                          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                      )        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 and 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 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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     No. 1-14-0447

       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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       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. 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

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       No. 1-14-0447

               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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       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.
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       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

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       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.
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       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

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       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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       No. 1-14-0447

         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.




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       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                             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



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       No. 1-14-0447

         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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       No. 1-14-0447

          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.
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       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."

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       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."

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       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."

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       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

         declarations of rights *** including the determination, at the instance of anyone

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       No. 1-14-0447

         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

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       No. 1-14-0447

         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

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       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 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

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       No. 1-14-0447

         (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



                                                 22
       No. 1-14-0447

         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.

                                              23
       No. 1-14-0447

¶ 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."




                                               24
       No. 1-14-0447

¶ 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

                                               25
       No. 1-14-0447

         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"



                                              26
       No. 1-14-0447

         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:




                                                 27
       No. 1-14-0447

                   "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

                                                28
       No. 1-14-0447

         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

                                              29
       No. 1-14-0447

         "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

                                               30
       No. 1-14-0447

         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

                                                31
       No. 1-14-0447

          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.
                                                 32
       No. 1-14-0447

          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)
                                                33
        No. 1-14-0447

¶ 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.
                                                 34
        No. 1-14-0447

          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").




                                               35
        No. 1-14-0447

¶ 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


                                                 36
        No. 1-14-0447

          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

                                               37
        No. 1-14-0447

          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

                                               38
No. 1-14-0447

   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
                                          39
        No. 1-14-0447

¶ 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.
                                                 40
        No. 1-14-0447

          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.



                                                41
