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12/07/89 Sonja F. Perkins Et Al., v. State Security Insurance

December 7, 1989

MOTHER AND NEXT FRIEND, PLAINTIFFS-APPELLEES

v.

STATE SECURITY INSURANCE COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

SONJA F. PERKINS et al., minors, by FRANCES ROBERTS, their

548 N.E.2d 568, 192 Ill. App. 3d 103, 139 Ill. Dec. 183 1989.IL.1905

Appeal from the Circuit Court of Cook County; the Hon. Richard Curry, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON, J., concurs. PRESIDING JUSTICE JIGANTI, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

The minor plaintiffs, Sonja F. Perkins and Denisha Perkins, by their mother, Frances Roberts, brought an action against the mother's insurance company, State Security Insurance Company, following an automobile collision in which they were injured. The mother was driving, with the children as passengers, when their car struck a parked car. Plaintiffs assert that the parent-child immunity doctrine bars them from directly suing their mother. Therefore, they contend that she is uninsured as to them and they are entitled to recover under the uninsured motorist provision of her policy.

Defendant, State Security Insurance Company, counters that in Illinois, intrafamily immunities are procedural bars, rather than substantive ones which destroy the cause of action itself. Procedural bars are personal and may be waived. Nothing in the policy prevents the children from suing her. Therefore, the insurance company contends that the children may sue their mother in negligence. Because she is thus an insured motorist, the pending action should be dismissed.

The trial court heard arguments and entered summary judgment for plaintiffs. Defendant filed its notice of appeal shortly thereafter.

Opinion

The order from which the parties appeal, dated August 22, 1988, enters summary judgment in favor of plaintiffs and against defendant. Although the lawsuit was not filed as a declaratory judgment action, the parties have stipulated that the only issue that was before the trial court was the existence of coverage under the insurance policy. The order, in effect (although not expressly), compels the parties to arbitrate the claim because the order implicitly holds that coverage is available under the uninsured motorists' provision of the policy.

The narrow issue before us is whether the uninsured motorist provision of the mother's policy is available to satisfy the claims her children have against her for their injuries. A corollary issue centers on the applicability of the parent-child immunity doctrine and whether that bar transforms the mother into an uninsured as to the children.

Initially we note that the children appear to be covered directly as "persons insured" for their reasonable medical expenses under "Part II -- Expenses for Medical Services." Coverage for reasonable and necessary medical expenses is provided "to or for the named insured and each relative who sustains bodily injury . . ., caused by accident, while occupying . . . an automobile." We assume that the balance of plaintiffs' claim under the uninsured motorists' coverage is for pain and suffering and whatever other injury is compensable under law.

Plaintiffs base their claim on the uninsured motorist provision rather than under the general liability provision of the insurance policy. They reason that the parent-child immunity doctrine bars them from suing the mother directly and therefore prevents them from stating a cause of action in negligence. Hence, the mother is actually "uninsured" as to them and they are ...


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