State Farm Fire & Casualty Co. v. Moore

JUSTICE REINHARD,

dissenting:

The majority opinion correctly cites several Illinois decisions which specifically found that the language in an insurance policy which provides that this policy does not apply to bodily injury or property damage arising out of business pursuits of an insured except activities therein which are ordinarily incident to nonbusiness pursuits is unclear and ambiguous. (See Economy Fire & Casualty Co. v. Second National Bank (1980), 91 Ill. App. 3d 406, 414 N.E.2d 765; Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700; Aetna Insurance Co. v. Janson (1978), 60 Ill. App. 3d 957, 377 N.E.2d 296; State Farm Fire & Casualty Co. v. MacDonald (1967), 87 Ill. App. 2d 15, 230 N.E.2d 513,) However, the ambiguity in the exclusionary clause which in those cases was construed in favor of the insured was under the particular factual circumstances of each case. If, however, the evidence of the case is insufficient to establish that the business pursuit was an activity “ordinarily incident to nonbusiness pursuits,” then the exclusion has been held applicable. (State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 219, 389 N.E.2d 668.) The majority points out that Marcus was injured as the result of Moore’s activity in preparing lunch which is “ordinarily incident to a non-business pursuit.” However, I would conclude that preparing food for Marcus and watching him are the very purposes of the business pursuit of babysitting on the premises. The fact that preparing food for lunch is also ordinarily incident to a nonbusiness pursuit does not, in my opinion, under these circumstances transform an activity which here is essentially business related into one ordinarily incident to nonbusiness pursuits. (See State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 219, 389 N.E.2d 668.) I agree that the exclusionary provision is poorly worded, but applied to these facts I do not find it so ambiguous to override the clear business activity involved. See Stanley v. American Fire & Casualty Co. (Ala. 1978), 361 So. 2d 1030.