dissenting:
I agree with the majority’s conclusion that counts I through VIII of Aisha Browne’s underlying complaint do not allege facts which bring that case within, or even potentially within, the coverage afforded to SCR Medical Transportation Services, Inc. (SCR), under the policy of insurance issued by Empire Fire and Marine Insurance Company (Empire). The policy at issue provides coverage to SCR for “bodily injury” and “property damage” caused by an accident resulting from “the ownership, maintenance or use” of a covered automobile. Counts I through VIII of Browne’s underlying complaint allege causes of action for damages sustained when she was sexually assaulted by Robert Britton, the driver of an SCR vehicle in which she was a passenger. As the majority holds, there is an insufficient nexus between the operation, use, or maintenance of SCR’s vehicle and the cause of Browne’s injuries as alleged in counts I through VIII of her complaint to trigger a duty to defend under the terms of Empire’s policy of insurance. See United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 637 N.E.2d 1167 (1994). My disagreement with the majority is based on its holding that the allegations set forth in count IX of Browne’s sixth amended complaint do not fall within the coverage of Empire’s policy and, thus, do not give rise to a duty on the part of Empire to defend SCR in Browne’s underlying action.
The majority has accurately set forth the charging allegations that appear in count IX of Browne’s sixth amended complaint and the fact that she asserted that, as a proximate result of one or more of the negligent acts alleged therein, she was “physically and psychologically injured.” It is important to note that there is no reference in count IX to the fact that Britton sexually assaulted Browne. Nevertheless, by reading count IX in conjunction with counts I through VIII, the majority concludes that Empire has no duty to defend SCR, finding that Browne’s injuries were actually caused by her having been sexually assaulted by Britton.
The majority speculates that “[cjount IX was rushed into the breach when it became obvious the first eight counts of Browne’s complaint would not support a duty to defend.” 335 Ill. App. 3d at 589. One might very well hold such an opinion as to Browne’s motive for filing count IX, but her motive is totally irrelevant to the issue to be determined in this case. The question before this court is not why Browne amended her underlying complaint to include count IX or whether the allegation that she was “physically” injured as a result of Britton’s alleged negligent conduct is true. Rather, the issue in this case is whether the allegations in Browne’s underlying complaint potentially fall within the coverage provided to SCR under Empire’s policy. As our supreme court held in United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926 (1991):
“To determine an insurer’s duty to defend its insured, the court must look to the allegations of the underlying complaints. If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent. [Citation.] An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the underlying complaints that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage. [Citation.] Moreover, if the underlying complaints allege several theories of recovery against the insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. [Citation.]” (Emphasis in original.)
In count IX of her sixth amended complaint, Browne has alleged “physical” injury proximately caused by Britton’s operation of SCR’s vehicle and by the manner in which he assisted in her “disembarkation” from the vehicle. Unlike the majority, I believe that she has thus asserted a theory of recovery which is separate and apart from the allegations of sexual assault set forth in counts I through VIII and which potentially falls within the coverage provided by the insurance policy Empire issued.
The majority asserts that it is not required to read count IX as if the other counts do not exist and, as a consequence of the facts alleged in counts I through VIII, concludes that count IX alleges intentional conduct which does not trigger Empire’s duty to defend. I have found no authority for the proposition that, in determining an insurance carrier’s duty to defend its insured, a court is at liberty to ignore one theory of liability alleged in the underlying complaint because it may be inconsistent with other theories of liability also alleged therein. To be sure, courts must consider all of the facts alleged in an underlying complaint in determining whether an insurance carrier has a duty to defend, but only for the purpose of ascertaining whether those facts allege even a single theory of liability that falls within the potential coverage of the policy. See United States Fidelity & Guaranty Co., 144 Ill. 2d at 73.
Next, despite Browne’s allegation in count IX that she was “physically” injured, the majority has determined that “Browne does not allege a ‘bodily injury’ as required in the insurance policy.” 335 Ill. App. 3d at 591. The majority supports its conclusion in this regard, in part, by noting that there are “no specific allegations of any physical injuries” set forth in count IX. 335 Ill. App. 3d at 591. However, the majority cites no authority for the proposition that a court will not consider a factual conclusion in determining whether an underlying complaint triggers the duty of an insurance carrier to defend its insured. To the contrary, our supreme court has on several occasions held that the allegations contained in an underlying complaint must be “liberally construed in favor of the insured.” Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125, 607 N.E.2d 1204 (1992); United States Fidelity & Guaranty Co., 144 Ill. 2d at 74.
In further support of its conclusion that count IX fails to allege “bodily injury” and, as a consequence, facts which bring Browne’s underlying complaint potentially within the coverage afforded under Empire’s policy, the majority implies that Browne’s attorney conceded her injuries in count IX amounted to mental anguish and fear. Further on in its opinion, the majority states that “Browne concedes count IX alleges no physical injuries, only fear and anxiety.” 335 Ill. App. 3d at 592. I take issue with both the majority’s reliance upon the statements of Browne’s attorney at oral argument to support its conclusion and its interpretation of those statements.
First, I believe it is inappropriate to consider any extrinsic evidence which impacts on an ultimate fact upon which recovery in the underlying complaint is predicated. See Thornton v. Paul, 74 Ill. 2d 132, 157-59, 384 N.E.2d 335 (1978); Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 197, 355 N.E.2d 24 (1976). Empire’s duty to defend should be determined by the allegations in Browne’s underlying complaint, not by a statement made by her attorney in oral argument before this court. Second, the majority’s statement that Browne’s attorney conceded that the injuries for which she seeks recovery in count IX amount to mental anguish and fear is a bit of an overstatement. As the majority notes, in response to a question during oral argument relating to the allegation of physical injury in count IX, Browne’s attorney responded: “I think it is primarily mental anguish and psychological suffering.” (Emphasis added.) “Primarily” is not a synonym for “exclusively.” Rather, “primarily” means “for the most part.” Merriam-Webster’s Collegiate Dictionary 925 (1998). It does not mean in the entirety. Therefore, even if one were to consider the statement made by Browne’s attorney at oral argument, I do not believe that it constitutes the unqualified concession that the majority makes it out to be.
Although the trial court correctly granted summary judgment in favor of the defendants in the first instance, once Browne filed her sixth amended complaint including count IX, I believe that the trial court erred in denying SCR’s motion for reconsideration. As a consequence, I would reverse the judgment of the trial court and remand the matter for further proceedings.