Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiff brought an action for declaratory judgment to establish that defendant's automobile liability insurance policy issued to plaintiff provided uninsured motorist coverage as a result of the death of Beatrice Aguirre. Defendant's motion for summary judgment was granted and plaintiff appeals. We affirm.
The issues presented are whether Maria Aguirre, mother of the minor decedent, was the "spouse" of plaintiff, and whether decedent was a "relative" as those terms are defined in the automobile insurance policy.
The facts are not in dispute. On September 22, 1979, plaintiff was the named insured in an automobile liability insurance policy issued by defendant which provided uninsured motorist benefits to persons therein designated as "insured." The relevant portions of the policy stated that the person or persons covered by uninsured motor vehicle coverage include the named insured, "his or her spouse" and "their relatives." The words "spouse" and "relative" are therein defined as follows:
"Spouse — means your husband or wife living with you." (Emphasis added.)
"Relative — means a person related to you or your spouse by blood, marriage or adoption who lives with you * * *." (Emphasis in text.)
On September 22, 1979, while plaintiff was residing with Maria and her minor daughter Beatrice, Beatrice was struck and killed by an automobile operated by an uninsured motorist. Plaintiff submitted a claim for uninsured motorist benefits and a demand for arbitration pursuant to the policy issued by defendant. Defendant denied the claim and demand, contending that decedent did not qualify as an insured under the policy.
Plaintiff's complaint alleged that Maria and plaintiff lived as husband and wife, that Beatrice resided with them, and that plaintiff assumed all obligations of support and care for Beatrice, acting in all respects as guardian for such minor. Defendant filed an answer and affirmative defense which denied uninsured motorist coverage to decedent. Plaintiff filed a reply. In response to defendant's request to admit facts, plaintiff stated that on September 22, 1979, plaintiff and Maria were living and consorting together as husband and wife on a permanent conjugal basis, and were for all intents and purposes married; further, that a marriage license was thereafter issued on October 25, 1979, and their marriage legally recognized and confirmed on November 3, 1979.
The trial court granted defendant's motion for summary judgment and held that Maria did not qualify as plaintiff's "spouse," finding that since Maria and plaintiff were not husband and wife on September 22, 1979, Beatrice did not qualify as a "relative" of plaintiff's spouse under the terms of the policy. Plaintiff appeals.
Plaintiff contends that the trial court erred in holding that Maria was not the spouse of plaintiff under the terms of the policy. He urges that his cohabitation with Maria on a resident continuing conjugal basis, notwithstanding the absence of a legal marriage, should be equated with "husband and wife" and suffice to bring Maria within the definition of "spouse." He argues that the policy does not expressly or by inference require a legal marriage nor exclude couples who hold themselves out to society as husband and wife without such marriage, nor does it refer to the Illinois statute which invalidates common law marriages after June 30, 1905 (Ill. Rev. Stat. 1981, ch. 40, par. 214) as controlling or limiting the definition of a spouse, husband or wife. Plaintiff therefore concludes that an ambiguity exists as to those definitions which should be construed in favor of the insured and against the defendant insurance company. Defendant responds that the terms are not ambiguous and that a valid and legal marriage is required.
Initially, whether an ambiguity exists in a policy is a question of law to be determined by the court. (Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App.3d 410, 407 N.E.2d 77.) The rule that insurance contracts be liberally construed in favor of the insured and strictly against the insurer applies only where the language used is ambiguous. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill.2d 420, 401 N.E.2d 539; Margie Bridals, Inc. v. Mutual Benefit Life Insurance Co. (1978), 62 Ill. App.3d 542, 379 N.E.2d 62.) In the absence of ambiguity, the words are to be given their plain, ordinary and popular meaning. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill.2d 376, 400 N.E.2d 921; Weiss v. Bituminous Casualty Corp. (1974), 59 Ill.2d 165, 319 N.E.2d 491.) It is the function and duty of the court to construe the contract as made by the parties and not to make a new contract under the cloak of construction. (Polzin v. Phoenix of Hartford Insurance Companies (1972), 5 Ill. App.3d 84, 283 N.E.2d 324; Mid-Century Insurance Co. v. Safeco Insurance Co. of America (1972), 7 Ill. App.3d 408, 287 N.E.2d 529.) Finally, questions of the applicable coverage provided by the automobile policy can be determined only as of the time of the accident. Allstate Insurance Co. v. Wallace (Tex. Civ. App. 1968), 435 S.W.2d 537.
We recently held in Sostock v. Reiss (1980), 92 Ill. App.3d 200, 205, 415 N.E.2d 1094, 1097, that a mere engagement to marry did not provide marital rights and that prior to a marriage ceremony, the status of husband and wife did not exist. We there observed that the Illinois Marriage and Dissolution of Marriage Act sets forth the procedure for the solemnization and registration of marriage (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) and that under the present statutory scheme, common law marriages contracted in this State after June 30, 1905, are invalid. Ill. Rev. Stat. 1981, ch. 40, par. 214.
• 1 Although no Illinois cases have been cited nor found, other jurisdictions have determined that the term "spouse" as used in insurance statutes and policies is not ambiguous and is defined as a legal wife or husband. We ...