Court of Appeals of Michigan.

Lois Louella QUAINTON, d/b/a LLQ Transport, Plaintiff-Appellant,

v.

OOIDA RISK RETENTION GROUP, INC. a/k/a Commercial Truck Claims Management,

Defendant-Appellee.

No. 253355.

April 21, 2005.

Before: FORT HOOD, P.J., and METER and SCHUETTE, JJ.

[UNPUBLISHED]

PER CURIAM.

n this declaratory action for determination of insurance coverage stemming from a vehicular accident involving plaintiff’s semi-tractor and trailer, plaintiff appeals as of right from the trial court’s order granting defendant insurance company’s motion for summary disposition under MCR 2.116(C)(10). We affirm.

A trial court’s decision with regard to a motion for summary disposition is reviewed de novo. Dressel v. Ameribank, 468 Mich. 557, 561; 664 NW2d 151 (2003). A trial court “may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.” Smith v. Globe Life Ins Co, 460 Mich. 446, 454-455; 597 NW2d 28 (1999).

Plaintiff leased her 1995 Peterbilt truck to the Four Star Trucking Company, with the driver, Tracy Miller, acting as her independent contractor on the lease. Four Star is a trucking firm that operated as a motor carrier transporting property “from the point of origin to the point of destination.” Plaintiff explained that when a steel company needed a load of steel hauled somewhere, the steel company would call Four Star to see if a truck and driver were available to make the delivery. In accordance with the terms of the lease between plaintiff and Four Star, plaintiff’s truck was only insured “while the equipment is loaded and in transporting carriers [sic] traffic from point of origin to point of destination.”

As a result of this provision, plaintiff obtained an “Unladen Truckers Liability Policy” from defendant, which purportedly provided coverage when

the “covered auto” is bobtailing or deadheading. Bobtailing means that the “covered auto” is being operated without a “trailer” attached. Deadheading means that the “covered auto” is being operated with an attached “trailer” which does not contain or carry any cargo.

The policy also contained a provision that excluded coverage “while [the covered auto is] being used for hire.”

We initially point out that the insurance policy issue that is in dispute between the parties is a not a dispute over coverage. Michigan courts are clear that the scope of coverage is a separate inquiry from whether coverage is negated by an exclusion. Heniser v. Frankenmuth Mutual Ins, 449 Mich. 155, 172; 534 NW2d 502 (1995). In other words, when confronted with an insurance contract dispute, a court first decides whether coverage may exist under a policy and then whether coverage is precluded by an exception. Allstate Ins Co v. McCarn, 471 Mich. 283, 287; 683 NW2d 656 (2004).

In this case, the terms of the policy provided coverage for plaintiff’s truck at the time of the accident on September 8, 2000, because it was not carrying cargo. The policy provides coverage “when the ‘covered auto’ is being operated with an attached ‘trailer’ which does not contain or carry any cargo.” Moreover, plaintiff was a “Named Insured” under the policy because the certificate was in her name, and Miller was an authorized driver. Additionally, plaintiff’s vehicle was a “Covered Auto” under the policy because it was “scheduled on the [insurance] certificate … at the time of the loss.”

Thus, because it is clear that plaintiff’s truck was covered under the policy at the time of the accident, the sole issue in this case is whether coverage was excluded because plaintiff’s truck was “being used for hire” at the time of the accident.

Insurance contracts are construed in accordance with the principles of contract construction. Farmers Ins Exchange v. Kurzmann, 257 Mich.App 412, 417; 668 NW2d 199 (2003). An insurance contract should be read as a whole and meaning given to all terms. Wilkie v. Auto-Owners Ins Co, 469 Mich. 41, 50 n 11; 664 NW2d 776 (2003). Further, exclusionary clauses are to be strictly construed against the insurer. Fire Ins Exchange v. Diehl, 450 Mich. 678, 687; 545 NW2d 602 (1996), overruled in part on other grounds by Wilkie, supra at 59-63.

Plaintiff argues that because the phrase “while being used for hire” in the policy is not clearly defined, the commonly used meaning of the terms at issue should apply. Plaintiff argues that the commonly used meaning of “for hire” means “available for rent .” Plaintiff maintains that because her truck was leased to Four Star at the time of the accident, the truck could not possibly have been “available for rent,” and the policy exclusion therefore did not apply. We disagree.

As plaintiff correctly points out, the terms of an insurance policy are given their commonly used meanings, unless clearly defined in the policy. Group Ins Co v. Czopek, 440 Mich. 590, 596; 489 NW2d 444 (1992). Moreover, an ambiguity is not created because the definition of a word that has a common usage has been omitted. Id.

A starting point for discerning the plain meaning of the “for hire” language in the policy is the Michigan Motor Carrier Act (MCA), MCL 475.1 et seq., which regulates and controls the use of highways by vehicles operated by carriers of property for hire. The MCA defines “for hire” as “remuneration or reward of any kind, paid or promised, either directly or indirectly.” MCL 475.1(e). In Westlake Transport v. PSC, 255 Mich.App, 589, 617; 662 NW2d 784 (2003), this Court provided further insight into the general meaning of the “for hire” language when it stated as follows:

A private carrier is “any person engaged in the transportation of property by motor vehicle upon public highways where the transportation is incidental to, or in furtherance of, any commercial enterprise of the person, other than transportation.” MCL 475.1(q). A “for hire” motor carrier is one that receives “remuneration or reward of any kind, paid or promised, either directly or indirectly.” MCL 475.1(e). Thus, “for hire” motor carriers are engaged in the business of transportation.

In this case, neither party could dispute that Four Star was a “for hire” motor carrier under MCL 475.1(e). As plaintiff explained at her deposition, her truck was leased to Four Star, a company that was paid by steel companies to haul their steel. In other words, plaintiff’s truck was not a “private carrier” because Four Star was a separate entity from the steel companies and operated to haul steel when called upon to do so.

Plaintiff explained that when a call for a load of steel to be shipped would come in, she would get a commission for each load for which she was able to obtain an available driver and truck. Plaintiff further explained that when Miller was available, she would receive twenty-five percent of his earnings based on Miller’s agreement with Four Star. Thus, under the common meaning of the terms “for hire” within the trucking industry, plaintiff’s truck was “for hire” through Four Star to transport a load of steel for any of the steel companies that happened to need a load of steel hauled. The question then becomes whether plaintiff’s truck was in the accident “while being used” for hire, i.e. while being operated for “promised” remuneration.

Again, this Court must look to other means to define the phrase “while being used for hire,” because it is not clearly defined under the policy. One avenue for discerning the common and ordinary meaning of insurance policy terms is through dictionary definitions. Morinelli v Provident Life & Accident Co, 242 Mich.App 255, 262; 617 NW2d 777 (2000). Random House Webster’s College Dictionary (1997) defines “used” as “employed for a purpose.” “While” is defined by that dictionary as “in the time that.”

Here, although Miller could not be located during discovery to testify about exactly what he was doing at the time of the accident, plaintiff testified that Miller was “probably en route to my house, I would imagine, to pick up coil racks to haul the load.” Plaintiff further stated, “I believe [at the time of the accident] he was under dispatch from me, for Four Star, to go to Saginaw, to Worthington, Jackson to pick up a load for Saginaw.” A receipt from Miller’s trip and pay records confirms that Miller made the delivery of steel to Saginaw on September 8, 2000.

We find that although exclusions are to be strictly construed against the insurer, the common meaning of the policy controls and the exclusion must apply. When plaintiff’s truck was called and it was on the way to pick up coil racks to haul a load, the truck was “employed for a purpose,” and plaintiff would be paid when the delivery was made. Thus, plaintiff’s truck was “being used for hire” because the purpose of the trip was to haul the steel and plaintiff would receive payment for the delivery. The mere fact that Four Star regularly carried steel products does not mean that plaintiff’s truck was not “hired” each time a dispatch call came in and plaintiff’s driver was contacted to pick up the load and make a delivery. The policy does not contemplate any sort of arrangement the driver may have for hauling loads or getting “hired.” All the policy requires is that the truck be covered by being under a long-term lease with a carrier that offers plaintiff’s truck to companies that need property transported, and the fact that plaintiff’s carrier, i.e. Four Star, regularly carried steel for various companies does not mean it was not hired each time it took a load or received a dispatch call.

FN1. The cases of Engle v. Zurich-American Ins Group, 216 Mich.App 482; 542 NW2d 589 (1996), and Zurich-American Ins Co v. Amerisure Ins Co, 215 Mich. app 526; 547 NW2d 52 (1996), on which plaintiff relies, are distinguishable and do not require us to reverse the trial court’s order in this case.

.

Appellate Court of Illinois,

First District, Third Division.

CANAL INSURANCE, Plaintiff-Appellee,

v.

A & R TRANSPORTATION AND WAREHOUSE, LLC., Defendant (Kenneth Boyd, Defendant-

Appellant).

April 6, 2005.

Appeal from the Circuit Court of Cook County, Richard A. Siebel, Judge Presiding.

Justice HOFFMAN delivered the opinion of the court:

The plaintiff, Canal Insurance (Canal), filed the instant action seeking a judicial declaration that it is not obligated to defend its insured, A & R Transportation and Warehouse, LLC. (A & R), in a tort action brought against A & R by Kenneth Boyd or to indemnify A & R from any judgment that might be entered against it in that action. Canal and Boyd filed cross-motions for summary judgment. The trial court granted summary judgment in favor of Canal and denied Boyd’s motion. Boyd filed a timely notice of appeal. A & R has not appealed from the trial court’s ruling and is not a party to this appeal. For the reasons which follow, we affirm the judgment of the circuit court.

The facts of this case are not in dispute. Canal issued a policy of liability insurance (hereinafter referred to as the “Policy”), pursuant to which it agreed, under specified circumstances, to pay all sums within the limits of the Policy that A & R might become legally obligated to pay as damages for bodily injury or property damage and to defend A & R in any action seeking such damages. The Policy covered the period from December 26, 1998, to December 26, 1999, and provides, in part, as follows:

“1. COVERAGE A–BODILY INJURY * * *

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, for the purposes stated as applicable thereto in the declarations, of an owned automobile or of a temporary substitute automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage * * *.”

The Policy defines “automobile” as “a land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto) * * *.” An “owned automobile” is defined in the Policy as “an automobile which is owned by the named insured and described in the declarations * * *.”

In the space provided on the declarations page of the Policy for a description of “Owned Automobiles” is typed the phrase: “SEE ENDORSEMENT E69L ATTACHED.” That endorsement lists a number of tractors, identified by year, make, and vehicle identification number. There are no individual trailers listed or described in the endorsement. However, in the space provided on the endorsement form for the description of scheduled vehicles, it states: “ANY TRAILER WHILE SINGULARLY ATTACHED TO A SCHEDULED TRACTOR.”

Also attached to the Policy is Endorsement Form MCS-90, entitled “Endorsement For Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980,” which provides, in part, as follows:

“PUBLIC LIABILITY means liability for bodily injury, property damage, and environmental restoration.

The insurance policy to which this endorsement is attached provides automobile liability insurance and is amended to assure compliance by the insured, within the limits stated herein, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Highway Administration (FHWA) and the Interstate Commerce Commission (ICC).

In consideration of the premium stated in the Policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. Such insurance as is afforded for public liability does not apply to injury or death of the insured’s employees while engaged in the course of their employment, or property transported by the insured designated as cargo.

It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.” (Emphasis added.)

On October 5, 2000, Boyd filed an action in the circuit court of Cook County against Vickie O’Neal, A & R Transportation Trucking, Inc., and A & R Transport, seeking damages for injuries he is alleged to have received on April 21, 1999, when he lost control of a vehicle he was operating (hereinafter referred to as the “underlying action”). In his complaint in the underlying action, Boyd alleged that, prior to April 21, 1999, he contracted to haul refrigerated freight owned by “A & R Transportation Trucking, Inc., and/or A & R Transport” using a trailer provided by them. He also alleged that he rented a 1994 Volvo Tractor from O’Neal. According to Boyd’s complaint, while he was operating the tractor he rented from O’Neal and pulling the trailer he had contracted to haul, “the brakes on the tractor and/or trailer failed as * * * [he] applied them while descending a hill, causing him to lose control of the tractor/trailer.”

A & R, presumptively sued incorrectly in the underlying action as “A & R Transportation Trucking, Inc., and/or A & R Transport,” tendered the defense of Boyd’s underlying action to Canal. Canal, acting under a reservation of rights, undertook A & R’s defense and, thereafter, filed the instant action against Boyd and A & R, seeking a declaration that it owed no duty under the Policy to defend A & R in the underlying action or to indemnify it with respect thereto.

In its complaint in the instant action, Canal asserts that, because neither the tractor that Boyd was driving or the trailer he was pulling is described in the Policy’s declarations or scheduled in Endorsement E69L attached to the Policy, no coverage is afforded to A & R under the Policy for the occurrence alleged in Boyd’s underlying action.

Both Boyd and A & R were served with a summons and a copy of the complaint in the instant action. A & R failed to appear or plead to Canal’s complaint, and an order of default was entered against it. For his part, Boyd appeared and answered the complaint, affirmatively asserting that, by reason of the provisions of Endorsement Form MCS-90, Canal is required to pay any judgment that might be rendered against A & R in the underlying action, regardless of whether the tractor that he was driving or the trailer that he was pulling was specifically described in the Policy.

Boyd and Canal filed cross-motions for summary judgment. The trial court denied Boyd’s motion and granted Canal’s cross-motion, finding that Canal owed no duty under the Policy to defend A & R in the underlying action or to indemnify it with respect thereto. Boyd’s motion for reconsideration was denied, and this timely appeal followed.

Boyd urges us to reverse both the summary judgment granted in favor of Canal and the denial of his motion for summary judgment. Our resolution of this appeal turns on the question of whether, as a matter of law, the terms of the Policy either do or do not obligate Canal to defend A & R in the underlying action or to indemnify A & R from any damages that might be assessed against it therein. The issue is one of contract construction.

“The construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court which are appropriate subjects for disposition by way of summary judgment.” Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 391, 189 Ill.Dec. 756, 620 N.E.2d 1073 (1993). Our review of a trial court’s order granting summary judgment is de novo. Sears, Roebuck & Co. v. Acceptance Insurance Co., 342 Ill.App.3d 167, 171, 275 Ill.Dec. 965, 793 N.E.2d 736 (2003).

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)(West 2002); Carruthers v. B.C. Christopher & Co., 57 Ill.2d 376, 380, 313 N.E.2d 457 (1974). When, as in this case, the parties file cross-motions for summary judgment, they invite the court to decide the issues presented as a matter of law. Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576 (1958).

In Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 N.E.2d 90, 607 N.E.2d 1204 (1992), our supreme court held that:

“In construing an insurance policy, the court must ascertain the intent of the parties to the contract. [Citations.] To ascertain the meaning of the policy’s words and the intent of the parties, the court must construe the policy as a whole [citations], with due regard to the risk undertaken, the subject matter that is insured and the purposes of the entire contract [citation]. If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. [Citations.] However, if the words in the policy are susceptible to more than one reasonable interpretation, they are ambiguous [citation] and will be construed in favor of the insured and against the insurer who drafted the policy [citations].” (Emphasis in original.) Outboard Marine Corp., 154 Ill.2d at 108-109, 180 Ill.Dec. 691, 607 N.E.2d 1204.

Canal argues, as it did in the trial court, that the Policy affords no coverage for the claims asserted against A & R in the underlying action as neither the tractor that Boyd was driving or the trailer that he was pulling falls within the Policy’s definition of an “owned automobile.” Although Boyd admits that neither vehicle is listed or described in either the declarations page of the Policy or Endorsement E69L attached thereto, he asserts that the provisions of Endorsement Form MCS-90 negate the limiting definition of an “owned automobile” contained within the body of the Policy and obligate Canal to indemnify A & R for any damages that might be awarded against it in the underlying action. As noted earlier, Endorsement Form MCS-90 obligates Canal to pay, within the limits of liability described in the Policy, any final judgment recovered against A & R for public liability resulting from negligence in the operation, maintenance, or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980, regardless of whether or not each motor vehicle is specifically described in the Policy. Canal acknowledges the provisions of Endorsement Form MCS-90 relied upon by Boyd, but argues that the endorsement affords no coverage for the occurrence which is the subject of the underlying action.

As Canal correctly notes, Endorsement Form MCS-90 provides that the coverage afforded thereunder does not apply to injuries sustained by an employee of A & R while acting in the course of his employment. Canal argues that, for purposes of the application of the provisions of the Endorsement Form MCS-90, Boyd was an employee of A & R and, as a consequence, the endorsement affords A & R no coverage for the occurrence alleged in the underlying action. We agree with Canal in this regard.

Under the authority of the Motor Carrier Safety Act of 1980 (49 U.S.C. § 13906), the Secretary of Transportation promulgated regulations requiring that an MCS-90 Endorsement be attached to any liability policy issued to a certified interstate carrier (49 C.F.R. § 387.1). Perry v. Harco National Insurance Co., 129 F.3d 1072, 1074 (9th Cir.1997). By its very terms, the purpose of the MCS-90 Endorsement is “to assure compliance by the insured, * * *, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Highway Administration (FHWA) and the Interstate Commerce Commission (ICC).” Because Form MCS-90 is a federally-mandated endorsement whose terms are specified by federal regulation, federal law governs its operation and effect. John Deere Insurance Company v. Nueva, 229 F.3d 853, 856 (9th Cir.2000).

The MCS-90 Endorsement excludes from coverage “the insured’s employees while engaged in the course of their employment.” In Perry v. Harco National Insurance Company, 129 F.3d 1072 (9th Cir.1997), the court addressed the meaning of the term “employee” as used in an MCS-90 Endorsement. The Perry Court noted that the term is defined in 49 C.F.R. § 390.5 as “a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle)” and concluded that it is that definition of an “employee” that is to be applied when interpreting an MCS-90 Endorsement. Perry, 129 F.3d at 1074-75; see also Consumers County Mutual Insurance Co. v. P.W. & Sons Trucking, Inc., 307 F.3d 362 (5th Cir.2002). Boyd argues, however, that adopting this definition of the term “employee” when interpreting the coverage afforded by an MCS-90 Endorsement would be “in direct conflict with the express purpose of the statute [Motor Carrier Act of 1980] and the express language of the statute’s liability insurance requirements.” This very argument, however, was rejected by the court in Consumers County Mutual Insurance Co., 307 F.3d at 366, which held that:

“The purpose of this insurance requirement is to ensure that a financially responsible party will be available to compensate members of the public injured in a collision with a commercial motor vehicle. Although the Motor Carrier Safety Act places an affirmative obligation on motor carriers with respect to the public, it does not require motor carriers to obtain coverage for ‘injury or death of [their] employees while engaged in the course of their employment.’ 49 C.F.R. § 387.15.”

At the time of the occurrence alleged in his complaint in the underlying action, Boyd was hauling a load of refrigerated freight in furtherance of a contract he had entered into with A & R. He was driving a tractor which he had leased from O’Neal and was pulling a trailer which was the property of A & R. Boyd asserts that he was acting as an independent contractor. However, the definition of an employee as set forth in 49 C.F.R. § 390.5 includes independent contractors. Because Boyd was a statutory employee of A & R at the time of the occurrence alleged in the underlying action, the coverage afforded to A & R by reason of the Form MCS-90 Endorsement attached to the Policy “does not apply.”

Boyd also contends that a finding that he was an employee of A & R in the context of this declaratory judgment action is inappropriate as it will be binding upon him in the underlying action. See American Family Mutual Insurance Co. v. Savickas, 193 Ill.2d 378, 387, 250 Ill.Dec. 682, 739 N.E.2d 445 (2000); Murphy v. Urso, 88 Ill.2d 444, 455-57, 58 Ill.Dec. 828, 430 N.E.2d 1079 (1981). Canal argues, and we agree, that a finding in this regard is applicable only to a determination of coverage under the MCS-90 Endorsement and for no other purpose. See Perry, 129 F.3d at 1075.

Finally, Boyd argues that “Illinois public policy requires that Canal insure A & R” for the occurrence alleged in the underlying action. He asserts that “[t]he Illinois Commercial Transportation Law requires that all motor carriers maintain insurance coverage and that ‘all motor vehicles operated by or under authority of the carrier will be covered, whether or not such vehicles have been reported to the insurance, surety, or other company.’ “

Section 18c-4901 of the Illinois Commercial Transportation Law (Transportation Act) (625 ILCS 5/18c-4901 (West 2002)) provides that “[n]o motor carrier of property shall operate within this State unless it has on file with the [Illinois Commerce] Commission or its agent proof of continuous insurance or surety coverage in accordance with Commission regulations.” Section 18c-4903 states that “[e]ach certificate or other proof of insurance or surety coverage shall have, as an implied term, that * * * all motor vehicles operated by or under authority of the carrier will be covered, whether or not such vehicles have been reported to the insurance, surety, or other company.” 625 ILCS 5/18c-4903 (West 2002). However, these provisions of the Transportation Act upon which Boyd relies are inapplicable to the facts of this case.

Section 18c-1201 of the Transportation Act specifically states that the jurisdiction of the Illinois Commerce Commission “shall extend to for-hire transportation by motor carrier * * * within the State of Illinois, and except as otherwise provided elsewhere in this Chapter shall extend only to intrastate commerce.” (Emphasis added.) 625 ILCS 5/18c-1201 (West 2002). It is undisputed that, at the time of the occurrence alleged in the underlying action, Boyd was hauling a load of refrigerated freight for A & R from Illinois to Pennsylvania. As a consequence, Boyd was engaged in “interstate commerce” (see 625 ILCS 5/18c-1104(16) (West 2002)), and the provisions of the Transportation Act upon which he relies are inapplicable to the occurrence alleged in the underlying action. As such, they do not give rise to any obligation on the part of Canal to provide coverage under the Policy for any vehicle which is not described in the declarations or listed in Endorsement E69L.

Based upon the foregoing analysis, we find that the occurrence alleged in the underlying action does not fall within the coverage afforded to A & R under the Policy because: 1) the vehicles which Boyd was operating do not fall within the Policy definition of an “owned automobile”; and 2) the Form MCS-90 Endorsement does not apply to Boyd’s injury as he was a statutory employee of A & R at the time of the occurrence. We, therefore, affirm the circuit court’s order denying Boyd’s motion for summary judgment and granting summary judgment in favor of Canal.

Affirmed.

KARNEZIS, P.J., and SOUTH, J., concur.