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Calloway v. Allstate Insurance Co.

OPINION FILED NOVEMBER 18, 1985.

MARGIE CALLOWAY, SPECIAL ADM'R OF THE ESTATE OF ROSCHELLE OWENS, PLAINTIFF-APPELLANT,

v.

ALLSTATE INSURANCE CO., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Plaintiff, Margie Calloway, as special administrator of the estate of Roschelle Owens, appeals from the order of the circuit court of Cook County entering summary judgment in favor of defendant, All-state Insurance Co., in a declaratory judgment action. Plaintiff contends that there were genuine issues of material fact that precluded the entry of summary judgment. We affirm.

On or about February 7, 1977, defendant issued an automobile insurance policy to plaintiff. The policy, a copy of which was attached to plaintiff's complaint as exhibit A, contained an uninsured motorist provision which defines "insured" as:

"(a) the named insured as stated in the policy, the spouse of any named insured and relatives of either, while residents of the same household;

(b) any other person while occupying an insured automobile; * * *."

The policy also defines "occupying" as "in or upon or entering into or alighting from."

On November 5, 1977, Roschelle Owens was struck and killed by an uninsured motorist. According to plaintiff's complaint, Owens exited an automobile, allegedly owned by plaintiff, and "walked approximately 150 feet from said vehicle in search of gasoline, and was killed as a result of being struck by an uninsured motorist * * *." Plaintiff, who did not witness the accident, testified at her deposition that Owens was not in plaintiff's vehicle when she was struck and killed. Although there was an eyewitness to the accident, plaintiff could not recall where this witness had told her that the deceased was standing at the time of the accident.

In her complaint for declaratory relief, plaintiff alleged that the deceased, Roschelle Owens, was a member of her household and was related to her as the wife of plaintiff's step-grandson. Plaintiff's son, Ernest Calloway, married Lucille Owens. Prior to marrying Ernest, Lucille had two sons either by prior marriages or out-of-wedlock. One son was named Damen Bernard, whose biological father was Doc Scott. Another son was named Edward Owens, Jr., whose biological father was Edward Owens, Sr. Edward Owens, Jr., married Roschelle Johnston, who thereby became Roschelle Owens, now deceased. Neither Edward Owens, Jr., nor Roschelle Owens was related to plaintiff by blood. Roschelle Owens was never adopted by plaintiff or by any of her children. Plaintiff's only connection to the deceased is that her son Ernest married the deceased's mother-in-law, Lucille Owens.

On September 11, 1984, the parties filed cross-motions for summary judgment seeking a determination of insurance coverage under the policy issued by defendant to plaintiff. In response to defendant's motion, plaintiff alleged for the first time that her exhibit A may not be genuine because the color of the cover to the exhibit was not the same color that plaintiff originally recalled. Both motions were denied. Upon defendant's motion to reconsider, the trial court allowed defendant's motion for summary judgment. This appeal follows.

• 1 Plaintiff, as we have noted, contends that there were genuine issues of material fact that precluded the entry of summary judgment in favor of defendant. We disagree. The sole issue before the trial court was whether Roschelle Owens was an "insured person" as that term is defined in plaintiff's insurance policy. Plaintiff may claim that Owens was covered under that policy only if she can establish that the deceased was her relative and resided in the same household, or that the deceased was occupying an insured automobile at the time of the accident which caused her death. In our judgment, plaintiff can establish neither.

A "relative" has been defined as "[a] kinsman; a person connected with another by blood or affinity." (Black's Law Dictionary 1158 (5th ed. 1979).) A relationship not based on affinity or consanguinity is necessarily excluded from the designation of "relatives." (5 Couch on Insurance sec. 28:32, at 46 (2d ed. 1984).) "Affinity" has been defined as the relation which one spouse, because of the marriage, has to the blood relatives of the other spouse. (State v. Hooper (1934), 140 Kan. 481, 499-502, 37 P.2d 52, 64.) In Clawson v. Ellis (1918), 286 Ill. 81, 83, 121 N.E. 242, our supreme court elaborated upon this concept:

"Affinity is the relation contracted by marriage between the husband and his wife's kindred and between the wife and her husband's kindred. The marriage places the husband in the same degree to the blood relations of the wife as that in which she herself stands toward them and gives the wife the same connection with the blood relations of the husband. [Citation.] One who contracts a marriage thereby enters into a relation by affinity with the kindred of the spouse but does not assume that relation with persons married to such kindred, and the relation does not include persons related to the spouse only by affinity."

The overwhelming weight of authority from other jurisdictions accords with this understanding of the term "affinity." (See Criminal Injuries Compensation Board v. Remson (1978), 282 Md. 168, 183-84, 384 A.2d 58, 67-68, and the cases cited therein.) This definition has been applied to determine issues of coverage and exclusion in automobile insurance contracts. See United Pacific Insurance Co. v. McCarthy (1976), 15 Wn. App. 70, 72-73, 546 P.2d 1226, 1228.

It is undisputed that the deceased, Roschelle Owens, was not related to plaintiff (the named insured) by blood or adoption. Nor was she related to plaintiff by affinity. By marrying Edward Owens, Jr., deceased became related by affinity only to the blood relatives of her spouse. Thus, deceased became related by affinity only to Lucille Owens and Edward Owens, Sr., the parents of deceased's husband, and to Damen Bernard, the ...


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