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10/07/87 Prudential Property and v. Myrtle E. Scott Et Al.

October 7, 1987

PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, PLAINTIFF-APPELLEE AND COUNTERDEFENDANT-APPELLEE

v.

MYRTLE E. SCOTT ET AL., DEFENDANTS-APPELLANTS AND COUNTERPLAINTIFFS-APPELLANTS (CHRISTINA L. SCOTT ET AL., DEFENDANTS; COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-INTERVENOR AND COUNTERPLAINTIFF; PRUDENTIAL

PROPERTY AND CASUALTY INSURANCE COMPANY ET AL., COUNTERDEFENDANTS). -- PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, PLAINTIFF-APPELLEE AND COUNTERDEFENDANT,

v.

MYRTLE E. SCOTT ET AL., DEFENDANTS (COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT AND INTERVENOR AND APPELLANT AND COUNTERPLAINTIFF; MYRTLE E. SCOTT ET AL., COUNTERPLAINTIFFS; PRUDENTIAL PROPERTY AND CASUALTY



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Insurance Company et al., Counterdefendants)

Nos. 4-87-0159, 4-87-0185 cons.

514 N.E.2d 595, 161 Ill. App. 3d 372, 112 Ill. Dec. 932

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding. 1987.IL.1511

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the curt. GREEN and McCULLOUGH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This is an action for declaratory judgment, seeking a determination from the court of the respective rights of the insurer, the insured, and other interested parties in an automobile insurance policy as it relates to an automobile accident that occurred on April 8, 1983.

The insurer, Prudential, filed a motion for summary judgment which initially was denied by the court. The defendants, Myrtle Scott and Wayne Edward Scott, thereafter sought summary judgment on a major issue in the case, and Country Mutual Insurance Company sought a partial summary judgment. The subject of both motions for summary judgment was whether, given the facts existing at the time of the automobile accident, a "family exclusion" clause in the Prudential policy was applicable. Prudential then moved for reconsideration of its prior motion for summary judgment on the issue of the application of the family exclusion clause.

No evidence was heard and no trial was had. On an agreed statement of facts as set forth in the pleadings, and on the basis of written memoranda, the trial court granted Prudential's motion for reconsideration, and granted Prudential summary judgment against all defendants, holding that Prudential had no duty to defend Christina Scott and no duty to indemnify Christina Scott for any loss arising from personal injuries suffered by Myrtle Scott or Wayne Edward Scott in the automobile accident occurring on April 8, 1983. No question was presented as to the adequacy of the pleadings.

Defendants Myrtle and Wayne Edward Scott and Country Mutual Insurance Company filed notices of appeal from the trial court's order of February 9, 1987. The appeals of the Scotts and of Country Mutual have been consolidated.

At all times relevant to this litigation, defendant Myrtle E. Scott resided in Springfield, Illinois. On April 8, 1983, her son, Wayne Edward Scott, resided with her. Myrtle Scott was the owner of a 1980 Chevrolet automobile for which she had procured liability insurance for the period of January 1983 through July 1983. This liability automobile insurance was procured through Prudential Property and Casualty Insurance Company, the plaintiff in this case.

Myrtle Scott's granddaughter was Christina L. Scott, a defendant in this case. On April 8, 1983, and prior thereto, Christina L. Scott was residing with her mother in southern Illinois. Christina Scott was at all times relevant to the issues in this case a nonresident of the household of Myrtle Scott and Wayne Edward Scott.

The mother and stepfather of Christina L. Scott, on and before April 8, 1983, were the owners of a motor vehicle for which they purchased automobile liability insurance coverage from Country Mutual Insurance Company. On April 8, 1983, Country Mutual Insurance Company had in effect a policy of automobile liability insurance which covered Christina Scott in the operation of non-owned vehicles. Country Mutual asserts that this policy would provide secondary or excess coverage over insurance coverage for any non-owned vehicle driven by Christina Scott which was involved in an accident.

On April 8, 1983, Christina Scott had come to Springfield, Illinois, to visit her grandmother, Myrtle Scott. Christina Scott was given permission by Myrtle Scott to operate Myrtle Scott's 1980 Chevrolet motor vehicle. With Myrtle Scott as a rear-seat passenger and Wayne Edward Scott as a front-seat passenger, Christina Scott, while operating the 1980 Chevrolet in Springfield, Illinois, was involved in a collision at or near the intersection of Jefferson and Walnut Streets in Springfield, Illinois, with a motor vehicle being operated by defendant Arthur Schroeder.

As a result of this automobile collision, Myrtle E. Scott received serious and permanent personal injuries. Wayne Edward Scott also received personal injuries as a result of the collision. Both Myrtle and Wayne Edward Scott filed suit in the circuit court of Sangamon County, claiming that their personal injuries were caused by the negligent operation of the motor vehicle on April 8, 1983, by Christina Scott and by the negligent operation of the motor vehicle by Arthur Schroeder. This personal injury action, seeking monetary damages from Christina Scott and Arthur Schroeder, was filed on March 15, 1985.

On July 19, 1985, after Myrtle and Wayne Edward Scott had filed their personal injury lawsuit against Christina Scott and Arthur Schroeder, Prudential filed this action for declaratory judgment in the circuit court of Sangamon County. The complaint for declaratory judgment sought a declaration from the court that Prudential owed no duty to defend Christina Scott in the personal injury lawsuit brought by Myrtle and Wayne Scott, and also sought a declaration that in the event of an adverse judgment against Christina Scott, Prudential would owe no duty to indemnify her. In addition to naming Myrtle, Wayne and Christina as defendants, Arthur Schroeder was added as a party defendant and Country Mutual Insurance Company, after being granted leave to intervene, was added as a party ...


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