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06/30/87 Allstate Insurance Company v. Boston Whaler

June 30, 1987

ALLSTATE INSURANCE COMPANY, PLAINTIFF-APPELLEE

v.

BOSTON WHALER, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

510 N.E.2d 1180, 157 Ill. App. 3d 785, 110 Ill. Dec. 149 1987.IL.939

Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiff, the Allstate Insurance Company, issued to its insured, Robert Chrzanowski, two insurance policies containing household exclusion provisions. Defendant, Boston Whaler, Inc., brought a contribution action in the circuit court of Cook County against Chrzanowski. Plaintiff subsequently brought this declaratory judgment action against defendant, seeking a declaration that the household exclusion provisions excluded coverage to Chrzanowski. The trial court granted plaintiff's motion for judgment on the pleadings. Defendant appeals, contending that (1) section 143.01(a) of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a)) applies retroactively to the contribution action, and (2) the policies themselves provide that section 143.01(a) of the Insurance Code applies retroactively to the action.

We affirm.

The record shows that during August 1981, Brian Chrzanowski, Robert's son, suffered injuries while a passenger on his father's boat. In March 1982, Brian brought a personal injury action against defendant, who manufactured the boat, and others. Brian alleged that a defective steering mechanism caused the boat to go out of control, resulting in his injuries.

In November 1984, defendant brought an action against Robert Chrzanowski for contribution. Defendant alleged that Chrzanowski was a mechanic, that he caused the failure of the boat's steering mechanism by improperly altering it and that, therefore, he was liable to defendant for contribution commensurate with his degree of fault. Plaintiff, Robert Chrzanowski's insurer, subsequently brought this declaratory judgment action.

On the date of the accident, Chrzanowski owned two insurance policies that plaintiff issued. Plaintiff's "Recreational Package Policy" insured Chrzanowski against liability for bodily injury and property damage arising out of the use or ownership of his boat. Included in the policy was a clause providing that plaintiff did not cover "bodily injury to any person related to an insured by blood, marriage or adoption and residing in that insured's household."

Plaintiff's "Deluxe Homeowner's Policy" insured Chrzanowski against liability for bodily injury and property damage arising out of activities that the policy covered. Likewise included in this policy was a clause providing that plaintiff did not "cover bodily injury to any insured person," which the policy defined as the insured and any relative or dependent in the insured's care and residing in his or her household. Both policies also provided that when they conflicted "with the statutes in your [the insured's] state, the provisions are amended to conform to those statutes."

In the trial court, plaintiff argued that it did not cover Chrzanowski in defendant's contribution action, relying on the household exclusion clauses in the insurance policies. Plaintiff moved for judgment on the pleadings.

Defendant contended that section 143.01(a) of the Insurance Code applied retroactively to its contribution action. The General Assembly added section 143.01 to the Insurance Code, effective July 11, 1984 (1984 Ill. Laws 416), after plaintiff issued the policies to Chrzanowski. Section 143.01(a) provides that household exclusion clauses do not apply in contribution actions. (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a).) Defendant argued also that the State law conformity clauses in the policies amended the policies to conform with Insurance Code section 143.01(a), making the statute applicable to its contribution action. Defendant moved for summary judgment.

On May 8, 1986, the trial court found that section 143.01(a) of the Insurance Code applied prospectively only and not retroactively to defendant's contribution action, and also that the State law conformity clauses in the policies applied only to laws in effect when plaintiff issued the policies. The court ruled, therefore, that the household exclusion clauses in the policies applied to defendant's contribution action and that plaintiff had no duty to defend or indemnify Chrzanowski. ...


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