No. 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 & 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 polices to the

Toigs: two to the father and one to the stepmother. The question is whether

these automobile polices 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."

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 polices 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.

3 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. Guadina v. State Farm Mutual

Automobile Insurance Co.,

(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. 11 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 II. 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.

5 No. 1-14-0447

¶ 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. 6 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

7 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. 8 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

9 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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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.

11 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 III. 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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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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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. 14 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."

15 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."

16 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."

17 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

declaration of rights *** including the determination, at the insistence of

18 No. 1-14-0447

anyone 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.,

(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,

. 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

19 No. 1-14-0447

construe the facts in these documents against the moving party. Outboard

Marine,

.

¶ 64 The construction of an insurance policy's provisions is also a question of

law, which we also review de novo. Outboard Marine,

. 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,

.

If the words in the policy are unambiguous, a court must afford them their plain

and ordinary meaning. Outboard Marine,

. 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,

.

¶ 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

20 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,

(2009); North River Insurance Co. v. Grinnell Mutual

Reinsurance Co.,

(2006); Chelkova v. Southland

Corp.,

(2002). A reconsideration motion is not the

place to raise a new legal theory or factual argument. River Plaza,

; North River,

. " '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. North River,

(quoting Landeros v. Equity Property & Development,

(2001)). As a result, legal theories and factual arguments not

21 No. 1-14-0447

previously made are considered waived. River Plaza,

;

North River,

.

¶ 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,

. 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,

.

¶ 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

paid by the tortfeasor should be subtracted only from the total coverage

provided from all the policies.

22 No. 1-14-0447

¶ 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.

¶ 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

23 No. 1-14-0447

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."

¶ 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.

24 No. 1-14-0447

¶ 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.,

(8th

Cir. 1992) (since the child "was covered as a 'relative' under the second

sentence of the definition," it was "unnecessary" to consider whether he

qualified under the first line).

25 No. 1-14-0447

¶ 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,

.

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,

.

¶ 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."

¶ 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"

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

26 No. 1-14-0447

Antecedent Agreement, leo.stcloudstate.edu/grammar/pronante.html (last

visited March 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, www.grammarmudge.cityslide.com/articles/article/2569239/35950.html

(last visited March 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:

"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.)

27 No. 1-14-0447

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

no need for the second line, and it would be superfluous. See Founders

Insurance Co. v. Munoz,

(2010) ("Where a term in an

insurance policy is not defined, we afford that term its plain, ordinary and

popular meaning"), see also Founders,

("When construing the

language of an insurance policy, we must assume that every provision was

intended to serve a purpose.").

28 No. 1-14-0447

¶ 91 The trial court agreed with this argument, and so do we. Accord. Bauer

v. USAA Casualty Insurance Co.,

(Wis. Ct. App. 2006)

("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,

("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,

(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

"strictly" against the drafter of the policy and in favor of coverage. Outboard

Marine,

. "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,

. Our supreme

court explained the reasoning behind this rule of construction, as follows:

29 No. 1-14-0447

"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 or sophisticated or not, must enter into a contract with the insurer

which is written according to the insurer's pleasure by the insured

[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,

.

¶ 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." Outboard Marine,

. See also State Farm v. Differding,

(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

30 No. 1-14-0447

that compliance with both lines of the definition is required. Drake v. Snider,

(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 Company,

(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,

(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 v. Taussig,

(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

Alabama case of State Farm v. Brown,

(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

31 No. 1-14-0447

who lives primarily with you. It includes your unmarried and unemancipated

child away at school." (Emphasis in original.)4 Brown,

. 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,

. 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,

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,

. The short per curiam

order 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,

.

¶ 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,

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

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,

. 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,

. 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,

. 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,

. 5

¶ 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

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,

(W.Va. 2004) (per curiam); see also Crump,

(a child was still "away at school" although attending a local college). However, this issue is not before us. 33 No. 1-14-0447

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,

,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. 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,

("an

unreported case" is "not binding on any court"); People v. Moore,

(1993) ("the decision was unreported and of no precedential

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

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,

; Burnette v. Stroger,

(2009); West American Insurance Co. v. J.R.

Construction Co.,

(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,

, 1107

n.11 (2001) ("unreported federal court orders" are not "any kind of authority

before an Illinois court"); Sompolski v. Miller,

(1992) ("we decline" to follow "an unreported Federal district court decision").

¶ 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,

(per curiam) (although the child did not

35 No. 1-14-0447

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,

(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,

(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 v. Taussig,

(1992) (appellate court analyzed the two lines as independent

and "alternate" sources of coverage); Bauer,

("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"); Brown,

-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

36 No. 1-14-0447

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,

(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

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,

(per curiam). As a result, the court held that the term

"school," as used in the State Farm auto policy, includes "an elementary school,

37 No. 1-14-0447

junior high school, high school, trade school, college and university." Drake,

(per curiam). 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,

.

¶ 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

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 County Insurance Co.,

(2006); see also

Outboard Marine,

; Gaudina,

. 7 Andrew is not a party to the contract, so his intent is not at issue. Cf.

Dwelle,

("the lower court erroneously relied on [the child's]

7 State Farm argues that Illinois courts have rejected the reasonable expectations doctrine and cites in support Smagla v. Owen,

(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." Smagla,

. The test is not used when a " 38 No. 1-14-0447

statement of future residency 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.

¶ 110 Almost all the cases cited by State Farm on this point are election cases.

Stein v. County Board of School Trustees,

(1988) (the

issue was whether a petition was signed by two-thirds of the legal voters);

Anderson v. Pifer,

(1924) (the issue concerned a contested

election); People v. Baumgartner,

(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

'study of the policy provisions would have negated those expectations.' " Smagla,

. 8 State Farm cited for a different point State Farm Mutual Automobile Insurance Co. v. Differding,

(1977), in which the court 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,

. 39 No. 1-14-0447

voter registration); Merrill v. Shearston,

(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 Farmer's

Automobile Insurance Ass'n v. Gittelson,

(2003), and State

Farm cites it to argue that Andrew must prove an intent to return. The question

in Gittelson concerned whether a "family member" presently resided in the

insured's "household," and we stated that "the controlling factor in determining

[her present] residence is intent." Gittelson,

.

However, in the case at bar, we know Andrew was not presently dwelling in his

parents' household; he was in Colorado. Gittelson 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, Gittelson does not support the proposition that a

college student who is "away" must prove an intent to return. See also Dwelle,

("the lower court erroneously relied on [the child's] statement

40 No. 1-14-0447

of future residency 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