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03/03/89 Allstate Insurance Company v. Chris Eggermont

March 3, 1989

ALLSTATE INSURANCE COMPANY, PLAINTIFF-APPELLANT

v.

CHRIS EGGERMONT, INDIV. AND AS MOTHER AND NEXT FRIEND OF MARIA MONTEZ, A MINOR, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

535 N.E.2d 1047, 180 Ill. App. 3d 55, 129 Ill. Dec. 282 1989.IL.273

Appeal from the Circuit Court of Winnebago County; the Hon. Alford R. Penniman, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. McLAREN and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Allstate Insurance Company (Allstate), appeals from an order of the circuit court of Winnebago County denying plaintiff's motion and granting defendant Ralph David Banks' (Banks') motion for judgment on the pleadings in a declaratory judgment action seeking an interpretation of a homeowners insurance policy issued by plaintiff to defendant Chris Eggermont.

On August 26, 1984, defendant Chris Eggermont (Eggermont) and her children, Maria and Louis Montez, were staying at the home of Eggermont's parents, defendants James and Marilyn Stewart (Stewart). Maria was injured in an accident involving a riding lawn mower driven by Louis. Maria, by her mother and next friend Eggermont, filed suit against the Stewarts and their gardener, defendant Banks, for the injuries. The Stewarts and Banks counterclaimed against Eggermont seeking contribution and indemnification. Eggermont tendered the counterclaim to plaintiff, Allstate, for defense and indemnification under her homeowners policy purchased from Allstate in August 1984. Allstate accepted the tender under a reservation of rights and filed this declaratory judgment action contending that it has no obligation to defend or indemnify Eggermont under the homeowners policy. This is the second time this case has come before us on appeal. In Allstate Insurance Co. v. Stewart (1987), 158 Ill. App. 3d 129, 511 N.E.2d 188, we reversed the trial court's determination that the Stewart's home was not an "insured premises" as defined under Allstate's homeowners policy issued to Eggermont. We then remanded the case to the trial court to determine the second issue raised by the parties: whether section 143.01 of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1985, ch. 73, par. 755.01) renders the family household exclusion clause contained in the policy issued by Allstate to Eggermont inapplicable to a suit for contribution against Eggermont for the injuries sustained by her daughter, Maria. The trial court ruled that section 143.01 of Code did not apply to the policy in the instant case. However, the trial court found an ambiguity in the policy on the issue of coverage and construed the contract against Allstate and in favor of the insured, ruling as a matter of law that Allstate was required to defend and, if the contribution suit was successful, pay up to the policy limits of the homeowners policy issued to Eggermont.

The policy in the instant case was entitled "Allstate Deluxe Homeowners Policy." The policy's "Family Liability Protection" section contains a general description of the losses it covers which provided:

"Losses We Cover:

Allstate will pay all sums arising from an accidental loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage covered by this part of the policy." (Emphasis in original.)

Immediately below this grant of coverage under "Losses We Do Not Cover" is a list of 12 specific losses the homeowners policy does not cover (exclusions). The relevant exclusions in the instant case are the family household exclusion and the vehicle exclusion. The household exclusion provides:

"2. We do not cover bodily injury to an insured person or property damage to property owned by an insured person." (Emphasis in original.)

The vehicle exclusion provided:

"5. We do not cover bodily injury or property damage arising out of the ownership, maintenance, use occupancy, renting, loaning, entrusting, loading or unloading of any motorized land vehicle or ...


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