FIRST DIVISION
April 16, 2001

No. 1-99-4108

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

On April 30, 1992, a vehicle drove onto the sidewalk of a terminal at O'HareInternational Airport (O'Hare) and struck a group of students and adultsvisiting the airport who had just exited from two school buses. Plaintiffs,several children and adults injured in this accident, brought this declaratoryaction seeking underinsured motorist coverage from an insurance policy issued bydefendant, Country Mutual Insurance Company (Country Mutual). That policyprovided underinsured motorists coverage to persons injured while"occupying" a school district vehicle. The policy stated that"occupying means in, upon, getting in, on, out or off." Following abench trial, the circuit court entered judgment in favor of plaintiffs, findingthat each plaintiff occupied the buses at the time of the accident by either"getting *** out or off" the buses. Defendant argues that the trialcourt: (1) erred in finding coverage under the insurance policy when the courtalso found that all the plaintiffs had vacated the buses before the accident;(2) erred in failing to require each plaintiff to prove that he or she should beentitled to coverage; and (3) erred in its factual findings. We affirm.

I. BACKGROUND

On April 30, 1992, two school buses left the Sycamore School District withbetween 60 and 80 third grade students, teachers, and chaperones on a field tripto O'Hare. The buses drove to an area between terminals one and two so that thestudents could tour the inside of the terminal. The buses parked on the streetnext to the terminals, activated their warning lights, and opened their doors.The students, parents, and teachers exited the buses. However, shortly after thelast individual left the bus and while the students were in the process oflining up, a vehicle drove up on the sidewalk and struck several students,parents, and teachers.

Defendant issued an insurance policy to the Sycamore School District thatcovered vehicles used as part of school activities, which included the twoschool buses used for the field trip to O'Hare. This policy provided coverage toinsured individuals, which it defined as follows:

"B. WHO IS INSURED

***

2. Anyone else occupying a covered auto ***.

***

2. Occupying means in, upon, getting in, on, out, or off."

After it was determined that the vehicle that struck the plaintiffs wasunderinsured, plaintiffs filed claims for underinsured motorist coverage underdefendant's policy. Plaintiffs claimed that they were occupying the schoolbuses, a covered vehicle, at the time of the accident. Defendant denied coverageto each plaintiff and plaintiffs brought this lawsuit.

At trial, Joyce Mathey, a parent and plaintiff, testified that the accidentoccurred within 10 seconds of her and others exiting the bus. According toMathey, at the time of the accident, students had not begun to line up on thesidewalk but were mingling in the area near the buses. Another parent andplaintiff, Sara Schwarzbaum, testified that within 30 seconds of her exiting thebus the accident occurred. She further noted that the students were crowded onthe sidewalk when she exited the bus and had not yet lined up. A student, DanielKozlowski, testified that when he left the bus a crowd of 50 to 60 students wereon the sidewalk. He believed that the accident occurred about two to threeminutes after he left the bus.

Other witnesses testified to a longer period of time between the students'exit from the buses and the accident. Leona Calhoun, a tour guide assigned tothe front of the bus, testified that she exited the bus first and that theaccident occurred about 15 minutes after she exited. She also recalled that assoon as the students exited the bus, they formed groups on the sidewalk. Shetestified that when the accident occurred, the doors to the buses were open andshe pushed students toward and back on the bus. Larry Steczo, a parent,testified that he was the last person to leave the second bus except for the busdriver. When he left the bus, most of the students were in line next to arailing; however, he remembered five or six students and parents behind him.About a minute after he left the bus, the line took one or two steps towardterminal two before they realized that they were going the wrong way. Accordingto Steczo, he started to back up when the underinsured vehicle struck him andknocked him unconscious.

Roxeanne Horton, a teacher, testified that the students lined up after theyleft the bus. As the students lined up, she was counting them. She testified attrial that the accident occurred about 10 minutes after students started to exitthe bus; at her deposition, she testified that the time between the studentslining up and the accident was about 3 minutes. Horton admitted that she couldnot remember the exact time frame. She also testified that students in line hadmoved toward terminal two right before the accident. She believed that she was 6to 10 feet from the buses when the car came on the sidewalk. Rochelle Quode,another teacher, testified that it was about 5 minutes from the time that thelast student exited the bus until the time of the accident. She also testifiedthat the students had lined up and were becoming restless. Immediately beforethe accident, she testified that she was in the process of making sure each ofher students had a partner.

The court believed that the question of insurance coverage required it toanalyze the relationship between the insured vehicle and the injured party.Based on an analysis of the facts, the court found a direct relationship betweenthe injured parties and the process of their exit from the school buses. Thecourt noted that the children had recently alighted from the buses and werestill in the "immediate vicinity lining up in accordance with the customaryusage of the school's buses." After hearing all the evidence, the trialcourt made the following factual findings: 

"The children and adults hadphysically vacated the buses;

The bus doors were open at the time of the accident;

As indicated before, the emergency flashers of both buses were operating;

The children were in the process of lining up two by two so the teachers could take a head count;
The next event on the scheduled tour, visiting the terminal on foot, had notyet begun and the party had not moved from the immediate vicinity of the two buses because of the intervention of the underinsured motorist; The testimony and photographs stipulated in evidence show that most of the children were lining up about six or so feet from the buses but not all ofthe children were in line and anywhere near the six foot distance, but in fact, were withteachers or chaperones right next to the buses;

When the accident was occurring, Mrs. Calhoun, one of the tourguides with the Sycamore group, pushed one or more children back into the bus through the open doors of the bus to escape the careening auto; and

After the accident, students were found to be on the first bus and no one,aside from Mrs. Calhoun, testified when they reboarded."

The court also found proximity of time and geography between the insuredbuses and the process of deboarding and noted the following:

"But for the fact that the process had not been completed, the childrenand accompanying adults would not have been in position to be injured by theunderinsured motorist. The facts show that the Plaintiffs were in actual contact(those who reboarded to avoid the collision), or in virtual contact (those withteachers and chaperones right next to the buses and the children and teacherslining up two by two for a head count) with the buses as that term has beendefined in the cases. ***."

The court concluded that plaintiffs were "occupying" the buses atthe time of the accident and declared that "each and all plaintiffs werecovered by [d]efendant's insurance policy provision for underinsuredcoverage." This appeal followed.

II. ANALYSIS

A. Policy Covers Plaintiffs

Defendant first argues that the trial court incorrectly interpreted theCountry Mutual policy in holding that the plaintiffs were "occupying"the buses. Defendant contends that, even accepting the trial court's factualfindings, it erred in finding coverage because the court also found that all thestudents had vacated the buses and were in the process of lining up when theaccident occurred. In construing provisions of an insurance policy, courts mustexamine the terms used to ascertain the intentions of the parties. AmericanStates Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997). "If theterms of the policy are clear and unambiguous, they must be given their plainand ordinary meaning." Koloms, 177 Ill. 2d at 479. In addition,terms of an insurance policy should be applied as written unless those termscontravene public policy. State Farm Mutual Automobile Insurance Co. v.Villicana, 181 Ill. 2d 436, 441-42 (1998). "If the facts areundisputed, the question of whether they fall within the provisions of aninsurance policy is a matter of interpretation and is strictly a question of lawfor the court to decide." Indiana Insurance Co. v. Liaskos, 297 Ill.App. 3d 569, 574 (1998). Defendant's first argument does not challenge the trialcourt's factual findings and only claims error with its application of thepolicy terms to the facts, therefore, this challenge solely relates to the trialcourt's interpretation of the policy, which is a question of law and subject toa de novo standard of review. Indiana Insurance Co., 297 Ill. App.3d at 574.

This court has previously applied policy language similar to the language atissue in this case. In Wolf v. American Casualty Co., 2 Ill. App. 2d 124(1954), the plaintiff was two or three feet in front of his car when a vehiclestruck the rear of his car, pushing it into him. The plaintiff had been out ofhis car for two or three minutes when the accident occurred. The policy affordedcoverage if plaintiff was "in or upon, entering, or alighting from theautomobile." Wolf, 2 Ill. App. 2d at 125. After noting that wordswhich are simple every-day words may define a variety of situations so thatsometimes it will appear clear that a particular set of circumstances is withinthe meaning of the insurance provision and at other times doubtful, the courtfound the use of the word "upon" created an ambiguity. "Asrelated to the instant case, it is the use of the word 'upon' which creates anambiguity." Wolf, 2 Ill. App. 2d at 130. The court concluded, basedon the facts of the case, that the plaintiff was protected by the policyprovision covering injuries caused by accident "while in or upon, enteringor alighting from" the insured automobile.

In Salinas v. Economy Fire & Casualty Co., 43 Ill. App. 3d 509(1976), a pedestrian struck by a vehicle claimed that his physical contact withthe vehicle entitled him to benefits under the owner's insurance policy, whichprovided benefits to a person who sustains injury while "occupying"the vehicle. The policy defined "occupying" to mean "in or uponor entering or alighting from." Salinas, 43 Ill. App. 3d at 509. TheSalinas court noted with approval that in the cases cited by plaintiff,the injured party had some connection with the insured vehicle other than theimpact which caused the injuries. The court found no such connection andconcluded that "*** the language employed here is reasonably plain: to holdthat plaintiff was 'upon' the automobile because he was struck by it woulddistort the meaning of the provision and result in an unreasonable constructionof the coverage." Salinas, 43 Ill. App. 3d at 511.

In Greer v. Kenilworth Insurance Co., 60 Ill. App. 3d 22 (1978),plaintiff, Greer was a passenger in a vehicle owned by her co-worker Swansonwhich was involved in an accident with another vehicle. Greer was insured byKenilworth and Swanson was insured by Aetna. After the accident, both vehiclespulled to opposite sides of the shoulder of the expressway. As plaintiff waitedto cross the exit ramp to inspect the damage to the other vehicle, she stoodabout 10 to 15 feet to the rear of the Swanson vehicle. At that time she wasstruck by an uninsured motorist. Greer, 60 Ill. App. 3d at 23. Plaintiffbrought separate actions for declaratory judgment against Kenilworth and Aetna.She sought declarations that each insurer owed her benefits under the uninsuredmotorist provisions of their respective policies. The cases were consolidatedand each insurer moved for summary judgment. Aetna's motion for summary judgmentwas granted on the basis that plaintiff was not an occupant of the insuredvehicle at the time of the injury. No other coverage then being available toGreer, the trial court denied Kenilworth's motion for summary judgment andKenilworth appealed. The appellate court discussed the interpretation of thephrase used in the Aetna policy, "in or upon, entering or alighting." Greer,60 Ill. App. 3d at 23.

The court in Greer first reviewed several Illinois cases interpretingsimilar policy language that required an individual to be occupying an insuredvehicle in order to receive insurance benefits. Greer, 60 Ill. App. 3d at23-36. The court found the language of the policy not ambiguous because it usedordinary and common words. The court, however, recognized the"problem" of applying the policy language to the specific facts of thecase. Based on its review of Illinois law, the court indicated that "thenecessary elements for imposition of liability upon the insurer are theexistence of some nexus or relationship between the insured and the coveredautomobile and, in addition, either actual or virtual physical contact with theinsured vehicle." Greer, 60 Ill. App. 3d at 26. The court found thatplaintiff showed a relationship with the insured vehicle because she was apassenger in the insured vehicle.

Regarding the element of "actual or virtual physical contact" withthe insured vehicle, the court found as follows: "When plaintiff was 10 to15 feet away from the insured vehicle, she was struck by the uninsured vehicle.There is a total absence of contact between the claimant and the insuredvehicle. Further, there is a total absence of any relationship between theinsured vehicle and the cause of the alleged injuries. In our opinion, underthese circumstances, plaintiff was not in or upon, entering into or alightingfrom the insured vehicle." Greer, 60 Ill. App. 3d at 26. The courtaffirmed summary judgment by the trial court in favor of Aetna.

Here, we must determine whether plaintiffs were, under the terms of thepolicy, "in, upon, getting in, on, out or off" the buses at the timeof the accident. We agree with the court in Greer that this languagecontains ordinary and common words that must be applied as written. However, asthe court in Greer also noted, while the words are every-day words, thevariety of factual situations which they define is broad. Defendant urges us tofocus on the transportation of the students. Defendant argues that a causalconnection to the vehicle as transportation is necessary for the injured partyto be "occupying" the vehicle under the terms of the policy. Accordingto defendant, once the buses arrived at the terminal and the last student andadult exited the buses, the buses had ceased to serve as a mode oftransportation and their presence in the area of the accident was merelycoincidental.

This argument oversimplifies the issue and seems contrary to the results in Wolfand Salinas. The vehicle in Wolf was parked and no longerserving any transportation purpose at the time of the accident. The court,however, found that plaintiff occupied the vehicle, as defined in the insurancepolicy, even though plaintiff was standing two or three feet in front of his carwhen the uninsured vehicle struck his vehicle. The court did not rely on thetransportation aspect of the insured vehicle, but considered plaintiff'srelationship to and physical contact with the vehicle. In Salinas, theinsured vehicle struck the pedestrian, however, there was no relationship orconnection between the plaintiff pedestrian and the insured vehicle other thanthe ultimate impact which caused the injury, therefore, it was unreasonable toconclude that the pedestrian occupied the vehicle. Salinas, 43 Ill. App.3d at 511.

We believe that the appropriate analysis requires us to examine the twofactors recognized in Greer as necessary elements for imposition ofliability upon the insurer, namely, whether a relationship or nexus existedbetween plaintiffs and the buses and whether the plaintiffs were in actual orvirtual contact with the buses. The trial court's factual findings support theconclusion that a nexus or relationship existed. The plaintiffs were passengerson the buses and exited the buses within a matter of minutes before theaccident. When the uninsured vehicle drove onto the sidewalk, the plaintiffswere either lining up near the buses or right next to the buses. Furthermore, inaccordance with Illinois law, the emergency flashers of each bus were activated,indicating that children were in the process of exiting the vehicle. See 625ILCS 5/11-1414(c), (d) (West 1998). The children had not yet moved away from thebuses and the doors were still open. Therefore, the plaintiffs, as passengers,had a similar nexus or relationship to the buses as the plaintiffs in Wolf andGreer had to the insured vehicles in those cases. We conclude thatthe trial court properly found a nexus or relationship between the plaintiffsand the buses.

The more difficult issue, however, is whether the plaintiffs were in actualor virtual contact with the buses at the time of the accident. In Lumbermen'sMutual Casualty Co. v. Norris, 15 Ill. App. 3d 95 (1973), the court analyzedwhether plaintiff was occupying an insured vehicle even though she was injuredwhile outside the vehicle. The plaintiff, a passenger in the insured car, wassitting on its front fender after the car had parked next to other cars on agravel road. Plaintiff noticed an approaching vehicle on a collision course. Shethen jumped off the insured vehicle and ran to the front of the insured car inan attempt to get out of the way. While doing so, she was struck by theapproaching vehicle. Lumbermen's Mutual Casualty Co., 15 Ill. App. 3d at96. Plaintiff filed an uninsured motorist claim because the vehicle that struckher did not have insurance. The court found plaintiff was alighting from thevehicle and was therefore occupying the vehicle under the terms of the policy. Lumbermen'sMutual Casualty Co., 15 Ill. App. 3d at 97-98.

Defendant recognizes in its reply brief that "virtual contact is thestandard, meaning the courts require at least some proximity in space to thevehicle, lest the phrases 'getting on' and 'getting off' become devoid ofmeaning." Defendant argues that the trial court's finding that plaintiffshad vacated the buses before the accident establishes a lack of physical contactbetween plaintiffs and the buses. If this fact alone required such a conclusion,then coverage would have been denied in Wolf and Lumbermen. Inthose cases, the plaintiffs were either standing in front of or proceeding tothe front of the insured vehicle during the accident; they had clearly vacatedthe passenger areas of the vehicle. The courts, nevertheless, found coveragetaking into consideration the plaintiffs' relationship and close proximity withthe insured vehicle when injured. Similar to the policies in those cases, thepolicy here provides insurance coverage to individuals "in, upon, gettingin, on, out or off " the covered vehicle, which does not exclusively referto actual physical contact with the covered vehicle, as defendant suggests.

The record reflects that during the accident, plaintiffs were either near orright next to the parked and flashing buses. The record also contains testimonythat, during the accident, students reentered the buses to avoid theunderinsured vehicle. Those children, had more physical contact with the insuredvehicles than the plaintiffs in Wolf or Lumberman's. Morefundamentally, all plaintiffs were in close proximity to the buses when theaccident occurred; they were doing what school children do when they are in theprocess of "getting *** out or off" a bus during a school event,lining up next to the buses to confirm that each student completed the bus ridefrom the last point of travel.

Moreover, Illinois law requires that the warning lights of school buses beactivated "for the purpose of loading or discharging pupils." 625 ILCS5/11-1414(c) (West 1998). A driver of a vehicle must stop his vehicle when heapproaches a bus that has its warning lights activated and is receiving ordischarging students. 625 ILCS 5/11-1414(a) (West 1998). Therefore, activationof these warning lights indicates to other drivers and members of the publicthat children are either getting on or off the bus. The activation of thewarning lights informs drivers of other vehicles that the bus has assumedcontrol over the children as passengers. The lights of the buses warnedapproaching drivers that students were exiting the buses, and the students wereon the sidewalk next to the buses, some only a few feet away, lining up for thenext activity. In order to avoid the underinsured vehicle, some studentsreentered the buses. Thus, the record reflects that the element of contact hasbeen met.

Here, based on the totality of the circumstances, including the fact that thewarning lights of the buses were activated, the plaintiffs were in closeproximity to the buses when the vehicle drove onto the sidewalk, the nature ofthe relationship between the plaintiffs and the buses, and the plaintiffs actualor virtual contact with the buses, we conclude the necessary elements forimposition of liability on defendant have been met. Applying the standard of Greerto the trial court's factual findings, we conclude that plaintiffs when injuredwere occupying the buses as contemplated under the terms of the insurance policywherein "Occupying means in, upon, getting in, on, out or off" and arethereby entitled to underinsured motorist coverage under the Country Mutualpolicy.

B. Burden of Proof

Defendant next argues that the trial court erred in determining thatplaintiffs met their burden of proof as a group rather than addressing eachplaintiff's burden individually. During the trial, the court heard testimonyabout the students, teachers, and parents as a group because this case involveda group of students on a school sponsored field trip. In its written order, thecourt addressed all of the plaintiffs, whether they were lining up or standingeven closer to the buses at the time of the accident. The court then determinedthat the "children and adult [p]laintiffs were 'occupying' the insuredbuses and were in the process of 'getting *** out or off' the insuredbuses" at the time of the accident. The evidence presented to the courtestablished that this was a group event, and the court ruled based on theevidence. Defendant has offered no authority precluding the court from treatingthe evidence, in a written order, as it was presented. For the reasonspreviously discussed, a review of the record supports the court's finding thatthe plaintiffs were occupying the buses and satisfied their burden of proof.Therefore, we find no error in the trial court's determination that theplaintiffs met their burden of proof.

C. Judgment Is Not Against Manifest Weight of the Evidence

Defendant next challenges the trial court's factual findings. In a nonjurytrial, the trial court's factual findings, its weighing of evidence, and itsassessment of credibility are entitled to great deference and will not bereversed on appeal unless the factual findings are against the manifest weightof the evidence. Voutiritsas v. Intercounty Title Co., 279 Ill. App. 3d170, 183 (1996). A decision is against the manifest weight of the evidence onlyif the opposite conclusion is clearly evident. Interstate Material Corp. v.City of Chicago, 273 Ill. App. 3d 527, 529 (1995).

Defendant argues that the trial court chose to believe the interestedwitnesses, i.e., injured parents and students, and chose to ignoretestimony of witnesses who did not file suit. The court recognized thediscrepancies in the testimony and its findings reveal no unfair bias orprejudice. Consistent with defendant's uninterested witnesses, the court foundthat "most of the children were lined up about six feet from thebuses." The court, however, found consistent with other testimony, thatsome children and adults were right next to the buses. The court found that whenthe accident occurred, "the next scheduled event had not begun" and"the students had not moved from the immediate vicinity of the twobuses." Defendant's own witness, Larry Steczo, testified to the very shortperiod of time between his exit from the bus and the impact of the underinsuredvehicle. The record reveals that the trial court carefully weighed all thetestimony, resolved the factual conflicts, and made informed findings based onall the witnesses testifying. We will not disturb these factual findings.

Defendant additionally attacks the testimony of Leona Calhoun, the tourguide. Although she did not file suit and constitutes an unbiased witness,defendant argues that her testimony that she pushed students back toward the busduring the accident "defies common sense." Defendant, however,references no evidence that contradicts this testimony. Other witnessesconfirmed that students were back on the bus after the accident. There is nodispute that the accident occurred quickly and without warning. However, thisfact does not negate the testimony of Calhoun and others that they pushed orattempted to push the children away from the out-of-control vehicle. It wouldseem only natural for an adult under these circumstances to attempt to directchildren toward the safety of the school buses and away from the dangerousvehicle. The court concluded that Calhoun's testimony was credible because noother witness explained how children reentered the bus either during orfollowing the accident. The trial court was in the best position to weighCalhoun's testimony. We find that the trial court's assessment of thistestimony, along with all the other evidence, was not against the manifestweight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Cook Countyis affirmed.

Affirmed.

TULLY and COHEN, JJ., concur.