*1 COMPANY, STATE Plaintiff-Appellee, FARM FIRE & CASUALTY et al., Defendants-Appellants. ARTHUR R. MOORE District Second No. 81-296 Opinion filed December *2 Yorkville, Wilson, Wilson, P. Ingemunson and of M. of John James Puckett, Barnett, Larson, Ochsenschláger, Duggan, Mickey^ Wilson and of Aurora, Edwards, appellants. Jordan, Jordan, for Darrell of Parker both of Callahan, Geneva, appellee. P. of John of court: opinion LINDBERG delivered JUSTICE Casualty Company brought by This was State Farm Fire and action that a home- County seeking in the a declaration Circuit Court of Kane suf- coverage to accident policy owner’s of insurance did not extend Moore. Arthur and Rebecca fered minor Marcus Hott at the home of trial favor of summary The court rendered injured insured child. 8,1978, Hott, minor, under the April On Marcus a was defendant, Moore, agreement with pursuant of to an care Rebecca Moore, had two parents. agreement, this who Under the terms of own, days a $25 care Marcus five paid per children of her week to was week, pulled pan of eight when he day. hours Marcus was burned facts, himself, boiling agreed statement upon water on based children, Marcus and fixing Moore was of her another child. policy
At the had injury, time of the a homeowner’s Moore policy insured plaintiff, Casualty Company. State Farm Fire & for, but was liable against personal parties that Moore third provided: * * * (d) or policy bodily “This does
damage arising any ac- pursuits except insured tivities therein which pur- suits.”
State Farm filed a declaratory judgment asserting action exclusionary precluded coverage injuries. for Marcus’ denied; for summary judgment motion State Farm’s cross-motion for summary judgment granted.
Exception Exclusionary Clause Moore’s care of pursuit. Marcus dispute Moore does not point. Moore Department was licensed the Illinois of Children and Family facility. Services a child-care She watched the same two chil every dren day, paid per $25 and she was ad week for each child. She vertised her trade, services. profession, defines a business as a or occupation and the use of A purposes. residence for such business pursuit is regular activity, continuous or for the done earning (American a profit. Family Bentley Mutual Insurance Co. v. 860; Annot., 48 A.L.R.3d (1973).) This is part-time true even of supplemental income activities. (Krings v. Kan. P.2d Safeco 1071.) Babysitting compensation conducted in the home on contin basis, uous opposed temporary arrangement, or casual is a *3 business pursuit. (Annot., 1096, 1099 (1973); High A.L.R.3d Peterson (Fla. lands Insurance Co. App. 1976), 328 So. 2d Fire Casualty (Ala. 1978), Gulf Tilley (N.D. 1967), Ind. Supp. (7th 280 F. Cir. 393 F.2d 119.) Babysitting licensed, pin-money for by one who not does not advertise, always and is compensated is not a business. Nationwide Mutual Fire Insurance Co. Collins 136 Ga. S.E.2d primary whether, issue is despite pursuit, injury the resulted from so, an activity ordinarily pursuits. incident to nonbusiness this accident is covered exception under the to the exclusion. The accident occurred pulled when Marcus At the pan boiling water onto himself. time, tea, Moore boiling soup, eggs jello water for to be used for and herself, lunch for her child and for whom she own the two children babysat. children, The soup and eggs tea were for Moore and the jello were children. She would have herself her child even if Any Marcus had not been there. leftovers would have by been family. part babysitting used the Moore of her duties and included in compensation, day. Generally, her provided every she she provide any special did not diet. require other meals. Marcus did her own Marcus, simultaneously cared While Moore watched children. activities pursuits are ordinarily to non-business
Activities incident (Annot., the insured’s business not related to or associated with Poos Co. v. (1973); North River A.L.R.3d babysitting from (Mo. App. 1977), 553 S.W.2d Activities 1096, 1099-1100 48 A.L.R.3d frequently exception. (Annot., fall within family insured’s heating for the (1973).) As home maintenance of applies exception activity ordinarily incident in the insured’s grill touching furnace injured where from v. Collins Company (Nationwide home. Mutual Fire Insurance Farm Fire & 136 Ga. In v. State S.E.2d Crane child for Rptr. 95 Cal. Cal. 3d 485 P.2d home insured’s whom babysitting the insured was was binned children and her the insured was shown, the ex but injured way injury child. The was not occurred to her nonbusi ception applied, as the were incident insured’s activities chil own regimen supervising her maintaining ness a household and 515.) In Rptr. dren. Cal. if the apply even opinion, exception the Crane court’s would child. Cal. 3d supervision of the occurred due to the insured’s 112, 116, 485 1129, 1131, 95 a child who 513, 515.)Injury to Rptr. P.2d Cal. pulled pot hot covered coffee onto herself was prep guest, as the the coffee was intended insured and an adult for the babysitter’s aration with a of coffee associated Supp. 280 F. (N.D. functions. (Gulf Tilley 119.) Country d In off cared for Watson Department placed children his the Illinois temporarily home assisting the Children Family. One child was Services. feeding of feeding exception applied, insured in his cattle. The pursuit of cattle to the insured’s incident 136, 138. farming. cases, babysitting
In other insured’s to a child coverage. excluded does not baby, feeding drowned pool while the insured was babysit feeding caring for children associated with *4 49, 1976), ting. (Peterson 328 So. (Fla. App. v. Highlands fireplace 50.) Injuries falling to a child into (Stanley not covered. the insured lunch are aof 1030.) Similarly, 1978), Fire & babysitter are child the insured being scalded while bathed pursuits. covered as the is not incident to nonbusiness See Family American Insurance Co. v. Dewald 1148.
To
specific activity
exception,
determine
falls within the
the
courts look to several
factors.
not done for
the
expediting the insured’s business or in the
course
insured’s business
duties,
prank
work,
such as a
on
it
business
at
is within
exception.
the
State Farm Fire Casualty
&
Co. v. MacDonald
87 Ill. App. 2d
513.)
The
that the injury
fact
occurred on
conclusive;
business
is not
exception applies
activity is not
purpose. (Reis
incident to
business
69 Ill. App. 3d
Michigan
Mutual
Liability
Ferguson
Mich.
N.W.2d 525
(exception applied to the insured’s negligence
throwing
a shovel handle
off
roof of his business).)
Some
all
courts
the exclusion to
insured’s activities while at work. (Maryland Casualty Co. v. Farmers
Alliance
(Okla.
(damage
255 compensation Child care for activity itself. examine the better view to household, contemplates conduct of ordinarily incident to the activities and from the child protect care to household the exercise of due 1978), 361 Casualty Co. (Stanley v. American Fire conditions. supervise properly from failure to 1030.) Injuries 2d So. 361 policy. covered paid for therefore are not the insured to care So. 2d injury. activity caused
Thus must consider what we was fireplace in the falling held that a child’s supervision lunch due to the insured’s preparing 1030, 1033.) (361 lunch. So. 2d child, preparing in using to Marcus the insured was by pan was burned hot water which she prepare child, whom lunch children for her two presence. sat. regardless She would of Marcus’ have lunch apparently babysitting agreement lunch Marcus. Marcus included Generally, preparing as the result lunch. of Moore’s (361 pursuit. preparation of a nonbusiness 1030, 1033.) as the the lunch was for Moore and her child as well By sat, exception. children for whom she falls within the her Marcus, if only contrast had been be, would likely, pursuit. more Exclusionary Ambiguous? Clause:
In is to interpreting primary an the court’s concern policy, insurance (State effectuate the parties expressed by intent of the as the contract. App. Farm Mutual 94 Ill. 3d Automobile Co. v. Schmitt Liberty N.E.2d v. Leasing Willett Truck ambiguity 376.) Any App. 88 Ill. N.E.2d 3d in favor of against is construed insured, Security (Kirk as v. Financial policy. the insurer drafted the Life Allstate Zipf v. Ill. 389 N.E.2d Insurance Co. 2d 369 N.E.2d Courts will App. Insurance Co. 54 Ill. ambiguity (State create an Farm Mutual Automobile where none exists. App. Insurance Co. v. 258 N.E.2d Berke Where unambiguous, plain the terms of a its policy are clear and import obvious 369 N.E.2d given (54 App. will be Ill. effect. limit its 255.) Ambiguous insurer seeks provisions which an insurer and favor liability are construed strongly most 69 Ill. 2d (Squire Economy insured. Co. Schmitt 370 N.E.2d State Farm Mutual Automobile an insurer 602.) Where App. 419 N.E.2d the claim falls within attempts liability, limit must show that the insurer exclusion, Ill. coverage. App. intent obtain was to Further, insurer, the drafter of the policy, clearly (Reis could have exclusions specifically. stated App. therefore, Exclusionary provisions, applied only terms are clear, 1062, 1064, 419 601, 602. explicit. definite and
A provision if it is subject to more than one reasonable interpretation. 601, 603; Security v. Linton
718.) In determining
exists,
ambiguity
the court
should consider
subject
contract,
execution,
surrounding
matter
the facts
*6
situation
parties,
of the
of the
predominate
contract
which is
indemnify
the insured.
Township
Dora
Indiana
(1980),
376,
921;
78
Great Central Insurance Co. v.
165,
Bennett
40 Ill. App. 3d
The policy here
coverage
injuries
excluded
pursuits of any insured except
activities therein which
inci
dent
Some courts have
this clause
found
unam
biguous in
the context of
incurred
for whom insured
is babysitting. (Stanley
Casualty
361
Fire &
1030;
Peterson v. Highlands
Company (Fla. App. 1976),
Crane v.
Farm
Fire
5 Cal. 3d
112,
Rptr. 513.)
ambiguous
Other courts
it as
view
in the babysitting
(Gulf
context.
Co. Tilley (N.D.
280 F. Supp.
119.)
This court has found
the language of this
clause unclear and
in the context of an
on-the-job prank. (State
Farm Fire &
Co. v. MacDonald
87
Ill. App. 2d
230
513.)
N.E.2d
In particular,
exclusion
obscures
(87
meaning.
clause’s
230
513, 515.)
N.E.2d
Other Illinois courts
found this
unclear and
have
clause
ambiguous in variety
a
of contexts.
Aetna Insurance Co. v. Janson
60
Ill. App.
(insured’s
296
N.E.2d
son
a fire at
started
place);
work
Economy
National
Second
Bank
91 Ill. App.
(insured
N.E.2d
started a fire
his
by lighting
office
purpose);
match
an unknown
Reis v. Aetna
The exclusionary implies reasonably that the nature of the activity determines coverage only peculiarly and that business activities excluded. Ill. Under the clause, terms reasonably facts this case could Re interpreted ambiguity, to be doubt covered or excluded. Because of coverage resolved favor for the Moores.
Propriety Summary for State Farm Judgment may State Farm filed for A court construe declaratory judgment. contract, binding written policy, such as an and make a declaration If parties’ rights. (Ill. par. 57.1.) ch. Rev. Stat. insured, an insurer obtains rights policy against a declaration under judgment is binding principles estoppel under as to facts of collateral judgment. determined (Thornton 74 Ill. 2d Paul N.E.2d party sues the insured and the insurer seeks a declaratory judgment declaratory concerning coverage, the court judgment action cannot question determine the ultimate of the insured’s liability of upon the facts which such liability based. N.E.2d Maryland Casualty (1976), 64 Ill. Peppers case, In this no claim is pending between Marcus’
family and the Moores. Declaratory appropriate here we can determine the issue of coverage without determining any facts or issues concerning liability to Marcus. Leasing Willett Truck Co. v. Liberty 88 Ill. App. Grinnell Mutual Reinsurance Co. v. Frierdich is possible presented That on the facts on
this appeal.
trial,
alleged
State Farm
occurred
Moore,
when
part
duties,
of her babysitting
bathing
Marcus in
extremely hot water. The trial court’s
specific findings.
order made no
On
appeal, State
accepts
Moore’s version of the facts. The facts in
*7
Moore’s
true,
affidavit must be taken
they
are
contradicted
any counteraffidavits.
Sons,
Leon v.
(1974),
Max E. Miller
23 Ill.
&
Inc.
App.
3d
Summary
genuine
is
judgment
appropriate only
is
where there
no
57;
issue
(Ill.
of material
Farm
par.
fact.
Rev. Stat.
ch.
State
App.
Mutual Automobile
94 Ill.
Insurance Co. v. Schmitt
existed,
summary judgment
If disputed
factual issue
App.
should not
have been
(Lane
entered.
v. Bauscher
993;
375 N.E.2d
North America
Company
Cowan v. Insurance
of
Otherwise,
summary judg
22 Ill. App.
318 N.E.2d
ment
granted.
can be
App.
94 Ill.
Although the time of the engaged pursuit Moore was in a business accident, preparing in injury resulted Moore’s activities herself children and her own child as well as the two Therefore, ordinarily watched compensation. activity incident the exclu- to and within the
sion. be policy’s exclusionary ambiguous, it should clause is therefore, against We, construed in favor of insured. judgment reverse the County the circuit of court of Kane and remand for entry case Farm. summary for Moore and
Reverse and remand.
NASH, J., concurs. REINHARD, dissenting: JUSTICE The majority opinion correctly Illinois which cites several decisions specifically language policy provides found that in an insurance which that this bodily injury damage does not to out pursuits of business except insured activities therein which ordinarily pursuits ambiguous. incident to nonbusiness unclear Economy Fire 91 Ill. Casualty & Co. v. Bank Second National App. Reis v. & 69 App. 387 N.E.2d Aetna Insurance Janson 377 N.E.2d State Farm Fire & However, MacDonald 513,) ambiguity exclusionary in those cases was which construed favor of the insured was under factual circumstances If, however, each case. the evidence of the case insufficient to establish pursuit “ordinarily business nonbusi was an pursuits,” ness applicable. (State then has the exclusion been held Fire Co. v. Stinnett majority points out that Marcus as the result “ordinarily to a preparing which incident
non-business pursuit.” I preparing would conclude that food for Marcus and him watching very purposes of the business pursuit of babysitting premises. on the that fact food not, also my incident pursuit to a nonbusiness does opinion, under these here is circumstances transform an which essentially business incident related into one to pursuits. (See State Farm Fire & Stinnett 668.) agree exclusionary provision I that worded, poorly it but facts I do not find so applied these override the clear See involved. Fire Casualty