2015 IL App (1st) 140447

No. 1-14-0447

Opinion filed March 27, 2015

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

STATE FARM MUTUAL )

AUTOMOBILE INSURANCE )

COMPANY, )

)

Plaintiff-Appellant, )

)

v. )

)

PROGRESSIVE NORTHERN )

INSURANCE COMPANY, )

)

 Defendant-Appellee )

)

(State Farm Fire and Casualty Company, )

Plaintiff; )

)

Andrew Toig, Randall M. Toig )

and Teri E. Zenner, )

Defendants). )

Appeal from the Circuit Court

of Cook County.

No. 2011 CH 31467

The Honorable

Thomas R. Allen,

Judge, presiding.

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

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¶ 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 policies to the 

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

these automobile policies 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." (Emphases in 

original.)

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 policies 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.
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¶ 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. Gaudina v. State Farm Mutual 

Automobile Insurance Co., 2014 IL App (1st) 131264, ¶ 16 (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 
No. 1-14-0447

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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. 2011 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 III. 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. 
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¶ 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. 
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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 
No. 1-14-0447

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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. 
No. 1-14-0447

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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 
No. 1-14-0447

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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 
No. 1-14-0447

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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. 
No. 1-14-0447

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¶ 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 IV. 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 
No. 1-14-0447

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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.
No. 1-14-0447

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¶ 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." 
No. 1-14-0447

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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."
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¶ 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." 
No. 1-14-0447

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¶ 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 

declarations of rights *** including the determination, at the instance of anyone 
No. 1-14-0447

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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., 154 Ill. 2d 

90, 102 (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, 154 Ill. 2d at 

102. 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 
No. 1-14-0447

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

Marine, 154 Ill. 2d at 131-32. 

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

law, which we also review de novo. Outboard Marine, 154 Ill. 2d at 108. 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, 154 Ill. 2d at 108. 

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

and ordinary meaning. Outboard Marine, 154 Ill. 2d at 108. 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, 154 Ill. 2d at 108.

¶ 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 
No. 1-14-0447

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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 v. 

Healey, 389 Ill. App. 3d 268, 280 (2009); North River Insurance Co. v. Grinnell 

Mutual Reinsurance Co., 369 Ill. App. 3d 563, 572 (2006); Chelkova v. 

Southland Corp., 331 Ill. App. 3d 716, 729 (2002). A reconsideration motion is 

not the place to raise a new legal theory or factual argument. River Plaza, 389 

Ill. App. 3d at 280; North River, 369 Ill. App. 3d at 572. " '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. 

(Internal quotation marks omitted.) North River, 369 Ill. App. 3d at 572 

(quoting Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 65 
No. 1-14-0447

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

are considered waived. River Plaza, 389 Ill. App. 3d at 280; North River, 369 

Ill. App. 3d at 572-73.

¶ 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, 369 Ill. App. 3d at 572. 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, 2014 IL App (1st) 131252, ¶ 116. 

¶ 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 
No. 1-14-0447

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

provided from all the policies.

¶ 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. 
No. 1-14-0447

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¶ 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 

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." 
No. 1-14-0447

25

¶ 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. 

¶ 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., 961 F.2d 725, 727 (8th 

Cir. 1992) (since the child "was covered as a 'relative' under the second 
No. 1-14-0447

26

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

qualified under the first line). 

¶ 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, 154 Ill. 2d at 108. 

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, 154 Ill. 2d at 

108-09.

¶ 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." (Emphases in 

original.)

¶ 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" 
No. 1-14-0447

27

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-Antecedent Agreement, 

http://leo.stcloudstate.edu/grammar/pronante.html (last visited Mar. 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, 

http://www.grammarmudge.cityslide.com/articles/article/2569239/35950.html

(last visited Mar. 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:
No. 1-14-0447

28

"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.)

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. 1-14-0447

29

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

Insurance Co. v. Munoz, 237 Ill. 2d 424, 436 (2010) ("Where a term in an 

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

popular meaning ***."); see also Founders, 237 Ill. 2d at 433 ("When 

construing the language of an insurance policy, we must assume that every 

provision was intended to serve a purpose.").

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

USAA Casualty Insurance Co., 2006 WI App 152, ¶ 9, 295 Wis. 2d 481, 720 

N.W. 2d 187 ("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, 961 F.2d at 727 ("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, 154 Ill. 2d at 122 (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 
No. 1-14-0447

30

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

Marine, 154 Ill. 2d at 119. "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, 154 Ill. 2d at 119. Our supreme 

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

"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 and

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

written according to the insurer's pleasure by the insurer. [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, 154 Ill. 2d at 121-22.

¶ 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 [citations]." Outboard Marine, 154 
No. 1-14-0447

31

Ill. 2d at 108-09. See also State Farm Mutual Automobile Insurance Co. v. 

Differding, 46 Ill. App. 3d 15, 19 (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 

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

608 S.E.2d 191, 196 (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 Co., 839 So. 2d 

897, 900 (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, 961 F.2d at 727 (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 Mutual Automobile 

Insurance Co. v. Taussig, 227 Ill. App. 3d 913, 917 (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 
No. 1-14-0447

32

Alabama case of State Farm Mutual Automobile Insurance Co. v. Brown, 26 

So. 3d 1167 (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 

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

child away at school.' " (Emphases in original.)

4 Brown, 26 So. 3d at 1169. 

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, 26 So. 3d at 1168. 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, 26 So. 3d at 

1169 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, 26 So. 3d at 1170. The short per curiam order

 4 The italics were added by the Brown court. We do not mean to suggest 

that the italics were in the policy itself.
No. 1-14-0447

33

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, 26 So. 3d at 1168. 

¶ 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, 26 So. 3d at 

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, 26 So. 3d at 1170. 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, 26 So. 3d at 

1170. 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, 26 So. 3d 

at 1170. 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, 26 So. 3d at 1170. 5

 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, 608 S.E. 2d 191, 196 (W.Va. 2004) 
No. 1-14-0447

34

¶ 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 

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 Mutual 

Automobile Insurance Co., No. F-07-012, 2007 WL 4216132, at *4 (Ohio Ct. 

App. Nov. 30, 2007),

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. 

 

(per curiam); see also Crump, 961 F.2d at 727 (a child was still "away at school" 

although attending a local college). However, this issue is not before us.

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.
No. 1-14-0447

35

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, 2012 IL App (1st) 111533, ¶ 15 ("an 

unreported case" is "not binding on any court"); People v. Moore, 243 Ill. App. 

3d 583, 584 (1993) ("the decision was unreported and of no precedential 

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, 2014 IL App (1st) 131631, ¶ 38; Burnette v. Stroger, 

389 Ill. App. 3d 321, 329 (2009); West American Insurance Co. v. J.R. 

Construction Co., 334 Ill. App. 3d 75, 82 (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, 324 Ill. App. 3d 1094, 1107 

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

before an Illinois court"); Sompolski v. Miller, 239 Ill. App. 3d 1087, 1093 

(1992) ("we decline" to follow "an unreported Federal district court decision"). 
No. 1-14-0447

36

¶ 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, 608 S.E.2d at 196 (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, 839 So. 2d at 900 (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, 961 F.2d at 727 (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 Mutual Automobile 

Insurance Co. v. Taussig, 227 Ill. App. 3d 913, 917 (1992) (appellate court 

analyzed the two lines as independent and "alternate" sources of coverage);

Bauer, 2006 WI App 152, ¶ 9, 295 Wis. 2d 481, 720 N.W.2d 187 ("Were it not 

for this sentence, unmarried and unemancipated children away from home at 
No. 1-14-0447

37

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, 26 So. 3d at 1168-69 (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 

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, 961 F.2d at 727 (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 
No. 1-14-0447

38

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, 

608 S.E.2d at 195-96. As a result, the court held that the term "school," as used 

in the State Farm auto policy, includes "an elementary school, junior high 

school, high school, trade school, college and university." Drake, 608 S.E.2d at 

196. 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, 

961 F.2d at 727.

¶ 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 
No. 1-14-0447

39

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 Country Insurance Co., 366 Ill. App. 3d 64, 69 (2006); see also 

Outboard Marine, 154 Ill. 2d at 122; Gaudina, 2014 IL App (1st) 131264, 

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

Dwelle, 839 So. 2d at 901 ("the lower court erroneously relied on [the child's] 

statement of future residency intent 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. 

 7 State Farm argues that Illinois courts have rejected the reasonable 

expectations doctrine and cites in support Smagala v. Owen, 307 Ill. App. 3d 213, 

219 (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." Smagala, 307 Ill. App. 3d at 219. The test is not used when a " 

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

307 Ill. App. 3d at 219 (quoting Robert E. Keeton, Basic Text on Insurance Law 

§6.3 (1971)). 

8 State Farm cited for a different point State Farm Mutual Automobile 

Insurance Co. v. Differding, 46 Ill. App. 3d 15, 20 (1977), in which the court 
No. 1-14-0447

40

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

Stein v. County Board of School Trustees, 40 Ill. 2d 477, 479-80 (1968) (the 

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

Anderson v. Pifer, 315 Ill. 164, 167 (1924) (the issue concerned a contested 

election); People ex rel. Madigan v. Baumgartner, 355 Ill. App. 3d 842, 848 

(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 voter registration); Merrill v. Shearston, 214 P. 540, 541 (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 Farmers 

Automobile Insurance Ass'n v. Gitelson, 344 Ill. App. 3d 888 (2003), and State 

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

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

 

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, 46 Ill. App. 3d at 

19. 
No. 1-14-0447

41

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

[her present] residency is intent." Gitelson, 344 Ill. App. 3d at 890, 892.

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

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

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

839 So. 2d at 901 ("the lower court erroneously relied on [the child's] statement 

of future residency intent 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.