In May 1993, Robert Lamkin, d/b/a Lamkin Leather and Rubber Company, had an automobile liability policy issued by Liberty Mutual. He took the company car to Fuller's Car Wash and an employee of the car wash, Salazar, drove Lamkin's vehicle and struck and injured another customer, Mildred Kisel. The car wash had a garage liability policy issued by American States. Kisel filed suit against Fuller's and Salazar to recover damages for her injuries. American States appeared for Fuller's Car Wash and its employee. On April 24, 1996, American States tendered the defense of the action to Lamkin's insurance company, Liberty Mutual; a month later, Liberty Mutual denied liability based on its policy exclusion of someone servicing the auto.

The evidence showed that Fuller's was in the business of washing and vacuuming cars, and the court said such services are provided for maintenance purposes.

The trial court entered judgment in favor of Kisel, and the insured car wash and its insurance carrier appealed.

In affirming the judgment, the higher court found the exclusion in Lamkin's policy was clear and unambiguous. Furthermore, a bailment was created since Lamkin delivered the insured car to one of Fuller's employees and relinquished the keys so that the car could be moved by the employee. Lamkin had no control over the driver of the car or how it was driven; and the fact that Lamkin did not lose sight of his car, and could have stopped the vacuuming process at any time, did not change the fact that Salazar, and not Lamkin, had actual physical control of the car.

The language of Liberty's policy clearly excluded coverage in the instant case, and Liberty Mutual had no obligation to defend the action.

The judgment entered in the lower court against the car wash, its employee, and its insurance carrier was affirmed.

Fuller's Car Wash, Inc., Oscar Salazar, and American States Insurance Company, Appellants v. Liberty Mutual Insurance Company, Lamkin Leather and Rubber Company and Mildred Kisel--No. 2-97-1156--Appellate Court of Illinois, Second District--July 27, 1998--Rehearing denied August 31, 1998--698 North Eastern Reporter 2d 237.