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Banner Ins. Co. v. Avella

SEPTEMBER 9, 1970.

BANNER INSURANCE COMPANY, PLAINTIFF-APPELLANT,

v.

CLOTILDE AVELLA, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT. Rehearing denied and opinion modified October 5, 1970.

Plaintiff appeals from a summary judgment declaring the rights of defendants to a defense and payment under plaintiff's policy of insurance.

The following facts as set forth in the pleadings and cross-motions for summary judgment are not in dispute. On November 8, 1966, the plaintiff issued to the defendant Pio Mugnaini its standard form automobile insurance policy. On April 19, 1967, while the policy was in full force and effect, Pio's automobile, driven by defendant Anna Mugnaini and carrying the defendant Clotilde Avella, was involved in an accident. At the time of the accident Anna was driving Pio's automobile with his permission.

Clotilde filed a lawsuit against Anna wherein she sought to recover damages for the personal injuries she suffered as a result of the negligence and wilful and wanton misconduct of Anna. Pio was not sued by Clotilde.

Plaintiff obtained a "reservation of right" from Anna and appeared and entered a defense in her behalf in the lawsuit filed against her by Clotilde. Plaintiff then filed its complaint for declaratory judgment to adjudicate its rights and liabilities under the insurance policy issued to Pio.

Clotilde is the natural mother of Anna and Anna is the lawful daughter-in-law of Pio, the named insured under plaintiff's insurance policy. At all times the defendants Anna Mugnaini, Pio Mugnaini, and Clotilde Avella were residents of the same household located at 6226 North Lowell Avenue, Chicago, Illinois.

In the declaratory judgment action cross-motions for summary judgment were filed by plaintiff and defendant Clotilde Avella. The trial court entered summary judgment against plaintiff finding that the defendant Anna Mugnaini had the right under plaintiff's insurance policy to a defense of the claim being made against her by the defendant Clotilde Avella and that the defendants had the right to payment by plaintiff of any judgment entered in the cause entitled Clotilde Avella v. Anna Mugnaini, 67 M2 10801. Plaintiff appeals from this judgment.

Opinion

The automobile insurance policy issued to Pio by the plaintiff provides in Part I — Coverage A that plaintiff agrees "[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages" because of bodily injury and property damage. (Emphasis supplied.) Under the title "Persons Insured" the policy states:

"The following are insureds under Part I:

"(a) With respect to the owned automobile,

"(1) the named insured and any resident of the same household,

"(2) any other person using such automobile to whom the named insured has given permission, provided the use is within ...


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