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06/10/88 Economy Fire & Casualty v. Sherry Bassett

June 10, 1988

ECONOMY FIRE & CASUALTY COMPANY, PLAINTIFF-APPELLEE

v.

SHERRY BASSETT, DEFENDANT-APPELLANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (PATRICIA MILLS, DEFENDANT; DYLAN JONES, A MINOR BY HIS GUARDIAN AD LITEM, DOUG



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Dorris, Defendant-Appellant and

Third-Party Plaintiff-Appellant;

Connie Gott et al., d/b/a

Burnett Insurance

Agency,

Third-Party, Defendants-Appellees)

No. 5-87-0209

525 N.E.2d 539, 170 Ill. App. 3d 765, 121 Ill. Dec. 481 1988.IL.919

Appeal from the Circuit Court of White County; the Hon. Henry Lewis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. WELCH, J., concurs. JUSTICE KARNS, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Dylan Lee Jones, a minor, through his guardian ad litem, Doug Dorris, appeals from a judgment of the circuit court of White County which (1) declared that Economy Fire & Casualty Company was not obligated to provide coverage to Sherry Bassett under her homeowner's policy for liability arising from an accident at Bassett's home in which Dylan was injured, and (2) held that Connie Gott, Robylee Gott, and Bruce Burnett, d/b/a Burnett Insurance Agency, were not liable for failing to procure insurance which would have covered that accident. For the reasons which follow, we affirm in part, reverse in part, and remand.

The record established that Sherry Bassett operated a licensed day-care facility at her home at Rural Route 1, Sunnybrook Meadows, Carmi, Illinois. At the time of the incident giving rise to this litigation, Bassett had provided baby-sitting services in her home for approximately nine years. She received compensation for these services. On any given day, she would have up to eight children in her care.

Among the children for whom Bassett was being paid to baby-sit was three-year-old Dylan Jones. On October 16, 1981, Dylan was at Bassett's home, along with Mandy Sparrow, Carla and Dusty Pritchard, Devon and Deon Erkman, and Jamie and Kathy Mills. At approximately 4:30 p.m., Patricia Mills drove into Bassett's driveway to pick up Jamie and Kathy, her children. As Mills backed out to leave, her automobile struck and injured Dylan.

Dylan's parents brought a personal injury action on his behalf against both Mills and Bassett. Bassett held a homeowner's insurance policy from Economy Fire & Casualty Company, which she had purchased through Connie and Robylee Gott at the Burnett Insurance Agency. Bassett notified Economy of the lawsuit, and it provided her with legal representation under a reservation of rights. At the same time, it filed the action sub judice against Bassett, Mills, and Dylan seeking a declaratory judgment that its policy with Bassett did not cover Dylan's accident. The basis for Economy's claim was an exclusion in the policy which provided:

"1. Coverage E -- Personal Liability and Coverage F -- Medical Payments to Others do not apply to bodily injury or property damage:

b. arising out of business pursuits of any ...


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