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filed: November 2, 1988.


Appeal from the Order entered December 16, 1987 in the Court of Common Pleas of Allegheny County Civil Division, No. GD 86-16455


John C. Carlin, Jr., Pittsburgh, for appellants.

David J. Obermeier, Pittsburgh, for appellee.

Cirillo, President Judge, and Tamilia and Cercone, JJ.

Author: Per Curiam

[ 379 Pa. Super. Page 300]

The issue in this appeal is whether the "family exclusion" clause in appellants' homeowners' insurance policy is valid

[ 379 Pa. Super. Page 301]

    with the result that appellants will be without insurance coverage for the jury-determined liability of appellant/mother for injuries sustained by her minor son.

Appellants' son, Adam Neil, was permanently injured when he was struck near his home by an automobile driven by Conrad Guenzel. Appellants brought a civil action against Guenzel for Adam's injuries, and Guenzel subsequently joined appellants as additional defendants on the grounds of negligent supervision of Adam. After they were joined in the action against Guenzel, the Neils requested that appellee, Allstate, represent them, by counsel, in the civil action and provide coverage for any liability which they might incur as a result of their joinder in the negligence action as additional defendants.*fn1 Allstate informed the Neils that the terms of their homeowners' policy excluded Adam from coverage, and therefore, they would provide no defense in the civil action. Specifically, Allstate cited the following provision which is the subject of this appeal:

We [Allstate] do not cover bodily injury to an insured person . . . .

The definition of "insured person" under the policy was:

"Insured Person" -- means you [policyholder] and, if a resident of your household, any relative and any dependent person in your care.

After Allstate refused to defend them, appellants brought the instant action for declaratory judgment. In their complaint, appellants sought to have the "family exclusion" clause of their policy, upon which Allstate had relied in refusing coverage and a defense, declared invalid and void as against public policy. Appellee sought, by motion, an order of summary judgment, citing the terms of the policy. On December 18, 1987, appellee's motion for summary

[ 379 Pa. Super. Page 302]

    judgment was granted, and appellants then filed the instant timely appeal.

Meanwhile, the lawsuit against Guenzel for Adam's injuries proceeded. The jury in that case returned a verdict of $250,000 in Adam's favor, which was apportioned as follows: twenty-five percent attributable to Conrad Guenzel, forty percent attributable to Arlene Neil, thirty-five percent attributable to Thomas and Susan Lordi, and zero percent attributable to the Borough of Monroeville. As a result of this apportionment of negligence, appellant Arlene Neil is liable for her son's injuries in the amount of $100,000.

Since this case comes to us on the granting of a motion for summary judgment, we will first look to the standards under which such relief is granted. Summary judgment should not be entered unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). The relief should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P., Rule 1035, 42 Pa.C.S.A.; Hower v. Whitmak Associates, 371 Pa. Super. 443, 538 A.2d 524 (1988). On review, the record must be examined in a light most favorable to the non-moving party, and in doing so all well-pleaded facts in the non-moving party's pleadings are accepted as true and that party is given the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983).

It has also recently been established that summary judgment is available in a declaratory judgment action. Darlark v. Henry S. Lehr, Inc., 360 Pa. Super. 509, 520 A.2d 1206 (1987). In addition, we have held that an inquiry into whether a particular loss is within the coverage of an insurance policy is a question of law, which may be decided on a motion for summary judgment. Creed v. Allstate Insurance Co., 365 Pa. Super. 136, 529 A.2d 10 (1987), allocatur denied 517 Pa. 616, 538 A.2d 499 (1988).

[ 379 Pa. Super. Page 303]

With these principles in mind, we turn to an examination of appellants' contentions on appeal. Appellants argue that the family exclusion clause contained in their policy of homeowners' insurance is against the public policy of this Commonwealth and should be declared void. They submit that judicial abolition of the doctrines of parental immunity and inter-spousal immunity from tort liability requires such a declaration. See Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (abolition of parental immunity); Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981) (abolition of inter-spousal immunity). Appellants contend that the judicial and social policy of this Commonwealth is one of compensation to injured family members, ...

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