Illinois Farmers Insurance Co. v. Walker , 2023 IL App (1st) 221115-U ( 2023 )

2023 IL App (1st) 221115-UNo. 1-22-1115
Order filed May 10, 2023
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
ILLINOIS FARMERS INSURANCE COMPANY and ) Appeal from the
FARMERS INSURANCE EXCHANGE, ) Circuit Court of
) Cook County.
Plaintiffs-Appellees, )
) No. 20 CH 7484
v. )
) Honorable
KENNETH WALKER and CLAUDIA WALKER, ) Caroline K. Moreland,
) Judge, presiding.
Defendants-Appellants. )
JUSTICE BURKE delivered the judgment of the court.
Presiding Justice McBride and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s grant of summary judgment in favor of plaintiff
insurance providers, which denied coverage for damage to the defendants’ vehicle
and refused to defend and indemnify defendants in an underlying negligence
lawsuit arising out of a collision involving the vehicle.
¶2 Defendants, Kenneth and Claudia Walker, a married couple, appeal the circuit court’s grant
of summary judgment in favor of their automobile and homeowner’s insurance providers, Illinois
No. 1-22-1115
Farmers Insurance Company and Farmers Insurance Exchange (collectively, Farmers). 1 In
September 2020, Kenneth, who suffers from dementia and Alzheimer’s disease, drove Claudia’s
vehicle without her knowledge or permission and struck another vehicle on I-55. The driver of that
vehicle was injured and sued the Walkers for negligence in Will County. Farmers denied coverage
for damage to Claudia’s vehicle, refused to defend or indemnify the Walkers in the underlying
Will County lawsuit, and sought declaratory judgment in the circuit court of Cook County that the
denials of coverage were proper. The circuit court of Cook County granted summary judgment in
favor of Farmers. On appeal, the Walkers argue that Claudia is entitled to coverage for the damage
to her vehicle, defense, and indemnification. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 On September 28, 2020, Kenneth drove Claudia’s vehicle on I-55 in Will County and
struck a vehicle driven by Bernabe Padilla head-on. 2 Padilla was injured and sued the Walkers in
the circuit court of Will County, alleging that Kenneth caused the collision by negligently driving
southbound in the northbound lanes of I-55. Padilla also alleged that Claudia negligently allowed
Kenneth to drive her vehicle despite knowing that he was unable to drive safely, and that she failed
to restrict his access to the vehicle.
¶5 The Walkers tendered Padilla’s complaint to Farmers, seeking defense and indemnification
in Padilla’s lawsuit and coverage for damage to Claudia’s vehicle. The Walkers sought coverage
1
The insurance carriers’ complaint states that Illinois Farmers Insurance Company is an Illinois
corporation and Farmers Insurance Exchange is a California corporation. However, the complaint and all
other filings in this case refer to the two corporations collectively as “Farmers,” so we will do the same.
2
Shortly after Kenneth struck Padilla, Padilla was allegedly rear-ended by an individual named
Ryan Ellerbrock. Ellerbrock was named as a defendant in Padilla’s underlying lawsuit and in the
declaratory judgment action that gave rise to this appeal. However, neither Padilla nor Ellerbrock are
parties to this appeal.
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under two insurance policies: an automobile policy issued to Claudia by Illinois Farmers Insurance
Company, and a homeowner’s policy issued to both Kenneth and Claudia by Farmers Insurance
Exchange. The automobile policy states that Farmers “will pay for loss to your insured car caused
by collision” and, in a separate comprehensive coverage provision, “accidental means except
collision.” It also states that “[l]oss caused by *** theft or larceny *** is not deemed loss caused
by collision.” Claudia signed a named driver exclusion, effective December 17, 2018, which names
Kenneth as the “Person(s) Restricted” and states that “all coverage afforded by this policy shall
not, at any time on or after date shown, apply to the operation of any automobile by the person(s)
named above. This policy will not provide coverage for any person who entrusts a vehicle to the
person(s) named above.”
¶6 The homeowner’s policy insures Kenneth and Claudia and their home in Sauk Village. It
states that Farmers will “pay those damages which an insured becomes legally obligated to pay
because of *** bodily injury resulting from an occurrence.” An “occurrence” is as “an accident
*** which occurs during the policy period, and which results in bodily injury, property damage or
personal injury during the policy period.” The homeowner’s policy also states that Farmers “will
defend an insured against any suit seeking damages covered under” this section. The policy
contains several paragraphs in its “Liability Exclusions” section. Paragraph 14 states that Farmers
does “not cover bodily injury, property damage or personal injury arising from, during the course
of or in connection with the ownership, maintenance, operation, use, occupancy, loading or
unloading, moving or movement, or entry or exit of any *** motor vehicle.” Paragraph 15 of the
“Liability Exclusions” section is titled “Entrustment and negligent supervision – aircraft, motor
vehicles, or watercraft.” It states:
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“[Farmers does] not cover bodily injury, property damage or personal injury arising from,
during the course of or in connection with:
a. the entrustment of any aircraft, motor vehicle or watercraft to any person;
b. the negligent supervision of any person regarding the maintenance, operation, use,
occupancy, loading or unloading, moving or movement, or entry or exit of any aircraft,
motor vehicle or watercraft.”
¶7 Farmers denied coverage for damage to Claudia’s vehicle pursuant to the automobile
policy’s named driver exclusion. Farmers also denied coverage for Padilla’s lawsuit under the
homeowner’s policy pursuant to both the motor vehicle exclusion of paragraph 14 and the
entrustment/negligent supervision exclusion of paragraph 15. Farmers then sued the Walkers and
Padilla in the circuit court of Cook County, seeking a declaratory judgment that its denials of
coverage were proper.
¶8 Farmers moved for summary judgment pursuant to section 2-1005 of the Code of Civil
Procedure (735 ILCS 5/2-1005 (West 2020)). Farmers argued that the automobile policy’s named
driver exclusion and the homeowner’s policy’s motor vehicle and entrustment/negligent
supervision exclusions precluded coverage for damage to Claudia’s vehicle and defense and
indemnification in Padilla’s lawsuit. In response, Kenneth conceded that he was not entitled to
defense or indemnification under the automobile policy due to the named driver exclusion.
However, Claudia argued that she was entitled to the fair market value of her vehicle because the
automobile policy provided coverage for losses caused by theft, and Kenneth “essentially stole[ ]”
her vehicle on September 28, 2020. Claudia also contended that some of Padilla’s theories of
liability against her did not allege negligent supervision or entrustment of her vehicle; rather, they
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alleged that she did not properly restrict Kenneth’s access to the vehicle. Therefore, Claudia
argued, at least some of Padilla’s claims did not fall under the homeowner’s policy’s
entrustment/negligent supervision exclusion. Finally, Claudia contended that the homeowner’s
policy excluded claims for entrustment of her vehicle, but not negligent entrustment, which is what
Padilla alleged.
¶9 Claudia’s affidavit is attached to the Walker’s summary judgment response. 3 She attests
that, prior to the collision with Padilla’s vehicle, Kenneth’s neurologist diagnosed him with
dementia and Alzheimer’s disease and advised Claudia not to let him drive. Claudia took the keys
to her vehicle from Kenneth, told him not to drive it, and removed him from the automobile policy
as a covered driver. Claudia did not give Kenneth permission to drive her vehicle on the date of
the collision and immediately called police when she realized that he took the vehicle. Kenneth
was found unfit to stand trial in a Will County misdemeanor case arising out of the collision with
Padilla’s vehicle. A Will County circuit court order finding Kenneth unfit to stand trial is also
attached to the Walkers’ summary judgment response.
¶ 10 The circuit court granted summary judgment in favor of Farmers. The court concluded that
(1) the automobile policy’s named driver exclusion precluded coverage for any damages arising
out of Kenneth’s operation of Claudia’s vehicle, including damage to the vehicle itself, (2) Farmers
had no duty to defend or indemnify the Walkers under the automobile policy or the homeowner’s
3
Claudia’s affidavit refers to the date of the collision on I-55 as September 20, 2020. Except for
one line in Farmers’ summary judgment reply, everything in the record indicates that the collision
occurred on September 28, 2020. The parties’ briefs do not suggest that there is a dispute about the date
on which the collision occurred, so we infer that references to September 20, 2020, are simply
typographical errors. There is no dispute that the incident occurred within the coverage period of the
insurance policies at issue.
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policy, and (3) neither policy covered Padilla’s negligent entrustment and supervision claims
against Claudia because they arose out of Kenneth’s operation of the vehicle.
¶ 11 The Walkers timely appealed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, the Walkers contend that we should reverse the circuit court’s grant of summary
judgment because Farmers must provide coverage for the damage to Claudia’s vehicle and defend
and indemnify her in Padilla’s underlying lawsuit.
¶ 14 Summary judgment is warranted when the pleadings, admissions, depositions, and
affidavits on file, viewed in the light most favorable to the nonmoving party, establish that there
is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. 735 ILCS 5/2-1005(c) (West 2020); Thounsavath v. State Farm Mutual Automobile Insurance
Co., 2018 IL 122558, ¶ 15. We review the circuit court’s grant of summary judgment de novo
(Thounsavath, 2018 IL 122558, ¶ 16), meaning that we perform the same analysis as the circuit
court (Galarza v. Direct Auto Insurance Co., 2022 IL App (1st) 211595, ¶ 33 (not yet released for
publication and subject to revision or withdrawal)). We also review this matter de novo because it
involves the interpretation of insurance policies, which is a question of law. See Pekin Insurance
Co. v. Wilson, 237 Ill. 2d 446, 455 (2010).
¶ 15 A court’s primary objective in interpreting the language of an insurance policy is to
ascertain and give effect to the intentions of the parties as expressed by the language of the policy.
Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 362 (2006). If the
language of an insurance policy is clear and unambiguous, it must be enforced as written unless
doing so would violate public policy. Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391,
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400 (2010). By contrast, if the terms of the policy are susceptible to more than one meaning, then
they are ambiguous and must be construed strictly against the insurer. Pekin Insurance Co., 237
Ill. 2d at 456. Provisions that limit or exclude coverage must be interpreted liberally in favor of
the insured and against the insurer. Id. A court must construe the policy as a whole and account
for the type of insurance purchased, the nature of the risks involved, and the overall purpose of the
contract. Id.
¶ 16 A. Vehicle Coverage
¶ 17 The Walkers first contend that the automobile policy provides coverage for the damage
that Claudia’s vehicle sustained in this incident. The Walkers argue that the named driver exclusion
excludes coverage for Kenneth driving only if Claudia entrusted her vehicle to him, and that
Claudia did not entrust her vehicle to Kenneth. Rather, Kenneth essentially “stole” the vehicle by
taking it without Claudia’s knowledge or permission. The automobile policy covers losses
resulting from theft, so, according to the Walkers, damage from Kenneth’s “theft” of the vehicle
is covered despite the named driver exclusion excluding him from all coverage.
¶ 18 A named driver exclusion eliminates all coverage if the person named in the exclusion
operates the otherwise covered vehicle. Mercury Indemnity Co. of Illinois v. Kim, 358 Ill. App. 3d
1, 5 n. 2 (2005). Illinois law generally permits named driver exclusions. American Access Casualty
Co. v. Reyes, 2013 IL 115601, ¶ 15; see also St. Paul Fire & Marine Insurance Co. v. Smith, 337
Ill. App. 3d 1054, 1062 (2003) (holding that a named driver exclusion in an automobile liability
insurance policy does not categorically contravene Illinois public policy).
¶ 19 The automobile policy provides coverage for damage to Claudia’s vehicle caused by
“collision” and, separately, any “accidental means except collision.” The comprehensive coverage
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provision that provides coverage for loss by “accidental means except collision” states that loss
due to theft is “not deemed loss caused by collision.” We interpret this language to mean that loss
caused by theft falls under coverage for loss caused by “accidental means.” So, if someone stole
Claudia’s vehicle and caused loss, the automobile policy would cover that loss. However, the
named driver exclusion states that “all coverage afforded by [the automobile] policy shall not, at
any time on or after date shown, apply to the operation of any automobile” by Kenneth. (Emphasis
added). This language is unambiguous and all-inclusive. It means that any loss caused by Kenneth
driving any vehicle does not fall under any of the automobile policy’s coverage provisions.
Therefore, the automobile policy does not provide coverage for the damage to Claudia’s vehicle
that Kenneth caused by driving it in this incident.
¶ 20 The Walkers do not contend that the named driver exclusion is ambiguous or that it violates
public policy. However, they argue that Kenneth’s actions amounted to a “theft” of Claudia’s
vehicle, which falls under the automobile policy’s comprehensive coverage provision, and that the
named driver exclusion does not apply because Claudia did not entrust her vehicle to Kenneth. We
disagree. The named driver exclusion consists of two sentences, which state:
“It is agreed that all coverage afforded by this policy shall not, at any time on or after date
shown, apply to the operation of any automobile by the person(s) named above [i.e.,
Kenneth]. This policy will not provide coverage for any person who entrusts a vehicle to
the person(s) named above.”
The first sentence excludes from coverage any scenario in which Kenneth operates any
automobile, regardless of whether anyone entrusted the automobile to him. The second sentence
excludes from coverage any person who entrusts a vehicle to Kenneth. The entrustment of a
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vehicle to Kenneth does not trigger the first sentence of the named driver exclusion and it is not
required for the named driver exclusion to apply. There is no indication that Kenneth’s “theft” of
a vehicle can somehow negate the named driver exclusion and bring him back within the policy’s
coverage. The named driver exclusion unambiguously applies to this case to exclude Kenneth’s
operation of Claudia’s vehicle on September 28, 2020, from coverage, regardless of whether he
“stole” the vehicle. Moreover, everything in the record indicates that the intention of the
contracting parties – Claudia and Farmers – was specifically not to provide automobile insurance
for Kenneth because he would not be driving at all. Accordingly, we affirm the circuit court’s grant
of summary judgment with respect to the denial of coverage for damage to Claudia’s vehicle.
¶ 21 B. Duties to Defend and Indemnify
¶ 22 The Walkers also contend that, under the homeowner’s policy, Farmers is obligated to
defend and indemnify Claudia in Padilla’s lawsuit. The Walkers concede that Kenneth “is not
entitled to indemnification or a defense by Farmers to the Padilla Complaint under the automobile
policy,” and they do not argue that Kenneth is entitled to defense or indemnification under the
homeowner’s policy. Therefore, we will only address these duties with respect to Claudia.
¶ 23 “ ‘To determine whether an insurer has a duty to defend its insured from a lawsuit, a court
must compare the facts alleged in the underlying complaint to the relevant provisions of the
insurance policy.’ ” Sheckler v. Auto-Owners Insurance Co., 2022 IL 128012, ¶ 31 (not yet
released for publication and subject to revision or withdrawal) (quoting Valley Forge Insurance
Co., 223 Ill. 2d at 363). “ ‘If the facts alleged in the underlying complaint fall within, or potentially
within, the policy’s coverage, the insurer’s duty to defend arises.’ ” Sentry Insurance v.
Continental Casualty Co., 2017 IL App (1st) 161785, ¶ 36 (quoting Outboard Marine Corp. v.
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Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108 (1992)). We must liberally construe the
underlying complaint in favor of coverage. Valley Forge Insurance Co., 223 Ill. 2d at 363. An
insurer may only refuse to defend a lawsuit against its insured when it is clear that the underlying
complaint fails to state facts that bring the case within, or potentially within, the policy’s coverage.
Id.¶ 24 We begin by setting out the relevant portions of Padilla’s complaint and the homeowner’s
policy. See Sheckler, 2022 IL 128012, ¶ 31. Padilla’s complaint alleges one count of negligence
against Claudia, which claims that, at all relevant times, the vehicle that Kenneth drove “was
owned and/or controlled by” Claudia. Paragraph 25 of Padilla’s complaint sets out six theories of
negligence, alleging that Claudia (a) allowed Kenneth to operate her vehicle when she knew or
should have known that he “lacked the requisite competence or skill to do so,” (b) failed to restrict
Kenneth’s access to the vehicle, (c) failed to properly secure the keys to the vehicle to prevent
Kenneth from obtaining them, (d) failed to adequately supervise Kenneth, (e) failed to timely
report Kenneth and the vehicle as missing, and (f) failed to employ reasonable safeguards to
prevent Kenneth from accessing the vehicle. All these theories allege that Claudia knew or should
have known that Kenneth operating her vehicle posed an unreasonable risk of harm to others on
the road, including Padilla.
¶ 25 The section of the homeowner’s policy titled “Liability Coverage” states that Farmers “will
defend an insured against any suit seeking damages covered under Coverage E (Personal
Liability).” Coverage E states that Farmers “will pay those damages which an insured becomes
legally obligated to pay because of” “bodily injury resulting from an occurrence,” but does “not
have any duty to defend or settle any lawsuit involving actual, alleged, threatened or declared
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bodily injury or property damage not covered under this liability insurance.” The policy contains
two exclusionary provisions at issue: a motor vehicle exclusion in paragraph 14, and an
entrustment/negligent supervision exclusion in paragraph 15. We address each exclusion in turn.
¶ 26 1. Motor Vehicle Exclusion
¶ 27 Padilla’s complaint alleges that Kenneth was negligent in “operating,” i.e., driving,
Claudia’s vehicle. It also alleges that Claudia was negligent in supervising Kenneth and restricting
his access to the vehicle. Paragraph 14 of the homeowner’s policy, the motor vehicle exclusion,
states that Farmers does “not cover bodily injury, property damage or personal injury arising from,
during the course of or in connection with the ownership, maintenance, operation, use, occupancy,
loading or unloading, moving or movement, or entry or exit of any *** motor vehicle.” This
language unambiguously precludes coverage for Kenneth’s negligent driving of Claudia’s vehicle.
The Walkers do not contend otherwise.
¶ 28 The motor vehicle exclusion also precludes coverage for Padilla’s claims regarding
Claudia’s allegedly negligent supervision of Kenneth and the vehicle. For a negligent supervision
claim arising from an automobile accident to withstand a motor vehicle exclusion, the injury
alleged must be “wholly independent of any negligent operation of the [motor vehicle].” (Internal
quotations omitted.) Northbrook Property & Casualty Co. v. Transportation Joint Agreement, 194
Ill. 2d 96, 99 (2000); see also Allstate Property and Casualty Insurance Co. v. Mahoney, 2011 IL
App (2d) 101279, ¶ 18.
¶ 29 Padilla alleges that Claudia negligently allowed Kenneth to use the vehicle, failed to restrict
his access to the vehicle, failed to secure the keys to the vehicle, failed to report Kenneth and the
vehicle missing, and failed to employ safeguards to prevent Kenneth from accessing the vehicle.
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None of these allegations, standing alone, could have proximately caused Padilla’s injuries. For
example, if Kenneth obtained the keys to the vehicle due to Claudia’s negligence, but merely sat
in the vehicle while it was parked rather than driving it, then Padilla would have no claim against
the Walkers. As the Walkers’ reply brief acknowledges, “but for Kenneth Walker not being of
sound mind and suffering from dementia and Alzheimer’s disease, taking the vehicle, and causing
a heart-breaking, tragic accident, there would be no lawsuit, no injuries, no claim.” Padilla alleges
no act of negligent supervision by Claudia that does not depend on Kenneth’s negligence in driving
her vehicle. Because the success of Padilla’s negligent supervision claim against Claudia is
premised on Kenneth’s negligent operation of the vehicle, the motor vehicle exclusion precludes
coverage. See Allstate Insurance Co. v. Pruitt, 177 Ill. App. 3d 407, 413 (1988) (in accident arising
out of minor’s use of motorbike, motor vehicle exclusion barred coverage for negligent supervision
claim against father because father’s liability was contingent on the minor’s negligent operation
of the motorbike).
¶ 30 The Walkers argue that the motor vehicle exclusion is “ambiguous” because it does not
define how an injury “aris[es] from” or “in connection with” a motor vehicle. There is nothing
ambiguous about the terms “arising from” or “in connection with” a motor vehicle incident in this
context. Padilla was injured in a motor vehicle accident on I-55 that was directly caused by
Kenneth’s use of Claudia’s vehicle. That is exactly what the motor vehicle exclusion excludes
from coverage. Moreover, language is ambiguous when it is susceptible to multiple meanings (see
Pekin Insurance Co., 237 Ill. 2d at 456), but the Walkers do not explain what multiple meanings
are possible in this case. Rather, they contend that all of Padilla’s allegations against Claudia
“involve the keys to the vehicle” instead of the vehicle itself and are not subject to the motor
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vehicle exclusion at all. That is not an accurate description of Padilla’s complaint. Paragraph 25(c)
of the complaint involves the vehicle keys, but Padilla’s five other theories of liability against
Claudia do not. Accordingly, we affirm the circuit court’s grant of summary judgment on the
grounds that the homeowner’s policy’s motor vehicle exclusion precludes defense of Claudia for
Padilla’s claims.
¶ 31 2. Entrustment and Negligent Supervision Exclusion
¶ 32 The Walkers also contend that Padilla’s claims against Claudia are not subject to the
entrustment/negligent supervision exclusion of paragraph 15 of the homeowner’s policy.
Paragraph 15 addresses “[e]ntrustment and negligent supervision” of motor vehicles and states that
Farmers does “not cover bodily injury” or “personal injury arising from, during the course of or in
connection with” “the negligent supervision of any person regarding the” “use,” “operation,” or
“entry or exit of any” “motor vehicle.” That is a description of Padilla’s claims against Claudia.
Padilla’s complaint alleges that Claudia “[f]ailed to provide adequate supervision of” Kenneth
“when she knew, or should have known, that such supervision was required to prevent an
unreasonable risk of harm to others, including” Padilla. (Emphasis added.). Paragraph 15
unambiguously excludes such a negligent supervision claim.
¶ 33 The Walkers argue that four of Padilla’s theories of liability against Claudia are not actually
claims for “negligent entrustment” or “negligent supervision,” so paragraph 15 does not exclude
them from coverage. Specifically, the Walkers point to paragraphs 25(b), (c), (e), and (f) of
Padilla’s complaint, which respectively allege that Claudia failed to restrict Kenneth’s access to
the vehicle, secure the keys to the vehicle, report Kenneth and the vehicle missing, and employ
reasonable safeguards to prevent Kenneth from accessing the vehicle. Even if these theories of
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liability are not claims for negligent entrustment or supervision, they all depend upon Kenneth’s
use of the vehicle and resulting injury of Padilla. So, the motor vehicle exclusion precludes
coverage for them for the reasons explained above, even if the entrustment/negligent supervision
exclusion does not.
¶ 34 In the alternative, the Walkers contend that Padilla does allege negligent entrustment
against Claudia, and that paragraph 15 of the homeowner’s policy only excludes claims for
“entrustment” and “negligent supervision,” but not “negligent entrustment.” This distinction is
immaterial. Negligent supervision is “in essence the same theory” as negligent entrustment in this
context, because “both involve negligence in relation to the motor vehicle.” See State Farm Fire
& Casualty Co. v. Mann, 172 Ill. App. 3d 86, 92 n. 1 (1988). The homeowner’s policy
unambiguously excludes claims for negligent supervision, so it excludes the equivalent theory of
negligent entrustment as well. See id. We also note that Claudia’s affidavit establishes that she did
not entrust her vehicle to Kenneth negligently, intentionally, or otherwise.
¶ 35 Finally, because Farmers has no duty to defend Claudia in Padilla’s underlying lawsuit, we
also find that Farmers has no duty to indemnify her. See West Bend Mutual Insurance Co. v.
Rosemont Exposition Services, Inc., 378 Ill. App. 3d 478, 486 (2007) (explaining that, because the
duty to defend is broader than the duty to indemnify, where a court “ ‘properly holds that an insurer
has no duty to defend, the court may also hold that the insurer has no duty to indemnify.’ ”) (
quoting State Farm Fire & Casualty Co. v. Hatherly, 250 Ill. App. 3d 333, 336 (1993)).
Accordingly, we affirm the circuit court’s grant of summary judgment finding that Farmers does
not owe Claudia a duty of defense or indemnification in Padilla’s underlying lawsuit.
¶ 36 III. CONCLUSION
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¶ 37 For the foregoing reasons, we affirm the circuit court’s grant of summary judgment.
¶ 38 Affirmed.
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