NO. 4-96-0633
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
COUNTRY CASUALTY INSURANCE COMPANY,) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
TAMARA FISHER, Individually and as ) No. 95MR40
Mother and Next Friend of THOMAS )
WAYNE FISHER, a Minor, and )
JOHN FISHER, )
Defendants-Appellants, )
and ) Honorable
JODI ARNDT, ) John K. Greanias,
Defendant. ) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Defendants Tamara Fisher, individually and as mother and
next friend of Thomas Wayne Fisher, a minor, and John Fisher,
appeal from a declaratory judgment in favor of plaintiff Country
Casualty Insurance Company. This case involves the question of
whether an insurance policy issued by plaintiff to cover the Fisher
residence also covered an action for contribution against Tamara in
the underlying lawsuit based on an injury sustained by Thomas when
he was struck by a motor vehicle operated by Jodi Arndt.
The issues are whether (1) the subject homeowner's
insurance policy is a policy providing coverage in this case
because a vehicle is involved and the household exclusion in the
policy violated section 143.01(a) of the Illinois Insurance Code
(Code) (215 ILCS 5/143.01(a) (West 1994)); and (2) the household
exclusion contained in the policy violates public policy. We
affirm.
The complaint in the underlying case alleged that seven-
year-old Thomas was struck by an automobile driven by Arndt in the
200 block of Sherman Street in Macon, Illinois, at about 1:45 p.m.
on July 27, 1993, while he was in the process of crossing the
street. It was alleged that Arndt was negligent in (1) driving at
a speed greater than reasonable and proper for conditions, (2)
driving at a speed which endangered the safety of others, (3)
failing to avoid colliding with a pedestrian, (4) failing to
exercise proper precautions upon observing a child, (5) failing to
keep a proper lookout to avoid colliding with a pedestrian, and (6)
failing to keep an adequate lookout for children on a roadway in a
residential area. Count I of the complaint sought damages for the
minor's injuries, and count II sought medical expenses incurred by
the parents. In her answer, Arndt raised affirmative defenses as
to the child's negligence. She also filed a counterclaim for
contribution against Tamara alleging that Tamara failed to
supervise the child when she had an opportunity to do so, being in
her yard in proximity of the occurrence at the time of the
occurrence, and failed to train and instruct her minor son to watch
for and yield the right-of-way to automobiles on the roadway before
attempting to cross the roadway.
According to the declaration sheet, Country Companies
home insurance policy No. C12K2370745 insured the premises at 255
East Sherman Street, Macon, Illinois. The policy was in effect on
July 27, 1993. The incident occurred on a public street in front
of the Fisher premises. No vehicle owned or maintained by the
Fishers was involved in this occurrence.
The subject policy provided, in relevant part:
"AGREEMENT
We will provide the insurance described in
this policy through the company named on the
declarations page, if you have paid the premi-
um and have complied with the policy provi-
sions. When we refer to the policy, we mean
your policy booklet (titled Home Insurance
Policy), the declarations page, applications
for insurance, and any endorsements. The
coverages you have purchased are stated on the
declarations page and are subject to the
limits of liability, exclusions, conditions,
and other terms of this policy.
SECTION 1.
Liability, Coverage A
We promise to pay on behalf of an insured for
damages resulting from bodily injury or prop-
erty damage caused by an occurrence, if the
insured is legally obligated. We are not
obligated to defend an insured after we have
paid an amount equal to the limit of our
liability. We may make any investigation and
settle any claim or suit we decide is appro-
priate.
Medical Payments, Coverage B
We will pay the necessary medical expenses
which are incurred within two years from the
date of an occurrence causing bodily injury.
By medical expenses we mean reasonable charges
for medical, surgical, X-ray, dental, ambu-
lance, hospital, professional nursing, funeral
services, and prosthetic devices such as
artificial substitutes for a limb, eye or
tooth. This coverage applies only to:
1. a person on an insured location with
permission of an insured;
2. a person off an insured location if
the bodily injury is caused by (a) a
condition in the insured location or
the ways (such as sidewalks or road-
ways) which immediately adjoin, (b)
the activities of an insured or any
residence employee during the course
of that employee's employment by an
insured, or (c) an animal owned by
or in the care of an insured; or
3. any residence employee of an insured
during the course of employment by
an insured."
Immediately following the provisions are a list of exclusions.
Only those exclusions relied on by the parties will be discussed.
There was no liability or medical payment coverage for
bodily injury or property damage:
"5. arising from the ownership, maintenance,
operation, use, loading or unloading of
(a) any aircraft, or (b) any motor vehi-
cle or recreational motor vehicle loaned
to an insured or which an insured owns,
rents or operates. Coverage applies on
the insured location if the motor vehicle
or recreational motor vehicle is not
licensed for road use, or is kept there
in dead storage.
This exclusion does not apply to
bodily injury of residence employees
resulting from and during employment for
an insured except while operating or
maintaining aircraft. This exclusion
also does not apply to golf carts while
being used for golfing purposes."
The policy further provided that there was no liability coverage
for "5. bodily injury to you and, if residents of your household,
your relatives, and individuals under 21 in the care of the
preceding persons." On page 4 of the policy, "motor vehicle" and
"recreational motor vehicle" are defined as follows:
"Motor Vehicle means a motorized land vehicle,
trailer, or semi-trailer designed principally
for travel on public roads. Under Section 1,
the following are also considered motor vehi-
cles when they are being towed by or carried
on a motor vehicle:
1. utility, boat, camping or travel trailer;
2. farm implements;
3. farm machinery;
4. recreational motor vehicles;
5. any equipment which is designed for use
principally off public roads and not
licensed for road use.
Recreational Motor Vehicle means any motorized
vehicle designed for recreation, principally
used off public roads, and not licensed for
road use."
Following a bench trial, the trial court found the
household exclusion was not contrary to public policy; the
household exclusion was not invalidated by section 143.01(a) of the
Code; and the occurrence did not arise out of the use of a vehicle
for which coverage was provided under the terms of the policy. It
was ordered that plaintiff was not required to defend Tamara or
John in the underlying lawsuit or to indemnify them from any
judgment entered against them which arose out of the underlying
occurrence.
The first issue is whether the subject homeowner's
because a vehicle is involved and the household exclusion in the
policy violated section 143.01(a) of the Code. Section 143.01(a)
of the Code provides:
"A provision in a policy of vehicle
insurance described in Section 4 excluding
coverage for bodily injury to members of the
family of the insured shall not be applicable
when a third party acquires a right of contri-
bution against a member of the injured
person's family." 215 ILCS 5/143.01(a) (West
1994).
The Code classifies vehicle insurance as:
"Insurance against any loss or liability
resulting from or incident to the ownership,
maintenance or use of any vehicle (motor or
otherwise), draft animal or aircraft. Any
policy insuring against any loss or liability
on account of the bodily injury or death of
any person may contain a provision for payment
of disability benefits to injured persons and
death benefits to dependents, beneficiaries or
personal representatives of persons who are
killed, including the named insured, irrespec-
tive of legal liability of the insured, if the
injury or death for which benefits are provid-
ed is caused by accident and sustained while
in or upon or while entering into or alighting
from or through being struck by a vehicle
(motor or otherwise), draft animal or air-
craft, and such provision shall not be deemed
to be accident insurance." 215 ILCS 5/4(Class
2)(b) (West 1994).
The interpretation and construction of an insurance
policy is a question of law of which the reviewing court may make
an independent determination. Allstate Insurance Co. v. Eggermont,
180 Ill. App. 3d 55, 61, 535 N.E.2d 1047, 1049 (1989).
"Generally speaking, if a provision of an
insurance contract can reasonably be said to
be ambiguous it will be construed in favor of
the insured and against the insurer, who was
the drafter of the instrument. (Dora Township
v. Indiana Insurance Co. (1980), 78 Ill. 2d
376; Glidden v. Farmers Automobile Insurance
Association (1974), 57 Ill. 2d 330.) However,
if the provisions of the insurance policy are
clear and unambiguous there is no need for
construction and the provisions will be ap-
plied as written. (Menke v. Country Mutual
Insurance Co. (1980), 78 Ill. 2d 420; Kirk v.
Financial Security Life Insurance Co. (1978),
75 Ill. 2d 367.) All the provisions of the
insurance contract, rather than an isolated
part, should be read together to interpret it
and to determine whether an ambiguity exists.
Weiss v. Bituminous Casualty Corp. (1974), 59
Ill. 2d 165; Cobbins v. General Accident Fire
& Life Assurance Corp. (1972), 53 Ill. 2d
285." United States Fire Insurance Co. v.
Schnackenberg, 88 Ill. 2d 1, 4-5, 429 N.E.2d
1203, 1205 (1981).
If possible, provisions in a contract will be reconciled in order
to give effect to all of the contract's provisions. Butler v.
Economy Fire & Casualty Co., 199 Ill. App. 3d 1015, 1022, 557
N.E.2d 1281, 1286 (1990).
Defendants argue that the subject policy does provide
coverage for injuries arising out of the use of nonmotorized
vehicles (bicycles, wagons, et cetera). Defendants also point to
the provisions that indicate the exclusion does not apply in many
instances to the operation of motorized golf carts and motorized
boats. It is defendants' argument that, since this policy provides
some limited coverage for certain types of vehicles, it is a
vehicle policy within the terms of the statute and the household
exclusion is invalid. Under the facts of this case, we disagree.
Defendants rely on a dictionary definition of "vehicle."
"Vehicle," in this context, is generally defined as "a means of
carrying or transporting something: CONVEYANCE: as a: a carrier of
goods or passengers ***; specif: MOTOR VEHICLE." Webster's Third
New International Dictionary 2538 (1993).
The language of the statute is the best indication of the
legislature's intent, and when that intent can be ascertained from
the language of the statute, it will be given effect without resort
to extrinsic aids for construction. Solich v. George & Anna Portes
Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81, 630
N.E.2d 820, 822 (1994). There is no rule of construction which
allows a court to declare the legislature did not mean what the
plain language of the statute says, and it is improper for a court
to depart from the plain language by reading into the statute
exceptions, limitations, or conditions which conflict with the
clearly expressed legislative intent. People ex rel. LeGout v.
Decker, 146 Ill. 2d 389, 394, 586 N.E.2d 1257, 1259 (1992).
Distinguishable from this case are two cases relied on by
defendants. In Allstate Insurance Co. v. Brettman, 275 Ill. App.
3d 1040, 657 N.E.2d 70 (1995), the injured children were struck by
a car while they were riding in a carrier that was being pulled
behind a bicycle their mother was walking across a street. In
Eggermont, a child was injured by a riding lawn mower driven by her
brother. In Eggermont, the court found that section 143.01(a) of
the Code defeated the household exclusion in the policy. However,
the court concluded:
"Lastly, by this holding, we do not, as
Allstate argues, hold that a family household
exclusion, contained in an insurance policy
which also provides some vehicle insurance, is
totally inapplicable even where no vehicle is
involved in the incident giving rise to the
liability of the insured. We only hold that
to the extent a policy of insurance, or a part
thereof, provides vehicle insurance as defined
under Class 2(b) of section 4 [of the Code],
and only to such extent, section 143.01(a) [of
the Code] applies and renders the household
family exclusion contained in the policy
inapplicable to third-party suits for contri-
person's family. Ill. Rev. Stat. 1985, ch.
73, par. 755.01(a)." Eggermont, 180 Ill. App.
3d at 66, 535 N.E.2d at 1053.
Here, the injury-causing vehicle was not an insured
vehicle and was not being operated by an insured. The subject
policy is a policy of vehicle insurance under the Code only to the
extent that it provides coverage relating to certain vehicles, none
of which were involved in this incident. Section 143.01(a) of the
Code does not invalidate the household exclusion contained in the
subject policy under the facts of this case. It is unnecessary to
consider plaintiff's argument that section 143.01(a) ought not
invalidate the household exclusion of this policy under any
circumstances. See State Farm Fire & Casualty Co. v. Holeczy, 152
Ill. App. 3d 448, 452, 504 N.E.2d 971, 974 (1987); Country Mutual
Insurance Co. v. Jacobus, 601 F. Supp. 937, 941 (C.D. Ill. 1985).
The next issue is whether the household exclusion con-
tained in the policy violates public policy. Defendants argue that
all household exclusions, whether in a vehicle policy or any other
policy, are violative of public policy. This argument has been
rejected. Country Mutual, 601 F. Supp. at 941. Had the legisla-
ture determined a broader prohibition on family exclusion clauses
was appropriate, the legislature could have more severely limited
their application or abolished it altogether. Household or family
exclusion clauses have been upheld and applied "to avoid the
possibility of collusive claims in a close, overfriendly and
intimate relationship between family members." Banner Insurance
Co. v. Avella, 128 Ill. App. 2d 471, 475, 262 N.E.2d 791, 793
(1970). An unambiguous clause in an insurance policy will be
applied as written unless it contravenes public policy. Hall v.
Burger, 277 Ill. App. 3d 757, 761, 660 N.E.2d 1328, 1331 (1996).
The public policies which defendants rely on are the need
to carefully guard the rights of minors and to protect the family
relationship when dealing with a family member's legal rights. In
Cates v. Cates, 156 Ill. 2d 76, 81-106, 619 N.E.2d 715, 718-729
(1993), the Supreme Court of Illinois extensively discussed the
public policy behind the judicially created doctrine of parental-
child immunity and the exceptions that had been carved from it by
the Illinois courts. The court addressed the concern that its
decision "opens the door to litigation between parent and child
over ordinary household accidents." Cates, 156 Ill. 2d at 106, 619
N.E.2d at 729.
If we accept either of defendants' arguments in this
case, an insurance company issuing a homeowner's policy becomes, in
effect, an insurer of every motor vehicle on the roadway of this
State. That does not appear to have been the intention of the
legislature in adopting section 143.01(a) of the Code, nor should
it be the public policy of this State.
The judgment of the circuit court of Macon County is
affirmed.
STEIGMANN, P.J., and KNECHT, J., concur.