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Rohe v. CNA Insurance Company

February 08, 2000

TIMOTHY ROHE, A MINOR, BY HIS MOTHER AND NEXT FRIEND, MARYBETH ROHE, PLAINTIFF-APPELLANT,
v.
CNA INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



ON APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 98-CH-10050 THE HONORABLE ROBERT BOHERIC, JUDGE PRESIDING.

The opinion of the court was delivered by: Presiding Justice Cousins

Plaintiff, Timothy Rohe, a minor, filed a declaratory judgment action in the circuit court of Cook County seeking a determination of his right to insurance coverage under a business automobile policy provided by defendant, CNA Insurance Company, and issued to a corporation owned by plaintiff's father. Plaintiff specifically sought to recover the proceeds of an uninsured motorist endorsement found within the policy following an accident that occurred between plaintiff, a pedestrian, and an uninsured motorist. The circuit court granted defendant's motion for judgment on the pleadings, finding the language of the insurance policy to be unambiguous and, thus, inapplicable to plaintiff. On appeal, plaintiff contends that the lower court erred in granting defendant's motion where the insurance policy was ambiguous as to who was covered thereunder and where public policy supports the extension of coverage to family members.

We affirm.

BACKGROUND

Plaintiff's father owns a corporation named Graphic Papers of Joliet, Inc. (Graphic Papers), located at 701 Scott Street, Joliet, Illinois. On August 7, 1996, defendant issued a business automobile insurance policy to Graphic Papers for the policy period of August 12, 1996, to August 12, 1997, insuring thereunder five automobiles and listing Graphic Papers as the only "named insured" in the policy declaration. The policy was covered by American Casualty Company of Reading, Pennsylvania, and stated that, "[t]hroughout this policy, the words 'you' and 'your' refer to the Named Insured shown in the Declarations." The policy further included an "Illinois Uninsured Motorists Coverage" endorsement that defined an "insured" as follows:

"1. You.

2. If you are an individual, any 'family member'.

3. Anyone else 'occupying' a covered 'auto' or a temporary substitute for a covered 'auto'. The covered 'auto' must be out of service because of its breakdown, repair, servicing, loss or destruction.

4. Anyone for damages he or she is entitled to recover because of 'bodily injury' sustained by another 'insured'."

On December 1, 1996, plaintiff, a minor, was skateboarding on a public street in Joliet, Illinois, when an uninsured automobile struck him. As a result thereof, plaintiff allegedly sustained fractures to his right fibula, left and right tibia, and distal right humerus, as well as other scratches and contusions.

In March 1998, plaintiff demanded that defendant tender to him the full $500,000 limit of the uninsured motorist endorsement found within Graphic Papers' insurance policy. However, on April 16, 1998, defendant refused plaintiff's demand, stating:

"Upon review, we have found that at the time of the loss, no coverage was afforded Timothy Rohe, minor; for uninsured/ underinsured motorist coverage. Therefore[,] we regret to inform you we can not consider this claim for injury as a result of the above accident."

On July 29, 1998, plaintiff filed a complaint for declaratory judgment against defendant, alleging, inter alia, that he was entitled to uninsured motorist coverage under Graphic Papers' insurance policy because the "family language" within the policy was a deliberate intent by defendant (1) to apply coverage not only to Graphic Papers, but also to individuals assigned by Graphic Papers to operate its vehicles, and (2) to provide coverage to the family members of said individuals. Plaintiff further asserted that any other interpretation of the "family member" language in a policy wherein the "named insured" was a corporation would render the policy ambiguous, as corporations cannot have families. As such, plaintiff urged the court to construe the term "family members" as including plaintiff, since his parents were assigned to one of the insured vehicles during the time of his injury.

On October 9, 1998, defendant filed a motion for judgment on the pleadings, alleging, inter alia, that plaintiff was not an insured under Graphic Papers' policy and, as such, defendant did not have any obligation to pay uninsured motorist benefits to him in connection with his alleged injuries and accident. In its "Memorandum of Law in Support of its Motion for Judgment on the Pleadings," filed October 26, 1998, defendant further posited ...


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