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03/05/97 COUNTRY CASUALTY INSURANCE COMPANY v.

March 5, 1997

COUNTRY CASUALTY INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
TAMARA FISHER, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF THOMAS WAYNE FISHER, A MINOR, AND JOHN FISHER, DEFENDANTS-APPELLANTS, AND JODI ARNDT, DEFENDANT.



Appeal from Circuit Court of Macon County. No. 95MR40. Honorable John K. Greanias, Judge Presiding.

As Corrected March 24, 1997.

Honorable John T. McCullough, Jr., Honorable Robert J. Steigmann, P.j. - Concur, Honorable James A. Knecht, J. - Concur. Justice McCULLOUGH delivered the opinion of the court.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Defendants Tamara Fisher, individually and as mother and next friend of Thomas Wayne Fisher, a minor, and John Fisher, appeal from a declaratory judgment in favor of plaintiff Country Casualty Insurance Company. This case involves the question of whether an insurance policy issued by plaintiff to cover the Fisher residence also covered an action for contribution against Tamara in the underlying lawsuit based on an injury sustained by Thomas when he was struck by a motor vehicle operated by Jodi Arndt.

The issues are whether (1) the subject homeowner's insurance policy is a policy providing coverage in this case because a vehicle is involved and the household exclusion in the policy violated section 143.01(a) of the Illinois Insurance Code (Code) (215 ILCS 5/143.01(a) (West 1994)); and (2) the household exclusion contained in the policy violates public policy. We affirm.

The complaint in the underlying case alleged that seven-year-old Thomas was struck by an automobile driven by Arndt in the 200 block of Sherman Street in Macon, Illinois, at about 1:45 p.m. on July 27, 1993, while he was in the process of crossing the street. It was alleged that Arndt was negligent in (1) driving at a speed greater than reasonable and proper for conditions, (2) driving at a speed that endangered the safety of others, (3) failing to avoid colliding with a pedestrian, (4) failing to exercise proper precautions upon observing a child, (5) failing to keep a proper lookout to avoid colliding with a pedestrian, and (6) failing to keep an adequate lookout for children on a roadway in a residential area. Count I of the complaint sought damages for the minor's injuries, and count II sought medical expenses incurred by the parents. In her answer, Arndt raised affirmative defenses as to the child's negligence. She also filed a counterclaim for contribution against Tamara alleging that Tamara failed to supervise the child when she had an opportunity to do so, being in her yard in proximity of the occurrence at the time of the occurrence, and failed to train and instruct her minor son to watch for and yield the right-of-way to automobiles on the roadway before attempting to cross the roadway.

According to the declaration sheet, Country Companies home insurance policy No. C12K2370745 insured the premises at 255 East Sherman Street, Macon, Illinois. The policy was in effect on July 27, 1993. The incident occurred on a public street in front of the Fisher premises. No vehicle owned or maintained by the Fishers was involved in this occurrence.

The subject policy provided, in relevant part:

"AGREEMENT

We will provide the insurance described in this policy through the company named on the declarations page, if you have paid the premium and have complied with the policy provisions. When we refer to the policy, we mean your policy booklet (titled Home Insurance Policy), the declarations page, applications for insurance, and any endorsements. The coverages you have purchased are stated on the declarations page and are subject to the limits of liability, exclusions, conditions, and other terms of this policy.

SECTION 1.

Liability, Coverage A We promise to pay on behalf of an insured for damages resulting from bodily injury or property damage caused by an occurrence, if the insured is legally obligated. We are not obligated to defend an insured after we have paid an amount equal to the limit of our liability. We may make any investigation and settle any claim or suit we decide is appropriate.

Medical Payments, Coverage B

We will pay the necessary medical expenses which are incurred within two years from the date of an occurrence causing bodily injury. By medical expenses we mean reasonable charges for medical, surgical, X-ray, dental, ambulance, hospital, professional nursing, funeral services, and prosthetic devices such as ...


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