concurring in part and dissenting in part:
I concur in part and dissent in part for the reasons which follow.
Contrary to the majority opinion, the primary issue in the instant appeal is not who "owned the Dodge Dakota at the time of the accident.” (267 Ill. App. 3d 1027.) The primary issue in this appeal is whether the auto was in the actual possession of the insured (Schaumburg) or bailee of the insured at the time of the accident. (See 267 Ill. App. 3d at 1027.) Based on the pleadings and depositions, the trial court properly found that there was no coverage under the Clarendon policy. Therefore, summary judgment was properly granted in favor of Clarendon (Schaumburg’s insurer).
Schaumburg’s insurance policy with Clarendon clearly excludes coverage in the instant case. The Clarendon policy states in relevant part:
" 'Covered auto’ means an automobile owned or hired by or consigned to the named insured which is:
a. held for sale, or
b. used in the automobile business of the insured, or
c. a customer rental auto, or
d. a company auto, or
e. held by the insured pending removal from the insured’s premises after sale.
All only while the covered autos are in the actual possession of the insured or bailee of the insured.” (Emphasis added.)
The trial court correctly concluded that the pick-up truck was not a "covered auto” under the Clarendon policy as it was not in the "actual possession” of Schaumburg Toyota or its bailee at the time of the accident. Thus, Clarendon owed no duty to defend Lakeshore or its car hiker.
In Illinois, an insurer must defend when a complaint has been filed against the insured and the allegations are sufficient to bring the case potentially within coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24; Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335.) This court has stated that "if the complaint contains allegations which if true would exclude coverage under the policy, the insurer has no obligation to defend.” (Emphasis added.) (Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 817, 386 N.E.2d 529.) "Primary insurance coverage is coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the event that gives rise to liability.” (Federal Insurance Co. v. Economy Fire & Casualty Co. (1989), 189 Ill. App. 3d 732, 738, 545 N.E.2d 541.) Furthermore, where the trial court properly holds that an insurance company has no duty to defend, it may also find that the insurer has no duty to indemnify (Altaf v. Hanover Square Condominium Association No. 1 (1989), 188 Ill. App. 3d 533, 542, 544 N.E.2d 1032).
Two conditions must be met before an insurer’s duty to defend arises: (1) the action must be brought against an insured and (2) the allegations of the complaint must disclose potential coverage under the policy. (Employers Mutual Cos./Illinois Emcasco Insurance Co. v. Country Cos. (1991), 211 Ill. App. 3d 586, 591, 570 N.E. 2d 528; Federal Insurance Co., 189 Ill. App. 3d at 735; Murphy v. Peterson (1984), 129 Ill. App. 3d 952, 957, 473 N.E.2d 480.) Clarendon properly declined to defend allegations where its named insured was not covered under the Clarendon policy. Neither condition was met in the instant case.
The Riesco and Címbalo lawsuits fail to name Schaumburg Toyota as a defendant. The Címbalo lawsuit alleges:
"At the time and place alleged herein, LAKESHORE AUTO SALES, INC., employed one FLORENCE R. NICPON as a driver and directed said FLORENCE R. NICPON to drive a certain Dodge Dakota Pick-Up Truck in possession and control of Defendant LAKESHORE AUTO SALES, INC., to SCHAUMBURG TOYOTA, INC., in Schaumburg, Illinois.”
This is the sole allegation in the Címbalo complaint which even mentions Schaumburg Toyota. Count I of the Arnold lawsuit alleges that Lakeshore "owned” the pick-up truck and that Lakeshore, acting through its "agent and/or employee” Nicpon, was guilty of negligence.
Taking these allegations as true, in accord with well-established Illinois law (Associated Indemnity Co., 68 Ill. App. 3d at 817; Sheppard, Morgan & Schwaab, Inc. v. United States Fidelity & Guaranty Co. (1976), 44 Ill. App. 3d 481, 484, 358 N.E.2d 305), Clarendon owed no duty to defend Lakeshore and its car hiker with respect to a pick-up truck which Lakeshore "owned” or which was in Lakeshore’s "possession and control” when the accident took place while Lakeshore’s car hiker was driving it.
In the trial court, Empire made no claim whatsoever that Lake-shore was Schaumburg Toyota’s bailee. The following colloquy took place between Empire’s counsel and the trial court at the hearing on April 26, 1993:
"THE COURT: Who was the bailee?
[EMPIRE’S COUNSEL]: The bailee is Florence Nicpon, the driver.” (Emphasis added.)
The plaintiff must provide some factual basis which would arguably entitle Empire to judgment. A triable issue precluding summary judgment exists only where material facts are disputed. (Ray v. City of Chicago (1960), 19 Ill. 2d 593, 169 N.E.2d 73.) When the case came before the trial court on cross-motions for summary judgment, all material facts were before the court and the parties agreed that only a question of law was involved. Therefore, the entry of summary judgment for one or the other was proper. Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576; Wenger v. Finley (1989), 185 Ill. App. 3d 907, 911, 541 N.E.2d 1220.
It is noteworthy that Lakeshore has never tendered the defense to Schaumburg Toyota or Clarendon. Empire did not file its action against Clarendon in the lower court at either the request of or on behalf of Lakeshore and Nicpon. On the contrary, Empire has named them as defendants. Also, neither Lakeshore, Nicpon, Riesco, nor Arnold has filed briefs or sought to be heard in the instant appeal. Címbalo has no pending appeal and, in my opinion, has no standing to appeal. The only appellant in the instant case is Empire.
The law in Illinois is that an insurer’s obligations under an insurance contract are triggered when the insured tenders an action potentially within the policy coverage. (Institute of London Underwriters v. Hartford Fire Insurance Co. (1992), 234 Ill. App. 3d 70, 73, 599 N.E.2d 1311; Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380; Solo Cup Co. v. Federal Insurance Co. (7th Cir. 1980), 619 F.2d 1178, 1183.) Coverage cannot be triggered by tender from a rival insurer. (Institute of London Underwriters, 234 Ill. App. 3d at 75.) Here, neither Lakeshore nor Nicpon, through its agents or attorneys, requested Clarendon’s or Schaumburg Toyota’s assistance. To the contrary, Empire admitted that Nicpon and Lakeshore tendered only to it. Empire never made the representation that it was acting upon or at the request of Nicpon or Lakeshore. The criteria for a proper tender require that a specific request for the insurer’s assistance be made by an insured, or person authorized to act on behalf of the insured, and be made in a timely manner. (Institute of London Underwriters, 234 Ill. App. 3d at 75.) Even where an insurer is aware that its own insured is sued, there must be a tender in order to trigger coverage. In the absence of a proper tender, the insurer is not required to defend or indemnify a claim. (Institute of London Underwriters, 234 Ill. App. 3d at 76.) Although the trial court did not reach this issue, this court can affirm for any reason appearing on this record. Leavitt v. Farwell Tower Ltd. Partnership (1993), 252 Ill. App. 3d 260, 265, 625 N.E.2d 48. See also Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380.
Accordingly, I concur with that part of the opinion which affirms the trial court’s dismissal of Empire’s motion. However, I dissent from the reversal of the trial court’s grant of Clarendon’s cross-motion for summary judgment.