{ "id": 3577652, "name": "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. JAMES STEWART et al., Defendants-Appellants", "name_abbreviation": "Allstate Insurance v. Stewart", "decision_date": "1987-07-16", "docket_number": "Nos. 2\u201486\u20140540, 2\u201486\u20140579 cons.", "first_page": "129", "last_page": "134", "citations": [ { "type": "official", "cite": "158 Ill. App. 3d 129" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "106 Ill. App. 2d 210", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598178 ], "weight": 2, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/106/0210-01" ] }, { "cite": "6 Kan. App. 2d 397", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 391255 ], "weight": 2, "pin_cites": [ { "page": "401" }, { "page": "1079" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/6/0397-01" ] }, { "cite": "1 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5314173 ], "weight": 2, "pin_cites": [ { "page": "669-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0667-01" ] }, { "cite": "19 P.2d 44", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "129 Cal. App. 536", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2232924 ], "opinion_index": 0, "case_paths": [ "/cal-app/129/0536-01" ] }, { "cite": "35 P.2d 624", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1933, "pin_cites": [ { "page": "626" } ], "opinion_index": 0 }, { "cite": "140 Cal. App. 569", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2253847 ], "weight": 2, "year": 1933, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/cal-app/140/0569-01" ] }, { "cite": "105 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141899 ], "weight": 2, "pin_cites": [ { "page": "495" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0486-01" ] }, { "cite": "123 Ill. App. 3d 277", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5679151 ], "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0277-01" ] }, { "cite": "106 Ill. App. 3d 188", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3031740 ], "weight": 4, "pin_cites": [ { "page": "190" }, { "page": "190" }, { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0188-01" ] } ], "analysis": { "cardinality": 691, "char_count": 12314, "ocr_confidence": 0.754, "pagerank": { "raw": 1.1976182071192748e-07, "percentile": 0.5929175793646657 }, "sha256": "1c99d8dce82256c80f6326bd56a3bb6182d3f74d48ea72bc16eca7bfb95c69ea", "simhash": "1:bf8e5b1ee596b490", "word_count": 2009 }, "last_updated": "2023-07-14T16:06:35.906533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HOPF and INGLIS, JJ., concur." ], "parties": [ "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. JAMES STEWART et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE WOODWARD\ndelivered the opinion of the court:\nDefendants, James Stewart, Marilyn Stewart, Ralph David Banks, Chris Eggermont, individually and as next friend of her minor daughter, Maria Montez, appeal from a trial court order granting the motion of the plaintiff, Allstate Insurance Company, for judgment on the pleadings.\nMaria Montez was injured when she was run over by a tractor-type riding lawn mower operated by her brother, Louis. As a result of the accident, Maria\u2019s left leg was severed. The accident occurred at the home of James and Marilyn Stewart, the parents of Chris Egger-mont, who were away for the weekend. The Eggermont family was spending the weekend at the Stewart home.\nChris, on behalf of herself and Maria, filed a lawsuit for damages against the Stewarts and Banks, the Stewarts\u2019 caretaker, alleging that the defendants were negligent in allowing Louis to operate the riding lawn mower. Thereafter, the Stewarts and Banks filed counterclaims against Chris, seeking contribution pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.).\nAt the time of the accident, Chris was the named insured under a homeowner\u2019s policy issued by the plaintiff. Plaintiff undertook Chris\u2019 defense under a reservation of rights letter. Thereafter, plaintiff filed an action for declaratory judgment seeking a determination that Chris\u2019 homeowner\u2019s policy in effect at the time of the accident did not require the plaintiff to defend Chris on the contribution action. Plainfiled a motion for judgment on the pleadings. After the submission of briefs and oral argument, the trial court granted the motion and entered judgment for plaintiff. This appeal followed.\nOn appeal, the defendants raise the following issues: whether the trial court erred in finding that the Eggermont family was not \u201ctemporarily living\u201d at the Stewart home; and whether section 143.01 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01) renders the exclusionary clause of the homeowner\u2019s policy inapplicable to the contribution action brought against Chris.\nChris\u2019 homeowner\u2019s insurance policy with plaintiff provided in pertinent parts as follows:\n\u201cDefinitions Used In This Policy\n3. Insured you (named insured) and, if a resident of your household:\na) any relative; and\nb) any dependant person in your care.\n7. Insured\na) the residence premises; and\nb) under Section II only;\n1) any other residence premises described on the declarations page;\n2) any other residence premises you acquire during the premium period;\n3) any part of a premises not owned by an insured person but where an insured person is temporarily living;\nSection II Family Liability Protection\nLosses We Cover\nAllstate will pay all sums arising from an accidental loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage covered by this part of the policy.\nLosses We Do Not Cover.\n2. We do not cover bodily injury to an insured person or property damage to property owned by an insured person;\n5. We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motorized land vehicle or trailer. However this exclusion does not apply to:\nd) a vehicle used to service an insured premises which is not designed for use on public roads and not subject to motor vehicle registration ***.\u201d\nDefendants contend that coverage under Chris\u2019 homeowner\u2019s policy is available since she and her family were \u201ctemporarily living\u201d at the Stewart home at the time of the accident. We note that the homeowner\u2019s policy does not contain a definition of \u201ctemporarily living.\u201d\nWhere the words of an insurance policy are clear and unambiguous, the court should give effect to the plain and obvious import of those words. (Dinges v. Lawyers Title Insurance Corp. (1982), 106 Ill. App. 3d 188, 190.) A policy provision is ambiguous if, considering the policy as a whole, it is subject to more than one reasonable interpretation. (Dolan v. Welch (1984), 123 Ill. App. 3d 277, 280.) Where an ambiguity exists, the policy is to be construed liberally to effectuate coverage. (Dinges v. Lawyers Title Insurance Corp. (1982), 106 Ill. App. 3d 188, 190.) However, this rule of construction does not justify construing a contract against an insurer when no real ambiguity exists. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495.) If the words of a policy can reasonably be given their plain, ordinary and popular meaning, the provisions should be applied as written and the parties should be bound to their agreement. 105 Ill. 2d 486, 495.\nDefendants argue that the term \u201ctemporarily living\u201d is unambiguous and its plain, ordinary meaning supports their position that coverage exists. Alternatively, they argue that if the term is ambiguous, the policy must be construed in favor of coverage.\nDefendants rely on two California cases, Leroux v. Industrial Accident Com. (1934), 140 Cal. App. 569, 35 P.2d 624, and Clark v. Industrial Accident Com. (1933), 129 Cal. App. 536, 19 P.2d 44. In Le-roux, the court held that the term \u201cliving\u201d implies a fixed, regular, established place of abode or residence with the idea of at least relative permanency, as distinguished from a mere temporary or transitory presence at a particular place for a brief time or a limited purpose. (Leroux v. Industrial Accident Com. (1934), 140 Cal. App. 569, 574, 35 P.2d 624, 626.) In Clark, the court concluded that the term \u201cliving\u201d was interchangeable with the word residence. In Country Mutual Insurance Co. v. Watson (1971), 1 Ill. App. 3d 667, the court quoting from a prior case found that the word \u201cresident\u201d was in common usage and \u201c \u2018is generally understood to mean one having more than mere physical presence.\u2019 The elements required beyond physical presence are intention and permanency of abode. [Citations.]\u201d (1 App. 3d 667, 669.) Intention is the controlling factor in determining whether a residency has been acquired or abandoned, and that intent is gathered primarily from the acts of a person. 1 Ill. App. 3d 667, 669-70.\nPlaintiff points out that the term \u201ctemporarily residing\u201d has been defined by case law as referring to \u201ca place of abode away from the insured premises used by the insured occasionally or seasonally on a limited short-term basis.\u201d Winsor v. Hartford Fire Insurance Co. (1981), 6 Kan. App. 2d 397, 401, 628 P.2d 1076, 1079.\nWhile the term \u201ctemporarily living\u201d has not been defined in the case law of this State, in Reiner v. St. Paul Fire & Marine Insurance Co. (1969), 106 Ill. App. 2d 210, the court was called upon to construe \u201ctemporarily residing.\u201d Plaintiff, a college student, rented a storage locker in the student residence she lived in during the school year. The storage locker had a one-year lease, and plaintiff was liable for the rental of the entire year. At the end of the school year, the plaintiff stored her property in the locker and returned to Chicago, where she resided with her parents for the summer. When she returned to college for the beginning of the fall semester, she discovered her property gone from the locker. She submitted the claim to St. Paul. The claim was denied based upon the following policy exclusion:\n\u201c \u2018This policy does not apply as respects this peril (theft) to loss away from the premises of: (a) property while in any dwelling or premises thereof owned, rented or occupied by an insured, except while an insured is temporarily residing therein ***.\u2019 \u201d (Emphasis in original.) (106 Ill. App. 2d 210, 212.)\nPlaintiff filed a suit against St. Paul. Both parties filed motions for summary judgment. The trial court granted plaintiff\u2019s motion, and St. Paul appealed.\nIn reversing the trial court, the appellate court held that the plaintiff was not \u201ctemporarily residing\u201d at the student residence at the time of the loss inasmuch as she admitted that she was away for three months. However, the court stated that it was not holding that a short absence from the temporary residence barred recovery.\nWe note that in Reiner, the court found that the term \u201ctemporarily residing\u201d was not ambiguous. Upon examination of the policy in the case before us in its entirety, we agree with both parties that the term is not ambiguous. (See Dinges v. Lawyers Title Insurance Co. (1982), 106 Ill. App. 3d 188.) Thus the term \u201ctemporarily living\u201d must be given its plain ordinary and popular meaning. 106 Ill. App. 3d 188, 190.\nThe word \u201ctemporary\u201d is defined as \u201c[t]hat which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration.\u201d (Black\u2019s Law Dictionary 1312 (5th ed. 1979).) The same source defines \u201cliving\u201d as \u201c[e]xisting, surviving, or continuing in operation..Also means to abide, to dwell, to reside ***.\u201d Black\u2019s Law Dictionary 843 (5th ed. 1979).\nWe disagree with the trial court\u2019s finding that the Eggermont family was not \u201ctemporarily living\u201d at the Stewart residence. According to the Chris Eggermont\u2019s discovery deposition, she and her husband and their three children arrived at the Stewart residence Friday night and spent the night there. On Saturday morning, they went to the zoo and spent Saturday night at the Stewart residence. On Sunday, prior to the accident, Chris was in the kitchen preparing lunch. Thus the family was engaged in the various activities which are part of a family\u2019s daily existence. The fact that the family did not plan to remain at the Stewarts\u2019 on a permanent basis is covered by the modifying word \u201ctemporarily.\u201d Clearly, the Eggermonts were living in the Stewart home on a temporary basis.\nPlaintiff contends that the defendants\u2019 position that there are only two categories of living situations (1) a permanent residence, and.(2) any other place where one happens to be while alive is not a fair reading of the contract. Plaintiff suggests that under such an interpretation, an office where one \u201ctemporarily lives\u201d from 8 a.m. to 5 p.m., or a neighbor\u2019s home where one is attending a cocktail party would be considered under this homeowner\u2019s policy. It argues that under the policy there exists a third category, that of merely staying at a residence.\nWe disagree. Neither of the two situations cited above suggest a living situation with the attendant activities such as were engaged in by the Eggermont family. Further, we note that in the first two categories under the definition of the term \u201cinsured premises,\u201d the word \u201cresidence\u201d was used. However, in the third category, which refers to temporarily living,\u201d the word residence was omitted. We find the omission of the word \u201cresidence\u201d significant in light of plaintiff\u2019s argument that a weekend stay does not rise to the level of \u201ctemporarily living.\u201d\nWe conclude that the Eggermonts were \u201ctemporarily living\u201d at the Stewart residence at the time of the accident to Maria, and, therefore, the trial court\u2019s order granting plaintiff judgment on the pleadings must be reversed. Accordingly, we reverse and remand this case for a hearing on the second issue raised which was not considered by the trial court, to wit, whether the family household exclusion in the policy is enforceable in this case in light of section 143.01 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01).\nThe judgment of the circuit court of Winnebago County is reversed and the case remanded for proceedings consistent with the views expressed in this opinion.\nReversed and remanded with directions.\nHOPF and INGLIS, JJ., concur.", "type": "majority", "author": "JUSTICE WOODWARD" } ], "attorneys": [ "Alfred W. Cowan, Jr., and Thomas G. Ruud, both of Brassfield, Cowan & Howard, of Rockford, for appellant Ralph David Banks.", "Peter S. Switzer, of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, for appellants James Stewart and Marilyn Stewart.", "Jeffrey M. Goldberg, James T. Ball, and Constance R. O\u2019Neill, all of Jeffrey M. Goldberg, Ltd., of Chicago, for appellant Chris Eggermont.", "D. Kendall Griffith, Peter C. Morse, and Catherine E. Hopkins, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee." ], "corrections": "", "head_matter": "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. JAMES STEWART et al., Defendants-Appellants.\nSecond District\nNos. cons.\nOpinion filed July 16, 1987.\nAlfred W. Cowan, Jr., and Thomas G. Ruud, both of Brassfield, Cowan & Howard, of Rockford, for appellant Ralph David Banks.\nPeter S. Switzer, of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, for appellants James Stewart and Marilyn Stewart.\nJeffrey M. Goldberg, James T. Ball, and Constance R. O\u2019Neill, all of Jeffrey M. Goldberg, Ltd., of Chicago, for appellant Chris Eggermont.\nD. Kendall Griffith, Peter C. Morse, and Catherine E. Hopkins, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee." }, "file_name": "0129-01", "first_page_order": 151, "last_page_order": 156 }