JUSTICE MYERSCOUGH delivered the opinion of the court:

In February 1999, a business van owned by Sanfilippo and Sons, Inc. (delivery van owner), and insured by defendant Fidelity and Guaranty Insurance Company (Fidelity) broke down. The driver, Thomas Graff (delivery van driver), called for a tow and Brown's Vehicle Inspection (Brown's towing business), a business owned by Larrie D. Brown, responded with a tow truck insured by plaintiff Pekin Insurance Company (Pekin). Christopher Huckstep (tow truck driver), hitched the van to the tow truck and proceeded to drive toward Quincy, Illinois. During the trip, the van broke free, crossed into oncoming traffic, and injured the driver and passenger of an oncoming vehicle. The driver and passenger of the oncoming vehicle sued Larrie D. Brown individually and as Brown's towing business, as well as the tow truck driver, the delivery van owner, and the delivery van driver. Pekin, the insurer of Brown's towing business and its driver, initiated this declaratory judgment action against the delivery van owner's insurer, Fidelity, seeking a declaration that Fidelity owed a duty to defend Brown's towing business and its driver and that Pekin owed no duty to defend the delivery van owner and its driver. Pekin argues the trial court erred in granting judgment on the pleadings that (1) Brown's towing business and its driver were not covered by Fidelity as omnibus users of the delivery van; (2) the delivery van owner's insurer, Fidelity, did not breach its duty to defend Brown's towing business and its driver; (3) Pekin had a duty to defend the delivery van owner and its driver; and (4) Pekin breached its duty to defend the delivery van owner and its driver.

We conclude that, while Brown's towing business is covered by Fidelity as an omnibus user of the delivery van, Pekin's coverage for Brown's towing business's use of the delivery van is primary and Fidelity's coverage is secondary and excess over that of Pekin. We further find Brown's towing business has no right to "deselect" its Pekin insurance policy.

Accordingly, we reverse the trial court's judgment that (1) towing the delivery van did not constitute a use of the delivery van by Brown's towing business and its driver, (2) Brown's towing business and its driver are excluded from coverage by the business exclusion in the Fidelity policy, (3) Fidelity should be allowed an opportunity to demonstrate Brown's towing business's Pekin policy cannot be "deselected," and (4) Pekin breached its duty to defend the delivery van owner and its driver. We affirm the court's judgment that Pekin owed a duty to defend the delivery van owner and its driver.

The facts are largely undisputed. On February 16, 1999, Graff operated a delivery van owned by Sanfilippo. The van broke down near Carthage, Illinois, and the delivery van driver called Brown's towing business and requested a tow to Quincy, Illinois. The tow truck driver, an employee of Brown's towing business, responded to the delivery van driver's request for a tow truck. After hitching the back of the van to the tow truck, the tow truck driver drove toward Quincy with the delivery van driver as a passenger in the tow truck.

As the two drove west on Illinois 61 toward Quincy, the van broke loose from the tow truck, crossed into the eastbound lane, and struck Janice L. Holmes's vehicle, in which Suzann R. Witt was a passenger, injuring both. As a result of the collision, in November 1999, Janice L. Holmes sued Larrie Brown individually and as Brown's towing business, as well as the tow truck driver, the delivery van owner, and the delivery van driver. In January 2000, Witt sued the same defendants.

The Witt and Holmes complaints alleged common-law negligence against Brown's towing business and its driver in failing to properly secure the delivery van to the tow such that it came unhitched. The complaints against the delivery van's driver allege common-law negligence in that, interalia, he failed to set up the towing connections in a proper manner; engaged in a driveaway-towaway operation on a public highway with knowledge the hitch was not secure; continued to engage in the driveaway-towaway operation when he knew or should have known the hitch was not secure; and towed the van from the rear instead of the front, when he knew or should have known the only safe way to tow the van was from the front. The Witt complaint alleges the delivery van owner was negligent in failing to train, educate, or instruct its employees, including the delivery van driver, as to proper towing procedures in the event of a breakdown.

Brown's towing business owned a $750,000 Pekin insurance policy on the tow truck. The delivery van owner had an insurance policy from Fidelity consisting of commercial liability insurance, employee benefits liability insurance, business auto insurance with a liability limit of $1 million, and commercial umbrella liability insurance with a limit of $25 million. In February 2003, Brown's towing business and its driver "deselected" their coverage under the Pekin policy and targeted Fidelity.

On February 19, 2003, Brown's towing business's insurer, Pekin, filed a declaratory judgment action against Fidelity, seeking a declaration that (1) Brown's towing business was insured under the towed delivery van's Fidelity policy, (2) the tow truck driver was insured under the delivery van's policy, (3) Fidelity was Brown's towing business's and its driver's sole and exclusive insurer for the underlying actions, and (4) Fidelity breached its duty to defend by denying Brown's towing business's tender of defense. Fidelity filed a counterclaim, which it later amended to allege that (1) the delivery van owner and its driver were insured by the tow truck owner's Pekin policy; (2) Pekin breached its duty to defend the delivery van owner and its driver; (3) Brown's towing business was not a "user" of the delivery van; (4) Brown's towing business was not insured under the delivery van's Fidelity policy; (5) Brown's towing business made an invalid "targeted tender"; (6) even if Brown's towing business and its driver were "users" of the delivery van, they were not covered by the delivery van's Fidelity policy because the detachment of the van was an expected or intended result; (7) even if Brown's towing business is covered by the delivery van's Fidelity policy, that coverage is excess over other insurer's policies, i.e., over Brown's towing business's Pekin policy; and (8) the delivery van's umbrella policy with Fidelity was not triggered.

Both Pekin and Fidelity filed motions for judgment on the pleadings. The trial court denied Pekin's motion and granted Fidelity's motion for judgment on the pleadings, finding (1) towing the delivery van did not constitute a "use" of the delivery van by Brown's towing business and its driver; (2) Brown's towing business and its driver were not permissive users of the delivery van, and Fidelity did not have a duty to defend them; (3) Brown's towing business and its driver were excluded from coverage by the business exclusion in the Fidelity policy; (4) Fidelity should be allowed an opportunity to demonstrate that Brown's towing business's Pekin policy cannot be "deselected"; (5) Pekin breached its duty to defend the delivery van owner and its driver; (6) Pekin owed a duty to defend the delivery van owner and its driver; and (7) Fidelity did not breach its duty to defend Brown's towing business and its driver. This appeal followed.

II. ANALYSIS

On appeal, Pekin argues the trial court erred in finding (1) Brown's towing business and its driver were not covered by the delivery van's Fidelity policy as omnibus users of the delivery van; (2) Fidelity did not breach its duty to defend Brown's towing business and its driver; (3) Pekin, as insurer of the towing business, had a duty to defend the delivery van owner and its driver; and (4) Pekin breached its duty to defend the delivery van owner and its driver.

A. Standard of Review

A trial court should enter a judgment on the pleadings only if the record reveals no genuine issue of material fact and the moving party is entitled to the judgment as a matter of law. M.A.K. v. Rush-Presbyterian-St. Luke's Medical Center, 198 Ill. 2d 249, 255, 764 N.E.2d 1, 4 (2001). We review the judgment de novo, asking whether any genuine issue of material fact exists and, if not, whether the prevailing party is entitled to a judgment as a matter of law. XLP Corp. v. County of Lake, 317 Ill. App. 3d 881, 885, 743 N.E.2d 162, 165-66 (2000).

B. Permissive Use

1. Delivery Van's FidelityPolicy

Pekin, as Brown's towing business's insurer, first argues Fidelity had a duty to defend Brown's towing business and its driver because, at the time of the accident, the tow truck driver was a permissive user or omnibus insured of the towed delivery van under the omnibus clause in the delivery van owner's insurance policy. See State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Group, 182 Ill. 2d 240, 243-44, 695 N.E.2d 848, 850 (1998) ("[a] provision in an automobile insurance policy extending liability coverage to persons who use the named insured's vehicle with his or her permission is commonly referred to as an omnibus clause"). Fidelity, in turn, argues it had no duty to defend Brown's towing business and its driver and, in fact, Pekin had a duty to defend the delivery van owner and its driver, as they were permissive users of the tow truck. The first issue is whether Fidelity owed a duty to defend Brown's towing business and its driver.

"When determining whether an insurance provider has a duty to defend its insured in a lawsuit, a court should generally apply an 'eight[-]corners rule'--that is, the court should compare the four corners of the underlying complaint with the four corners of the insurance contract and determine whether the facts alleged in the underlying complaint fall within, or potentially within, the insurance policy's coverage." Farmer's Automobile Insurance Ass'n v. Country Mutual Insurance Co., 309 Ill. App. 3d 694, 698, 722 N.E.2d 1228, 1232 (2000).

The question of construction of an insurance policy is a question of law that is reviewed de novo. Guillen v. Potomac Insurance Co. of Illinois, 203 Ill. 2d 141, 149, 785 N.E.2d 1, 6 (2003).

Here, the business-auto portion of the delivery van's Fidelity insurance policy provides, in pertinent part, as follows:

"A. Coverage

We will pay all sums an 'insured' legally must 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.'

* * *

1. Who Is An Insured

The following are 'insureds':

a. You for any covered 'auto.'

b. Anyone else while using with your permission a covered 'auto' you own, hire or borrow ***.

5. Other Insurance

a. For any covered 'auto' you own, this [c]overage [f]orm provides primary insurance. For any covered 'auto' you don't own, the insurance provided by this [c]overage [f]orm is excess over any other collectible insurance.

d. When this [c]overage [f]orm and any other [c]overage [f]orm or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the [l]imit of [i]nsurance of our [c]overage [f]orm bears to the total of the limits of all the [c]overage [f]orms and policies covering on the same basis." (Emphases added.)

The complaints in the underlying case allege common-law negligence against Brown's towing business, the tow truck driver, the delivery van owner, and the delivery van driver for essentially failing to properly secure the van to the tow such that it veered off and struck plaintiffs' vehicle.

Illinois has defined "use" of a vehicle under an omnibus clause as "operation" or "control of operation." For example, in Thomas v. Aetna Casualty & Surety Co., 28 Ill. App. 3d 363, 367, 328 N.E.2d 374, 375 (1975), two men jumped onto the hood of the driver's car as he was attempting to leave a party, obstructing his vision, whereupon he struck the victim with his car. The victim sued the driver of the car, as well as the two men who had jumped on the car. Thomas, 28 Ill. App. 3d at 364, 328 N.E.2d at 375. In the declaratory judgment actions among the defendants that followed, the insurance companies of the men who had jumped on the hood asked for a declaration that the vehicle owner's insurance provided primary coverage to the men who had jumped on the hood as "users" of the vehicle. Thomas, 28 Ill. App. 3d at 364, 328 N.E.2d at 375. This court affirmed the denial of coverage to the men riding on the car and stated "control of operation" is one of the factors that constitutes "use." Thomas, 28 Ill. App. 3d at 367, 328 N.E.2d at 377.

In Apcon Corp. v. Dana Trucking, Inc., 251 Ill. App. 3d 973, 974, 623 N.E.2d 806, 807 (1993), an Apcon employee directed, by hand signals, the backing of a truck owned by Dana Trucking and driven by a Dana employee when it struck and killed the plaintiff. The plaintiff's estate sued Apcon, and Apcon contended it was covered under Dana's insurance policy because, by directing the driver with hand signals, it was "using" the truck with permission of the insured. Apcon, 251 Ill. App. 3d at 976, 623 N.E.2d at 807. This court disagreed, finding Apcon was not a "user" of the Dana vehicle and stating "in order to constitute a 'use' or be a 'user' under the policy, such as to be an insured, one must be in operation of the vehicle." Apcon, 251 Ill. App. 3d at 980, 623 N.E.2d at 811.

The exact issue of whether a tow truck "uses" or "operates" the vehicle it tows so as to be an omnibus insured under the towed vehicle's policy is one of first impression in this state. The majority of other jurisdictions, however, have held a tow truck owner uses the towed vehicle with the permission of the named insured, resulting in coverage under the towed vehicle's policy. Absent an Illinois determination on a point of law, the courts of this state will look to other jurisdictions as persuasive authority. Hawthorne v. Village of Olympia Fields, 328 Ill. App. 3d 301, 316, 765 N.E.2d 475, 487 (2002) (Quinn, J., specially concurring in part and dissenting in part).

In Howard v. Ponthieux, 326 So. 2d 911, 912 (La. App. 1976), the victims were injured when a truck broke loose from the tow truck, entered oncoming traffic, and collided with their vehicle. The plaintiffs sued the tow truck owner and driver, the driver of the towed vehicle before the towing, the towed vehicle's insurance company, and the passenger-victim's insurance company. Howard, 326 So. 2d at 912. At issue was whether the towed vehicle's insurance provided coverage for the accident. Howard, 326 So. 2d at 912. Although the court ultimately found no coverage existed because of a business exclusion in the policy, it observed that the term "use" "'is not limited to those actually operating or driving the motor vehicle but extends to those who have such a right of control over the vehicle as to impose a legal responsibility upon them for the use of the vehicle.'" Howard, 326 So. 2d at 914, quoting 7 Am. Jur. 2d Automobile Insurance