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10/27/95 ALLSTATE INSURANCE COMPANY v. NANCY

October 27, 1995

ALLSTATE INSURANCE COMPANY, PLAINTIFF-COUNTERDEFENDANT-APPELLANT,
v.
NANCY BRETTMAN, JACOB BRETTMAN, AND ANTHONY ZARA, DEFENDANTS-COUNTERPLAINTIFFS-APPELLEES, AND DAVID ROZYCHI, DEFENDANT-APPELLEE.



Appeal From The Circuit Court Of Cook County. The Honorable Richard L. Curry, Judge Presiding.

Released for Publication November 28, 1995.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Allstate Insurance Company (hereinafter referred to as Allstate) filed a declaratory judgment action against Nancy Brettman (hereinafter referred to as Brettman), her minor sons, Jacob Brettman and Anthony Zara (collectively referred to as the children), and David Rozychi, seeking a declaration that the homeowner's insurance policy it issued to Brettman imposed no duty upon it to either defend or indemnify her with respect to a contribution counterclaim brought by Rozychi in an underlying personal injury action. Brettman filed a counterclaim against Allstate in which she sought a declaration that it did in fact owe her both a duty to defend and a duty to indemnify relating to Rozychi's counterclaim. Allstate and Brettman together with the children subsequently filed cross-motions for summary judgment. The trial court denied Allstate's motion but granted that of Brettman and the children. Allstate now appeals.

FACTS

The following facts relating to the underlying occurrence and the resultant personal injury action are drawn from Allstate's complaint for declaratory judgment and are undisputed. On October 2, 1991 Brettman was walking a bicycle across 95th Street where it intersects with Leavitt Street in Chicago. The children, Jacob and Anthony, were then in a carrier which was being pulled behind the bicycle. At that time, an automobile driven by Rozychi collided with the bicycle, injuring Brettman, Jacob, and Anthony.

Brettman subsequently filed a complaint against Rozychi on behalf of herself and the children in which damages were sought for the injuries they sustained as a result of the collision. Rozychi answered Brettman's complaint and filed a counterclaim against her, seeking contribution based upon her alleged negligence in causing the injuries to the children.

At the time of the collision, Brettman had in full force and effect an insurance policy entitled "Allstate Deluxe Plus Homeowners Policy" pursuant to which she tendered Rozychi's counterclaim to Allstate for defense and indemnification. *fn1 The "Family Liability Protection" coverage in that policy provides in pertinent part as follows:

". . .Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy."

The policy also contains a household exclusion which provides as follows:

"We do not cover bodily injury to an insured person or property damage to property owned by an insured person whenever any benefit of this coverage would accrue directly or indirectly to an insured person. "

The policy included also a motor vehicle exclusion and exceptions to that exclusion. *fn2 The phrase insured person under both the coverage and exclusion provisions in the policy is defined to encompass any relative of the named insured who is a member of the named insured's household.

Allstate premised its motion for summary judgment upon the household exclusion, contending that the request for coverage relating to Rozychi's contribution counterclaim was a claim for bodily injury which would benefit the children who are insured persons under the household exclusion. In response, Brettman and the children did not challenge Allstate's contention that coverage of the contribution counterclaim would be barred under the household exclusion *fn3 but argued that section 143.01(a) of the Illinois Insurance Code (215 ILCS 5/1 et seq. (West 1992)) precludes the application of that exclusion to this occurrence. Section 143.01(a) of the Insurance Code provides that:

"A provision in a policy of vehicle insurance described in Section 4 excluding coverage for bodily injury to members of the family of the insured shall not be applicable when a third party acquires a right of contribution against a member of the injured person's family." (215 ILCS 5/143.01(a) (West 1992) (emphasis added).)

Section 4 of the Insurance Code, to which section 143.01(a) refers, purports to describe the class of "vehicle insurance" as:

"Insurance against any loss or liability resulting from or incident to the ownership, maintenance or use of any vehicle (motor or otherwise), draft animal or aircraft. " (215 ILCS 5/4 Class 2(b) (West 1992) (emphasis added).)

According to Brettman, since contribution is being sought against her with respect to her use of a bicycle, a non-motorized vehicle, the provisions of section 143.01(a) of the Insurance Code apply to preclude the application of the household exclusion in this case.

After hearing argument on the cross-motions for summary judgment the trial judge denied the motion of Allstate and granted that of Brettman and the children. In his ruling, the judge relied upon the Second District case of Allstate Insurance Co. v. Eggermont (1989), 180 Ill. App. 3d 55, 535 N.E.2d 1047, 129 Ill. Dec. 282, and distinguished the First District case of State Farm Fire & Casualty Co. v. Holeczy (1987), 152 Ill. App. 3d 448, 504 N.E.2d 971, ...


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