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Allstate Insurance Co. v. Gutenkauf

OPINION FILED DECEMBER 31, 1981.

ALLSTATE INSURANCE COMPANY, PLAINTIFF-APPELLEE,

v.

JOHN GUTENKAUF ET AL., DEFENDANTS-APPELLANTS. — (FIREMAN'S FUND INSURANCE COMPANY, PLAINTIFF-APPELLEE,

v.

JOHN GUTENKAUF ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendants appeal from an order granting plaintiffs' motions for summary judgment in an action for declaratory judgment, contending (1) that the trial court erred in finding that two homeowners insurance policies issued by plaintiffs excluded coverage for injuries sustained in a boating accident; and (2) that defendant John Gutenkauf complied with the notice provisions of both policies.

According to the deposition testimony of defendant John Gutenkauf, he owned a home in Norridge, Illinois, which was covered by a homeowners policy issued by Allstate Insurance Company. He also owned a residence on Sunday Lake, in Minoqua, Wisconsin, insured by a homeowners policy issued by Fireman's Fund Insurance Company, and jointly owned a second lot on Sunday Lake with two other family members. The latter property was vacant, except for picnic tables and a fireplace, and functioned as the main recreational area. There was a pier approximately 30 feet long and 4 feet wide, which ran perpendicular to the shoreline off the vacant lot in an east-west direction, and a raft 30 to 40 feet from the end of the pier. To the north of the pier the shore is sandy, while to the south it is "maybe rocky or — grassy." Gutenkauf owned a 17-foot power boat with a 110 horsepower inboard-outboard motor — the only power boat owned by any of the families — which he operated on Sunday Lake and usually docked on the south end of the pier.

On July 4, 1970, John Gutenkauf had been using his boat on Sunday Lake for about three hours, going out and back pulling different waterskiers and, on his return from one such trip, he positioned his power boat about 10 to 15 feet from shore in front of the vacant lot on the north side of the pier for the purpose of towing additional skiers. The boat was perpendicular to the pier, the stern was about 6 to 8 feet from the pier on the north side, and his daughter Carrie Ann was standing in about 30 inches of water about 4 feet behind the boat, waiting to ski. His other daughter, Jackie, and Gary Basset were also standing in the water. He left the engine running and, while he was adjusting the second tow line in the back of the boat, his 2-year-old son, who had been seated next to him in the passenger seat of the boat, threw the control lever which controlled the speed and direction of the boat into reverse. The boat lurched backward, striking Carrie Ann and injuring her.

Approximately one week later, John Gutenkauf called his Allstate agent and, after explaining the circumstances of the accident, was told by the agent that he did not think it was covered by the homeowners policy. Within three weeks, he also went to the agency where he had obtained his Fireman's Fund policy and, after reporting the occurrence, was informed by an employee of that office that she did not think there was coverage under that policy.

It appears that there was no further contact between plaintiffs and John Gutenkauf until 1976, when his daughter Carrie Ann brought an action against him through her mother and next friend, Lorraine Gutenkauf, for personal injuries arising out of the accident. His tender of the defense of that action was accepted by plaintiffs under a reservation of all rights under their policies. Plaintiffs then filed separate declaratory judgment actions against John Gutenkauf, his wife, and his daughter — seeking a determination of the rights and liabilities of the parties with respect to the policies. Thereafter, the two actions were consolidated — following which defendants filed motions for summary judgment and plaintiffs then filed countermotions for summary judgment.

The trial court granted plaintiffs' countermotions, ruling that the accident came within the watercraft exclusions of the policies. The court, however, made no ruling as to whether John Gutenkauf had given notice of the accident, as required by the policies.

OPINION

• 1 It is the contention of defendants that each of the homeowners policies covered John Gutenkauf's liability for damages because of Carrie Ann's injuries. They argue that summary judgment was improperly entered because the watercraft exclusions were inapplicable since the accident occurred on the "premises," as that word is used in the policies.

Each of the policies provides coverage from all damages which the insured was legally obligated to pay because of bodily injuries sustained by any person, but each also contains what is termed a watercraft exclusion. Thus, the Allstate policy excludes coverage for injury arising from the "ownership, maintenance, operation, use, loading or unloading of any: * * * (c) watercraft, while away from the premises, if (1) with inboard or inboard-outboard power exceeding 50 horsepower, * * *." (Emphasis added.) The policy defines "premises," in pertinent part, as all one-family dwellings where an insured maintains a residence, vacant land owned by an insured, and private approaches and other premises incidental to those premises. The Fireman's Fund policy also excludes coverage for bodily injury or property damage "arising out of the ownership, maintenance, operation, use, loading or unloading of any watercraft: (1) owned by or rented to any Insured if the watercraft has inboard or inboard-outboard motor power of more than 50 horsepower * * *"; but the exclusion does not apply to "bodily injury or property damage occurring on the residence premises." (Emphasis added.) Under the policy, "residence premises" is defined, in pertinent part, as "a one or two-family dwelling building, appurtenant structures, grounds and private approaches thereto."

Thus, as presented by the parties, the resolution of the coverage question depends on whether the situs of Carrie Ann's injuries was on "premises" as that word is used in the policies. In the consideration of this question, we have found that the Illinois courts> have not previously construed the term "premises" in conjunction with the watercraft exclusion typically found in homeowners insurance policies. Although the interpretation of the term was at issue in United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill.2d 1, 429 N.E.2d 1203, and in General Casualty Co. v. Olsen (1977), 56 Ill. App.3d 986, 372 N.E.2d 846, neither case is particularly helpful here. In Schnackenberg, which involved a bicycle accident in an intersection 2 1/2 blocks from the Schnackenberg home, the court focussed primarily on the definition of "the ways immediately adjoining," a phrase included within the definition of premises in the insured's homeowners policy; and in Olsen, where injuries were sustained in a minibike accident on a dirt track, the court determined that the phrase "away from the premises" meant "not logically connected with the area utilized for the residential uses of the insured" but, in so doing, stated that its holding was limited to the facts of that case and noted that the meaning of "premises" in one connection may be radically different in another.

It appears, however, that the interpretation of a watercraft exclusionary clause similar to the one in the instant case was addressed by the Supreme Court of Minnesota in Torbert v. Anderson (1974), 301 Minn. 339, 222 N.W.2d 341. There, the plaintiff, while swimming near a raft in a Minnesota lake, was struck by a boat owned by Anderson and operated by his son, who had come from the Anderson cabin across the lake to pick up a friend. A homeowners policy provided coverage for injuries arising from accidents on the insured premises or out of the activities of the insured, but it did not cover "ownership, maintenance, operation, use, loading or unloading * * * of watercraft owned by or rented to the Insured, while away from the premises * * *." (Emphasis added.) "Premises" was defined as "the premises described in the Declarations, including grounds, garages, stables and other outbuildings incidental thereto, and private approaches thereto." It was contended by Anderson that the lake was a private approach to his cabin and, thus, that the occurrence was on the premises and not within the watercraft exclusion. The court found that because the plain meaning of "private approaches" did not include the lake, the exclusion was applicable.

Here, the occurrence took place 10 to 15 feet from the shoreline while Carrie Ann was standing in the water. Although the facts of Torbert do not indicate how far plaintiff there was from the shore when struck by the boat, we do not believe any distinction in that regard is of significance because Carrie Ann was neither standing on Gutenkauf's private property nor touching the pier or raft structures owned and maintained by the family. Defendants do not contend, as did the plaintiff in Torbert, that the entire lake is included in the "premises," and they argue that the place of the accident was so connected with the use of the Gutenkauf home that it was a part of the premises. Thus, in effect, defendants contend that the premises extended at least 15 feet into the lake — which, of course, would render the watercraft exclusion inapplicable. It appears to us, however, that to define a portion of the lake as premises would involve an arbitrary line-making decision which could lead to further line drawing extensions. As reasoned by our supreme court in Schnackenberg, "[i]f defendants' interpretation of the coverage clause were adopted, the `insured premises' definition would be rendered meaningless for there would be no geographical limit to coverage and liability for conduct * * *." 88 Ill.2d 1, 8.

Furthermore, after a review of cases from other jurisdictions, we do not believe that the lake area in front of defendants' vacant lot constitutes a "private approach" as that phrase ...


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