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02/20/87 State Farm Fire & Casualty v. Pierre Holeczy Et Al.

February 20, 1987

STATE FARM FIRE & CASUALTY COMPANY, PLAINTIFF-APPELLEE

v.

PIERRE HOLECZY ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

504 N.E.2d 971, 152 Ill. App. 3d 448, 105 Ill. Dec. 686 1987.IL.207

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

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

This appeal is from summary judgment in an action for a declaration of rights under a policy of insurance issued to defendants by plaintiff.

The facts giving rise to this litigation are undisputed. On May 28, 1981, three-year-old Pierre Holeczy sustained serious injuries to his leg when he came in contact with the blade of a riding lawn mower being operated by his brother, Robert, to mow the family lawn. On September 9, 1981, an action was instituted on behalf of Pierre by his father, defendant Leslie Holeczy, against the manufacturer of the mower, Toro Sales, Co., which in turn filed a third-party complaint contribution against Leslie, his wife Zora, and Robert, their son, alleging that various acts of negligence by them were the proximate causes of Pierre's injuries. The Holeczys tendered the defense of Toro's third-party action to plaintiff, State Farm Fire & Casualty Co. (State Farm), under their homeowner's insurance policy, which provided liability coverage for bodily injury and property damage claims against the insured. State Farm retained counsel to defend the Holeczys, but advised them that it nevertheless reserved its rights to deny coverage, and shortly thereafter, it instituted this action seeking a declaration that it was not obligated to defend or indemnify them with respect to Toro's contribution claim by reason of a clause in the policy excluding personal liability coverage for bodily injury to the named insured or to relatives and certain other members of the insured's household (the household exclusion clause). After a hearing on the parties' cross-motions for summary judgment, the trial court entered judgment in favor of State Farm, and this appeal followed.

Opinion

The Holeczys first contend that (a) in the context of the facts presented, the household exclusion clause is inapplicable on its face because the claim for which insurance is sought is not one for "bodily injury to an insured" but, rather, arises out of an injury to a noninsured (Toro) and (b), in the alternative, that the absence of any specific references in the policy regarding the existence or exclusion of coverage for contribution claims creates an ambiguity therein requiring construction in favor of such coverage.

The applicability of household or family exclusion provisions in policies of liability insurance to third-party actions for contribution from the insured for injuries to a member of the insured's household was first addressed in this State in State Farm Mutual Automobile Insurance Co. v. Suarez (1982), 104 Ill. App. 3d 556, 432 N.E.2d 1204, a decision followed by the courts in State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, 463 N.E.2d 129; Allstate Insurance Co. v. Odeh (1984), 126 Ill. App. 3d 85, 466 N.E.2d 1269; Economy Fire & Casualty Co. v. Green (1985), 139 Ill. App. 3d 147, 487 N.E.2d 100; and Country Mutual Insurance Co. v. Jacobus (C.D. Ill. 1985), 601 F. Supp. 937. Presented with a family exclusion clause substantively identical to the one before us but contained in an automobile liability policy, the Suarez court found that it clearly and unambiguously operated to exclude coverage for any liability which might be imposed upon the insured in a counterclaim seeking contribution from him for the injuries sustained by his wife in an automobile collision. In so holding, the court reasoned that the counterclaim for contribution gave rise to joint tort liability between counterclaimant and the insured for bodily injuries to a family member and noted also that if it were not considered a claim arising out of "bodily injuries" but, rather, one for an "excess liability" injury to the third-party seeking contribution, it would be unnecessary to reach the question of whether the exclusion applied because the policy at issue provided coverage only for bodily injuries and damage to or destruction of property.

The Holeczys contest the applicability of Suarez to this case on numerous grounds, arguing initially that we cannot rely on the reasoning therein because the policy definition of "property" was not set out in that opinion, whereas "under the definition of the policy herein, a contribution action is obviously covered." We disagree.

Paragraph 6 of the "Definitions" section of the subject policy succinctly states that "property damage" means "physical injury to or destruction of tangible property." Giving these words their plain and ordinary meaning, it is clear that the policy coverage for property damage does not encompass a monetary or economic loss such as that for which Toro seeks a right of contribution. (See Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill. App. 3d 687, 414 N.E.2d 1218; Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 294 N.E.2d 7, (both holding that economic losses are "intangibles" not covered under the "property damage" provisions of policies of general liability insurance).) Thus, we need not engage in a lengthy Discussion as to whether the claim is one arising out of bodily injuries to Pierre or an economic injury to Toro, as the former is excepted from liability coverage by virtue of the exclusion clause and the latter is not included in the first instance.

Anticipating our Conclusion, the Holeczys alternatively assert that Suarez and its progeny "were overruled by the legislature" through its enactment of section 143.01 of the Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01), which became effective July 11, 1984, and provides in pertinent part:

"(a) A provision in a policy of vehicle insurance described in Section 4 excluding coverage for bodily injury to members of the family of the insured shall not be applicable when a third party acquires a right of ...


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