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Schanowitz v. State Farm Mutual Automobile Insurance Company

November 25, 1998

MAE SYLVIA SCHANOWITZ, INDEPENDENT ADM'R OF THE ESTATE OF MARLEE ANNE KALMIN, DECEASED, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS (FRED KALMIN, DEFENDANT AND COUNTERDEFENDANT-APPELLEE).



The opinion of the court was delivered by: Justice McLAREN

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Appeal from the Circuit Court of Lake County.

Honorable Charles F. Scott, Judge, Presiding.

The defendants and counterplaintiffs, State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Insurance Company (collectively, State Farm), appeal an order of the trial court granting the motion of plaintiff and counterdefendant, Mae Sylvia Schanowitz (Schanowitz), for summary judgment declaring that the household exclusions contained in State Farm's insurance policies were void as against public policy. Therefore, the trial court declared that an umbrella policy issued to Fred Kalmin by State Farm provided coverage for the death of Fred's daughter in the amount of $1,000,000. We reverse and remand for further proceedings.

On December 23, 1995, Fred struck his daughter, two-year-old Marlee Anne, with his car as he backed out of his garage at their home in Buffalo Grove. Marlee Anne died as a result of injuries caused by the accident.

At the time of the accident, Fred Kalmin was insured under two policies issued by State Farm, a primary automobile liability policy and a public liability umbrella policy (umbrella policy). The primary automobile liability insurance policy provided coverage limits for bodily injury of $100,000 per person and $300,000 per occurrence and uninsured and underinsured motorist coverage for the same amounts. The umbrella policy provided coverage limits of $1,000,000 for liability and uninsured and underinsured motorist coverage.

After the accident Fred presented a claim to State Farm for the payment of benefits from both policies in the amount of $1,000,000. State Farm replied that the accident was covered only by the uninsured liability provision of the primary automobile liability policy for the amount of $100,000. State Farm explained that the accident was not covered by the uninsured motorist provision of the umbrella policy because the umbrella policy excluded Fred's vehicle from the definition of "uninsured vehicle."

The household exclusion in the primary automobile liability policy provided:

"THERE IS NO COVERAGE * * *

2. for any BODILY INJURY TO:

c.ANY MEMBER OF THE FAMILY OF THE INSURED, RELATED BY BLOOD, MARRIAGE OR ADOPTION, RESIDING IN THE SAME HOUSEHOLD AS THE INSURED. This does not apply when: (1)a third party has a right of contribution against a member of the injured person's family; or (2)any person not in the household of the named insured was driving the vehicle of the named insured involved in the accident which is the subject of the claim or lawsuit." The household exclusion in the umbrella policy provided: "EXCLUSIONS We will not provide insurance:

10.for bodily injury or personal injury to the named insured, spouse, or anyone within the meaning of part a. or b. of the definition of insured." The referenced parts a. and b. of the umbrella policy define insured as: "a.the named insureds; b.the following residents of the named insured's household: (1)the named insured's relatives; and (2)anyone under the age of 21 under the care of a person named above[.]" Further, the umbrella policy's uninsured motorist provision provided: "An uninsured motor vehicle does not include a land vehicle:

1.insured under the liability coverage of ...


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