State Farm Mutual Automobile Insurance Company v. Bierman, 2022 IL App (5th) 210001-U

NOTICE
2022 IL App (5th) 210001-UNOTICE
Decision filed 09/02/22. The
This order was filed under
text of this decision may be
NO. 5-21-0001 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
limited circumstances allowed
Rehearing or the disposition of IN THE under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
STATE FARM MUTUAL AUTOMOBILE ) Appeal from the
INSURANCE COMPANY, ) Circuit Court of
) Marion County.
Plaintiff-Appellee, )
)
v. ) No. 17-MR-48
)
BRITTANY BIERMAN, Special Administrator of )
the Estate of Blake Edward Miller, Deceased, ) Honorable
) Mark W. Stedelin,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justice Welch concurred in the judgment.
Presiding Justice Boie specially concurred.
ORDER
¶1 Held: In a consolidated bench trial on competing complaints for declaratory relief,
the trial court did not abuse its discretion with regard to the order of
presentation of the claims or the scope and purpose of the witnesses’
testimony. The trial court’s finding that the decedent did not primarily reside
with the named insured at the time of the accident was supported by the
evidence and was not against the manifest weight of the evidence. The
judgment is affirmed.
¶2 The plaintiff, State Farm Mutual Automobile Insurance Company (State Farm),
filed a complaint against the defendant, Brittany Bierman, special administrator of the
Estate of Blake Edward Miller, deceased (Bierman), seeking a judgment declaring that it
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owed no coverage for injuries and damages sustained by decedent in a single-car accident
involving an uninsured vehicle. State Farm alleged that there was no coverage under motor
vehicle insurance policies issued to the decedent’s former stepmother because the decedent
was neither a named insured nor a resident relative of the named insured at the time of the
accident. Bierman filed a counterclaim against State Farm. She sought a judgment
declaring that the decedent was an insured because he resided primarily with his former
stepmother at the time of the accident. Following a bench trial, the trial court entered a
judgment in favor of State Farm and against Bierman. On appeal, Bierman claims the trial
court erred in finding that the decedent did not reside primarily with his former stepmother
at the time of the accident and, thus, that no coverage was afforded to the decedent’s estate
under the State Farm policies. We affirm.
¶3 I. BACKGROUND
¶4 On June 18, 2016, the decedent was seriously injured in a single-vehicle accident
on Old Route 51, in Marion County, Illinois. On July 5, 2016, he died from those injuries.
At the time of the accident, the decedent was a passenger in a vehicle driven by his cousin,
Jared Simcox. Simcox owned the vehicle, but he did not have liability coverage on it.
¶5 On January 26, 2017, Bierman, acting on behalf of the decedent’s estate, made a
claim for uninsured motorist coverage and medical payments coverage under three State
Farm motor vehicle policies issued to Winnie Robertson. Robertson was the decedent’s
former stepmother. Robertson married the decedent’s biological father, David Miller, in
1993. The marriage was dissolved in 2003, and Miller died in 2009. The decedent was born
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in 1986. Robertson was not his biological mother, and she never adopted him. The decedent
was not a named insured on any of the State Farm policies issued to Robertson.
¶6 On April 10, 2017, State Farm brought this declaratory judgment action against
Bierman, as the special administrator of the decedent’s estate. In an amended complaint
filed March 19, 2018, State Farm alleged that the decedent was a passenger in an uninsured
vehicle that was involved in a one-car accident on June 18, 2016; that he suffered serious
injuries as a result of the accident; and that he died from those injuries on July 5, 2016.
State Farm further alleged that it issued three policies of insurance to Winnie Robertson;
that the policies were in effect on June 18, 2016; and that the decedent’s estate made a
claim for medical payments and uninsured motorist coverage under those policies. State
Farm asserted that the decedent was not an “insured” under Robertson’s policies because
he was not a named insured, or a “resident relative,” as defined in the policies. State Farm
further asserted that the decedent was not a “resident relative” because he was not related
to Robertson “by blood, marriage, or adoption,” and he did not “reside primarily” with
Robertson at the time of the accident. State Farm claimed there was an actual controversy
between the parties, and it sought a judgment declaring that the decedent’s estate was not
entitled to coverage under Robertson’s policies for the accident of June 18, 2016.
¶7 State Farm appended certified copies of the subject policies to its amended
complaint. In each of the policies, “resident relative” was defined as “a person, other than
you, who resides primarily with the first person shown as a named insured on the
Declarations Page and who is:
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1. related to that named insured or his or her spouse by blood, marriage, or
adoption, including an unmarried and unemancipated child of either who is away
at school and otherwise maintains his or her primary residence with that named
insured; or
2. a ward or a foster child of that named insured, his or her spouse, or a person
described in 1. above.” (Emphases in original.)
¶8 On April 12, 2018, Bierman filed an answer to State Farm’s amended complaint and
a counterclaim for declaratory judgment. In the answer, Bierman denied State Farm’s
assertions that the decedent was not a “resident relative,” as defined in the policies, and
that there was no coverage for the estate’s claim under Robertson’s policies. In the
counterclaim for declaratory judgment, Bierman alleged, in pertinent part, that the decedent
was an insured under Robertson’s policies because the decedent and Robertson were
related by marriage and because the decedent resided with Robertson on and prior to the
date of the accident. Bierman further alleged that State Farm had refused her demand to
acknowledge coverage under Robertson’s policies, and that there was a bona fide
controversy regarding coverage. Bierman sought a judgment declaring that the decedent
was a “resident relative” of Robertson, and that the decedent’s estate was entitled to
uninsured motorist coverage and medical payments coverage under Robertson’s policies.
¶9 On April 16, 2018, State Farm filed an answer to Bierman’s counterclaim for
declaratory relief. State Farm admitted that Bierman made a demand for coverage, but
denied the allegations that the decedent was a “resident relative” of Robertson and an
insured under the subject policies.
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¶ 10 In June 2018, the parties filed cross-motions for summary judgment. On August 7,
2018, the trial court entered a written order granting a summary judgment in favor of State
Farm. The court concluded that while there was a genuine issue of material fact regarding
the decedent’s primary residence at the time of the accident, there was no such issue
regarding the decedent’s relationship with his former stepmother. The court found that the
marriage between the decedent’s father and Robertson had been dissolved in 2003, that the
decedent’s father died in 2009, and that the decedent and Robertson had not maintained a
familial relationship thereafter. Based upon those facts, the trial court concluded that there
was no relationship between the decedent and his stepmother, and that the decedent was
not an insured under Robertson’s policies. On appeal, this court found that the “related by
marriage” provision in the State Farm policies was ambiguous, and therefore, should be
construed against State Farm and in favor of coverage. State Farm Mutual Automobile
Insurance Co. v. Bierman, 2019 IL App (5th) 180426, ¶ 27. This court also found that there
was a genuine issue of material fact as to whether the decedent resided primarily with
Robertson at the time of the accident. Bierman, 2019 IL App (5th) 180426, ¶ 27. The order
granting summary judgment was reversed, and the case was remanded for further
proceedings. Bierman, 2019 IL App (5th) 180426, ¶ 32.
¶ 11 On remand, the trial court consolidated State Farm’s claim and Bierman’s
counterclaim for trial. A bench trial was held June 1, 2020. By that time, the main factual
issue in dispute was whether the decedent resided primarily with the named insured,
Robertson, at the time of the accident. State Farm, as plaintiff, claimed that the decedent
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did not reside primarily with Robertson at the time of accident, and Bierman, as
counterplaintiff, claimed that he did.
¶ 12 At the beginning of the trial, the court directed State Farm to proceed with its case.
State Farm objected, and the following discussion was held:
“THE COURT: Now, State Farm is the plaintiff, so I’m assuming you
proceed first?
MR. JOHNSON [State Farm’s Counsel]: Actually, Your Honor, I don’t
believe that is accurate.
THE COURT: You are the plaintiff, but they have the burden of proof to
demonstrate that this person was actually primarily residing with them?
MR. JOHNSON: That is exactly correct, Your Honor. Therefore, I have
nothing to prove, so I’d have to prove a negative, and therefore they need to
put their case on first to show that they can establish their prima facie case.
THE COURT: Mr. Terlizzi [Bierman’s counsel], do you agree?
MR. TERLIZZI: No. If they don’t want to put on any evidence, I guess
that’s their choice. I think the Fifth District opinion, which obviously is the
law of this case, Your Honor, one of the things it states is the term resident
generally is construed liberally in favor of the insured and strongly against
the insurer. So if they don’t want to put on any evidence and go against the
presumption, which is the law of this case, that—you know, we’ll put on our
evidence I guess.
THE COURT: Back to you.
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MR. JOHNSON: Your Honor, just because there is a presumption, that
doesn’t mean that they have met their burden. They still have the duty to
show that coverage applies, regardless of what the situation is. The law of
the land is very clear in every district that proving that someone falls under
coverage, that falls under the terms of the policy, and therefore coverage
applies is always the burden of the claimed insured. And as such, they have
the burden and therefore they have to put on their evidence. I have no
affirmative duty to prove anything.
THE COURT: Well, what I’m going to show then is that you are standing
on your pleadings and resting at this point.
MR. JOHNSON: I’m asking for a ruling, Your Honor. I mean, if you are
ordering me and finding that I have the burden that I must proceed first, then
I’ll do that over objection. But I just want to register my objection and make
sure that the record is clear.
MR. TERLIZZI: I mean, they brought the lawsuit, Your Honor. They are
the plaintiff, they are asking for relief. I mean, it’s their choice whether they
want to put on evidence or not. I don’t think the Court can rule in advance.
THE COURT: I’m convinced that, or at least it’s been suggested in their
memorandum, that, Mr. Terlizzi, you have the burden of proving the
residency issue at the time of the accident. You don’t deny the existence of
the policy, correct?
MR. TERLIZZI: We have admitted that.
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THE COURT: And you don’t deny that there was an accident and this
individual died as a result of the injuries arising from that accident?
MR. TERLIZZI: Absolutely not. And I think the Fifth District found,
which is the law of this case, that he was a relative for purposes of the policy.
THE COURT: Right. That was found by the Fifth District. So the two
elements that we’re looking at, residency and relation, relation has been
resolved?
MR. TERLIZZI: I believe that’s correct, Your Honor.
THE COURT: What I’m going to do is I’m going to show the plaintiff
stands on the pleadings at this point. The existence of the policy is admitted.
The terms of the policy are admitted. The date of the accident is admitted.
The Court has previously found relationship.
MR. JOHNSON: Okay.
THE COURT: And that means I’m going to hear from Mr. Terlizzi first
and you [Mr. Johnson] can call any rebuttal.
MR. JOHNSON: Fair enough.”
¶ 13 Brittany Bierman testified as the first witness in the defendant/counterplaintiff’s
case-in-chief. Bierman introduced herself as the decedent’s former girlfriend. During that
relationship, she and the decedent had a daughter, who was then eight years old. Bierman
testified that the decedent moved frequently during the last few of years of his life, noting
that he lived in Centralia, Salem, Sandoval, and Junction City. Even with the frequent
moves, the decedent remained actively involved in the life of their daughter and regularly
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exercised visitation with her. Bierman recalled a time, shortly before Christmas in 2015,
when the decedent planned to take their daughter to see Santa Claus during his visitation
period. The decedent was living with Robertson at that time, so Bierman dropped the child
off and picked her up at Robertson’s home. Bierman estimated that between December
2015 and June 2016, she brought their daughter to Robertson’s home to visit with the
decedent about 75% of the time. She testified that the decedent had his own room at
Robertson’s home and kept his belongings there. Bierman opined that the decedent resided
with Robertson during the period from December 2015 through June 2016. She
acknowledged that he occasionally stayed with his sister during this period. On cross-
examination, Bierman admitted she and the decedent did not have specific conversations
about his living situation and his day-to-day life. She also admitted that her opinion that
the decedent stayed at Robertson’s home was based upon her observations when she
dropped their daughter off at Robertson’s home for visitation.
¶ 14 Winnie Robertson 1 was Bierman’s next witness. Robertson testified that she and the
decedent’s father, David Miller, married in February 1993 and divorced in September
2003. After the divorce, Miller periodically stayed at Robertson’s home until his death in
2009. Robertson recalled that the decedent was involved in a serious auto accident on June
18, 2016, and that he had been staying at her home intermittently around the time of the
accident. Bierman’s counsel then asked Robertson whether she remembered participating
in a recorded interview with a State Farm agent on February 1, 2017. Robertson answered
1
At some point prior to trial, Robertson had remarried and had taken the surname of Weemer. For
consistency, we will continue to refer to her by the surname of Robertson.
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in the affirmative. When asked whether Robertson told the State Farm agent that the
decedent had been staying with her for five months, Robertson replied, “Yeah. Five months
on and off.” Robertson went on to explain that the State Farm agent had not asked whether
the decedent stayed with her daily, and that during the five months prior to the accident,
the decedent stayed with her on and off.
¶ 15 After Bierman finished questioning Robertson, State Farm sought, and was granted
leave, to go beyond the scope of the direct examination and question Robertson about
additional matters so that she would not need to be recalled later in the trial. Robertson
testified that she lost contact with the decedent after his father’s funeral in 2009. The two
connected again in December 2015. The decedent contacted her and indicated he needed a
place to stay, and she agreed to help him. At that time, Robertson lived in a two-bedroom
trailer. Robertson’s grandson stayed in the second bedroom, and he kept his possessions
there. Robertson explained that there was only one bed in the second bedroom, so her
grandson stayed at his father’s home when the decedent stayed with her. Robertson testified
that the decedent occasionally stayed at his sister’s home during this period. She recalled
that the decedent had a black duffel bag containing all of his possessions, and that he carried
that bag with him everywhere. The decedent did not keep any of his belongings at her home
when he was not there, and he did not receive mail at her home. Robertson also recalled
that the decedent did not entertain friends and family members at her home. The decedent’s
friends and family members would come by her home to pick him up, but they did not
come into the house.
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¶ 16 Robertson testified that during the six-month period between December 2015 and
June 2016, the decedent normally spent Friday nights with her. He usually stayed one other
night during the week to do his laundry. Robertson stated that the decedent had visitation
with his daughter “about every other weekend.” On Friday evenings, Bierman would drop
the child off at Robertson’s home, and the decedent and his daughter would spend the night
there. On Saturday and Sunday evenings, the decedent and his daughter stayed with the
decedent’s sister, Tana Simcox. If it was not a visitation weekend, the decedent usually
stayed with his sister or one of his cousins. During the five months prior to his death, the
decedent would stay at Robertson’s home for a day or two, leave for a couple of days, and
then return. Robertson had a discussion with the decedent regarding whether he could stay
with her on a more permanent basis. She told the decedent that he was going to have to
find a place to live, and that staying at her home more than one or two nights a week was
not an option.
¶ 17 At the conclusion of Robertson’s testimony, Bierman’s counsel rested “with respect
to our counterclaim.” State Farm’s counsel then called Tana Simcox “in rebuttal.”
¶ 18 Tana Simcox was the decedent’s half-sister. She described her relationship with the
decedent as “super close” and more “best friends than siblings.” Between December 2015
and June 2016, Simcox resided in Sandoval, Illinois. During that time, the decedent stayed
with her “at least four nights a week.” The other three nights, he stayed with Robertson or
one of his cousins. Simcox testified that when the decedent stayed at her home, he
sometimes brought his daughter with him. Simcox recalled that the decedent kept all of his
possessions in a black duffel bag, and he took the bag with him wherever he was staying.
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She stated that the decedent did not have one solitary address during the six months prior
to the accident.
¶ 19 During cross-examination, Simcox acknowledged that she did not keep a record of
which nights the decedent stayed with her and which nights he stayed with Robertson and
others. She testified that prior to December 2015, the decedent resided with her seven
nights a week. In December 2015, Simcox informed the decedent that if he was going to
continue drinking, he could not stay with her. A few days later, she learned that the
decedent began to stay at Robertson’s home. She discovered this when the decedent asked
her to pick him up there. During redirect, Simcox testified that the decedent primarily
resided with her during the six months prior to his death. She acknowledged that he
bounced around, but mainly stayed with her. When cross-examined again, Simcox testified
that she knew Robertson, and believed that Robertson was an honest person, with no reason
to lie when asked about when the decedent lived with her.
¶ 20 Following Simcox’s testimony, State Farm rested. Bierman stated that she had no
evidence in rebuttal. The court then invited the parties to give closing arguments and
directed State Farm to proceed first. After closing arguments, the court took the case under
advisement.
¶ 21 On June 12, 2020, the trial court issued a written order containing its findings of
fact, analysis, and judgment. In the order, the trial court stated that it had directed Bierman
to present her evidence first, based upon “the general proposition that the individual
claiming coverage has the burden to prove that the individual was in fact covered.” The
court then noted that “case law reveals that the burden in this proceeding remains with the
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plaintiff.” The court then analyzed the evidence, placing the burden on State Farm to prove
that the decedent did not reside with the insured at the time of the accident.
¶ 22 In its analysis, the court examined the evidence regarding the decedent’s intent,
along with his physical presence and the permanency of his presence at the home of the
insured. The court found that the decedent usually spent up to four nights a week at his
sister’s residence, and never spent more than two nights a week at Robertson’s residence.
The court also found that the decedent did not have a room at Robertson’s residence, did
not leave any personal property at Robertson’s residence, and did not receive mail at
Robertson’s residence. The court further found that the decedent only stayed with
Robertson in order to visit with his minor child and do his laundry, and that he did not
intend to make Robertson’s home his primary residence. Based upon those findings, the
court concluded that “the insured’s abode was not the decedent’s primary residence,” and
therefore, the decedent was not an insured under the State Farm policies issued to
Robertson. The court entered a judgment in favor of State Farm and against Bierman, and
granted the relief sought in State Farm’s amended complaint.
¶ 23 In a posttrial motion filed July 6, 2020, Bierman claimed that the trial court’s
findings were against the manifest weight of the evidence. Bierman argued that the trial
court correctly determined that State Farm had the burden to prove the decedent did not
primarily reside with its insured at the time of the accident, but then erred in considering
the “rebuttal” testimony offered by State Farm to satisfy its burden of proof. Bierman
reasoned that State Farm should not be permitted to present “rebuttal testimony” to prove
its case where it failed to present any evidence in its case-in-chief, and instead elected to
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rest on its pleadings. Bierman also asserted she presented sufficient evidence to
demonstrate that the decedent had been residing primarily with Robertson at the time of
the accident.
¶ 24 In an order entered December 4, 2020, 2 the trial court denied Bierman’s posttrial
motion. The court restated its finding that the decedent did not reside primarily with
Robertson at the time of the accident. The court noted that the controlling factor in
determining the decedent’s primary place of residence was the decedent’s intent, and not
the intent of Simcox, Robertson, or others. The court reiterated that as it analyzed the
testimony, it placed the burden on State Farm to prove that the decedent did not reside with
the insured at the time of the accident. The court also addressed Bierman’s contention that
the court had improperly considered the “rebuttal evidence” presented by State Farm as
direct evidence. The court indicated that while both parties characterized the testimony
offered by State Farm as “rebuttal evidence,” the court treated it as direct testimony after
finding that State Farm had the burden of proof. The court further found that Bierman had
ample opportunity to challenge the evidence during the trial.
¶ 25 II. ANALYSIS
¶ 26 On appeal, Bierman contends that the trial court erred in finding that the decedent
did not primarily reside with Robertson on the date of the accident, and thus, that no
coverage was afforded to the decedent’s estate under the State Farm policies issued to
Robertson. Bierman claims that the trial court correctly determined that State Farm had the
2
The trial court’s written order denying Bierman’s posttrial motion was filed-stamped December 4,
2020, but contains a handwritten date of “9/4/20.”
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burden to prove the decedent did not primarily reside with its insured at the time of the
accident, but then erred in considering the “rebuttal” testimony offered by State Farm to
satisfy its burden of proof. She argues that State Farm should not have been allowed to
present “rebuttal testimony” to prove its case where it failed to present any evidence in its
case-in-chief, and instead elected to rest on its pleadings. Bierman also claims that the trial
court’s findings were against the manifest weight of the evidence because the evidence she
presented overwhelmingly demonstrated that the decedent’s primary residence on June 18,
2016, was with Robertson.
¶ 27 In response, State Farm argues that the disputed issue was one of coverage, rather
than an exclusion or limitation of coverage, and that Illinois courts have consistently held
that the claimant has the burden to prove that a claim comes within the policy’s coverage.
State Farm also argues that the trial court’s findings were supported by the testimony and
were not against the manifest weight of the evidence.
¶ 28 The central purpose of declaratory relief is to allow a court to address a controversy
after a dispute has arisen, but before steps are taken that would give rise to a claim for
damages or other relief. Beahringer v. Page, 204 Ill. 2d 363, 372-73 (2003). The
declaratory judgment statute does not create substantive rights or duties, but merely offers
“a new, additional, and cumulative procedural method for the judicial determination of the
parties’ rights.” Beahringer, 204 Ill. 2d at 373. The essential requirements of a declaratory
judgment action are: (1) a plaintiff with a tangible legal interest, (2) a defendant having an
opposing interest, and (3) an actual controversy between the parties concerning those
15
interests. Beahringer, 204 Ill. 2d at 372. Therefore, a party seeking declaratory relief must
demonstrate the existence of an actual controversy and a basis for its right to relief.
¶ 29 Generally, the burden of proof in a civil proceeding, including one for declaratory
relief, rests on the party requesting relief. Knoob Enterprises, Inc. v. Village of Colp, 358
Ill. App. 3d 832, 838 (2005); Farmers Automobile Insurance Ass’n v. Gitelson, 344 Ill.
App. 3d 888, 896 (2003) (citing People v. Orth, 124 Ill. 2d 326, 337-38 (1988)); Board of
Trade of the City of Chicago v. Dow Jones & Co., 98 Ill. 2d 109, 115-16 (1983). Under the
declaratory judgment statute, when a declaratory judgment proceeding “involves the
determination of issues of fact triable by a jury, they shall be tried and determined in the
same manner as issues of fact are tried and determined in other civil actions in the court in
which the proceeding is pending.” 735 ILCS 5/2-701(d) (West 2016). Thus, the rules of
civil procedure apply in declaratory judgment actions, such as the case at bar, just as in any
other civil proceeding. 3 Ordinarily, the party alleging a fact will have the burden of
producing evidence to show the existence of that fact. As noted, a declaratory judgment
action does not alter substantive aspects of a claim. Under the tenets of Illinois insurance
law, the insured generally bears the burden to prove that a claim falls within the terms of
the insurance policy. Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009) (citing
Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 204
(1991)). This tenet is based upon the concept that typically, the insured has greater
knowledge of and access to relevant facts surrounding the claimed loss. See generally
3
The statement in the special concurrence that the procedural posture in an insurance declaratory judgment
action “is irrelevant” (infra ¶ 51) ignores the Illinois Code of Civil Procedure and Illinois Supreme Court Rules.
16
Waste Management, Inc., 144 Ill. 2d at 204. Once the insured has demonstrated coverage,
the burden shifts to the insurer to prove that a limitation or exclusion applies. Addison
Insurance Co., 232 Ill. 2d at 453-54.
¶ 30 State Farm’s complaint for declaratory relief and Bierman’s counterclaim for
declaratory relief were consolidated for trial. By the time of trial, the main factual issue in
dispute was whether the decedent resided primarily with the named insured at the time of
the accident. State Farm, as plaintiff, alleged that the decedent did not reside primarily with
Robertson at the time of the accident. Bierman, as counterplaintiff, alleged that he did.
These are flip sides of the same issue. The trial court initially directed State Farm to proceed
with its case. State Farm objected. After some discussion, the court concluded that Bierman
bore the burden of proving that coverage applied. State Farm, then, elected to stand on its
pleadings, having demonstrated a tangible legal interest, the existence of an actual
controversy between the parties, and a basis for its right to relief. The trial court directed
Bierman, as counterplaintiff, to present her evidence in support of her allegation that the
decedent resided primarily with the insured at the time of the accident. Bierman presented
her witnesses and State Farm had an opportunity to cross-examine them. State Farm, then,
presented its own witnesses in its defense against the counterclaim and in support of its
complaint.
¶ 31 Generally, the parties proceed at all stages of the trial in the order in which they
appear in the pleadings unless otherwise agreed by the parties. See Ill. S. Ct. R. 233 (eff.
July 1, 1975). However, in a consolidated proceeding, such as the present case, a trial court
has the authority to designate the order in which the parties proceed with the presentation
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of evidence and witnesses. Ill. S. Ct. R. 233 (eff. July 1, 1975). A trial court also has
authority to exercise “reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and presentation
effective for the ascertainment of the truth, (2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.” Ill. R. Evid. 611(a) (eff.
Oct. 15, 2015). Additionally, the trial court has discretion to permit a party cross-examining
a witness to inquire into additional matters as if on direct examination. Ill. R. Evid. 611(b)
(eff. Oct. 15, 2015).
¶ 32 Given the competing claims for declaratory relief, it was within the discretion of the
trial court to determine whether the plaintiff or the counterplaintiff should proceed first.
The trial court did not abuse its discretion in directing Bierman to present her evidence
first. By that point, State Farm, as plaintiff, had established the existence of an actual
controversy between the parties and the nature of the controversy, as well as a basis for the
right to relief. Nor did the court abuse its discretion in considering the testimony of State
Farm’s witnesses as evidence in its defense against Bierman’s counterclaim, and in support
of its case-in-chief. The plaintiff’s attempt to paint the testimony of State Farm’s witnesses
as mere “rebuttal” evidence does not comport with the order of proof designated by the
trial court.
¶ 33 As noted above, we acknowledge that under the general tenets of insurance law, the
insured bears the burden of establishing that a claim falls within the terms of the insurance
coverage. This is because the insured typically has greater knowledge of and access to
relevant facts surrounding the claim. Waste Management, Inc., 144 Ill. 2d at 204. But this
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case does not involve a dispute between the insurer, State Farm, and the named insured,
Robertson. This case is unusual because the named insured was not making a claim for
coverage. State Farm and Robertson were not adversaries, and their interests were arguably
aligned. By all accounts, Robertson cooperated with State Farm and gave a statement to its
adjuster. Robertson had direct knowledge and access to relevant facts regarding whether
the decedent resided primarily at her home at the time of the accident. State Farm had at
least equal access to relevant evidence regarding the disputed factual issue. This was not a
case where Bierman’s access to relevant facts regarding the claim was greater than State
Farm’s access. Thus, the rationale for placing the burden on the party seeking coverage to
prove coverage was not wholly applicable under the facts and circumstances of this case.
Nevertheless, the trial court directed Bierman to present her evidence that the decedent
resided primarily with Robertson, as alleged in her counterclaim for declaratory relief, and
then directed State Farm to present evidence in its defense against the counterclaim and in
support of its complaint for declaratory relief.
¶ 34 In the judgment order of June 12, 2020, and the subsequent ruling on Bierman’s
posttrial motion, the trial court indicated that it had mistakenly found that it was Bierman’s
burden to prove that the decedent primarily resided with Robertson, relying on the general
principle that the individual claiming coverage has the burden to prove that the loss falls
within the coverage. After reviewing case law, 4 the court concluded that the burden of
4
In its order, the trial court referenced Farmers Automobile Insurance Ass’n v. Gitelson, 344 Ill. App. 3d 888(2003), for the proposition that the burden of proof in a declaratory judgment action was on the party seeking relief.
We note that Gitelson did not involve a consolidated trial on competing claims for declaratory relief, and therefore, it
is procedurally distinguishable. That said, reviewing courts, including our court, have often cited Gitelson for the
general principle that the plaintiff in a declaratory judgment action bears the burden of proof. See, e.g., Empire
19
proof in this proceeding remained with State Farm, and therefore placed the burden of
proof on State Farm as it analyzed the evidence. In reaching this conclusion, the trial court
apparently lost sight of the procedural posture of the proceedings before it, namely that
State Farm’s claim for declaratory relief and Bierman’s counterclaim for declaratory relief
had been consolidated for trial, that testimony had been presented on both the claim and
the counterclaim, and that State Farm and Bierman each carried a burden to present
evidence to prove their respective claims. The trial court did not identify or otherwise
discuss Bierman’s burden of proof as to her counterclaim. Nor did the parties. The record
shows that despite these failures to clearly delineate the parties’ respective burdens of
proof, the trial court ultimately considered the weight and credibility of the testimony given
by each party’s witnesses as it assessed the issue of the decedent’s residency.
¶ 35 In the special concurrence, our colleague has expressed his view that “the lower
courts should follow the well-established tenets for burdens of proof in an insurance action
regardless of whether the party is a plaintiff, defendant, counterplaintiff, or
counterdefendant.” Infra ¶ 55. We find it unnecessary, in deciding the case at bar, to discuss
such an overly broad statement regarding the burden of proof in all insurance cases filed
under the declaratory judgment statute. The applicable rules of procedure and the case law
addressing the burden of proof in declaratory judgment actions have been set forth above.
When the nature of the actual controversy and the relationships of the parties to that
controversy have been established by the plaintiff, our trial courts have had little difficulty
Indemnity Insurance Co. v. Chicago Province of the Society of Jesus, 2013 IL App (1st) 112346; Knoob Enterprises,
Inc., 358 Ill. App. 3d at 838.
20
sorting out where the burden of proof on a particular issue rests. There are many reported
cases involving insurance coverage disputes that illustrate the general rule that the party
who requests the judicial relief in a civil action ordinarily has the burden of proof, while
also applying the general tenets of insurance law. See, e.g., Pekin Insurance Co. v. L.J.
Shaw & Co., 291 Ill. App. 3d 888 (1997) (insurer who filed declaratory judgment action
was required to show that an exclusion in the policy precluded coverage); State Farm Fire
& Casualty Co. v. Leverton, 314 Ill. App. 3d 1080 (2000) (insurer who brought the
declaratory judgment action had the initial burden to show that intentional acts exclusion
applied); Muller v. Firemen’s Fund Insurance Co., 289 Ill. App. 3d 719 (1997) (insured
filed declaratory judgment action and bore the initial burden to establish that her claim
came within the terms of the coverage in a case involving a “hit and run” vehicle); Village
of Hoffman Estates v. Cincinnati Insurance Co., 283 Ill. App. 3d 1011 (1996) (municipal
landowner brought the action against the insurer and bore the initial burden to show that it
was an additional insured under a policy issued to its general contractor). The tenets of
insurance law do not displace, or render irrelevant, the rules of civil procedure or the
supreme court rules.
¶ 36 Bierman also contends the trial court’s finding that the decedent did not primarily
reside with Robertson at the time of the accident was against the manifest weight of the
evidence. She claims that evidence she presented overwhelmingly demonstrated that the
decedent’s primary residence was with Robertson at the time of the accident. Bierman
points out that in an interview with a State Farm adjuster, and in sworn testimony,
Robertson stated that the decedent resided with her around the time of the accident.
21
Bierman also points to her own testimony, in which she stated that she routinely dropped
off her daughter for visitation with the decedent at Robertson’s residence. She also claims
that the trial court failed to consider the decedent’s intent when considering the issue of his
primary residence.
¶ 37 In a bench trial, the trial court has the obligation to weigh the evidence and make
findings of fact. Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002); Kalata v. Anheuser-Busch
Cos., 144 Ill. 2d 425, 433 (1991). In a close case, where the findings of fact must be
determined from the credibility of the witnesses, a reviewing court will defer to the trial
court’s factual findings unless those finding are against the manifest weight of the
evidence. Kalata, 144 Ill. 2d at 433. A decision is against the manifest weight of the
evidence only when an opposite conclusion is apparent or when the findings appear to be
unreasonable, arbitrary, or not based on the evidence. Eychaner, 202 Ill. 2d at 252. Under
this standard, the reviewing court will give great deference to the trial court’s findings of
fact and credibility determinations. Eychaner, 202 Ill. 2d at 270. A reviewing court will
not substitute its judgment for that of the trial court, especially where the testimony is
contradictory, because the trial court, as the trier of fact, is in the best position to evaluate
the demeanor and credibility of the witnesses, and to determine the weight to be given their
testimony. Eychaner, 202 Ill. 2d at 270-71.
¶ 38 In determining whether a person is a resident of a household, courts have conducted
a case-specific analysis of a person’s “intent, physical presence, and permanency of
abode.” Coriasco v. Hutchcraft, 245 Ill. App. 3d 969, 970-71 (1993). The controlling factor
is intent as evinced by the acts of the person whose residency is in question. Gitelson, 344
22
Ill. App. 3d at 894; Farmers Automobile Insurance Ass’n v. Williams, 321 Ill. App. 3d 310,
314 (2001). If a person’s absence from a residence is intended to be temporary, it does not
constitute an abandonment of the residence. Williams, 321 Ill. App. 3d at 314. And while
a person may have more than one residence, a person generally cannot reside primarily in
more than one place at the same time. See Gaudina v. State Farm Mutual Automobile
Insurance Co., 2014 IL App (1st) 131264, ¶ 28; but see Coriasco, 245 Ill. App. 3d at 972
(minor child of divorced parents had two residences for purposes of coverage as each
parent’s home had an element of permanency insofar as the minor’s visits were governed
by a court-ordered schedule).
¶ 39 In this case, the main factual issue in dispute was whether the decedent, then an
adult, primarily resided with Robertson at the time of the accident. At trial, three witnesses
presented testimony on this point. Robertson testified that during the six-month period prior
to the decedent’s death, the decedent stayed at her home intermittently—no more than two
nights a week. Robertson also testified that she told the decedent that he could not stay
more than one or two nights a week or on a permanent basis because her grandson lived
with her and occupied the only other bedroom in her home. Simcox testified that she
informed the decedent that he could not stay with her if he was drinking. But she also
indicated that she relented because he was her brother. Simcox testified that during the
period in question, the decedent stayed with her four nights a week and that he bounced
around between Robertson’s home and his cousins’ homes the other three days of the week.
Bierman testified that the decedent primarily resided with Robertson during the six-month
period prior to his death. Bierman acknowledged that her opinion was based upon what she
23
observed every other weekend, when she dropped her daughter off at Robertson’s home to
visit with the decedent. She further acknowledged that she and the decedent did not discuss
his living situation during the six months before he died.
¶ 40 In the written judgment, and the order denying Bierman’s posttrial motion, the trial
court specifically stated that it considered the testimony as to the decedent’s intent, rather
than the intent of Simcox, Robertson, or others. The court noted that the best indicator of
the decedent’s intent regarding his residency was “not necessarily what he did as much as
what he didn’t do.” The court found that the decedent never spent more than two nights a
week at Robertson’s home; that he did not have his own room at Robertson’s home; and
that he did not leave any of his belongings at Robertson’s home. The court also found that
the decedent did not receive mail at Robertson’s home, and that he did not have visitors
there, other than his daughter. After considering the testimony of the witnesses, the court
found that the decedent did not reside primarily with Robertson at the time of the accident.
The court’s findings were supported by the evidence and were not against the manifest
weight of the evidence.
¶ 41 III. CONCLUSION
¶ 42 This case involved competing complaints for declaratory relief that were tried in a
consolidated bench trial. The trial court did not abuse its discretion in regard to the order
of the presentation of the claims or the scope and purpose of the witnesses’ testimony.
Although the court did not clearly delineate the parties’ respective burdens of proof in this
consolidated proceeding, the court ultimately considered each party’s witnesses and made
factual findings based upon an assessment of weight and credibility of the testimony. The
24
trial court’s finding that the decedent did not primarily reside with the named insured at
the time of the accident was supported by the evidence and was not against the manifest
weight of the evidence. Accordingly, the judgment of the circuit court is affirmed.
¶ 43 Affirmed.
¶ 44 PRESIDING JUSITCE BOIE, specially concurring:
¶ 45 I agree that the trial court’s finding that the decedent was not an insured under the
policies at issue was not against the manifest weight of the evidence and that the judgment
should be affirmed. I write separately, however, because I believe that the majority fails to
address the trial court’s findings regarding its assignment of the burden of proof and the
reason that the trial court shifted the burden of proof from Bierman to State Farm.
¶ 46 The majority focuses on the procedural proceedings and states that the trial court
directed the defendant, as counterplaintiff, to present her evidence first. The trial court’s
written order, however, specifically stated that:
“At the trial, the court directed Defendant to present evidence first, relying
on the general proposition that the individual claiming coverage has the
burden of proving that the individual was in fact covered. However, case law
reveals that the burden in this proceeding remains with the plaintiff, so the
evidence will be so analyzed. Farmers Automobile Insurance Association v.
Gitelson, 344 Ill. App. 3d 888 (1st Dist., 2003).”
¶ 47 As such, the trial court’s order makes it clear that it assigned the burden of proof at
trial to the “Defendant” consistent with the tenet that in an insurance action, the burden
rests with the party asserting coverage to prove that their claim falls within the coverage of
25
the policy. Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009); Waste Management,
Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 204 (1991). The trial
court then shifted the burden of proof to State Farm as the “plaintiff” based on “case law,”
citing Farmers Automobile Insurance Ass’n v. Gitelson, 344 Ill. App. 3d 888 (2003).
¶ 48 In Gitelson, an insurer sought a declaratory judgment that the insured’s adult child
was not a resident of the insured’s household and therefore, not entitled to underinsured
motorist benefits under the insured’s policy. Id. at 890. At trial, the insurer was required to
bear the burden of proof and on appeal, the insurer argued that the assignment of the burden
of proof was in error. Id. at 891. In its analysis, the Gitelson court acknowledged the long-
standing tenets of the burden of proof in insurance matters, stating that:
“We are aware of two well-established tenets of insurance law: the
insurer bears the burden of establishing that a claim falls within a provision
that limits or excludes coverage; and the insured bears the burden to show
that a claim falls within a policy.” Id. at 896.
¶ 49 The Gitelson court, however, went on to note that the burden of proof in a civil
proceeding generally rested on the party requesting relief and that “the insurer bore the
burden when it was the plaintiff (see, e.g., Pekin Insurance Co. v. L.J. Shaw & Co., 291 Ill.
App. 3d 888, 664 N.E.2d 853 (1997); State Farm Fire & Casualty Co. v. Leverton, 314 Ill.
App. 3d 1080, 732 N.E.2d 1094 (2000)), while the insured bore the burden when he was
the plaintiff (see, e.g., Village of Hoffman Estates v. Cincinnati Insurance Co., 283 Ill. App.
3d 1011, 670 N.E.2d 874 (1996); Muller v. Fireman’s Fund Insurance Co., 289 Ill.App.3d
719, 682 N.E.2d 331 (1997)).” Id. As such, the Gitelson court found that the burden of
26
proof was properly imposed on the insurer since it was “consistent with the general
proposition set out above that the plaintiff in a declaratory judgment action bears the burden
of proof.” Id.¶ 50 While I agree with the Gitelson court, and with the majority, that the burden of proof
in a civil proceeding generally rests on the party requesting relief, the determinative factor
in the assignment of the burden of proof in an insurance matter is whether a court is dealing
with an issue of coverage or an issue that excludes or limits coverage. See Addison
Insurance Co. v. Fay, 232 Ill. 2d 446, 453-54 (2009); Wells v. State Farm Fire & Casualty
Insurance Co., 2021 IL App (5th) 190460, ¶ 29; Erie Insurance Exchange v. Compeve
Corp., 2015 IL App (1st) 142508, ¶ 18; Stoneridge Development Co. v. Essex Insurance
Co., 382 Ill. App. 3d 731, 749 (2008); Fidelity & Casualty Co. v. Sittig, 181 Ill. 111, 113
(1899). In its analysis, the Gitelson court did not address whether the lower court was
dealing with an issue of coverage or one that excluded or limited coverage.
¶ 51 With all due consideration of the holding in Gitelson, I do not believe that the burden
of proof always rests upon the party that files an insurance declaratory action. I also
disagree with the majority decision that the trial court “apparently lost sight of the
procedural posture of the proceedings before it” (supra ¶ 34). The procedural posture, and
whether the party is a plaintiff, defendant, counterplaintiff, or counterdefendant in the
insurance declaratory action, is irrelevant. The majority cites to, inter alia, a supreme court
rule, a rule of civil procedure, and a rule of evidence. If even one of those rules had been
relied upon by the lower court to shift the burden of proof, I would have concurred with
the majority decision without separately writing. Those rules, however, are not what the
27
lower court relied upon in making its ruling. Further, an assignment of the burden of proof
consistent with the tenet of insurance law would in no way displace or render irrelevant,
the rules of civil procedure or the supreme court rules. The issue being addressed is the
burden of proof, not the order of the proceedings or the lower court’s authority to exercise
reasonable control.
¶ 52 Further, the majority cites to cases5 that “illustrate the general rule that the party
who requests the judicial relief in a civil action ordinarily has the burden of proof, while
also applying the general tenets of insurance law.” Supra ¶ 35. There is no discussion
within any of these matters concerning which party requested the judicial relief in
relationship to the burden of proof. Each of these cases followed the general tenets of
insurance law wherein the insurer had the burden of proving an exclusion (Pekin Insurance
Co. v. L.J. Shaw & Co., 291 Ill. App. 3d 888 (1997); State Farm Fire & Casualty Co. v.
Leverton, 314 Ill. App. 3d 1080 (2000)) and the insured had the burden of proving coverage
(Muller v. Firemen’s Fund Insurance Co., 289 Ill. App. 3d 719 (1997); Hoffman Estates v.
Cincinnati Insurance Co., 283 Ill. App. 3d 1011 (1996)).
¶ 53 The parties’ pleadings and arguments in this matter consistently focused on whether
the decedent was an “insured” and therefore, covered under Robertson’s State Farm
5
“Pekin Insurance Co. v. L.J. Shaw & Co., 291 Ill. App. 3d 888 (1997) (insurer who filed
declaratory judgment action was required to show that an exclusion in the policy precluded coverage); State
Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080 (2000) (insurer who brought the declaratory
judgment action had the initial burden to show that intentional acts exclusion applied); Muller v. Firemen’s
Fund Insurance Co., 289 Ill. App. 3d 719 (1997) (insured filed declaratory judgment action and bore the
initial burden to establish that her claim came within the terms of the coverage in a case involving a ‘hit
and run’ vehicle); Village of Hoffman Estates v. Cincinnati Insurance Co., 283 Ill. App. 3d 1011 (1996)
(municipal landowner brought the action against the insurer and bore the initial burden to show that it was
an additional insured under a policy issued to its general contractor).” Supra ¶ 35.
28
policies. In order for a claimant to demonstrate that his or her loss falls within the coverage
of an insurance policy, that person’s burden necessarily includes the burden of proving that
he or she qualifies as an insured as that term is defined in the policy. In this matter, neither
party argued, nor does the record demonstrate, that any exclusions or exceptions to
Robertson’s policies applied. There is also no indication within the pleadings or the record
on appeal to indicate that State Farm ever asserted an exception or limitation of the policies.
The parties’ controversy centered on whether the decedent was an insured covered under
Robertson’s policies and therefore, the only issue before the trial court was an issue of
coverage.
¶ 54 In an insurance action, it has long been held that the burden rests with the insured
to prove that their claim falls within the coverage of its policy. Addison, 232 Ill. 2d at 453;
Waste Management, Inc., 144 Ill. 2d at 204. Once the insured has demonstrated coverage,
the burden shifts to the insurer to prove that a limitation or exclusion applies. Addison, 232
Ill. 2d at 453-54; Erie Insurance Exchange, 2015 IL App (1st) 142508, ¶ 18; Stoneridge
Development Co., 382 Ill. App. at 749; Fidelity & Casualty Co., 181 Ill. at 113. Finally,
the burden shifts back to the insured to prove that an exception to a limitation or an
exclusion applies. Wells, 2021 IL App (5th) 190460, ¶ 29.
¶ 55 Therefore, if the issue is one of coverage, as it is in this matter, then the party
alleging coverage has the burden of proof regardless of whether that party is a plaintiff,
defendant, counterplaintiff, or counterdefendant. I believe that the trial court correctly
assigned the burden of proof at trial based on Bierman’s assertion of coverage and further
believe that the trial court erred in shifting the burden of proof to State Farm based on the
29
holding in Gitelson. As the Gitelson court did, the majority in this matter does not focus
on whether the issue before the trial court was one of coverage, limitation or exclusion, or
an exception to a limitation or exclusion, but instead focuses on the procedural posture of
the proceedings. As such, I write this special concurrence to address the trial court’s
reliance on Gitelson, and to convey my belief that the lower courts should follow the well-
established tenets for the burden of proof in an insurance action regardless of whether the
party is a plaintiff, defendant, counterplaintiff, or counterdefendant. I further do so to
alleviate any confusion regarding the burden of proof and to avoid this type of issue within
the lower courts.
¶ 56 For the reasons stated above, I specially concur with the majority’s holding that the
trial court’s finding that the decedent did not primarily reside with Robertson on the date
of the accident was not against the manifest weight of the evidence, and that the judgment
of the circuit court should be affirmed.
30