Menard, Inc. v. Illinois Farmers Insurance Co.

In a declaratory judgment lawsuit regarding insurance coverage, defendant appealed after the circuit court granted summary judgment in favor of the plaintiff regarding the defendant insurance company’s duty to defend in an underlying negligence suit. Defendant, which funded settlement of the underlying lawsuit, reserved the right to clawback the settlement funds if the court found it did not have a duty to defend. On appeal, the insurance company argued it did not have a duty to defend because the plaintiff/insured was not “using” the insured vehicle at the time of the injury. The appellate court affirmed, finding that for the purposes of establishing the duty to defend, the plaintiff was using the insured vehicle and that “use” of the vehicle including loading. (DAVENPORT, concurring and McDADE, dissenting)