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11/22/95 AMERICAN FAMILY INSURANCE COMPANY v. BRIAN

November 22, 1995

AMERICAN FAMILY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
BRIAN WOIWODE AND LINDA RICE, AS SPECIAL ADM'R FOR THE ESTATE OF WILLIAM RICE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County. No. 94-MR-23. Honorable James C. Franz, Judge, Presiding.

Released for Publication December 28, 1995.

The Honorable Justice Thomas delivered the opinion of the court: Doyle and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

Plaintiff, American Family Insurance Company, appeals the order of the circuit court granting summary judgment for defendant, Brian Woiwode, and denying summary judgment for plaintiff. Plaintiff contends that the trial court erred in granting Woiwode's motion for summary judgment and denying plaintiff's motion for summary judgment because the Illinois Insurance Code (Code) (215 ILCS 5/1 et seq. (West 1992)) does not prohibit the insurance policy's exclusions for bodily injury to the named insured. We reverse.

On May 21, 1993, William Rice was the passenger in an automobile driven by Woiwode. William Rice owned the automobile, but he had given Woiwode permission to operate the vehicle. The automobile struck a tree, and William Rice died as a result of injuries he incurred during the accident. Plaintiff issued William Rice an automobile insurance policy effective from March 9, 1993, to June 9, 1993. The policy insured the vehicle involved in the accident and provided liability and uninsured motorist coverage. On September 7, 1993, the decedent's mother, Linda Rice, was named special administrator of William Rice's estate. Subsequently, Linda Rice filed a wrongful death action against Woiwode, seeking damages for injuries sustained by William Rice in the May 21, 1993, accident.

Plaintiff filed suit for a declaratory judgment on February 16, 1994. In its complaint, plaintiff sought a declaration stating that it has no duty to defend or indemnify Woiwode in the wrongful death action filed by Linda Rice. In support of this assertion, plaintiff relied on an exclusion in the insurance policy. In part I of the policy, pertaining to liability coverage, there is a heading entitled "EXCLUSIONS." Under the "EXCLUSIONS" heading, the policy states that"this coverage does not apply to *** bodily injury to *** you or any person related to you and residing in your household." The policy further defines the term "you" as used in the policy. Under a heading entitled "DEFINITIONS USED THROUGHOUT THIS POLICY," the policy states that "you and your mean the policyholder named in the declarations and spouse, if living in the same household."

On June 20, 1994, Woiwode filed a motion for summary judgment. In the motion, Woiwode contended that the policy's exclusion of liability coverage for bodily injury violated section 143.01(b) of the Code (215 ILCS 5/143.01(b) (West 1992)). Section 143.01(b) of the Code provides that the insured's family members may not be excluded from coverage for bodily injury under certain circumstances.

Plaintiff filed a cross-motion for summary judgment on August 10, 1994. In the motion, plaintiff asserted that section 143.01(b) of the Code applied only to family members of the insured, not to the insured himself. On October 3, 1994, the trial court denied plaintiff's motion and granted Woiwode's motion for summary judgment. The trial court ordered plaintiff to continue to provide insurance coverage to Woiwode in the wrongful death action. The trial court also made an express written finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal of the order.

On appeal, plaintiff contends that the trial court erred in not granting plaintiff's motion for summary judgment because section 143.01(b) of the Code does not prohibit exclusions for bodily injury to the named insured. A reviewing court conducts a de novo review of an order granting summary judgment. ( Zoeller v. Augustine (1995), 271 Ill. App. 3d 370, 374, 208 Ill. Dec. 17, 648 N.E.2d 939.) If the court's review reveals the existence of a material issue of fact or an error in legal interpretation, reversal is warranted. Zoeller, 271 Ill. App. 3d at 374.

Section 143.01(b) of the Code provides:

"(b) A provision in a policy of vehicle insurance excluding coverage for bodily injury to members of the family of the insured shall not be applicable when any person not in the household of the insured was driving the vehicle of the insured involved in the accident which is the subject of the claim or lawsuit." 215 ILCS 5/143.01(b) (West 1992).

When construing a statute, a court must ascertain and give effect to the intent of the legislature. ( People v. Hickman (1994), 163 Ill. 2d 250, 261, 206 Ill. Dec. 94, 644 N.E.2d 1147.) A consideration of the statutory language is the primary and best means of interpreting the legislative intent. ( Balmoral Racing Club, Inc. v. ...


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