Definition of the term “Use”
Affton and Parrish have been doing business together for over ten years by using Parrish’s trailers to transport Affton’s products. A man was injured after his vehicle struck a parked trailer owned by Parrish and loaded with the Affton product. The insurer for Parrish, Carolina Casualty, issued a Commercial Transport Policy to them which covered the trailer. The insurer for Affton, Amerisure, issued a Commercial Auto Policy to them, which did not name the trailer as an insured vehicle. The injured man sued Parrish and Affton.
Carolina Casualty refused to defend Affton in the underlying litigation and argued that under Illinois law, Affton was not a user because it was not in operation or control of the vehicle. The issue was whether the insurer, Carolina Casualty, owed a duty to defend and indemnify Affton Fabricating and the insurer, Amerisure, for liability that arose out of the vehicular accident. The court noted that the word “use” was defined by the Illinois Supreme Court in Schultz v. Illinois Farmers Ins. Co. as something more than “driver” or “operator.” Schultz held that a motor vehicle policy must insure not only the persons named in the policy, but also any other person using or responsible for the use of the subject vehicle with the express or implied permission of the insured.
The court held that, based on Schultz, Affton was using the trailer by parking it for pickup and that the injuries sustained by the man arose out of the use of the trailer. Thus, Affton was an insured under the Carolina Casualty policy.
Affton Fabricating & Welding Co., Inc. v. Carolina Casualty Ins. Co., WL 222169 (S.D.ILL 2011), No. 10-0084-DRH.
