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January 28, 1997


Appeal from Circuit Court of McLean County. No. 95L30. Honorable William T. Caisley, Judge Presiding.

As Corrected February 24, 1997.

Honorable Frederick S. Green, J., Honorable James A. Knecht, J. - Concur, Honorable Robert W. Cook, J. - Dissent. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

This case concerns the meaning of an exclusionary provision of a homeowner's insurance policy issued by plaintiff Country Mutual Insurance Company (Country Mutual) to defendants Matthew and Sarah Augsburger. That provision stated:

"Liability, Coverage A, does not apply to:

5. bodily injury to you and, if residents of your household, your relatives, and individuals under 21 in the care of the preceding persons[.]" (Emphasis in original.)

The principal question presented is whether a very young foster child placed in the home of the Augsburgers was a "resident of [their] household" within the meaning of that exclusionary provision. If so, Country Mutual had no responsibility under that policy to defend or indemnify the Augsburgers in a suit brought against them by defendant Peoples Bank (Bank) as special administrator for the estate of that child charging the Augsburgers with negligence in the supervision and monitoring of the child and seeking damages for injuries to and the death of that child. We hold that the child was a resident of the Augsburgers' household and Country Mutual had no obligation of coverage concerning the suit.

On February 8, 1995, Country Mutual filed a complaint in the circuit court of McLean County seeking a declaratory judgment that it had no duty of coverage under the foregoing policy in regard to the suit filed on behalf of the deceased child's estate. In addition to the Augsburgers and the Bank, Youth Services of Mid-Illinois, a corporation (Youth Services), was named a defendant. Youth Services had placed the child with the Augsburgers pursuant to a written foster parent agreement and the child died while in their home and under their care. Both sides requested summary judgment. On December 11, 1995, the circuit court entered summary judgment granting Country Mutual the declaration it sought. The Augsburgers have appealed. We affirm.

Under section 2-1005(c) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005(c) (West 1994)), summary judgments should be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The ruling of the circuit court granting the summary judgment was a determination of law concerning the interpretation of an insurance policy. We must review that determination de novo, giving no deference to the ruling of the circuit court. See Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209, 180 Ill. Dec. 691 (1992).

An insurance policy is a contract, subject to the standard rules of construction. Western States Insurance Co. v. Bobo, 268 Ill. App. 3d 513, 515, 644 N.E.2d 486, 488, 205 Ill. Dec. 930 (1994). As the Augsburgers point out, if any exclusionary provision of such a contract is ambiguous, rules of construction may be applied and the provision should be strictly construed against the insurer. Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 495, 475 N.E.2d 872, 876, 86 Ill. Dec. 493 (1985). The Augsburgers maintain in particular that the decision of the second district in Country Mutual Insurance Co. v. Watson, 1 Ill. App. 3d 667, 274 N.E.2d 136 (1971), requires that we interpret the instant exclusionary clause in such a way that the decedent child be determined not to have been a resident of their household.

In Watson, the appellate court affirmed a decision of the circuit court finding that a foster child placed by the Illinois Department of Children and Family Services (DCFS) with a farm family was not a resident of that household under a policy that did "not cover injuries incurred by the insured, his spouse, or 'residents of his household.'" Watson, 1 Ill. App. 3d at 669, 274 N.E.2d at 138. In concluding that, under the facts there, the child's presence was too temporary to constitute residence, the court stated:

"In the instant case, testimony given by a social worker for the Department indicates it was never intended that any child placed in the defendant's home would remain there permanently. The home was merely a 'temporary care facility' used until permanent placement of a child could be made. It was stressed to the children that they would be moved from the home. Further testimony was given by the regional director of the Department who characterized the foster home operated by the defendant as a 'diagnostic center' where the children were placed for an indeterminate period of time up to five months under the custodial agreement.

The testimony clearly indicates that the stay of the boy would be of a temporary nature and the critical element of intention to make the home his permanent abode was lacking. Therefore, it cannot be said that he became a 'resident of the ...

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