{
  "id": 2655791,
  "name": "Banner Insurance Company, Plaintiff-Appellant, v. Clotilde Avella, et al., Defendants-Appellees",
  "name_abbreviation": "Banner Insurance v. Avella",
  "decision_date": "1970-09-09",
  "docket_number": "Gen. No. 54,371",
  "first_page": "471",
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        10126811
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      "cite": "254 NE2d 265",
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      "cite": "118 Ill App2d 441",
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      "cite": "233 NE2d 100",
      "category": "reporters:state_regional",
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    {
      "cite": "89 Ill App2d 405",
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    {
      "cite": "46 Ill App2d 413",
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    {
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      "category": "reporters:federal",
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      "case_ids": [
        2129406
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      "year": 1968,
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  "last_updated": "2023-07-14T20:42:57.063857+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Banner Insurance Company, Plaintiff-Appellant, v. Clotilde Avella, et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE DRUCKER\ndelivered the opinion of the court.\nPlaintiff appeals from a summary judgment declaring the rights of defendants to a defense and payment under plaintiff\u2019s policy of insurance.\nThe following facts as set forth in the pleadings and cross-motions for summary judgment are not in dispute. On November 8, 1966, the plaintiff issued to the defendant Pio Mugnaini its standard form automobile insurance policy. On April 19, 1967, while the policy was in full force and effect, Pio\u2019s automobile, driven by defendant Anna Mugnaini and carrying the defendant Clotilde Avella, was involved in an accident. At the time of the accident Anna was driving Pio\u2019s automobile with his permission.\nClotilde filed a lawsuit against Anna wherein she sought to recover damages for the personal injuries she suffered as a result of the negligence and wilful and wanton misconduct of Anna. Pio was not sued by Clotilde.\nPlaintiff obtained a \u201creservation of right\u201d from Anna and appeared and entered a defense in her behalf in the lawsuit filed against her by Clotilde. Plaintiff then filed its complaint for declaratory judgment to adjudicate its rights and liabilities under the insurance policy issued to Pio.\nClotilde is the natural mother of Anna and Anna is the lawful daughter-in-law of Pio, the named insured under plaintiff\u2019s insurance policy. At all times the defendants Anna Mugnaini, Pio Mugnaini, and Clotilde Avella were residents of the same household located at 6226 North Lowell Avenue, Chicago, Illinois.\nIn the declaratory judgment action cross-motions for summary judgment were filed by plaintiff and defendant Clotilde Avella. The trial court entered summary judgment against plaintiff finding that the defendant Anna Mugnaini had the right under plaintiff\u2019s insurance policy to a defense of the claim being made against her by the defendant Clotilde Avella and that the defendants had the right to payment by plaintiff of any judgment entered in the cause entitled Clotilde Avella v. Anna Mugnaini, 67 M2 10801. Plaintiff appeals from this judgment.\nOpinion\nThe automobile insurance policy issued to Pio by the plaintiff provides in Part I \u2014 Coverage A that plaintiff agrees \u201c[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages\u201d because of bodily injury and property damage. (Emphasis supplied.) Under the title \u201cPersons Insured\u201d the policy states:\n\u201cThe following are insureds under Part I:\n\u201c (a) With respect to the owned automobile,\n\u201c (1) the named insured and any resident of the same household,\n\u201c(2) any other person using such automobile to whom the named insured has given permission, provided the use is within the scope of such permission\u201d;\nDefinitions under Part I are:\n\u201cnamed insured\u201d means the individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household; \u201cinsured\u201d means a person or organization described under \u201cPersons Insured\u201d;\nIt is conceded that by the terms of the policy Anna is one of the persons designated as \u201cinsured.\u201d\nPlaintiff argues, however, that the following portion of the exclusionary clause relieves it from liability under the policy:\n\u201cExclusions. This policy does not apply under Part I . . . \u201c(d) to bodily injury or property damage to (1) a relative, or (2) the spouse or any parent, son or daughter of the insured or spouse, or, (3) the named insured\u201d; (Emphasis ours.)\nDefendants claim that Anna is not \u201cthe insured\u201d but rather \u201can insured\u201d and therefore the exclusion does not apply to her. In effect they argue that the words \u201cthe insured\u201d as used in the exclusionary clause relate only to the \u201cnamed insured\u201d and therefore do not apply to other persons designated as \u201cinsureds.\u201d\nIn Tenopir v. State Farm Mut. Co., 403 F2d 533 (9th Cir 1968), the court held that \u201cthe insured\u201d included \u201cthe named insured.\u201d However, in its opinion the court at page 536 discussed the interpretation of the word \u201cthe\u201d:\nAnd the policy itself uses the phrase \u201cthe insured\u201d in the coverage clause (p 2), upon which Tenopir must rely to have Golliheair be an insured, just as it does in the exclusion clause (p 4), on which the company relies. If \u201cthe insured\u201d means, in the coverage clause, more than one insured, why does it not mean more than one insured in the exclusion clause?\nWe conclude that since defendants claim coverage as one of \u201cthe insured,\u201d they must also accept designation as \u201cthe insured\u201d under the exclusionary clause. Therefore we find that \u201cthe insured\u201d in part (2) clearly refers not only to the \u201cnamed insured\u201d but to all persons designated as \u201cinsureds\u201d under Part I\u2014 Liability, \u201cPersons Insured.\u201d\nWe would also point out that in part (3) of the exclusion clause specific reference is made to the \u201cnamed insured.\u201d Therefore it is manifest that if part (2) was to apply only to the \u201cnamed insured\u201d those words would have been used instead of \u201cthe insured.\u201d\nWhere the language in a policy is clear and unambiguous it must be taken in its plain, ordinary and popular sense. Miller v. Madison County Mut. Auto Ins. Co., 46 Ill App2d 413, 197 NE2d 153; Dodge v. Allstate Ins. Co., 89 Ill App2d 405; 233 NE2d 100; and Consumers Const. Co. v. American Motorists Ins. Co., 118 Ill App2d 441, 254 NE2d 265. In the instant case the exclusion against a claim made by a parent of the insured is clear and unequivocal. There being no ambiguities contained within the exclusionary clause of plaintiff\u2019s policy, neither coverage nor protection is afforded to the claim of Clotilde Avella, the parent, against Anna Mugnaini, her daughter and the insured.\nWe would note that our holding is in accord with the purpose of an exclusionary clause which is to avoid the possibility of collusive claims in a close, overfriendly and intimate relationship between family members. See Kentucky Farm Bureau Mutual Ins. Co. v. Harp (Ky Ct of App), 423 SW2d 233, and Perry v. Southern Farm Bureau Cas. Co., 251 Miss 544,170 So2d 628.\nThe judgment of the trial court granting Avella\u2019s motion for summary judgment is reversed and the cause is remanded with directions to conduct further proceedings not inconsistent with this opinion.\nReversed and remanded with directions.\nSTAMOS, P. J. and ENGLISH, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE DRUCKER"
      }
    ],
    "attorneys": [
      "Vincent J. Biskupic and Frank J. Merrill, of Oak Brook, for appellant.",
      "George B. Collins, Alan O. Amos, Collins & Amos, of Chicago (Jeffrey Schulman, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "Banner Insurance Company, Plaintiff-Appellant, v. Clotilde Avella, et al., Defendants-Appellees.\nGen. No. 54,371.\nFirst District, Fourth Division.\nSeptember 9, 1970.\nRehearing denied and opinion modified October 5, 1970.\nVincent J. Biskupic and Frank J. Merrill, of Oak Brook, for appellant.\nGeorge B. Collins, Alan O. Amos, Collins & Amos, of Chicago (Jeffrey Schulman, of counsel), for appellees."
  },
  "file_name": "0471-01",
  "first_page_order": 477,
  "last_page_order": 481
}