  The Mohn court held that the shooting constituted an "accidental bodily injury"

when viewed from the son’s perspective, and therefore the

plaintiff was entitled to coverage. Mohn, 458 Pa. at 578, 586, 326 A.2d at 348, 352.  The Mohn court went on to state that the "test of whether injury is a result of an accident

is to be determined from the viewpoint of the insured and

not from the viewpoint of the one that committed the act

causing the injury." Mohn, 458 Pa. at 578, 326 A.2d at 348.

	The Third Circuit Court of Appeals in Pipher relied on the Mohn decision in holding that whether an injury is an "accident" must be determined from the perspective of the

insured. Pipher, 140 F.2d at 225-26.  In Pipher, the insured, Linda Pipher, leased an apartment to Francis

McFadden and his wife Bernine. Pipher, 140 F.2d at 223.  Prior to leasing the apartment to the McFaddens, either

Pipher or the previous tenants removed the doors to the

apartment in order to install new carpeting.  The doors were

never reinstalled. Pipher, 140 F.2d at 223.  After the McFaddens took possession of the apartment, a painter whom

Pipher hired to paint the apartment assaulted and killed

Bernine while she was in the apartment. Pipher, 140 F.2d at 224.

	The Pipher court found that, from Pipher’s perspective, Bernine’s assault was unexpected and therefore constituted

an "accident" which would be covered under the terms of the

insurance policy.  The Pipher court determined that Pipher’s negligence in hiring a painter with a troubled past and

failing to reinstall the apartment doors resulted in an

accident -- the unexpected, unintended murder of her tenant,

Bernine. Pipher, 140 F.2d at 226.  The Pipher court went on to hold that if the Pennsylvania Supreme Court was

confronted with this issue, it would hold that bodily injury

resulting from a third party’s intentional conduct would be

regarded as an "occurrence" requiring coverage under an

occurrence-based insurance policy if, from the insured’s perspective, the injury was unexpected and the injury was

potentially attributable to the insured’s own negligence.

Pipher, 140 F.2d at 228.

	In the present case, Sears argues that based on the

reasoning set forth in the Mohn and Pipher decisions, Bland’s sexual assault constituted an accidental

"occurrence" requiring coverage under the Policy, because

from Sears' perspective the sexual assault was unintended

and unexpected.  However, a similar argument was rejected in

Gene’s Restaurant where the restaurant argued that its insurer had a duty to defend it in the underlying lawsuit

because it neither "expected" nor "intended" its patron to

be assaulted. Gene’s Restaurant, 519 Pa. at 309 n.1, 548 A.2d at 247 n.1.  The Pennsylvania Supreme Court responded

that such an argument ignored insurance policy requisites

that an "occurrence" must be an accident, which an assault

could never be. Gene’s Restaurant, 519 Pa. at 309 n. 1, 548 A.2d at 247 n.1.

	Sears also contends that its position is supported by

the holding in Weiner.  In Weiner, a patron sued the owners of a bar alleging that a co-owner and an employee of the bar

struck the patron in the neck. Weiner, 431 Pa. Super. at 278, 636 A.2d at 650.  The complaint set forth alternative

theories of liability against the insureds such as negligent

infliction of emotional distress and negligent failure to

provide adequate protection for business invitees. Weiner, 431 Pa. Super. at 278, 636 A.2d at 650.  The complaint also alleged that the plaintiff's injuries were either the result

of an "accident" or the intentional or negligent acts of the

insured bar or its employees. Weiner, 431 Pa. Super. at 282, 636 A.2d at 652.  The policy provided coverage for damages

resulting from "occurrences," which were defined as

accidents. Weiner, 431 Pa. Super. at 281-82, 636 A.2d at 652.  The court found that the insurer had a duty to defend

its insured because the complaint alleged that the conduct

causing the harm may have been committed negligently as well

as intentionally. Weiner, 431 Pa. Super. at 283, 636 A.2d at 652.

	Weiner demonstrates that the relevant inquiry is not whether the underlying complaint alleges negligence as a

theory of liability, but whether the conduct causing the

injury may have been committed negligently.  For example, in

Terra Nova Insurance Co. v. 900 Bar, 887 F.2d 1213, 1217 (3d Cir. 1989), the owners of a bar asked their insurance

company to defend them against claims for damages resulting

from two patrons being shot by an employee of the bar.  The

court found that the insurer had a duty to defend the bar in

the underlying lawsuit because the complaint contained

allegations of negligence against the bar that were broad

enough to include the possibility that the bar’s employee

had pointed his gun at an inanimate object and inadvertently

shot the patrons, or that the gun discharged due to

negligence. Terra Nova, 887 F.2d at 1226.

	Unlike the conduct at issue in Weiner and Terra Nova, the conduct alleged to have caused the bodily injuries in

Bland’s complaint was solely intentional conduct.  As the

trial court stated, "[y]ou cannot allege rape in a negligent

manner, against the person who did it."    Sears’ alleged negligence in hiring an employee

with a troubled past may have helped create the conditions

which made Bland's sexual assault possible, but this does

not change the fact that the sexual assault itself was the

direct result of a solely intentional act. See, e.g., Erie Insurance Exchange v. Claypoole, 449 Pa. Super. 142, 157, 673 A.2d 348, 356 (1996) (stating that "injuries resulting

from sexual assault committed on children in cases of sexual

molestation are intentional as a matter of law")

	Based on the foregoing and in particular on the holding

in Grzeskiewicz, this court finds that because Bland's complaint alleged that the conduct causing the bodily injury

was solely intentional, there was no "occurrence" within the

meaning of the Policy and,  therefore, National Union had no

duty to defend or indemnify Sears in the Bland lawsuit, even

though the complaint also alleged that the conduct causing

the bodily harm was attributable to Sears’ negligence.

	Accordingly, for the reasons set forth above, the

circuit court’s final order dismissing Sears’ amended

complaint is affirmed.

	Affirmed.

	WOLFSON and BURKE, JJ., concur.