‘Use’ of Vehicle Held to Include Steps in Preparation for Loading

By Don R. Sampen, published, Chicago Daily Law Bulletin, February 4, 2025

The 3rd District Appellate Court recently held, over dissent, that a hardware supply store employee who ran over a customer’s foot with a forklift was “using” the customer’s cargo van, even though the employee had not yet begun lifting cargo into the van. As a result, the customer’s automobile policy provided coverage for the customer’s claim against the store.

The case is Menard, Inc. v. Illinois Farmers Insurance Co., 2024 IL App (3d) 230431. The store, Menards, was represented by Ottosen DiNolfo Hasenbalg & Castaldo Ltd. of Naperville. Johnson & Bell Ltd. of Chicago represented the insurer, Farmers.

In 2014, the van owner, Patrick Cirone, drove to Menards to pick up an order of house siding. Because other merchandise blocked the pathway to the racks where the siding was located, Menards planned to use two forklifts to retrieve the order. One would move the other merchandise out of the way, and the second would bring the siding to Cirone’s van.

Cirone, who was standing in a supposedly safe location, was struck by the first forklift when it backed up and stopped on his foot and ankle. The second forklift driver had not yet touched his order of siding, and because of the injury, the siding was never moved to the van.

Cirone brought suit against Menards and the forklift driver for negligent operation of the forklift. Menards then took the position that it was an “insured person” under Cirone’s auto insurance policy issued by Farmers. That policy included as insured persons any person using the van “with the express or implied permission of the insured.”

The policy further stated that Farmers would pay the damages for any such insured person legally liable for damages “arising out of the ownership, maintenance or use” of the vehicle. Menards thus contended that Cirone gave permission for Menards employees to use the vehicle for the purpose of loading the siding.

Menards eventually brought this declaratory action against Farmers seeking, among other things, a finding that Farmers owed Menards a duty to defend. Upon cross-motions for summary judgment, the trial court agreed with Menards that Farmers owed such a duty, and Farmers took this appeal following the entry of a Supreme Court Rule 304(a) finding allowing an immediate appeal.

Analysis

In an opinion by Justice Liam C. Brennan, the 3rd District affirmed. He initially cited Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391 (2010), for the proposition that “use” of an auto included uses connected to the vehicle not just for transportation, but also “satisfying some other related need of the user.” He further cited First Chicago Insurance Co. v. My Personal Taxi & Livery, Inc., 2019 IL App (1st) 190164, which held that “use” includes the loading and unloading of passengers.

Farmers itself accepted that “use” of the vehicle included loading and unloading. It argued, however, that Menards’ negligent action did not constitute loading. To the contrary, Brennan cited to case law, including Estes Co. of Bettendorf, Iowa v. Employers Mutual Casualty Co., 79 Ill. 2d 228 (1980), which adopted the “complete operations doctrine.”

That doctrine, wrote Brennan, is broad in scope and includes all the operations necessary to effect a complete delivery. For example, Estes defined “unloading” as including moving an article from the vehicle until it first comes to rest.

Picking up on the definition of “unloading,” Farmers argued that “loading” must at least be limited to the actual moving of an article. But Brennan disagreed, citing other case law suggesting that loading included acts in preparation for loading, such as preparing the area or preparing the supporting equipment for loading or unloading.

He observed, however, that there must be a causal connection between the plaintiff’s injury and the use of the vehicle, which, he said, called for the “reasonable contemplation test.” And here, Brennan found, the injury to Cirone’s foot caused by the forklift resulted from an activity reasonably contemplated by the parties — using a forklift to load an insured van with cargo.

The negligent acts, moreover — including failing to warn Cirone and operating the forklift — were directly related to loading the van and occurred in a closely related sequence. Hence, the injury was causally connected to Menards’ use of the van to load cargo.

The court therefore affirmed Farmers’ duty to defend in favor of Menards.

Justice Mary W. McDade dissented, arguing that the majority engaged in an unwarranted extension of the complete operations doctrine.

Key Point

The “use” of a vehicle by a permissive user for purposes of automobile liability coverage includes both loading and unloading the vehicle, and “loading” includes preparatory steps necessary to the loading process that does not necessarily involve movement of the article to be loaded.