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01/18/89 State Farm Fire & Casualty v. Kathleen Wonnell

January 18, 1989

STATE FARM FIRE & CASUALTY COMPANY, PLAINTIFF-APPELLANT

v.

KATHLEEN WONNELL, A/K/A KATHLEEN KUHAJDA, A/K/A KATHLEEN WONNELL RAINWATER, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

533 N.E.2d 1131, 178 Ill. App. 3d 823, 128 Ill. Dec. 43 1989.IL.42

Appeal from the Circuit Court of Grundy County; the Hon. Richard Wilder, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, J., concurs. JUSTICE BARRY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

State Farm Fire & Casualty Company brought this declaratory judgment action to determine coverage under its homeowner policy issued to Kathleen Wonnell Rainwater to insure her and her residence in Garnett, Illinois. Judith McConahay had filed an action to recover damages for personal injuries sustained in a fall at the insured location while she was lessee of the premises. After considering cross-motions for summary judgment, the trial court entered judgment for Rainwater, and State Farm perfected this appeal. We reverse.

Rainwater owned and occupied the residence in question for 12 years until she married and moved out. Rainwater then put her house up for sale and rented the house to McConahay on a month-to-month basis from October 1984 to May 1985. During February 1985, four months after leasing the house, McConahay injured her ankle in a fall near the garage, and she subsequently filed suit for damages against Rainwater.

State Farm asserts that no liability coverage was provided to Rainwater for McConahay's lawsuit because of the following exclusion contained within the homeowner policy which provided:

"1. Coverage L -- Personal Liability and Coverage M -- Medical Payments to Others do not apply to:

(b.) bodily injury or property damage arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured. This exclusion does not apply:

3. to the rental or holding for rental of a residence of yours:

(a) on an occasional basis for the exclusive use as a residence . . .."

The trial court found that Rainwater had rented the home to McConahay only on an "occasional basis" and that the insurance policy by its own terms does not exclude coverage for this kind of rental. Consequently, the trial court held, as a matter of law, that the State Farm policy provides insurance coverage for McConahay's alleged accident.

The sole issue presented by this appeal is whether the trial court erred in finding that McConahay's rental of the Rainwater residence was "occasional." The policy itself does not define "occasional," and the parties have ...


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