John ANOSIKE, Plaintiff and Appellant,

v.

COVENANT TRANSPORT, INC., Defendant and Respondent.

 

B238684

 

Court of Appeal,

Second District, Division 4, California.

Filed May 24, 2013

 

APPEAL from an order of the Superior Court of Los Angeles County, Joanne O’Donnell, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC463482)

Mancini & Associates, Marcus A. Mancini, Timothy J. Gonzales; Benedon & Serlin, Douglas G. Benedon, and Gerald M. Serlin for Plaintiff and Appellant.

 

McBreen & Senior, David A. Senior; Miller & Martin, and Bradford G. Harvey for Defendant and Respondent.

 

MANELLA, J.

INTRODUCTION

John Anosike filed a complaint for damages against respondent Covenant Transport, Inc. (Covenant), alleging employment discrimination, wrongful termination, and violation of the medical leave law. Respondent moved for a stay of the proceedings, seeking to enforce a forum selection clause in a written employment agreement. The superior court granted the motion for a stay, finding the forum selection clause valid. Appellant appealed from the superior court’s order granting the motion to stay, contending the forum selection clause was unconscionable and violated California public policy. Finding no error, we affirm.

 

STATEMENT OF THE FACTS

Respondent is a national trucking company incorporated under Tennessee law, with its corporate headquarters and principal place of business in Chattanooga, Tennessee. Appellant is a Black male, and a resident of California. In June 2010, he learned that Covenant was hiring truck drivers out of its Pomona, California terminal. Appellant completed a one-week orientation in Pomona. During the orientation, he signed a written “Conditional Offer of Employment.” The one-page document consisted of the following:

 

“I, [name], accept a conditional offer of employment with COVENANT TRANSPORT pending successful completion of: [¶] DOT Physical and Drug Screen [¶] DOT Written Exam [¶] Road Test [¶] Completion of Orientation [¶] Personal Interview [¶] MVR Review [¶] Reference Checks [¶] DAC Review [¶] I also acknowledge and agree that the venue of any claims filed for injuries, accidents, or incidents will be handled through the State of Tennessee. I also acknowledge and agree that the venue of litigations that may arise from this employment shall be in the State of Tennessee. I also acknowledge and agree that Tennessee law shall apply exclusively to any such claims or litigation. Finally, I acknowledge and agree that Covenant Transport shall have the right to recover reasonable attorney fees and expenses it incurs if it prevails in any such dispute, charge, or action.

 

“I also acknowledge and agree that Covenant Transport offers a Transitional Duty Program, and as such, I agree to be subjected to said program and its conditions/requirements. I also acknowledge and agree to medical treatment and light duty in Hamilton County, Chattanooga, TN as part of my employment responsibilities with Covenant Transport, Inc.”

 

Following the one-week orientation, appellant completed an approximately three-week training course, during which he drove a truck throughout the United States. Upon completion, he was hired by respondent on June 24, 2010.

 

On or about November 12, 2010, appellant was involved in a rollover accident in the State of Washington. Following the accident, appellant received medical treatment and participated in respondent’s light duty program in Chattanooga, Tennessee. After completion of Covenant’s investigation into appellant’s accident, his employment was terminated December 22, 2010.

 

STATEMENT OF THE CASE

On June 13, 2011, appellant filed a complaint for damages. He asserted claims for race and disability discrimination, harassment, retaliation, and violation of the California Family Rights Act under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., and for wrongful termination in violation of public policy.

 

On August 23, 2011, respondent removed the case to federal court, based on diversity jurisdiction. On October 6, 2011, the federal district court granted appellant’s motion to remand the removed action.

 

On October 24, 2011, respondent moved for an order staying further proceedings on the ground that “California is an inconvenient and inappropriate forum for the trial of this action.” In the motion, brought under Code of Civil Procedure section 410.30,FN1 respondent contended that appellant had agreed to litigate all employment-related claims in Tennessee. Respondent also asserted that the decision to terminate appellant’s employment was made in Tennessee, and that the individuals who would testify concerning respondent’s employment policies and practices were located in Tennessee. Thereafter, respondent filed an answer, generally denying the allegations in appellant’s complaint.

 

FN1. All further statutory citations are to the Code of Civil Procedure, unless otherwise stated.

 

Appellant opposed the motion to stay, arguing that the “forum selection/choice of law provisions” in the Conditional Offer of Employment were unconscionable. Appellant contended the provisions were procedurally unconscionable because they were contained in a contract of adhesion. He contended the provisions were substantively unconscionable because they were unduly oppressive, “as [their] sole purpose [was] to shield Defendant Covenant from liability by making litigation for a potential claimant, such as Plaintiff, so onerous and expensive that the claimant will not pursue litigation.” Appellant also contended, without elaboration, that he would be “unable to litigate his discrimination claims in Tennessee.”

 

In a declaration filed in support of the opposition, appellant stated he was given the Conditional Offer of Employment as a “take it or leave it contract.” He further stated he was currently a part-time security guard in Los Angeles, California, earning approximately $700 per month. He asserted that “[a]s a result of my current economic situation, I do not have the money to travel to Tennessee to litigate this lawsuit. In addition to not being able to afford to fly cross-country for this case, I may also lose my job if I were required to take multiple days off work and travel to Tennessee.”

 

In reply, respondent argued that the forum selection clause was not unconscionable. Respondent asserted that the forum selection clause helped provide it with “consistency in employment litigation outcomes, and therefore, consistency in employment policies and procedures.” It alleged that “[t]he choice of Tennessee is directly related to the fact that being headquartered in Tennessee means that most of the daily business and management occurs in Tennessee.”

 

On December 15, 2011, the superior court granted the motion to stay, pending the outcome of proceedings in Tennessee. The court found some procedural unconscionability in the Conditional Offer of Employment because the forum selection clause was contained in a contract of adhesion, but found no substantive unconscionability. The court also noted that “[a]t the hearing on defendant’s motion, plaintiff raised for the first time the argument that plaintiff’s claim will likely be time-barred under Tennessee law…. Although the issue has not been briefed by any party (and plaintiff did not request the opportunity for further briefing), [the] argument is unpersuasive. Defendant seeks a stay, not dismissal of the action. If plaintiff’s action in Tennessee is found to be time-barred, plaintiff may move this court to lift the stay.” Appellant timely appealed.

 

DISCUSSION

The California Supreme Court has held that “forum selection clauses are valid and may be given effect, in the court’s discretion and in the absence of a showing that enforcement of such a clause would be unreasonable.” ( Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496 (Smith ).) “Given the importance of forum selection clauses [to both national and international commerce], both the United States Supreme Court and the California Supreme Court have placed a heavy burden on a plaintiff seeking to defeat such a clause, requiring it to demonstrate that enforcement of the clause would be unreasonable under the circumstances of the case.” ( Lu v. Dryclean–U.S.A. of California, Inc. (1992) 11 Cal.App.4th 1490, 1493 (Lu ), citing Smith, supra, at p. 496 & The Bremen v. Zapata Off–Shore Co. (1972) 407 U.S. 1, 10, 15; accord, Bancomer, S.A. v. Superior Court (1996) 44 Cal.App.4th 1450.) “The party’s burden is to demonstrate that the contractually selected forum would be unavailable or unable to accomplish substantial justice or that no rational basis exists for the choice of forum.” ( Intershop Communications AG v. Superior Court (2002) 104 Cal.App.4th 191, 199 (Intershop ).) The inconvenience and additional expense of litigating in another state is insufficient to meet this burden. ( Smith, supra, 17 Cal.3d at p. 496.) However, a forum selection clause will not be enforced if to do so would “bring about a result contrary to the public policy of the forum.” ( Cal–State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680 (Cal–State ).)

 

“The enforceability of a forum selection clause is properly raised by a motion to stay or dismiss under … section 410.30, as it is a request to the court to decline jurisdiction.” ( Furda v. Superior Court (1984) 161 Cal.App.3d 418, 425; see also Smith, supra, 17 Cal.3d at p. 494 [defendant moved to dismiss lawsuit and enforce forum selection clause under § 410.30].) FN2 The superior court’s decision is customarily reviewed for an abuse of discretion. ( Trident Labs, Inc. v. Merrill Lynch Commercial Finance Corp. (2011) 200 Cal.App.4th 147, 154; America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 9; but see Cal–State, supra, 12 Cal.App.4th at pp. 1680–1681 [substantial-evidence test].) We apply that standard of review to the instant case.

 

FN2. Section 410.30 provides: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.”

 

Appellant contends the superior court erred in granting the motion to stay because the forum selection clause (1) is unconscionable, and (2) violates California’s public policy.

 

A. Alleged Unconscionability

“The doctrine of unconscionability is a judicially created doctrine which was codified in 1979 when the Legislature enacted Civil Code section 1670.5. [Citation.] That section provides in relevant part, ‘If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract….’ (Civ.Code, § 1670.5, subd. (a).) While the statute does not attempt to precisely define ‘unconscionable,’ there is a large body of case law recognizing the term has ‘both a procedural and a substantive element, both of which must be present to render a contract unenforceable. [Citation.] The procedural element focuses on the unequal bargaining positions and hidden terms common in the context of adhesion contracts. [Citation.] While courts have defined the substantive element in various ways, it traditionally involves contract terms that are so one-sided as to “shock the conscience,” or that impose harsh or oppressive terms. [Citation.]’ [Citation.]” ( Bolter v. Superior Court (2001) 87 Cal.App.4th 900, 906–907 (Bolter ).)

 

“[P]rocedural unconscionability requires oppression or surprise. ‘ “Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form.” ’ [Citation.]” (See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247.) We agree with the trial court that some elements of procedural unconscionability are present in the forum selection clause, as it was contained in a contract of adhesion presented on a “take-it-or-leave-it” basis. Not all contracts of adhesion are procedurally unconscionable, however, and there was no element of surprise, as the forum selection clause was prominently placed in the single page Conditional Offer of Employment which appellant had ample time to review. (See id. at p. 248 [rejecting claim of procedural unconscionability, although a condominium project’s CC & Rs “may perhaps be viewed as adhesive”].)

 

More importantly, appellant has not shown that the forum selection clause is so one-sided as to “shock the conscience,” or that it imposes harsh or oppressive terms. He contends the forum selection clause is substantively unconscionable because it effectively shields respondent from liability, as it increases the costs and burdens of employees such as appellant, by requiring them to litigate in Tennessee. (See Comb v. Paypal, Inc. (N.D.Cal.2002) 218 F.Supp.2d 1165, 1177 [denying motion to enforce forum selection clause in arbitration agreement because “[l]imiting venue to [defendant’s] backyard appears to be yet one more means by which the arbitration clause serves to shield [defendant] from liability”].) This argument was foreclosed by our Supreme Court’s holding in Smith, that “ ‘[m]ere inconvenience or additional expense is not the test of unreasonableness.’ ” ( Smith, supra, 17 Cal.3d at p. 496; accord, Intershop, supra, 104 Cal.App.4th at pp. 199, 202 [enforcing forum selection clause requiring parties to settle disputes in Hamburg, Germany]; CQL Original Products, Inc. v. National Hockey League Players’ Assn. (1995) 39 Cal App.4th 1347, 1354, 1358–1359 [enforcing forum selection clause requiring parties to settle disputes in Ontario, Canada].)

 

Appellant’s reliance on Bolter, supra, 87 Cal.App.4th 900, Nagrampa v. Mailcoups, Inc. (9th Cir.2006) 469 F.3d 1257, 1287, and Lucas v. Gund, Inc. (C.D.Cal.2006) 450 F.Supp.2d 1125, 1134, is similarly misplaced. Those cases involved forum selection clauses in arbitration agreements and did not address Smith. Bolter is further distinguishable on the ground that the forum selection clause requiring any arbitration to be conducted in Utah was imposed upon preexisting California franchisees. As the Bolter court noted, “[w]hen petitioners first purchased their … franchises in the early 1980’s, [the franchisor] was headquartered in California, and the franchise agreement did not contain an arbitration provision. Thus, they never anticipated [the franchisor] would relocate its headquarters to Utah and mandate that all disputes be litigated there.” ( Bolter, supra, 87 Cal.App.4th at p. 909.) In contrast, appellant was provided notice before he was employed that all employment-related disputes would be litigated in Tennessee.

 

Moreover, the Bolter court expressed concern that the “forum selection provision[ ] ha[d] no justification other than as a means of maximizing an advantage over the petitioners.” ( Bolter, supra, 87 Cal.App.4th at p. 910.) Here, the forum selection clause was included to help respondent attain consistency in its employment practices and procedures. As a national employer, it was rational and reasonable for respondent to select the State where its headquarters are located as the exclusive forum for all employment litigation. (See Lu, supra, 11 Cal.App.4th at p. 1493, fn. 2 [reasonable for national companies to limit venue to the State where their principal place of business is located].) In short, appellant has failed to show the forum selection clause in his conditional employment contract was substantively unconscionable. Accordingly, the trial court did not err in declining to find the provision unenforceable on this ground. (See Intershop, supra, 104 Cal.App.4th at pp. 201–202 [“A forum selection clause within an adhesion contract will be enforced ‘as long as the clause provided adequate notice to the [party] that he was agreeing to the jurisdiction cited in the contract.’ [Citations.]”].) FN3

 

FN3. Appellant contends our review should be de novo, as unconscionability is a question of law for the court. (Civ.Code, § 1670.5 [“If the court as a matter of law finds….”]; Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 851.) Under this standard, we would conclude that as a matter of law, the forum selection clause was not unconscionable.

 

B. Alleged Violation of California’s Public Policy

A California court will not enforce a forum selection clause if it would lead to a result contrary to California’s public policy. ( Cal–State, supra, 12 Cal.App.4th at p. 1680.) Appellant contends enforcement of the forum selection clause would violate California’s public policy against disability discrimination because the clause would require Tennessee courts to apply Tennessee law, which provides less protection than California law. He also contends the conditional employment contract contains a “unilateral attorney’s fee provision” in favor of respondent that violates California’s public policy.

 

As an initial matter, we note that these arguments were not raised in the court below. As such, they are forfeited. (See Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 [failure to raise point in the trial court constitutes waiver].) Even were we to consider the arguments, we would reject them on the merits.

 

First, the forum selection clause does not address choice of law, and the conditional employment contract does not have a separate choice of law provision. More importantly, appellant has not demonstrated that Tennessee courts are less likely to enforce antidiscrimination laws, or that he cannot get adequate redress for disability discrimination under Tennessee law. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1304 [enforcing forum selection clause requiring California resident to litigate age discrimination claim in New York City because New York City’s Human Rights Law prohibits age discrimination, and there was “no reason to believe the New York courts ‘are less likely than California courts to enforce anti-discrimination laws’ ”].) Appellant concedes that Tennessee prohibits disability discrimination, but contends the definition of “disability” is narrower under Tennessee law than California law. Appellant has not shown, however, that his alleged disability would fall outside the scope of Tennessee’s disability discrimination law. Moreover, appellant is entitled only to an adequate remedy in the alternative forum, not the exact remedy. ( Id. at p. 1303 [“[P ] rovided [appellant] has an adequate remedy for his … discrimination claim in the selected forum, the forum selection clause does not violate California’s public policy against … discrimination.”].) In addition, “the FEHA, unlike other statutory schemes, does not contain an antiwaiver provision.” ( Id. at p. 1304.) The FEHA does not expressly prohibit “parties [from] selecting a forum and/or substantive antidiscrimination law other than California’s.” (Ibid.) In short, the forum selection clause does not violate California’s public policy against disability discrimination.

 

Nor does the “unilateral attorney’s fee provision” in the conditional employment contract change our analysis, as the issue on appeal is the enforcement of the forum selection clause.FN4 Accordingly, the superior court did not abuse it discretion in granting respondent’s motion to stay.

 

FN4. Appellant suggests the fee provision violates Civil Code section 1717, which provides: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” This argument is unavailing. The statute governs only “action[s] on a contract,” whereas appellant has asserted tort claims.

 

DISPOSITION

The order is affirmed. Costs are awarded to respondent.

 

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

Appellate Court of Illinois,

First District, Second Division.

PROGRESSIVE PREMIER INSURANCE COMPANY OF ILLINOIS, Plaintiff–Appellee,

v.

Krzysztof EMILJANOWICZ, Barbara Karawacki–Horowitz, David Horowitz, Geico a/k/a Geico General Insurance Company, and Occidental Fire And Casualty Company, Defendants

(Occidental Fire and Casualty Company, Appellant and Counterplaintiff;

v.

Progressive Premier Insurance Company of Illinois, Krzysztof Emiljanowicz, Barbara Karawacki–Horowitz, David Horowitz and Geico, a/k/a Geico General Insurance Company, Counterdefendants).

 

No. 1–11–3664.

May 28, 2013.

 

Appeal from the Circuit Court of Cook County, No. 04 CH 08266, Sophia Hall, Judge Presiding.

 

OPINION

Presiding Justice HARRIS delivered the judgment of the court, with opinion:

*1 ¶ 1 Appellant Occidental Fire & Casualty Company (Occidental) appeals the order of the circuit court granting Plaintiff–Appellee Progressive Premier Insurance Company’s (Progressive) motion for summary judgment on Progressive’s declaratory judgment action. On appeal, Occidental contends (1) genuine issues of material fact exist precluding summary judgment; and (2) if both Occidental’s and Progressive’s policies apply to the underlying accident, Progressive’s policy is primary pursuant to the “other insurance” provisions of the relevant policies. We affirm.

 

¶ 2 JURISDICTION

¶ 3 The circuit court granted summary judgment in favor of Progressive. On November 14, 2011, the court entered a judgment in the amount of $480,231.24 in favor of Progressive and against Occidental. Occidental filed a notice of appeal on December 12, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff.Feb.1, 1994); R. 303 (eff. May 30, 2008).

 

¶ 4 BACKGROUND

¶ 5 Defendant Krzysztof Emiljanowicz (Emiljanowicz) owned a 1995 Freightliner truck. On April 21, 2004, Emiljanowicz executed an application of employment with SSTS, Inc. (SSTS), a corporation in the business of transporting freight both interstate and intrastate. SSTS operates under a certificate of public convenience and necessity issued by the Interstate Commerce Commission, and possesses operating rights issued by the state of Illinois. SSTS leases equipment for hauling freight from contractors such as Emiljanowicz.

 

¶ 6 On May 12, 2004, at 10 a.m., SSTS and Emiljanowicz executed a contractor operating agreement in which Emiljanowicz agreed to lease his freightliner to SSTS for the purpose of hauling freight. In his deposition, the president of SSTS, Alex Sandrzyk, stated that pursuant to the agreement Emiljanowicz would furnish the freightliner “for the exclusive possession, Control and use of” SSTS and “shall transport only freight of” SSTS. As proof SSTS received the freightliner from Emiljanowicz, SSTS issued a signed “Receipt for Possession of the Equipment.” The contractor, however, assumed “complete responsibility for the operation of equipment for the duration of this agreement.” Sandrzyk stated that it was SSTS policy to require its contractors to have their equipment inspected and serviced by a mechanic before transporting freight for the company. Chris Sandrzyk, Alex’s son, signed the agreement on behalf of SSTS. At that time, he instructed Emiljanowicz to have his freightliner inspected by a mechanic.

 

¶ 7 After execution of the agreement at 10 a.m., SSTS issued decals to Emiljanowicz for placement on his freightliner. The decals indicate the authority to operate the freightliner pursuant to Department of Transportation regulations and contain identification numbers. Sandrzyk stated that it is the responsibility of the drivers to place the decals on their vehicles.

 

*2 ¶ 8 Later that same day, Emiljanowicz drove the truck to pick up a friend and take the truck to a mechanic. In his deposition, Emiljanowicz stated that the truck did not have problems but he needed to “[c]heck everything out” because he was “start[ing] a new job.” He purchased the freightliner so he could go into business as an independent operator. Emiljanowicz stated that he had called his friend earlier and asked him “to come with [him] so [he] can drop it off to [the] mechanic.” Around 1:45 p.m. on May 12, 2004, on his way to pick up his friend, Emiljanowicz collided with a vehicle driven by defendant Barbara Karawacki–Horowitz.

 

¶ 9 Officer Kenneth King responded to the call of an accident. In his deposition, Officer King acknowledged that his report did not contain information identifying Emiljanowicz’s vehicle as a commercial carrier. He stated that he could not recall whether the truck had decals or placards identifying it as a commercial carrier, but if the truck had such information Officer King would have indicated so in his report. Officer King further stated that Emiljanowicz never told him that he was working for SSTS at the time of the accident. Officer King obtained insurance information from Emiljanowicz.

 

¶ 10 At the time of the accident, Emiljanowicz was covered by an insurance policy issued by Progressive. The Progressive policy contains the following “Contingent Liability Endorsement”:

 

“We agree with you that the provisions of the Policy relating to insurance for Personal Injury Protection, Bodily Injury Liability, and Property Damage Liability are subject to the following limitations:

 

1. These coverages apply only to an insured named in the Policy declarations.

 

2. These coverages do not apply at any time when an insured under this endorsement is operating, maintaining, or using the insured auto or any other auto for or on behalf of anyone else or any organization whether or not the insured is being compensated for such use.

 

3. These coverages do not apply when an insured under this endorsement is acting as an agent or employee of anyone else or any organization.”

 

¶ 11 Occidental issued a liability insurance policy to SSTS for coverage of all vehicles in service for SSTS, whether owned or leased by SSTS. The policy provides coverage for “all sums an ‘insured’ must legally pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto’.” The policy also contains the following:

 

“1. Who Is An Insured

The following are ‘insureds’:

 

a. You for any covered ‘auto’.

 

* * *

d. The owner or anyone else from whom you hire or borrow a covered ‘auto’ that is not a ‘trailer’ while the covered ‘auto’:

 

(1) Is being used exclusively in your business as a ‘ trucker’; and

 

(2) Is being used pursuant to operating rights granted to you by a public authority.”

 

*3 The policy defines “trucker” as “any person or organization engaged in the business of transporting property by ‘auto’ for hire.”

 

¶ 12 Within the Occidental policy is a “SCHEDULE OF COVERED AUTOS YOU OWN” in which SSTS listed both its owned and nonowned vehicles. The policy also contains a provision detailing liability coverage for owned vehicles acquired by SSTS after the effective date of the policy:

 

“B. Owned Autos You Acquire After The Policy Begins

1. If Symbols 41, 42, 43, 44 or 45 are entered next to a coverage in Item Two of the Declarations, then you have coverage for ‘autos’ that you acquire of the type described for the remainder of the policy period.

 

2. But, if Symbol 46 is entered next to a coverage in Item Two of the Declarations, an ‘auto’ you acquire will be a covered ‘auto’ for that coverage only if:

 

a. We already cover all ‘autos’ that you own for that coverage or it replaces an “auto” you previously owned that had that coverage; and

 

b. You tell us within 30 days after you acquire it that you want us to cover it for that coverage.”

 

¶ 13 Symbol 46 refers to the “autos” specifically described in the “SCHEDULE OF COVERED AUTOS YOU OWN.” Symbol 47 applies to “those ‘autos’ you lease, hire, rent or borrow.” Both parties agree that Emiljanowicz’s freightliner falls within the definition of symbol 47. As is apparent from the above provision, Occidental’s policy does not specify coverage for leased vehicles obtained after the policy begins. SSTS, however, did add Emiljanowicz’s freightliner to the list of specifically described nonowned vehicles on June 8, 2004.

 

¶ 14 Ms. Karawacki–Horowitz filed a bodily injury claim against Emiljanowicz to recover damages as a result of the accident. Her husband, David Horowitz, filed a claim for loss of consortium. Progressive defended the claims under a reservation of rights, and the claims were subsequently dismissed pursuant to a settlement in the amount of $400,000. Progressive filed a declaratory judgment action seeking a declaration of coverage under the Occidental policy in lieu of the Progressive policy. It sought reimbursement for the defense and settlement of the Horowitz claims. Occidental filed a counterclaim alleging no coverage was provided under its policy, as well as other defenses.

 

¶ 15 Progressive filed a motion for summary judgment and Occidental filed a response and a cross-motion for summary judgment. On April 15, 2011, the trial court granted Progressive’s motion and denied Occidental’s motion, ruling that the underlying action triggered Occidental’s duty to defend. The court ruled that Emiljanowicz and his freightliner were covered by Occidental’s policy and “[i]t is undisputed that at the time of the accident Emiljanowicz was in the process of taking his tractor to a mechanic to get his tractor examined.” The trial court reserved the question of the application of the “other insurance” provisions of the policies pending further briefing on the application of Progressive’s policy. Progressive then filed a supplemental motion for summary judgment, and Occidental filed a response. The trial court granted Progressive’s motion on August 11, 2011, and on November 14, 2011, it entered judgment in favor of Progressive and against Occidental. Occidental filed this timely appeal.

 

¶ 16 ANALYSIS

*4 ¶ 17 On appeal, Occidental contends the trial court erred in granting Progressive’s motion for summary judgment, finding that Occidental’s policy provided coverage for the underlying Horowitz claims, and denying Occidental’s cross-motion for summary judgment. “The construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court and appropriate subjects for disposition by summary judgment.”   Konami (America), Inc. v. Hartford Insurance Co. of Illinois, 326 Ill.App.3d 874, 877 (2002). If parties file cross-motions for summary judgment, they acknowledge that no material questions of fact exist and the only issue is one of law regarding the construction of an insurance policy. American Family Mutual Insurance Co. v. Fisher Development, Inc., 391 Ill.App.3d 521, 525 (2009). We review the trial court’s determinations on motions for summary judgment de novo. Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill.2d 550, 556 (2007).

 

¶ 18 In order for Occidental’s policy to apply here, we must find that Emiljanowicz is an insured under the policy and that his freightliner is a covered “auto.” According to the terms of Occidental’s policy, Emiljanowicz qualifies as an insured if his vehicle is being used exclusively in SSTS’s business of “transporting property by ‘auto’ for hire.” Occidental contends Emiljanowicz is not an insured under the policy because he was driving his vehicle to pick up a friend and was not engaged in the business of transporting property on behalf of SSTS at the time of the accident. Occidental’s arguments on this issue, in both its main brief and its reply brief, make no supporting citations to authority. Occidental’s argument without support violates Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008), which provides that arguments “shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” Therefore, it has waived this argument on review. However, even on the merits we are not persuaded by Occidental’s contentions.

 

¶ 19 The undisputed facts show that SSTS is a corporation in the business of transporting freight both interstate and intrastate. SSTS operates under a certificate of public convenience and necessity issued by the Interstate Commerce Commission, and possesses operating rights issued by the State of Illinois. Pursuant to a contractor operating agreement, SSTS leased Emiljanowicz’s freightliner for transporting property. The agreement granted SSTS “exclusive possession, Control and use of” the freightliner for its business. Emiljanowicz agreed to transport only freight from SSTS. The agreement also provided that the “[c]ontractor shall follow the directions of [SSTS] exclusively in the performance of its duties under this Agreement.” Furthermore, it was SSTS’s policy to direct contractors to have their equipment inspected and serviced by a mechanic before beginning work with the company. SSTS gave Emiljanowicz identification decals to place on his vehicle.

 

*5 ¶ 20 After the parties signed the agreement, Chris Sandrzyk instructed Emiljanowicz to have his vehicle inspected by a mechanic. Emiljanowicz stated that the truck did not have problems but he needed to “[c]heck everything out” because he was “start[ing] a new job.” Emiljanowicz wanted to take a friend along so that he could drop off the truck with the mechanic. On his way to pick up his friend, Emiljanowicz was involved in the collision that resulted in the underlying Horowitz claims.

 

¶ 21 Where the contractor agreement provides that the insured corporation has exclusive possession, control and use of a leased vehicle, and at the time of the accident the vehicle was operating on directions from the corporation, the vehicle is being used in the business of the corporation. Occidental Fire & Casualty Co. of North Carolina v. Padgett, 113 Ill.App.3d 215, 219–20 (1983). Therefore, Emiljanowicz was engaged in the business of SSTS at the time of the accident.

 

¶ 22 Occidental, however, argues that Emiljanowicz was not engaged in the business of SSTS because his vehicle did not have a trailer attached and did not display placards or decals identifying it as under lease by SSTS. Occidental also argues that its policy does not cover Emiljanowicz because he was not employed by SSTS at the time of the accident to transport property but, rather, was on his way to pick up a friend. As discussed above, Occidental provides no cases in support of its arguments. Nevertheless, as long as the hiring corporation had exclusive possession and control of the vehicle, and the vehicle was being operated on directions from the corporation, it is engaged in the business of the corporation even if it was not in the process of transporting property and did not have a trailer attached. See Occidental, 113 Ill.App.3d at 220 (covered accident occurred after corporation told driver to leave his trailer and go home because another load would not be ready for transport until the following day). See also St. Paul Fire & Marine Insurance Co. v. Frankart, 69 Ill.2d 209 (1977) (accident that occurred when the driver was returning home pulling an empty trailer on directions of company was in the course of the company’s business).

 

¶ 23 The undisputed testimony also reveals that Emiljanowicz was given the decals after he signed the agreement with SSTS and he possessed the decals at the time of the accident. Sandrzyk stated that it is the responsibility of the contractor to display the decals on the vehicle. Occidental provides no cases in support of its argument that the failure to display the decals precludes a finding that Emiljanowicz was operating his freightliner in the business of SSTS at the time of the accident. In fact, the decals are part of a Interstate Commerce Commission regulatory scheme that, although informative, is not controlling on this issue. Occidental, 113 Ill.App.3d at 220.

 

¶ 24 The determinative factor remains whether SSTS had exclusive possession, control, responsibility and use of the freightliner at the time of the accident. The parties signed the agreement at 10 a.m. on May 12, 2004. At that time, Chris Sandryzk instructed Emiljanowicz to get his freightliner inspected and serviced by a mechanic pursuant to SSTS policy. Approximately three hours later, Emiljanowicz was on his way to pick up a friend so that he could drop off his vehicle with the mechanic and complete the inspection demanded by SSTS. The accident occurred as Emiljanowicz drove to get his friend. In his deposition, Emiljanowicz explicitly stated that he had called his friend earlier and asked him “to come with [him] so [he] can drop it off to [the] mechanic.” Emiljanowicz provided no other reason for driving the freightliner to his friend’s house, and no testimony contradicted him on this issue. We hold that under the terms of Occidental’s policy, Emiljanowicz is a covered insured. FN1

 

FN1. The parties also discuss Freed v. The Travelers, 300 F.2d 395 (7th Cir.1962), in which the driver of a leased vehicle had a collision after dropping off a load and while taking his vehicle to a garage for service and maintenance. The Freed court found that although the driver had a duty to maintain the truck, this duty did not effectively remove performance of maintenance from the sphere of the corporation’s business activities. Id. at 398. Although informative, federal case law is not controlling here. Prior Plumbing & Heating Co. v. Hagins, 258 Ill.App.3d 683, 688 (1994).

 

*6 ¶ 25 Next we determine whether Emiljanowicz’s freightliner was a covered “auto” at the time of the accident. The trial court found that the freightliner, as a specifically described auto within Occidental’s policy, was covered by symbol 46 in the provision for autos acquired after the policy begins. Since the policy covers all such “autos” leased by SSTS, and SSTS added the freightliner on June 8, 2004, within 30 days of acquiring it by signing the contractor agreement with Emiljanowicz, the trial court determined that the freightliner was a covered “auto” under Occidental’s policy. Occidental disagrees, arguing that the freightliner falls under symbol 47, not 46, and as such must be listed on the policy for coverage to apply. Occidental, however, provides no citations to support its argument.

 

¶ 26 It is true that Occidental’s policy contains no specific provision for coverage of leased autos acquired after the policy begins. However, although Emiljanowicz’s freightliner is a leased “auto” within the definition of symbol 47, Occidental’s policy also lists the freightliner as a specifically described auto in the “SCHEDULE OF COVERED AUTOS YOU OWN” section of the declarations. It appears that SSTS listed all of its leased trucks as specifically described autos. Specifically described autos are designated by symbol 46 in the policy. Occidental’s policy is ambiguous insofar as it does not specify whether leased vehicles listed as a specifically described auto can be designated by symbol 46 in determining coverage for those acquired after the policy begins. Courts will construe such ambiguities against the insurer who drafted the policy.   Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 108 (1992). Therefore, we find that Emiljanowicz’s freightliner falls within the definition of symbol 46 for determining coverage of autos acquired after the policy begins. The parties do not dispute that Occidental’s policy covers all of the trucks SSTS leases to transport property. SSTS also added the freightliner within 30 days of signing the contractor agreement with Emiljanowicz. According to the terms of Occidental’s policy, the freightliner is a covered “auto” under Occidental’s policy.

 

¶ 27 Occidental also contends that the trial court erred in finding that Progressive’s policy issued to Emiljanowicz did not apply and denying Occidental’s motion for summary judgment. Generally, the denial of a summary judgment motion is not a final judgment and is therefore not appealable.   Chavda v. Wolak, 188 Ill.2d 394, 403 (1999). However, review of a denial for summary judgment is proper where the trial court’s order also granted a cross-motion for summary judgment on the same claim. Id.

 

¶ 28 At issue is the following contingent liability endorsement provision contained in Progressive’s policy:

 

“2. These coverages do not apply at any time when an insured under this endorsement is operating, maintaining, or using the insured auto or any other auto for or on behalf of anyone else or any organization whether or not the insured is being compensated for such use.”

 

*7 ¶ 29 Occidental argues that this provision does not apply here because “[a]lthough Progressive argued below that Emiljanowicz was in the process of taking his truck to a mechanic to have it checked out to make sure it was in proper operating condition so he could start his job with SSTS, another equally likely inference is that Emiljanowicz was picking up a friend and, in addition, was going to a mechanic to make sure the truck, which he just purchased, was operating properly in order that he could use it for any reason.” Occidental concludes that a genuine issue of material fact exists precluding the grant of summary judgment in favor of Progressive. However, Progressive filed a motion for summary judgment and Occidental filed a cross-motion for summary judgment. In filing cross-motions for summary judgment, the parties acknowledge that no material questions of fact exist and the only issue is one of law regarding the construction of an insurance policy. American Family Mutual Insurance Co., 391 Ill.App.3d at 525.

 

¶ 30 Nevertheless, the evidence in the record does not support Occidental’s claim. As discussed above, it was SSTS policy to require its contractors to have their equipment inspected and serviced by a mechanic before transporting freight for the company. Chris Sandrzyk, after signing the agreement on behalf of SSTS, told Emiljanowicz to have his freightliner inspected by a mechanic. In his deposition, Emiljanowicz stated that he had called a friend earlier and asked him “to come with [him] so [he] can drop it off to [the] mechanic.” This undisputed testimony shows that Emiljanowicz went to pick up his friend so that he could drop off his freightliner at the mechanic for the inspection ordered by SSTS. When the accident occurred, a mere three hours after he signed the contractor agreement and received SSTS’s identifying decals, Emiljanowicz was in the process of taking his vehicle to the mechanic. Therefore, Emiljanowicz was operating or maintaining his freightliner on behalf of SSTS at the time of the accident and Progressive’s contingent liability endorsement applies to exclude coverage. See Occidental, 113 Ill.App.3d at 219–20. The trial court did not err in granting summary judgment in favor of Progressive and denying Occidental’s cross-motion for summary judgment.

 

¶ 31 Occidental also argues that Progressive’s policy should apply because “in Illinois the general rule is that the insurance follows the car.” It cites to State Farm Mutual Auto Insurance Co. v. Universal Underwriters Group, 182 Ill.2d 240 (1998). State Farm, however, involves a test driver at a dealership who got into an accident while test driving the dealer’s car. State Farm is not applicable here.

 

¶ 32 Since we find that Progressive’s policy does not apply, we need not consider Occidental’s remaining contention that Progressive’s policy is primary and Occidental’s policy is excess pursuant to their “other policies” provisions.

 

*8 ¶ 33 For the foregoing reasons, the judgment of the circuit court is affirmed.

 

¶ 34 Affirmed.

 

Justices QUINN and CONNORS concurred in the judgment and opinion.