dissenting:
I respectfully dissent and would reverse the decision of the trial court. In 1971, in Watson, the second district held that a foster child was not excluded under a provision that excluded injuries incurred by the insured, his spouse, or "residents of his household.” Watson, 1 Ill. App. 3d at 669, 274 N.E.2d at 138. I would follow Watson.
Watson involved a farm owner’s policy, similar to the homeowner’s policy now before us. Watson held that whether a person was a resident in a household required a showing of more than physical presence; it required a showing of intention and permanency of abode and that, in the case before it, "the critical element of intention to make the home [the foster child’s] permanent abode was lacking.” Watson, 1 Ill. App. 3d at 670, 274 N.E.2d at 138. The Watson court stated:
"[Testimony given by a social worker for the Department indicates it was never intended that any child placed in the defendant’s home would remain there permanently. The home was merely a 'temporary care facility’ used until permanent placement of a child could be made. It was stressed to the children that they would be moved from the home.” Watson, 1 Ill. App. 3d at 670, 274 N.E.2d at 138.
That same testimony would apply to the foster child in the present case, and to every foster child in the State of Illinois. A foster parent is only "a temporary way station on the road of a child’s life until the difficulties at home can be straightened out.” Johnson v. Burnett, 182 Ill. App. 3d 574, 582, 538 N.E.2d 892, 897 (1989). In other states foster children may be viewed more like adopted children. See A.G., 112 Wis. 2d at 26-27, 331 N.W.2d at 647-48. There was testimony that the Watson foster home was a "diagnostic center,” but there is no indication that fact was crucial on "the critical element of intention to make the home [the foster child’s] permanent abode.” Watson, 1 Ill. App. 3d at 670, 274 N.E.2d at 138.
Watson is consistent with the justification given for household exclusion clauses in liability policies—that such clauses protect the insurer from fraudulent or collusive lawsuits between members of the same family. Meyer v. State Farm Mutual Auto Insurance Co., 689 P.2d 585, 591 (Colo. 1984); Annotation, Validity, Under Insurance Statutes, of Coverage Exclusion for Injury to or Death of Insured’s Family or Household Members, 52 A.L.R.4th 18 (1987); cf. Prudential Property & Casualty Insurance Co. v. Scott, 161 Ill. App. 3d 372, 379, 514 N.E.2d 595, 599 (1987) (purpose to exclude those most likely to make a claim (a very questionable purpose)). Just as the insured may not recover from himself under his own liability policy, his child may also not recover. Collusion is not the same threat with foster children as it is with natural children. A foster child has independence from the insured foster parent. A foster child is a ward of the court, and the insured foster parent will not profit from any recovery by the child. Our interpretation of an exclusion should not be broader than the reason for the existence of that exclusion. Where there is independence between the plaintiff and defendant, where there is some adversity of interest, it is not necessary to exclude household members from recovery. See 215 ILCS 5/143.01(a) (West 1994) (family exclusion void in vehicle insurance policies where third party contribution action involved).
The majority opinion notes that if an insurance policy is ambiguous, rules of construction are applied and the policy language should be strictly construed against the insurer. To avoid that result, the majority opinion holds that the phrase "resident of the household” is not ambiguous, citing Coriasco (245 Ill. App. 3d at 971, 615 N.E.2d at 65), a case that did not involve a foster child. I have no desire to strictly construe this policy against the insurer, but I disagree we may decide this case without giving some thought to the policy language. "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 62 L. Ed. 372, 376, 38 S. Ct. 158, 159 (1918) (opinion by Justice Holmes). Coriasco stretched the meaning of the word "resident” in order to find that the individual was an insured for purposes of underinsured motorists coverage. I question whether that was appropriate in that case, and doubt whether the Coriasco court would engage in a similar stretch in order to find that an exclusion applied, as in our case. See Lubeznik v. HealthChicago, Inc., 268 Ill. App. 3d 953, 957-58, 644 N.E.2d 777, 780 (1994) (coverage provisions interpreted broadly, exclusionary provisions interpreted narrowly).
It is significant that this policy used the words "resident of your household.” The policy did not simply refer to those "living” in the household. Cf. Allstate Insurance Co. v. Stewart, 158 Ill. App. 3d 129, 511 N.E.2d 188 (1987) ("temporarily living”). The policy in the present case did not say that those who had lived in the household for a month, or for a year, were excluded. The policy instead used the term "resident,” and, as the court held in Watson, to be a resident of a household there must be some permanency of abode. What is important is not length of stay but the nature of the relationship with the others who live in the household. Foster children are not the same as natural children, or adopted children, or even de facto adopted children.
The majority opinion questions who the household exclusion could refer to if it does not refer to foster children. The exclusion would appear to refer to persons who are very much like natural children, but are unrelated. For example, if a husband is the insured, and his wife has a child by another marriage, that child is not related to the husband but is still excluded. For another example, if a husband and wife have raised an unrelated child as their own, but there has been no formal adoption, the exclusion applies.
The majority opinion points out that the language of the household exclusion generally tracks the definition of who is an insured, and if the deceased child were not a resident of the household, she would not be an insured and, accordingly, would not "have been entitled to various benefits” (286 Ill. App. 3d at 360, citing A.G., 112 Wis. 2d 18, 331 N.W.2d 643). I reject the proposition that it was more important for the three-year-old child in this case to have liability insurance covering her tortious acts than it was for her to be compensated for injuries caused by the tortious acts of her foster parents. I also question what benefits incur to the foster parents (the foster child is judgment proof) if the foster child is an insured under the liability provisions of a homeowner’s policy. The foster parents are themselves insureds, and they have coverage if they are legally obligated. The foster parents and their children cannot recover under their homeowner’s coverage for torts committed against them by foster children or anyone else. If the foster child is an insured, there can be no recovery by anyone for bodily injury or property damage "caused intentionally by or at the direction of’ the foster child.
In a number of cases involving day-care centers and babysitters, the question has arisen whether another exclusion, the exclusion for injuries "arising from an insured’s business pursuits,” applies. That exclusion was argued to apply in Watson, but the business pursuits exclusion in a farm owner’s liability policy is generally defined to mean an activity other than farming. See 43 Am. Jur. 2d Insurance § 727 (1982). The child in Watson was injured with a knife when he cut a string on a bale of hay. The Watson court held that the insured farmer was in the course of his nonbusiness pursuit of farming when the accident occurred. Watson, 1 Ill. App. 3d at 669, 274 N.E.2d at 138. That holding is not available for foster parents who are not farmers, however, and in 1991 the legislature enacted section 155.30 of the Insurance Code, which provided that taking care of foster children shall not be considered "as a use of the family dwelling for a business purpose.” 215 ILCS 5/155.30 (West 1994); Pub. Act 86—1482, § 1, eff. January 14, 1991 (1990 Ill. Laws 4064, 4071).
The majority opinion states that section 155.30 of the Insurance Code only codified the Watson holding on the business pursuit exclusion, but that is inaccurate. Watson did not hold that receiving pay for the care of a child "did not constitute operation of a business in the home”; instead Watson held the activity involved fit within the category of farming, for which there was coverage. The majority opinion points out the legislature, when it adopted section 155.30, did not adopt language nullifying the household exclusion, but it did not have to. Watson had already held that a foster child is not a "resident of the household” and therefore not subject to the exclusion. The legislature clearly intended to protect foster children and foster parents by enacting section 155.30. The legislature did not enact section 155.30 because it was concerned which exclusion should be used to deny recovery to foster children. The legislature enacted section 155.30 to make sure that injuries to foster children would not be excluded at all under homeowners’ policies.