{
  "id": 5538385,
  "name": "UNITED STATES FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. BARBARA SCHNACKENBERG et al., Defendants-Appellants",
  "name_abbreviation": "United States Fire Insurance v. Barbara Schnackenberg",
  "decision_date": "1980-09-30",
  "docket_number": "No. 79-862",
  "first_page": "431",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name": "Ill."
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      "cite": "389 N.E.2d 144",
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      "reporter": "N.E.2d",
      "year": 1976,
      "opinion_index": 0
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    {
      "cite": "75 Ill. 2d 367",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
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      "year": 1976,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T20:16:28.821099+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "UNITED STATES FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. BARBARA SCHNACKENBERG et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Miss PRESIDING JUSTICE McGILLICUDDY\ndelivered the opinion of the court:\nThe plaintiff, United States Fire Insurance Company, brought this declaratory judgment action in the Circuit Court of Cook County seeking a declaration that a certain liability insurance policy issued to the defendant, Barbara Schnackenberg, did not afford any coverage to said defendant and her son, Mark, for any cause of action predicated upon bodily injury sustained by the defendant, Maria T. Strehlow, on or about September 3, 1975. In granting the plaintiff\u2019s motion for summary judgment, the court found that there was no coverage and that the plaintiff was not obligated to defend Mark in a personal injury action brought against him by Strehlow. On appeal the defendants argue that the trial court\u2019s findings were erroneous.\nIn her complaint Strehlow alleged that on September 3,1975, she was struck by \u00e1 bicycle ridden by Mark and that she sustained personal injuries. It is undisputed that the accident occurred at or near the intersection of Arlington Place and Clark Street in Chicago, Illinois. This location is approximately 2K blocks from 2444 N. Orchard Street, the insured premises. It is also undisputed that at the time of the accident Mark was riding his bicycle for pleasure purposes.\nThe pertinent portions of the insurance policy issued to Schnackenberg provide as follows. The insurer agrees to pay on behalf of the insured:\n\u00abo o o aj] sums which the insured shall become legally obligated to pay as damages because of\nA. bodily injury or\nB. property damage\nto which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto \u201d *\nThe definition of the insured premises which is contained in the endorsement to the policy reads:\n\u201c* * * the premises described below (2444 N. Orchard Street) or designated in the policy as subject to .this endorsement, including the ways immediately adjoining and including garages and stables incidental thereto, gardens incidental thereto on land not owned by the named insured, and individual or family cemetery plots or burial vaults.\u201d\nIn addition, the endorsement specifically excludes coverage for bodily injury or property damage \u201carising out of the use of bicycles by or on behalf of the insured for trade, professional or business purposes.\u201d\nThe plaintiff contended in its motion for summary judgment that because the accident did not occur on the \u201cinsured premises\u201d as defined in the insurance' policy, no coverage was afforded for the cause of action asserted by Strehlow. The court agreed with the plaintiff\u2019s position and granted summary judgment.\nThe defendants assert, however, that instead of focusing on the definition of \u201cinsured premises,\u201d the court should have examined the scope of coverage under the policy and determined whether the use of a bicycle for pleasure by a child of the insured to travel to and from home is incidental to the \u201cownership, maintenance or use of the insured premises,\u201d a family residence. We agree. The scope of coverage under the policy, occurrences \u201carising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto,\u201d was not limited by the definition of \u201cinsured premises\u201d or by any other provision of the policy. Therefore, we must interpret the coverage provision to determine what occurrences are covered by the policy.\nThe policy does not define what is \u201cincidental\u201d to the use of the insured premises, and we are unable to locate any decision which discusses what activities are incidental to the use of a family residence. We believe this phrase is ambiguous (see 7A Appleman, Insurance Law & Practice \u00a74493.02, at 76 (1976)) and that the insured could reasonably conclude that her child\u2019s recreational use of a bicycle to travel to and from home is incidental to the use of her residence.\nWhen an ambiguity exists in an insurance policy, that ambiguity must be resolved in favor of the insured to effectuate indemnification. (Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 389 N.E.2d 144; J. M. Corbett Co. v. Insurance Company of North America (1976), 43 Ill. App. 3d 624, 357 N.E.2d 125.) The reason for this rule is that the insurer drafted the policy and should be held responsible for any ambiguity which results from the words it selects. (Brady v. Highway Commissioner (1975), 24 Ill. App. 3d 972, 322 N.E.2d 236.) Applying this principle, we hold that there is coverage under this policy and that the plaintiff is obligated to defend Mark in Strehlow\u2019s personal injury action against him.\nWe note that the policy specifically excludes coverage for damages \u201carising out of the use of bicycles by or on behalf of the insured for trade, professional or business purposes.\u201d The issue of coverage is determined by the policy\u2019s definition of coverage, not by the various exclusions therein. (Ludwig Candy Co. v. Iowa National Mutual Insurance Co. (1979), 78 Ill. App. 3d 306, 396 N.E.2d 1329.) However, when an exclusion is contained in an insurance policy, a presumption arises that that which is not clearly excluded from the operation of the contract is included. (13 Appleman, Insurance Law & Practice \u00a77403, at 322 (1976).) Although the exclusion is not conclusive as to the issue of coverage, we believe it contributes to the ambiguity of the policy and provides support for our conclusion that the insured intended to purchase a policy which would indemnify her for damages resulting from her child\u2019s recreational use of his bicycle.\nFor the foregoing reasons, the judgment of the Circuit Court of Cook County is hereby reversed, and this matter is remanded for further proceedings consistent with the views expressed herein.\nReversed and remanded.\nMcNAMARA and SIMON, JJ., concur.",
        "type": "majority",
        "author": "Miss PRESIDING JUSTICE McGILLICUDDY"
      }
    ],
    "attorneys": [
      "Wayne F. Plaze and Christine M. Wheelock, both of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellants.",
      "Kenneth T. Garvey, of Purcell & Wardrope, Chartered, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "UNITED STATES FIRE INSURANCE COMPANY, Plaintiff-Appellee, v. BARBARA SCHNACKENBERG et al., Defendants-Appellants.\nFirst District (3rd Division)\nNo. 79-862\nOpinion filed September 30,1980.\nWayne F. Plaze and Christine M. Wheelock, both of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellants.\nKenneth T. Garvey, of Purcell & Wardrope, Chartered, of Chicago, for appellee."
  },
  "file_name": "0431-01",
  "first_page_order": 453,
  "last_page_order": 455
}