Legal Question in Insurance Law in Illinois

Illinois prohibits marriages like yours, which are called "common law" marriages. And when I mean prohibits, it won't recognize them from anywhere. With or without children. And that's been true for the last 100 years. PERIOD. So whoever told you that you'd be considered married was plain wrong. If you have anything in writing saying that, you may want to pull it out. But that's not relevant.

You seem to be saying you bought the house together with your lady friend and both of you took out a "homeowner's insurance policy". Well, you have to read it. It's a contract. Lots of people who are not married buy real estate together. I've represented couples like you who buy a home together and THEN get married. You never got married. And they buy insurance together too. The critical thing is "WHO IS THE NAMED INSURED" and if you are not then whether you are an "ADDITIONAL INSURED". When unmarried couples buy, they make sure BOTH their names are "Named Insured". If both of you are NOT, and only one of you is (sounds like they're saying SHE is and YOU aren't), then unless you are an "Additional Insured" you may NOT be covered and the insurance company may be right. And the thing is with most insurance policies, in order for an "additional insured" to actually have any coverage, there had to have been a contract between the named insured and you requiring the insurance to have been put in place. You don't seem to have any contract - no marriage "contract" and no partnership agreement respecting the real estate -- although you might want to argue that your contribution to paying the mortgage if any, taxes, insurance and upkeep evidences a "partnership" that would technically require her to have named you as additional insured or even named insured. But the insurance company may NOT be bound by that kind of argument.

And the point the insurance company is making is that if she's covered somehow and you aren't, then possibly the agent screwed up and you may only have a case against the agent.

But what they're also saying is that they owe a "duty to defend" ONLY to their named insured (and possibly any additional insured). If you are neither, they will NOT provide YOU with an attorney -- only her. And because the real issue in a ngligence lawsuit is who created the conditions leading to the accident, there's the chance you and she may be equally or disproportionately responsible for creating the claimed unsafe condition that caused the accident, in which case the insurance company may be responsible for only 1/2 of any claim or judgment (or more or less depending on share of liability), and the UNINSURED of the two of you (YOU) could be responsible for the other half, or more, or less -- out of pocket. And if the two of you share one bank account, well, that's the way things go.

And no, if they deny you coverage on the basis that they don't owe you a "duty to defend" you don't need to sue them because they will be obligated to SUE YOU, AND HER, and you and she will have to pay one or more lawyers to defend the case -- it's called a "declaratory judgment" lawsuit where the insurance company doesn't want to make a mistake so is asking a court if it owes a duty to defend. And if they do sue you may need to sue the agent for not giving you the policy you needed and thought you got.

Time to hire an attorney to figure out why you apparently didn't get the insurance you though you got, or that you did but the insurance company doesn't know that, or that you will need your own attorney because you have no insurance, or a combination of these.

The previous answer is excellent and I would echo that advice.

I would also recommend contacting the Claims Representative of the insurer and ask him or her what would happen if you were to get married now. Depending on the policy language, your insurer may then recognize you as an 'insured' as defined in their policy. At that point, they may be required to defend and possibly indemnify you in this lawsuit.

It also couldn't hurt for you to ask them whether or not they will provide you with a 'courtesy defense' even though you don't technically qualify as an insured as defined. The worst that could happen is that they will say no.