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07/16/87 Allstate Insurance Company v. James Stewart Et Al.

July 16, 1987

ALLSTATE INSURANCE COMPANY, PLAINTIFF-APPELLEE

v.

JAMES STEWART ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

511 N.E.2d 188, 158 Ill. App. 3d 129, 110 Ill. Dec. 353 1987.IL.1003

Appeal from the Circuit Court of Winnebago County; the Hon. Robert C. Gill, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. HOPF and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Defendants, James Stewart, Marilyn Stewart, Ralph David Banks, Chris Eggermont, individually and as next friend of her minor daughter, Maria Montez, appeal from a trial court order granting the motion of the plaintiff, Allstate Insurance Company, for judgment on the pleadings.

Maria Montez was injured when she was run over by a tractor-type riding lawn mower operated by her brother, Louis. As a result of the accident, Maria's left leg was severed. The accident occurred at the home of James and Marilyn Stewart, the parents of Chris Eggermont, who were away for the weekend. The Eggermont family was spending the weekend at the Stewart home.

Chris, on behalf of herself and Maria, filed a lawsuit for damages against the Stewarts and Banks, the Stewarts' caretaker, alleging that the defendants were negligent in allowing Louis to operate the riding lawn mower. Thereafter, the Stewarts and Banks filed counterclaims against Chris, seeking contribution pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.).

At the time of the accident, Chris was the named insured under a homeowner's policy issued by the plaintiff. Plaintiff undertook Chris' defense under a reservation of rights letter. Thereafter, plaintiff filed an action for declaratory judgment seeking a determination that Chris' homeowner's policy in effect at the time of the accident did not require the plaintiff to defend Chris on the contribution action. Plaintiff filed a motion for judgment on the pleadings. After the submission of briefs and oral argument, the trial court granted the motion and entered judgment for plaintiff. This appeal followed.

On appeal, the defendants raise the following issues: whether the trial court erred in finding that the Eggermont family was not "temporarily living" at the Stewart home; and whether section 143.01 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01) renders the exclusionary clause of the homeowner's policy inapplicable to the contribution action brought against Chris.

Chris' homeowner's insurance policy with plaintiff provided in pertinent parts as follows:

"Definitions Used In This Policy

3. Insured person -- means you (named insured) and, if a resident ...


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