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Cincinnati Insur. Co. v. Argubright

OPINION FILED DECEMBER 31, 1986.

THE CINCINNATI INSURANCE COMPANY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

JEFFREY ARGUBRIGHT, DEFENDANT-APPELLEE (JAMES CARRETTO ET AL., DEFENDANTS; ECONOMY FIRE AND CASUALTY COMPANY, COUNTER-PLAINTIFF-CROSS-APPELLANT; AND THE CINCINNATI INSURANCE COMPANY ET AL., COUNTERDEFENDANTS).



Appeal from the Circuit Court of La Salle County; the Hon. William P. Denny, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

In an underlying action that gave rise to the present dispute, Jeffrey Argubright filed a complaint against the defendant, James Carretto, alleging that Carretto negligently discharged a firearm on April 17, 1983, so that a bullet struck and injured Argubright. A recovery of money damages for that injury is sought by Argubright from the defendant.

On the date of the occurrence alleged in the complaint, the defendant's parents, Peter and Anna Carretto, had in full force and effect three liability insurance policies. The first policy was issued to them by the plaintiff herein, The Cincinnati Insurance Company, insuring a home located at 8 Oaklane, Ottawa, Illinois. Economy Fire and Casualty Company issued the second and third policies, one of which insured a business and apartment located at 750 North Columbia Avenue, Oglesby, Illinois, and the other being an estate-protector umbrella liability policy. The only policy which concerns us here is that one issued by the plaintiff, The Cincinnati Insurance Company.

The plaintiff filed the instant suit seeking a declaratory judgment that it is not obligated to defend the defendant or pay any judgment entered against him in the underlying lawsuit brought by Argubright for the reason that at the time of the occurrence complained of, the defendant was not an insured within the meaning of his parents' policy. That policy provides:

"`[I]nsured' means you and the following residents of your household:

a. Your spouse;

b. Your relatives;

c. Any person in the care of you or an insured spouse or relatives."

The facts surrounding this controversy are as follows. In 1974, Peter and Anna Carretto purchased a business at 750 North Columbia Avenue, Oglesby, Illinois known as the Garzanelli Restaurant. The Carretto family moved into a four-bedroom apartment above the restaurant and began running the restaurant as a family establishment. The defendant began working at Garzanelli's when it was purchased and continues to work there today. On the date of the occurrence complained of, the defendant was a co-manager of the restaurant.

The facts further showed that Mr. and Mrs. Carretto intended to slowly get out of the restaurant business and settle in Ottawa, Illinois. In furtherance of these plans, Mr. and Mrs. Carretto purchased a home in Ottawa in 1978, at 8 Oaklane Avenue, and sometime after 1980 began using that home as a residence. Mr. and Mrs. Carretto and the defendant all state that on the date of the occurrence complained of, they maintained dual residences, one being the Oglesby apartment and the other being the Ottawa home. They state that the Oglesby apartment is used during the times that the restaurant business is being conducted and the Ottawa home is used on days off. The restaurant is open Wednesday through Sunday, and during business hours, either the defendant or his brother Charles manage the restaurant. The defendant and his brother often spend working nights at the apartment. Mr. and Mrs. Carretto likewise spend many nights each week at the Oglesby apartment, depending on the demands of the restaurant business.

The apartment above the restaurant has four bedrooms and is fully equipped with furniture owned by Mr. and Mrs. Carretto. The defendant has his own bedroom at the apartment in which he keeps clothes and a stereo. The Ottawa home has two bedrooms, one for Mr. and Mrs. Carretto and the other for the defendant and his brother Charles to share. The defendant also keeps clothes at the Ottawa residence, along with a snowmobile which he owns. The defendant receives mail at both locations. The Ottawa address is used on the defendant's driver's license, whereas the Oglesby address is used on the defendant's voter's registration card, income tax returns, automobile insurance policy, and membership rosters of the Elks and Knights of Columbus.

After discovery was had in this matter, the trial court granted Argubright's motion for summary judgment, stating:

"1. There exists no genuine issue as to the following material facts:

A. On the 17th day of April, 1983, James Carretto was a member of the household of Peter Carretto and Anna Carretto.

B. On the aforesaid date, Peter Carretto, Anna Carretto and James Carretto maintained dual residences at 750 North Columbia Avenue, Oglesby, ...


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