Appeal from the Circuit Court of Tazewell County; the Hon.
John A. Gorman and the Hon. Stephen J. Covey, Judges, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
At the heart of the five appeals here consolidated lie the simplicity of the vows of matrimony, the complexities of marriage and a contract entered into by the married couple, and, unfortunately, the bitter litigation that too often accompanies the destruction of the marital union. Mary Jane and her husband, Frank Palmer, were still residing together in their Champaign home on September 12, 1981, despite some marital discord. They travelled together to Peoria on that date to attend a wedding anniversary celebration. That evening, on their way to Frank's father's home in East Peoria, while Frank was at the wheel of their 1980 Rabbit auto and Mary Jane was seated in the front passenger seat, Frank exacted from Mary Jane a confession that she had had extramarital relations with her boss. Angry words were exchanged, Frank hit Mary Jane, and the auto hit a bridge abutment on Farmdale Road in Tazewell County. The extent of the physical confrontation between the Palmers subsequent to the accident is a matter of considerable dispute. In any event, Mary Jane had suffered two fractured neck vertebrae, a bent partial dental plate, and a broken leg by the time she was removed from the car and delivered to the hospital for treatment. At the time of the accident the Rabbit was covered by an automobile liability insurance policy with State Farm Mutual Automobile Insurance Company issued in Mary Jane's name.
A flurry of lawsuits ensued, including an action for the dissolution of the Palmers' marriage; a suit by Frank against Mary Jane's paramour for alienation of affections; a suit by Mary Jane against Frank for negligence and battery, later amended to include Fon du Lac Township for negligence; a countersuit by Fon du Lac Township against Frank for indemnity and contribution; and a suit by State Farm against Mary Jane, Frank and Fon du Lac Township for declaratory judgment. The dissolution and alienation of affections actions are not before us. The remaining lawsuits are.
In the suit brought by Mary Jane against Frank, the trial court granted Frank's motion for summary judgment with respect to the count sounding in negligence, based on Frank's assertion of the defense of inter-spousal immunity. With respect to the intentional tort count, the court denied Frank's motion. In the insurer's declaratory judgment cause, the court held that, by force of the household exclusion clause, Mary Jane's auto insurance policy afforded no liability coverage for Frank as a defendant in Mary Jane's suit against him or for contribution. The trial court certified the case for immediate appeal pursuant to Supreme Court Rules 304(a) and 308(a) (73 Ill.2d Rules 304(a), 308(a)).
As aforesaid, five appeals are before use for our review. In Nos. 83-163, 83-177 and 83-188, Mary Jane, Frank, and Fon du Lac Township uniformly complain that the trial court erred in declaring that the Palmers' insurance policy afforded no liability protection for Frank either as a defendant in Mary Jane's suit or for contribution and indemnity in Fon du Lac's countercomplaint against Frank. In No. 83-268, Frank contends that the trial court erred in denying his motion for summary judgment with respect to the intentional tort count of Mary Jane's complaint. And in No. 83-308, Mary Jane contends that the trial court erred in granting Frank's motion for summary judgment with respect to her negligence cause of action against him.
We consider in the first instance the issues raised by Mary Jane: (1) whether Frank's assertion of inter-spousal immunity bars Mary Jane's negligence cause of action against him; (2) whether Frank's waiver of the conflict of interest created by his insurer's defending him was made with Frank's knowledgeable consent; and (3) whether State Farm's "family exclusion" clause in Mary Jane's liability insurance policy precludes coverage for Frank in the claims filed by Mary Jane and Fon du Lac Township.
• 1 Initially, we must reject persuasive arguments advanced on behalf of Mary Jane that the doctrine of inter-spousal immunity violates constitutional rights and contravenes modern realities. The Illinois legislature has seen fit to retain the defense as a codification of the public policy of this State. (Ill. Rev. Stat. 1981, ch. 40, par. 1001.) Inter-spousal immunity is not unconstitutional on due process or equal protection grounds (Heckendorn v. First National Bank (1960), 19 Ill.2d 190, 166 N.E.2d 571).
Nor does the doctrine violate the privileges and immunities clause of the Federal Constitution. The right to recover or debar recovery in tort from one's spouse is not a fundamental "privilege" or "immunity" bearing upon the vitality of the nation such that Illinois must conform its laws to treat all citizens, whether resident or nonresident, equally. Thus, the mere fact that the doctrine of inter-spousal immunity has been abrogated in the great majority of States on public policy grounds does not, ipso facto, invalidate the statutory defense in Illinois.
• 2 Next Mary Jane argues that inter-spousal immunity applies only during "coverture." Since she was residing with Frank by force of his intimidation rather than his protection and affection, she contends that coverture did not exist in the marital home. While we certainly recognize the inapplicability of one of the bases for enacting inter-spousal immunity (i.e., to encourage, promote and maintain marital harmony) to the unfortunate situation giving rise to the negligence cause of action herein, we are not persuaded thereby that "coverture," as that term is used in "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1981, ch. 40, par. 1001), means anything more than "marriage." (See Soedler v. Soedler (1980), 89 Ill. App.3d 74, 76, 411 N.E.2d 547, 548.) Mary Jane and Frank's marriage, while not harmonious at the time of the accident, had not been dissolved. Since the personal injury negligence cause of action against Frank involved "a tort to the person committed during coverture [marriage]," the inter-spousal immunity defense was available as a procedural bar to count I (negligence) of Mary Jane's complaint.
• 3 We have reviewed the record on appeal and find that the questions of a possible conflict of interest and Frank's waiver of that conflict were adequately explored and resolved in the trial court. We have no doubt that Frank intended to use the statutory immunity available to him as a personal defense to Mary Jane's lawsuit to deprive her of any recovery for her injuries. In this case, State Farm, while agreeing to pay for independent defense counsel selected by Frank, had the same interest as Frank in avoiding Mary Jane's negligence cause of action. Frank's waiver of his attorney's possible conflict of interest and his assertion of the personal defense was made as knowledgeably and as intelligently as could be hoped for under the circumstances. For the foregoing reasons we hold that the trial court correctly granted summary judgment for Frank and against Mary Jane on count I of her complaint, sounding in negligence.
We turn next to Mary Jane's contention that State Farm's family exclusion clause is invalid because it is overbroad, in contravention to Illinois public policy, and ambiguous. The clause in question is contained under "Section I — Liability — Coverage A" and the paragraph entitled "When Coverage A Does not Apply." It reads as follows:
"In addition to the limitations of coverage in `Who Is An Insured' and `Trailer Coverage' THERE IS NO COVERAGE . . . FOR ANY BODILY INJURY TO: . . . ANY MEMBER OF THE FAMILY OF THE INSURED RESIDING IN THE SAME HOUSEHOLD AS THE INSURED, The term `insured' as used here means the person against whom claim is made or suit is being brought."
Mary Jane argues that the trial court's judgment in favor of State Farm is overbroad because it declared noncoverage with respect to Fon du Lac Township's countercomplaint against Frank. She also contends that the exclusion clause itself is overbroad and ambiguous because it extends to family members residing in the insured's household without precisely defining the boundaries of a familial relationship. Frank joins Mary Jane's position, adding that ambiguity can be found by referring to "Section II — Medical Payments — Coverage C" which does not exclude family members.
• 4 As conceded by State Farm, the trial court's declaratory judgment in favor of the insurer extends only to the enforcement of "Section I — Liability — Coverage A." Liability coverage under the section at issue is specifically and unambiguously excluded with respect to Mary Jane's direct suit against Frank. The court's order does not preclude, however, any other recovery which may be available to Mary Jane under other sections of the policy which might apply. Furthermore, Fon du Lac's inability to recover from Frank's insurer on its countercomplaint does not preclude it from prosecuting its cause of action against Frank. Any issues ...