State Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co. , 2015 IL App (1st) 140447 ( 2015 )

2015 IL App (1st) 140447No. 1-14-0447
Opinion filed March 27, 2015
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
STATE FARM MUTUAL ) Appeal from the Circuit Court
AUTOMOBILE INSURANCE ) of Cook County.
COMPANY, )
)
Plaintiff-Appellant, )
)
v. ) No. 2011 CH 31467
)
PROGRESSIVE NORTHERN ) The Honorable
INSURANCE COMPANY, ) Thomas R. Allen,
) Judge, presiding.
Defendant-Appellee )
)
(State Farm Fire and Casualty Company, )
Plaintiff; )
)
Andrew Toig, Randall M. Toig )
and Teri E. Zenner, )
Defendants). )
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Reyes concurred in the judgment and opinion.
OPINION
No. 1-14-0447
¶1 On this direct appeal, plaintiff State Farm Mutual Automobile Insurance
Company (State Farm) appeals the trial court's grant of summary judgment in
favor of defendant Progressive Northern Insurance Company (Progressive).
¶2 Plaintiff State Farm brought a declaratory judgment action seeking a
declaration that its underinsured motorist coverage did not cover Andrew Toig
(Andrew) for injuries he sustained in an automobile accident while a student at
Colorado College. Andrew had sought coverage pursuant to the State Farm
auto policies held by his father, Randall Toig, and stepmother, Teri Zenner
(collectively, the Toigs), and pursuant to a single Progressive policy held by
Andrew's mother, Allison Wines. The principal question before the trial court
and now before this court is whether Andrew is a "relative," as defined by the
State Farm policies.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 I. The Policies
¶6 Plaintiff State Farm provided three automobile insurance policies to the
Toigs: two to the father and one to the stepmother. The question is whether
these automobile policies provide underinsured motorist coverage to Andrew.
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The parties agree that Andrew is covered if he is a "relative," as defined by the
State Farm auto policies:
"Relative–means a person related to you or your spouse by blood,
marriage or adoption who resides primarily with you. It includes your
unmarried and unemancipated child away at school." (Emphases in
original.)
State Farm does not challenge coverage under any other provision of its
policies.
¶7 There is no dispute among the parties: that the term "relative" specifically
includes a "child away at school," and specifically excludes married and
emancipated children, and that Andrew was at school and was not married or
emancipated at the time of the accident.
¶8 State Farm Fire & Casualty Company (State Farm Fire) also provided the
Toigs with two personal liability umbrella policies. However, these umbrella
policies did not include underinsured motorist coverage, and the trial court
ruled that these umbrella policies did not apply. No one has appealed this
ruling, so these policies are not at issue on appeal.
¶9 Defendant Progressive provided an automobile insurance policy to
Allison Wines, Andrew's mother. However, Progressive does not dispute
coverage on appeal, so that policy is also not before us.
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No. 1-14-0447
¶ 10 II. Undisputed Facts
¶ 11 In the case below, both State Farm and Progressive filed motions for
summary judgment, thereby acknowledging that there were no material issues
of fact preventing a grant of summary judgment. Gaudina v. State Farm Mutual
Automobile Insurance Co., 2014 IL App (1st) 131264, ¶ 16 (where both parties
file cross-motions for summary judgment, they concede the absence of a
genuine issue of material fact and invite the court to decide the question as a
matter of law); 735 ILCS 5/2-1005(c) (West 2012) (a party seeking summary
judgment must show "that there is no genuine issue as to any material fact").
Thus, on appeal, neither party argues that there was a material issue of fact
which barred the trial court's entry of summary judgment. Both parties agree
that the question before us on appeal is purely a question of law and that it
involves solely the application of law to undisputed facts.
¶ 12 The trial court summarized the undisputed facts as follows:
"Andrew is related to his father by blood and stepmother by marriage.
The undisputed facts of this case indicate that Andrew was unmarried,
unemancipated, and living in a campus-owned apartment in Colorado at
the time of the accident. Andrew considers both his father's and mother's
homes to be his residences, and when he returned to Chicago during
vacations and holidays he attempted to split his time between the
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households on a '50-50' basis. He came and went from both households
as he pleased; he had keys to both houses and kept possessions at both
locations. The facts show that Andrew used his father's address for
school billing records as well as for his health care and health insurance."
State Farm Mutual Automobile Insurance Co. v. Toig, No. 2011 CH
31467, slip op. at 2 (Cir. Ct. Cook Co. Sept. 30, 2013).
¶ 13 Neither party has argued on appeal that the trial court's above recitation
of facts was incorrect.
¶ 14 III. Procedural History
¶ 15 One issue on appeal is whether forfeiture applies to several claims now
raised by appellant State Farm. We therefore describe in detail the procedural
history.
¶ 16 On September 7, 2011, plaintiffs State Farm and State Farm Fire filed a
declaratory judgment action in the trial court. The complaint stated, upon
information and belief, that defendant Progressive "has or will claim" that the
Toigs' State Farm and State Farm Fire policies provide underinsured motor
vehicle coverage on a pro rata basis with the coverage provided by Progressive.
¶ 17 Count I, which was brought solely by State Farm, alleged that the auto
policies did not provide coverage to Andrew for the sole reason that "he did not
reside primarily with" the Toigs.
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¶ 18 Count II, which was brought solely by State Farm Fire, alleged that its
personal liability umbrella policy did not provide coverage to Andrew because
the policy "did not include motor vehicle coverage." As already stated above,
this count is not at issue on this appeal.
¶ 19 On November 14, 2011, Progressive filed an answer and also a
counterclaim for a declaratory judgment that the three State Farm auto policies1
and the one Progressive policy shared coverage for the accident "on an equal
basis" or "25 percent each." In its counterclaim, Progressive also alleged that
the total amount of coverage allowed Andrew from all policies was $500,000
because that was the highest amount of any one policy, and that the $40,000
paid by the tortfeasor's insurance must be subtracted from the $500,000, leaving
Andrew with a maximum of $460,000 that he could collect from both State
Farm and Progressive.
¶ 20 On January 13, 2012, State Farm filed an answer to Progressive's
counterclaim. In its answer, it "[a]dmit[ted]" Progressive's allegations that the
State Farm auto policies define the word "relative" to mean a person related to
the named insured or the named insured's spouse by blood, marriage or
adoption who resides primarily with the named insured, and that the "policies
1
State Farm issued two auto policies to the father and one to the stepmother.
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No. 1-14-0447
also define 'relative' to include the named insured's unmarried and
unemancipated child away at school."
¶ 21 On September 20, 2012, State Farm and State Farm Fire filed an
amended complaint which added allegations relating only to State Farm Fire.
The amended complaint added count III which concerned a personal liability
umbrella policy issued by State Farm Fire to Andrew's stepmother. The
complaint also amended count II to add an allegation that Progressive "has or
will claim" that the father's personal umbrella liability policy provides
underinsured motorist coverage on a pro rata basis.
¶ 22 On November 21, 2012, State Farm and State Farm Fire filed a joint
motion for summary judgment. The first claim was that State Farm Fire's
personal umbrella liability policies do not provide underinsured motorist
coverage. As stated before, this claim is not at issue on appeal.
¶ 23 The motion's next three claims concerned State Farm and claimed: (1)
that the two separate lines of the policy's definition of "relative" must both
apply for someone to be a relative, and that Andrew did not satisfy the first line,
which required him to reside "primarily" with the Toigs, since he divided his
residence equally between the Toigs and his mother; (2) that Andrew did not
reside "primarily" with his parents in Chicago, because he registered to vote in
Colorado; and (3) that, even if the State Farm auto policies covered Andrew, the
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No. 1-14-0447
maximum amount of coverage available to him is $500,000, because its policies
provide that the total available under all policies shall be the highest amount
allowed by any one policy. 2
¶ 24 In its motion, State Farm did not argue: (1) that Andrew failed to satisfy
the second line of the "relative" definition; (2) that, if coverage applied, the
three State Farm auto polices and the one Progressive policy should not share
coverage for the accident on an equal basis or 25 % each, as Progressive had
argued in its counterclaim; (3) that Andrew was excluded from coverage from
his stepmother's policy because he was a child by marriage rather than a
biological child; or (4) that the $40,000 recovered from the tortfeasor's insurer
should be subtracted from the limits of each of the applicable policies rather
than from the total.
¶ 25 On December 21, 2012, Progressive filed its response to State Farm's
motion and also its own cross-motion for summary judgment. Progressive's
arguments were all directed to State Farm's auto insurance policies.
¶ 26 In its cross-motion, Progressive agreed with State Farm that the total
amount of coverage allowed Andrew was $500,000 because that was the
highest amount of any one policy, but it further argued that the $40,000 paid by
2
Progressive agreed with this point but added that the amount of $40,000
paid by the tortfeasor should be subtracted from it, thereby bringing the total
available coverage down to $460,000.
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No. 1-14-0447
the tortfeasor's insurance must be subtracted from the $500,000, leaving
Andrew with a maximum of $460,000 that he could collect from both State
Farm and Progressive.
¶ 27 In its cross-motion, Progressive argued, as it had in its counterclaim, that
the three State Farm auto and the one Progressive policy provided coverage on
an equal basis, or 25 %, with each policy providing coverage limited to
$115,000, or 25 % of $460,000.
¶ 28 On February 22, 2013, the trial court struck the previously scheduled
hearing date of February 28, 2013, and permitted State Farm to file a
"Response/Reply to Progressive's Response and Cross Motion." In its reply to
this document, Progressive observed that, while State Farm acknowledged in its
response that the combined limit was $500,000, State Farm's reply does not
mention the setoff for the $40,000 already paid by the tortfeasor's insurance,
which reduced the combined limit to $460,000. Progressive stated: "No party
has contested this position by motion, response or reply."
¶ 29 On May 8, 2013, the trial court set the hearing on State Farm's and
Progressive's summary judgment motions for July 31, 2013.
¶ 30 On July 31, 2013, at the hearing, the trial court observed that it had
"dueling cross motions for summary judgment" before it. The State Farm
attorney asked the court if the court wanted to ask questions or if it preferred the
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No. 1-14-0447
attorneys to proceed with their prepared argument, and the court indicated the
latter. The State Farm attorney stated first, on behalf of State Farm Fire, "it is
not contested in any of the briefs, that those [personal liability umbrella]
policies do not provide underinsured motorist coverage."
¶ 31 Then, on behalf of State Farm, the attorney argued that the question was
"whether or not Andrew Toig resided primarily with Randall Toig and Teri
Zenner [Andrew's father and stepmother] on the date of the accident because
the policy definition of 'relative' means a relative must reside primarily with the
named insured."
¶ 32 State Farm also argued that "the most that Andrew Toig could ever
recover under all applicable underinsured motorist coverage would be
$500,000," which is also the amount of the Progressive policy. As a result, "the
real dispute" was not between the Toigs and State Farm, but between State
Farm and Progressive. State Farm observed: "This has really become a dispute
as to whether State Farm should be sharing pro rata with Progressive on any
payment made to Andrew Toig for his underinsured claim." State Farm's
"response to that is State Farm doesn't provide coverage."
¶ 33 Progressive argued next and observed that "[t]here are four legal issues
that have been presented to the Court" and "only one of those legal issues is
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No. 1-14-0447
contested," and that is "whether or not Andrew Toig qualifies as an insured
relative under his father's and his stepmother's policy."
¶ 34 With respect to the contested issue, Progressive argued that State Farm
had discussed only the first sentence of the "relative" definition. "But then
there's a period, and there's a separate sentence," which defines the term
"relative" to include the name insured's unmarried and unemancipated child
away at school. "The reason" for that sentence is "that if you didn't allow for
there to be coverage for a child away at school, you'd never have underinsured
*** motorist coverage for that relative because when they're away at school,
they can't be said to be primarily residing with" their parents.
¶ 35 Progressive concluded by briefly noting the three uncontested issues: (1)
that the limit for total coverage is $500,000; (2) that this amount is set off by
$40,000, which is the amount paid by the tortfeasor's insurance, thereby
bringing the limit for total coverage down to $460,000; (3) and that each of the
four policies is responsible for 25 % of that $460,000, or $115,000. In its
rebuttal argument, State Farm agreed with the first point, stating that if the State
Farm polices apply, "the policies don't stack," and did not respond to the other
two points.
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No. 1-14-0447
¶ 36 The parties agreed to order the transcript, and the court stated that it took
the matter under advisement in order to give this issue its "best shot." The court
then set a status date for September 30, 2013.
¶ 37 IV. The Trial Court's Orders
¶ 38 On September 30, 2013, in a three-page memorandum order, the trial
court granted summary judgment in favor of Progressive.
¶ 39 The personal liability umbrella policies issued by State Farm Fire were
addressed by the trial court in a footnote on the first page: "As a preliminary
matter, this Court finds it unnecessary to decide whether or not Andrew Toig
would be covered under State Farm's 'umbrella' policies, as this decision is
predicated on other grounds." As stated above, these policies are not an issue
on appeal, and State Farm Fire is not an appellant.
¶ 40 The trial court stated the issue before it as: "whether Defendant Andrew
Toig is an 'insured' as defined under the State Farm policies." The court held
that it did not have to decide whether Andrew "primarily resides" in his father's
home as provided by the first sentence of the "relative" definition, because "the
second sentence must be read in the disjunctive" and the second sentence
provided coverage for an "unmarried and unemancipated child away at school."
The court ruled: "If this sentence were not in the disjunctive, then those
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No. 1-14-0447
children would never be insured under their parents' policies, because the
children would 'primarily' reside at school, not at home."
¶ 41 The trial court further held that "Andrew is eligible to receive a total of
$460,000 from the four policies," namely, the one Progressive policy and the
three State Farm auto policies, and that "the policies must share coverage on an
equal basis," with each policy responsible for $115,000 in coverage.
¶ 42 On October 24, 2013, State Farm filed a motion for rehearing. The
motion stated that it was made only by State Farm, not by State Farm Fire.
State Farm argued for the first time: (1) that Andrew was not his stepmother's
"child" under her insurance policy; (2) that the $40,000 received from the
tortfeasor's insurer should be subtracted from each policy, when considering the
applicable exposure for each policy; and (3) that the coverage should be
prorated by each policy's limits, meaning that, if the stepmother's policy did not
apply, then the coverage from the one Progressive policy was $204,454.61 and
the coverage from the two State Farm auto policies issued to the father was only
$109,772 each, for a total coverage of $460,000.
¶ 43 State Farm's motion for rehearing claimed that "[t]he briefing up to this
time has concerned only the question of whether State Farm provides any
underinsured motorist coverage at all, and not how the underinsured liability
should be allocated among the applicable policies." Actually, Progressive
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No. 1-14-0447
raised the issue in its counterclaim, in its cross-motion for summary judgment,
in its reply brief and at the hearing on summary judgment; and State Farm did
not respond, either in its briefs or at the hearing.
¶ 44 In its reply, Progressive observed that: "In its motion, State Farm argues
for the first time: (1) Andrew Toig is not covered by [stepmother] Teri Zenner's
policy because he is her stepchild; and (2) the remaining three policies should
share coverage on a pro-rata basis *** with the limits of each policy reduced by
the amount of liability payments." Progessive argued that State Farm waived
these issues by failing to raise them, since the purpose of a motion to reconsider
is only to bring to the court's attention: (1) newly discovered evidence; (2)
changes in the law; or (3) claimed errors in the application of existing law.
¶ 45 On February 5, 2014, the trial court heard argument on State Farm's
motion for rehearing. State Farm argued that, since the trial court's September
30, 2013, order did not rule on State Farm Fire's umbrella policies, and did not
contain Supreme Court Rule 304(a) 3 language, the order was not a final
appealable judgment and could be changed at any time. The court inquired, "So
you're just bringing that argument up so that you can revisit this, right?", and
State Farm responded: "Yes."
3
Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) requires a trial
court to make a special finding in order to allow an appeal from a judgment that
concerns fewer than all parties or claims.
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No. 1-14-0447
¶ 46 Progressive observed: "Now, I think part of the problem may be the fact
that on the copy of the order we got, on the first page, there's a footnote where I
believe the Court was entering its ruling with respect to the umbrella policies
and our copy was cut off on that footnote." The court confirmed: "There was
something cut off, but – anyhow, somehow by the computer. But let's put the
umbrella policies to bed anyhow." The court acknowledged: "I saw that it was
cut off. I did see that. I apologize. The age of computers, right." The copy of
the September 30, 2013, order in the appellate record contains a sentence of
footnote 1, but it does not indicate what was cut off.
¶ 47 With respect to waiver, the trial court held that this argument was "a
Mulligan," but it would not base its "decision on waiver":
"THE COURT: I get motions to consider all the time. It's automatic
almost. So on the waiver issues, I err on the side of caution. I mean, I'm
always – I shouldn't use the word happy to reread everything, but – which
I did again and again today. I'm not going to suggest that that's the best
way to do it. But in reality, this is a Mulligan. *** but I'm not going to,
you know, make a decision based on waiver. I'm not going to do that."
¶ 48 The trial court ruled that the State Farm auto policy did not exclude
stepchildren. When State Farm argued, "[s]tepchild and child are not the same
thing," the court stated: "You'd better not tell any parents or stepparents that."
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No. 1-14-0447
When State Farm responded, "there's a reason why we have two different
words," the court stated: "Why don't they exclude stepchild in their policy?
Why don't they say, caution, this does not include stepchild? You know that's
not in the policy." The court concluded that "the policy is written by State
Farm," and "State Farm should pay the price for having an ambiguous policy."
¶ 49 As for the proration issue, the trial court declined to alter its prior ruling
on this issue, holding: "I'm sticking to my guns. The 500,000, take off the 40,
that leaves you with 460, and everybody shares equally 115."
¶ 50 The trial court also stated that, "just for clarity," it would issue "a finding
that those policies, those umbrella policies, don't apply." The court reitierated
"that was a little miscue on our part, but I didn't catch it."
¶ 51 The trial court's handwritten order on February 5, 2014, stated in full:
"This cause coming to be heard on motion of State Farm for
rehearing, due notice given and the court being fully advised in the
premises:
It is hereby ordered that State Farm's motion for rehearing is denied.
It is further ordered that State Farm is granted summary judgment with
respect to the umbrella policies, the court declaring that State Farm
[Fire's] umbrella policies do not provide underinsured motorist coverage
for the occurrence of March 13, 2008."
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No. 1-14-0447
¶ 52 On February 11, 2014, State Farm filed a notice of appeal stating that it
appealed "from the order and judgment entered on September 30, 2013 and the
order entered on February 5, 2014, granting summary judgment in favor of
defendants-appellees." As quoted above, the February 5 order granted
summary judgment in favor of plaintiff State Farm Fire, not in favor of
defendants.
¶ 53 ANALYSIS
¶ 54 On this direct appeal, State Farm claims that the trial court erred in
granting summary judgment in favor of Progressive, because the State Farm
auto policies issued to Andrew Toig's father and stepmother did not cover
Andrew.
¶ 55 State Farm argues that its polices did not cover Andrew: (1) because he
was not a child "away at school" as its policies provide, when he did not intend
to return to his parents' home after graduation; (2) because its provisions for a
child "who resides primarily with you" and a child "away at school" must be
applied together, and Andrew did not reside primarily with the Toigs, since his
parents were divorced and he also stayed with his mom when in Chicago; and
(3) because Andrew did not qualify as "your" child under his stepmother's
policy, where the policy defined the word "relative" to include "a person related
to you or your spouse by blood, marriage or adoption."
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No. 1-14-0447
¶ 56 State Farm also claims that, if Andrew is covered, then the trial court also
erred: (1) in its calculation of the proration with the Progressive policy; and (2)
by not subtracting the $40,000 recovered from the tortfeasor's insurer from each
State Farm auto policy.
¶ 57 Progressive asks us to affirm the trial court's judgment, and also argues
that State Farm forfeited the following legal theories by waiting to raise them
until State Farm's motion for a rehearing: (1) that Andrew was excluded as a
stepchild from being "your" child in his stepmother's policy; (2) that the State
Farm auto and Progressive polices should share coverage on a prorata basis by
comparing the liability amount of each policy to the total of all limits; and (3)
that State Farm is entitled to a setoff of $40,000 paid by the liability insurers for
each policy.
¶ 58 For the following reasons, we do not find State Farm's claims persuasive,
and we affirm the trial court's grant of summary judgment in favor of
Progressive.
¶ 59 I. Declaratory Judgment
¶ 60 This action was brought as a declaratory judgment action pursuant to
section 2-701 of Code of Civil Procedure (735 ILCS 5/2-701 (West 2012)).
This section permits a court in "cases of actual controversy" to "make binding
declarations of rights *** including the determination, at the instance of anyone
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No. 1-14-0447
interested in the controversy, of the construction of any *** contract *** and a
declaration of the rights of the parties interested." 735 ILCS 5/2-701(a) (West
2012). The "[d]eclarations of rights, as herein provided for, may be obtained by
means of a pleading seeking that relief alone, or as incident to or part of a
complaint, counterclaim or other pleading seeking other relief as well." 735
ILCS 5/2-701(b) (West 2012). In the case at bar, plaintiffs sought solely a
declaratory judgment; and the trial court issued a declaratory judgment, albeit
not the one they were seeking.
¶ 61 Although this section specifically permits jury trials if there are issues of
fact (735 ILCS 5/2-701(d) (West 2012)), the judgment here was issued without
trial and upon motions for summary judgment.
¶ 62 II. Standard of Review
¶ 63 In appeals from summary judgment rulings, we conduct a de novo
review. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d
90, 102 (1992). Summary judgment is appropriate where there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter
of law. 735 ILCS 5/2-1005(c) (West 2012); Outboard Marine, 154 Ill. 2d at
102. Here, all parties agree there are no issues of material fact. In considering
a motion for summary judgment, a court will review the pleadings, depositions,
affidavits and admissions on file (735 ILCS 5/2-1005(c) (West 2012)), and will
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No. 1-14-0447
construe the facts in these documents against the moving party. Outboard
Marine, 154 Ill. 2d at 131-32.
¶ 64 The construction of an insurance policy's provisions is also a question of
law, which we also review de novo. Outboard Marine, 154 Ill. 2d at 108. To
ascertain the meaning of the policy's words and the intent of the parties, the
court must construe the policy as a whole. Outboard Marine, 154 Ill. 2d at 108.
If the words in the policy are unambiguous, a court must afford them their plain
and ordinary meaning. Outboard Marine, 154 Ill. 2d at 108. However, if the
words in the policy are susceptible to more than one reasonable interpretation,
they are ambiguous and will be construed in favor of the insured and against the
insurer who drafted the policy. Outboard Marine, 154 Ill. 2d at 108.
¶ 65 III. Denial of Rehearing
¶ 66 In its notice of appeal, defendant State Farm indicated that it appealed not
only the trial court's denial on September 30, 2013, of its summary judgment
motion, but also the trial court's denial on February 5, 2014, of its motion for
rehearing.
¶ 67 As we discussed above in the Background section, State Farm argued in
its motion for rehearing: (1) that Andrew was not his stepmother's "child" under
her insurance policy; (2) that the $40,000 received from the tortfeasor's insurer
should be subtracted from each policy, when considering the applicable
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No. 1-14-0447
exposure for each policy; and (3) that coverage should be prorated by each
policy limit, meaning that, if the stepmother's policy did not apply, then the
coverage from the one Progressive policy was $204,454.61 and the coverage
from the two State Farm auto policies issued to the father would be only
$109,772 each, for total coverage of $460,000. On appeal, Progressive argued
forfeiture of these issues; and, in its appellate reply brief, State Farm did not
deny that it failed to raise these claims in its summary judgment motion and that
it raised these claims for the first time in its motion for a rehearing.
¶ 68 The purpose of a motion to reconsider is to bring to a court's attention:
(1) newly discovered evidence; (2) changes in the law; or (3) errors in the
court's previous application of existing law. River Plaza Homeowner's Ass'n v.
Healey, 389 Ill. App. 3d 268, 280 (2009); North River Insurance Co. v. Grinnell
Mutual Reinsurance Co., 369 Ill. App. 3d 563, 572 (2006); Chelkova v.
Southland Corp., 331 Ill. App. 3d 716, 729 (2002). A reconsideration motion is
not the place to raise a new legal theory or factual argument. River Plaza, 389
Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572. " 'Trial courts should
not allow litigants to stand mute, lose a motion, and then frantically gather' "
new evidence or legal theories to show the court that it erred in its ruling.
(Internal quotation marks omitted.) North River, 369 Ill. App. 3d at 572
(quoting Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 65
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(2001)). As a result, legal theories and factual arguments not previously made
are considered waived. River Plaza, 389 Ill. App. 3d at 280; North River, 369
Ill. App. 3d at 572-73.
¶ 69 The decision to grant or deny a motion for reconsideration lies within the
sound discretion of the trial court, and it will not be reversed on appeal absent
an abuse of discretion. North River, 369 Ill. App. 3d at 572. An abuse of
discretion occurs when the trial court's ruling is arbitrary, fanciful, unreasonable
or where no reasonable person would take the view adopted by the trial court.
Bank of America, N.A. v. Adeyiga, 2014 IL App (1st) 131252, ¶ 116.
¶ 70 In its appellate briefs, State Farm does not argue that the trial court
abused its discretion in denying State Farm's motion for a rehearing, nor could
it, in light of the fact that State Farm's rehearing motion was based on new legal
claims that it raised for the first time in the motion.
¶ 71 Progressive had been raising the pro rata issue and the $40,000 issue
consistently since the beginning of the lawsuit, and Progressive's arguments
were met with silence by State Farm. First, on November 14, 2011, Progressive
filed a counterclaim seeking a declaratory judgment that the three State Farm
auto policies and the one Progressive policy shared coverage "on an equal
basis" or "25 percent each." The counterclaim also alleged that the $40,000
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No. 1-14-0447
paid by the tortfeasor should be subtracted only from the total coverage
provided from all the policies.
¶ 72 Second, in its November 21, 2012, motion for summary judgment, State
Farm did argue "even assuming arguendo [the] three State Farm ***
automobile insurance policies provide underinsured motorist coverage to
Andrew *** the maximum amount of coverage available to him is $500,000."
Thus, both State Farm and Progressive were asking the trial court to consider
the amount at issue, if the three State Farm policies were found applicable.
However, State Farm chose not to also address in the alternative, if the three
State Farm auto policies applied, how that coverage should be allocated or
whether the $40,000 should be subtracted from each policy. State Farm chose
to ignore both these issues, although they were specifically raised by
Progressive in its counterclaim.
¶ 73 State Farm's summary judgment motion also chose not to argue for a lack
of coverage under the stepmother's policy on the ground that Andrew was a
stepchild.
¶ 74 Third, Progressive argued in its cross-motion for summary judgment, as
it had in its counterclaim, both for a pro rata or 25% per policy allocation and
for a subtraction of the $40,000 only from the total coverage. State Farm did
not respond.
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¶ 75 Fourth, at the hearing on the dueling motions for summary judgment,
Progressive observed that "[t]here are four legal issues that have been presented
to the Court" and "only one of those legal issues is contested." The one
contested issue was whether Andrew was a "relative." Progressive listed the
three uncontested issues as follows: (1) that the maximum total coverage was
$500,000; (2) that the $40,000 paid by the tortfeaor reduced this amount to
$460,000; and (3) that each of the four policies was responsible for an equal
amount or 25%. State Farm agreed with the first point, but failed to make any
response to the other two points.
¶ 76 Thus, State Farm failed to raise the stepchild argument at any time prior
to the motion for rehearing, and it consistently failed to respond to Progressive's
arguments about equal sharing and the $40,000, even though State Farm had
plenty of opportunities to do so.
¶ 77 On appeal, State Farm argues that the "trial court did not find" that State
Farm waived its arguments, and that we cannot overturn this lack of a finding
absent an abuse of discretion. State Farm does not argue that the trial court
found that State Farm did not waive its arguments, rather it argues that "the trial
court did not find."
24
No. 1-14-0447
¶ 78 At the motion for rehearing, the trial court acknowledged State Farm's
waiver of these issue, but stated that it would not "base[]" its decision to deny a
rehearing on waiver.
¶ 79 In essence, State Farm is trying to have its newly raised claims reviewed
under the lenient de novo standard used for summary judgment motions rather
than the abuse-of-discretion standard applied to motions for rehearing. We will
not allow this attempt to evade the proper standard of review.
¶ 80 The trial court denied State Farm's motion for rehearing. State Farm does
not even attempt to argue that this was an abuse of discretion, nor can we find
any. Thus, the trial court did not abuse its discretion in denying State Farm's
motion for rehearing based on State Farm's newly advanced legal claims.
¶ 81 IV. First Line of the "Relative" Definition
¶ 82 State Farm's first claim in its summary judgment motion, which it
repeats on appeal, is: (1) that a person must satisfy both lines of the "relative"
definition to qualify as a "relative"; and (2) that Andrew did not qualify under
the first line which required him to reside "primarily" with the Toigs, because
he divided his time in Chicago equally between the Toigs and his mother.
Since we do not find the first argument persuasive, we do not reach the second.
Crump v. State Farm Mutual Automobile Insurance Co., 961 F.2d 725, 727 (8th
Cir. 1992) (since the child "was covered as a 'relative' under the second
25
No. 1-14-0447
sentence of the definition," it was "unnecessary" to consider whether he
qualified under the first line).
¶ 83 State Farm's argument asks us to interpret the meaning of its policy. As
we already observed, the construction of an insurance policy's provisions is a
question of law, which we review de novo. Outboard Marine, 154 Ill. 2d at 108.
If the words in the policy are susceptible to more than one reasonable
interpretation, they are ambiguous and will be construed in favor of the insured
and against the insurer who drafted the policy. Outboard Marine, 154 Ill. 2d at
108-09.
¶ 84 As stated, the State Farm auto policies define the term "relative" with
the following two lines:
"Relative–means a person related to you or your spouse by blood,
marriage or adoption who resides primarily with you. It includes your
unmarried and unemancipated child away at school." (Emphases in
original.)
¶ 85 State Farm chose to use the vague pronoun "it" in the second sentence,
instead of a particularized noun. If the pronoun "it" refers back to the word
"person," then the two lines are connected, with the second line expounding on
the meaning of the word "person" in the first line. However, if the word "it"
26
No. 1-14-0447
refers back to the word "relative," then each line is independently defining the
term "relative."
¶ 86 A pronoun must agree with its antecedent in person, gender and number.
See St. Cloud State University, Minnesota, Literacy Education Online,
Pronoun-Antecedent Agreement,
http://leo.stcloudstate.edu/grammar/pronante.html (last visited Mar. 17, 2015).
A person can never be an "it." A person may be a "he" or a "she" but not an
"it." See Richard Turner, The Grammar Curmudgeon, English 101 Help,
Pronoun-Antecedent Agreement: Basics: Basic Rule,
http://www.grammarmudge.cityslide.com/articles/article/2569239/35950.html
(last visited Mar. 17, 2015) ("If the antecedent is a person who could be of
either gender (e.g., teacher, doctor, student), we are obligated to use 'he or she,'
'him or her,' 'his or her,' as appropriate."). However, a term which is being
defined is an "it." A term in a contract is neither a "he" or "she" but an "it."
Thus, the only possible antecedent for "it" is the term being defined, which is
"relative." At oral argument, State Farm agreed that " 'it' is a relative."
¶ 87 State Farm also conceded as much in its answer. Progressive set forth
two independent definitions of the term "relative" in its counterclaim:
27
No. 1-14-0447
"6. The State Farm policies define 'relative' to mean a person related
to the named insured or the named insured's spouse by blood, marriage or
adoption who resides primarily with the named insured. [Citation.]
7. The State Farm policies also define 'relative' to include the named
insured's unmarried and unemancipated child away at school." (Emphasis
added.)
State Farm deemed both of these paragraphs "Admit[ted]" in its answer, thereby
conceding the two definitions of "relative" in its policies.
¶ 88 In essence, State Farm is trying to interpret the first line to create an
exception or an exclusion to the second. State Farm asks us to read the second
line as stating that the term "relative" "includes your unmarried and
unemancipated child away at school," but only if he or she "resides primarily
with you."
¶ 89 As Progressive argued before the trial court and now before us, this
interpretation could never be satisfied. If a child is "away at school," then he or
she is not "resid[ing] primarily with you." Progressive argued that the only
possible purpose of the second line was to cover a "child away at school, " who
was then not "resid[ing] primarily with" the policy holder.
¶ 90 If the meaning of "resides primarily with you" (emphasis in original) was
commonly understood to include children "away at school," then there would be
28
No. 1-14-0447
no need for the second line, and it would be superfluous. See Founders
Insurance Co. v. Munoz, 237 Ill. 2d 424, 436 (2010) ("Where a term in an
insurance policy is not defined, we afford that term its plain, ordinary and
popular meaning ***."); see also Founders, 237 Ill. 2d at 433 ("When
construing the language of an insurance policy, we must assume that every
provision was intended to serve a purpose.").
¶ 91 The trial court agreed with this argument, and so do we. Accord Bauer v.
USAA Casualty Insurance Co., 2006 WI App 152, ¶ 9, 295 Wis. 2d 481, 720
N.W. 2d 187 ("Were it not for this sentence, unmarried and unemancipated
children away from home at school would not be insured under their parents'
UIM coverage because they would be primarily residing in a college dormitory
or apartment and not at home."); Crump, 961 F.2d at 727 ("The first sentence of
the policy definition of 'relative' refers to family members living at home. The
second sentence provides a contrast: 'relative' also includes children in school
away from home." (Emphasis added.)).
¶ 92 Even if we did not agree with the trial court, we would have to find State
Farm's choice to use the word "it" ambiguous, and ambiguities are construed
against the drafter. Outboard Marine, 154 Ill. 2d at 122 (when the policy is
ambiguous, it is construed against the drafter because, "[a]fter all, the insurer
chose the words used in the policy"). Any ambiguous provision is construed
29
No. 1-14-0447
"strictly" against the drafter of the policy and in favor of coverage. Outboard
Marine, 154 Ill. 2d at 119. "This is so because there is little or no bargaining
involved in the insurance contracting process [citation], the insurer has control
in the drafting process, and the policy's overall purpose is to provide coverage
to the insured [citation]." Outboard Marine, 154 Ill. 2d at 119. Our supreme
court explained the reasoning behind this rule of construction, as follows:
"The insurance industry is powerful and closely knit. *** [M]ost policies
are standard-form, are worded very similarly [citation], and are offered
on a take-it-or-leave-it basis [citation]. Any insured, whether large and
sophisticated or not, must enter into a contract with the insurer which is
written according to the insurer's pleasure by the insurer. [Citation.]
Generally, since little or no negotiation occurs in this process, the insurer
has total control of the terms and the drafting of the contract. [Citation.]
This rule of construction recognizes *** these facets of the insurance
contracting process. [Citation.] *** After all, the insurer chose the words
used in the policy. [Citation.]" Outboard Marine, 154 Ill. 2d at 121-22.
¶ 93 State Farm argues that its interpretation is reasonable. "However, if the
words in the policy are susceptible to more than one reasonable interpretation,
they are ambiguous [citation] and will be construed in favor of the insured and
against the insurer who drafted the policy [citations]." Outboard Marine, 154
30
No. 1-14-0447
Ill. 2d at 108-09. See also State Farm Mutual Automobile Insurance Co. v.
Differding, 46 Ill. App. 3d 15, 19 (1977) ("Insurers write the policies and if the
language of the contract has a dual interpretation they must be charged with the
ambiguity.").
¶ 94 State Farm argues that its definition is not ambiguous, although the
majority of courts cited by the parties disagree with State Farm's interpretation
that compliance with both lines of the definition is required. Drake v. Snider,
608 S.E.2d 191, 196 (W. Va. 2004) (per curiam) (although the child did not
qualify under the first line of State Farm's "relative" definition since she resided
primarily with the other parent, coverage applied because she was away at
school); Dwelle v. State Farm Mutual Automobile Insurance Co., 839 So. 2d
897, 900 (Fla. Dist. Ct. App. 2003) (under an "alternative second theory," even
if the child was not a resident of his parents' home, he was covered as a child
away at school); Crump, 961 F.2d at 727 (since the child "was covered as a
'relative' under the second sentence of the definition," it was unnecessary to
consider whether the first line also applied); State Farm Mutual Automobile
Insurance Co. v. Taussig, 227 Ill. App. 3d 913, 917 (1992) (appellate court
analyzed the two lines as independent and "alternate" sources of coverage).
¶ 95 In support of its claim that its two-line definition of "relative" is not
ambiguous and that both lines must apply, State Farm relies primarily on the
31
No. 1-14-0447
Alabama case of State Farm Mutual Automobile Insurance Co. v. Brown, 26
So. 3d 1167 (Ala. 2009), a short per curiam order. As we explain below,
Brown does not support State Farm's argument.
¶ 96 State Farm's definition of "relative" in Brown is similar but not identical
to the definition here. The "relative" definition in Brown stated: " 'Relative–
means a person related to you or your spouse by blood, marriage or adoption
who lives primarily with you. It includes your unmarried and unemancipated
child away at school.' " (Emphases in original.)4 Brown, 26 So. 3d at 1169.
The definition in Brown used the term "lives" rather than the term "resides."
¶ 97 Although the definitions are similar, the issue in Brown was different
from the issue here. In Brown, the question was whether a child, who lived at
home with her mother and attended a local high school, was "away" at school.
Brown, 26 So. 3d at 1168. The certified question asked the supreme court to
assume that the first sentence of State Farm's definition did not apply, so that
coverage existed only if the child was considered "away." Brown, 26 So. 3d at
1169 n.1 (it was only "the second sentence [of the 'relative' definition] that is at
issue here"). For purposes of that appeal, the court was asked to assume that the
child "lives primarily" with her mother and did not live with her father, who
was the policy holder. Brown, 26 So. 3d at 1170. The short per curiam order
4
The italics were added by the Brown court. We do not mean to suggest
that the italics were in the policy itself.
32
No. 1-14-0447
does not state whether the father also lived locally, but it does state that the
child attended the "local high school" and the issue was the application of his
insurance policy. Brown, 26 So. 3d at 1168.
¶ 98 The Alabama court held that the child could not be considered "away" if
she was living at home and that, since the parties conceded that the first
sentence did not apply, she could not qualify for coverage. Brown, 26 So. 3d at
1170. In Brown, State Farm argued that the two lines had to be read
"conjunctively," in that the court had to determine first where the child's
primary residence was, before it could determine whether she was "away" from
it. Brown, 26 So. 3d at 1170. In contrast, the family argued that the two lines
should be read "disjunctively," in that, as long as she was "away" from her
father's house and in school, she was "away" at school. Brown, 26 So. 3d at
1170. The Alabama court agreed with State Farm that the word "away" had to
be interpreted in conjunction or in light of the first sentence. Brown, 26 So. 3d
at 1170. Interpreting the second line in conjunction with the first line in Brown,
the Alabama court reasoned that "away" had to mean that she was "away" from
home. Brown, 26 So. 3d at 1170. 5
5
Another state supreme court disagreed with the Brown court's conclusion
and held that when the child "left her father's home to attend a high school near her
mother's home and to live with her mother," she was " 'away at school' " for the
purpose of her father's policy. Drake v. Snider, 608 S.E. 2d 191, 196 (W.Va. 2004)
33
No. 1-14-0447
¶ 99 In this appeal, State Farm focuses on the Brown court's use of the word
"conjunctively" to argue that the Brown opinion stands for the proposition that
both lines of the definition must apply for there to be coverage. But the opinion
stands for just the opposite. If both lines had to apply for there to be coverage,
then there would have been no need for the opinion at all, since the opinion
started with the proposition that the first line did not apply. To the extent that
Brown has persuasive value, it supports Progressive's position not State Farm's.
¶ 100 State Farm also cites in support Wallace v. State Farm Mutual
Automobile Insurance Co., No. F-07-012, 2007 WL 4216132, at *4 (Ohio Ct.
App. Nov. 30, 2007),6 and argues: "Had the Ohio Court of Appeals in Wallace
believed the two sentence definition of relative must be read in the disjunctive,
as Progressive argues, the court wasted its time and analysis in determining that
the State Farm policy 'clearly and unambiguously established a mandatory
requisite of proving residency to enable UIM coverage.' " However, in
Wallace, no argument was made that the teenaged child was away at school.
(per curiam); see also Crump, 961 F.2d at 727 (a child was still "away at school"
although attending a local college). However, this issue is not before us.
6
Rule 3.4 of the Ohio Supreme Court Rules for the Reporting of Decisions
(eff. July 1, 2012) permits all opinions of Ohio courts of appeals issued after May
1, 2002, such as Wallace, to be cited as legal authority and weighted as deemed
appropriate by the courts without regard to whether the opinion was published or in
what form.
34
No. 1-14-0447
As a result, the second line and the relationship between the two lines was not
an issue and was not discussed.
¶ 101 As a housekeeping matter, we observe that both parties discuss at length
a 2008 memorandum opinion from a Mississippi federal district court, but it is
not reported, and we will not cite an unreported case. Skokie Castings, Inc. v.
Illinois Insurance Guaranty Fund, 2012 IL App (1st) 111533, ¶ 15 ("an
unreported case" is "not binding on any court"); People v. Moore, 243 Ill. App.
3d 583, 584 (1993) ("the decision was unreported and of no precedential
value"). "Unreported decisions have no precedential value, and this is even
more true for decisions from foreign jurisdictions." American Family Mutual
Insurance Co. v. Plunkett, 2014 IL App (1st) 131631, ¶ 38; Burnette v. Stroger,
389 Ill. App. 3d 321, 329 (2009); West American Insurance Co. v. J.R.
Construction Co., 334 Ill. App. 3d 75, 82 (2002) (a "foreign, unreported
decision" is "of no precedential value"). Specifically, with respect to
unpublished federal cases, this court has held that they do not carry any
authority before an Illinois court. Lyons v. Ryan, 324 Ill. App. 3d 1094, 1107
n.11 (2001) ("unreported federal court orders" are not "any kind of authority
before an Illinois court"); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093
(1992) ("we decline" to follow "an unreported Federal district court decision").
35
No. 1-14-0447
¶ 102 In sum, for coverage to exist, a child who is away at school does not have
to also prove that he or she primarily resides with the policy holder. First, State
Farm's use of the word "it" rendered the "relative" definition ambiguous as to
whether compliance with both lines is required, and any ambiguities must be
construed against the drafter. Second, if compliance with both lines was
required, the second line could never be satisfied, since a child cannot be both
"away" at school while primarily residing with the policy holder. Third, the
overwhelming majority of the precedent cited by the parties supports this
conclusion. Drake, 608 S.E.2d at 196 (per curiam) (although the child did not
qualify under the first line of State Farm's "relative" definition since she resided
primarily with the other parent, coverage applied because she was away at
school); Dwelle, 839 So. 2d at 900 (under an "alternative second theory," even
if the child was not a resident of his parents' home, he was covered as a child
away at school); Crump, 961 F.2d at 727 (since the child "was covered as a
'relative' under the second sentence of the definition," it was unnecessary to
consider whether the first line also applied); State Farm Mutual Automobile
Insurance Co. v. Taussig, 227 Ill. App. 3d 913, 917 (1992) (appellate court
analyzed the two lines as independent and "alternate" sources of coverage);
Bauer, 2006 WI App 152, ¶ 9, 295 Wis. 2d 481, 720 N.W.2d 187 ("Were it not
for this sentence, unmarried and unemancipated children away from home at
36
No. 1-14-0447
school would not be insured under their parents' UIM coverage because they
would be primarily residing in a college dormitory or apartment and not at
home."); Brown, 26 So. 3d at 1168-69 (see discussion of case supra in text).
¶ 103 V. Second Line: "Away at School"
¶ 104 Next we consider the second line of the definition and whether Andrew
was "away at school."
¶ 105 Before the trial court, State Farm did not offer arguments concerning
whether Andrew was "away at school." However, it did argue that, because he
registered to vote in Colorado, he did not "reside primarily" with his parents in
Chicago. On appeal, State Farm has added that the voter registration is also a
reason why he was not "away at school." In other words, Colorado was his
residence, so he was not "away."
¶ 106 The undisputed facts are that, while at school in Colorado, Andrew was
"away" from his parents in Chicago, from the policy holder, and from where he
lived before he left for school. Crump, 961 F.2d at 727 (relying on the
dictionary definition of "away" to interpret State Farm's "relative" definition,
the court held that a child was "away" when " 'absent from' " his or her parents'
home).
¶ 107 On appeal, State Farm points to the following facts to argue that Andrew
was not "away": (1) he attended boarding school outside of Illinois, starting at
37
No. 1-14-0447
age 16 and prior to attending college; and (2) he registered to vote in Colorado
and had a Colorado driver's license. State Farm argues that Andrew lacked an
intent to return to Chicago after graduation and, therefore, he was not "away"
from it.
¶ 108 First, with respect to boarding school, the policy says "school" not
"college" or "university." Interpreting the same "relative" definition at issue
here, the Drake court observed that "the term 'school' was not defined by the
policies" and thus the term was given its ordinary dictionary meaning. Drake,
608 S.E.2d at 195-96. As a result, the court held that the term "school," as used
in the State Farm auto policy, includes "an elementary school, junior high
school, high school, trade school, college and university." Drake, 608 S.E.2d at
196. Thus, when Andrew was at boarding school, he was "away at school" for
purposes of the policy, and that continued when in college. The Eighth Circuit
in Crump observed that neither the word "away" in the dictionary nor the word
"away" in State Farm auto's policy "contain any time *** limitations." Crump,
961 F.2d at 727.
¶ 109 Second, State Farm argues that Andrew lost coverage when he registered
to vote in Colorado and obtained a Colorado driver's license because he did not
have an intent to return to Chicago. However, the policy says none of this. It
specifically excludes emancipated and married children but it does not state that
38
No. 1-14-0447
it also excludes children who obtain voter registration or driver's licenses while
away. When construing an insurance policy, a court tries to give effect to the
intent of the parties at the time the policy was issued. Founders Insurance Co.
v. American Country Insurance Co., 366 Ill. App. 3d 64, 69 (2006); see also
Outboard Marine, 154 Ill. 2d at 122; Gaudina, 2014 IL App (1st) 131264,
¶ 17. 7 Andrew is not a party to the contract, so his intent is not at issue. Cf.
Dwelle, 839 So. 2d at 901 ("the lower court erroneously relied on [the child's]
statement of future residency intent in deciding he was not entitled" to coverage
under his parents' policies). Parents would be surprised to learn that, without
any language to that effect in the contract, their college students' voter
registration and driver's licenses would strip their children of coverage. State
Farm does not cite a single case where a college student lost insurance coverage
due to his or her voter registration or driver's license. 8 State Farm asks us to be
the first.
7
State Farm argues that Illinois courts have rejected the reasonable
expectations doctrine and cites in support Smagala v. Owen, 307 Ill. App. 3d 213,
219 (1999). That is only partially correct. The reasonable expectations test is
"used as a tool of construction in assessing the intent of the parties when a contract
is ambiguous." Smagala, 307 Ill. App. 3d at 219. The test is not used when a "
'study of the policy provisions would have negated those expectations.' " Smagala,
307 Ill. App. 3d at 219 (quoting Robert E. Keeton, Basic Text on Insurance Law
§6.3 (1971)).
8
State Farm cited for a different point State Farm Mutual Automobile
Insurance Co. v. Differding, 46 Ill. App. 3d 15, 20 (1977), in which the court
39
No. 1-14-0447
¶ 110 Almost all the cases cited by State Farm on this point are election cases.
Stein v. County Board of School Trustees, 40 Ill. 2d 477, 479-80 (1968) (the
issue was whether a petition was signed by two-thirds of the legal voters);
Anderson v. Pifer, 315 Ill. 164, 167 (1924) (the issue concerned a contested
election); People ex rel. Madigan v. Baumgartner, 355 Ill. App. 3d 842, 848
(2005) (the question was whether defendant had filed a false statement of
candidacy, and it turned on the definition of residence in the Election Code for
the purposes of voter registration); Merrill v. Shearston, 214 P. 540, 541 (Colo.
1923) (this was an election case where the issue was whether hospital inmates
could vote). State Farm does not explain why the goals and purposes of the
Election Code and insurance law are so closely aligned that the definition and
rules contained in one should also govern the other.
¶ 111 The one non-election case cited by State Farm on this point is Farmers
Automobile Insurance Ass'n v. Gitelson, 344 Ill. App. 3d 888 (2003), and State
Farm cites it to argue that Andrew must prove an intent to return. The question
in Gitelson concerned whether a "family member" presently resided in the
considered that a postgraduate student kept her parents' address on her driver's
license, voter's registration card, library card, checking account and income tax
statements in holding that she was "unemancipated." However, in the instant case,
State Farm has never disputed the fact that Andrew is "unemancipated." In
addition, unlike the policy here, the words "resident" and "reside" were specifically
defined in the Differding policy, so that the Differding court was not applying the
common meaning of those terms, as is the case here. Differding, 46 Ill. App. 3d at
19.
40
No. 1-14-0447
insured's "household," and we stated that "the controlling factor in determining
[her present] residency is intent." Gitelson, 344 Ill. App. 3d at 890, 892.
However, in the case at bar, we know Andrew was not presently dwelling in his
parents' household; he was in Colorado. Gitelson does not stand for the
proposition that a student who is "away" must prove an intent to return. There
was no issue in Gitelson about whether the injured person was "away at
college," because the definition of "family member" at issue there did not have
that line and, in any event, the family member in question had already
graduated college. Thus, Gitelson does not support the proposition that a
college student who is "away" must prove an intent to return. See also Dwelle,
839 So. 2d at 901 ("the lower court erroneously relied on [the child's] statement
of future residency intent in deciding he was not entitled" to coverage under his
parents' policies).
¶ 112 CONCLUSION
¶ 113 In sum, we conclude, first, that the trial court did not abuse its discretion
by denying a motion for rehearing based on legal claims that were not
previously advanced. Second, Andrew is covered under the Toigs' policies as a
child away from school.
¶ 114 Affirmed.
41