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Di Leo v. United States Fidelity & Guar. Co.

JUNE 15, 1964.

ROCCO DI LEO AND ANGELO DI LEO, PLAINTIFFS-APPELLEES,

v.

UNITED STATES FIDELITY AND GUARANTY COMPANY, A CORPORATION, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. JOSEPH J. DRUCKER, Judge, presiding. Affirmed except as to damages and remanded with directions to enter damages in accordance with the views expressed herein.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied August 3, 1964.

Plaintiffs, proprietors of a food store, brought suit on fire insurance policies to recover damages to the store "contents" and for "business interruption." Four of the defendants, whose policies covered the store "contents," appeal from a summary judgment order entered in favor of plaintiffs for the amount of the stipulated "content" fire loss. The trial court found there was no reason for delaying enforcement of or appeal from the judgment order.

Defendants contend that the entry of a summary judgment constitutes reversible error, since the facts well pleaded in defendants' affirmative defenses, and not traversed by plaintiffs' affidavit, presented a complete and valid defense to plaintiffs' claim. Defendants also contend that the court erred in fixing the date for the commencement of interest on the fire loss.

The building in which plaintiffs, as tenants, operated their grocery, market and food store, was a 4-story brick building situated at 1122 West Erie Street, Chicago, Illinois. Prior to the fire, the building had been condemned by the City of Chicago, and plaintiffs were awarded a judgment of $1,200 for their leasehold interest. On May 27, 1958, plaintiffs were served by the City of Chicago with a notice terminating their tenancy as of June 30, 1958. The fire occurred June 27, 1958. The seven policies were identical in printed form and general provisions. Four covered the "contents" and three covered "business interruption."

Count I of the complaint included the four "content" policies, and Count II included the three "business interruption" policies. The joint answer of the seven defendants admitted the policies but denied liability, relying upon an "increase of hazard" clause. Defendants alleged that coverage was suspended at the time of the fire because the hazard of fire was increased by "means within the control or knowledge of the insured," in that prior to the fire and because of the condemnation, most of the building, except for the store occupied by the plaintiffs, had been vacated, certain of the fixtures had been removed, and many windows in the building had been broken and not replaced.

The answer further alleged that the policies were voided by the wilful concealment and misrepresentation by plaintiffs of the facts relating to the condemnation proceedings and alleged consequences.

Plaintiffs' reply admitted the condemnation proceedings, the judgment award and notice of termination of their tenancy. They further replied that they were not informed "as to the degree of occupancy of the building . . ., the removal of certain fixtures and that many windows in the building had been broken," and denied any "increase in the hazard of loss to the property insured by means within the control or knowledge of the insureds, and they further deny that as a result of any knowledge or control, the coverage of the policies sued upon hereunder was suspended at the time of the occurrence of the fire." Plaintiffs further replied that the conditions surrounding the property insured by the policies were known, or should have been known, to the defendants or their agents, and that such knowledge "constituted a waiver of such policy provision to the extent of such knowledge." Plaintiffs further denied "that any concealment was wilfully done by plaintiffs with intention to cheat and defraud said defendants and they further deny that said policies of insurance became void."

On motion of plaintiffs, Judge Arthur A. Sullivan, after "having considered all of the pleadings and the affidavit of the plaintiffs in support of the motion; and it appearing that no counteraffidavits have been presented or filed by the defendants," entered "summary judgment as to liability against the defendants and each of them."

Subsequently, plaintiffs moved for "final summary judgment" against four of the defendants: the United States Fidelity & Guaranty Company for $12,022.66; against the Home Insurance Company for $5,152.56; against the Western Fire Insurance Company for $2,576.28; and against the American Insurance Company for $2,576.28, "together with interest upon the stated amount as to each said defendant at the rate of 5% per annum from and after September 15, 1958 and until the date of judgment thereupon, and for costs of suit, including statutory attorney's fees."

In support of this motion, plaintiffs presented to the court the pleadings and a stipulation of the parties, dated February 27, 1963. The stipulation purported to show that adjusters representing plaintiffs and defendants had "orally agreed that the amount of loss and damage which occurred June 27, 1958, . . . and described in the fire insurance policies previously issued by said defendants, was $22,327.78." The stipulation further provided that the entry of any judgment for $22,327.78 "shall not affect in any way the rights of said defendants or of plaintiffs on any appeal therefrom, including the validity or correctness of the summary judgment as to liability entered herein against said defendants on July 16, 1962."

After considering the pleadings, the summary judgment as to liability, the stipulation of the parties, the briefs submitted by counsel relative to the allowance of statutory interest, and the arguments of counsel, Judge Joseph J. Drucker entered a judgment order on May 20, 1963, in which the court found that the plaintiffs were entitled to recover damages from the four respective defendants in the amounts previously set forth, "together with and including interest against each at the rate of 5% per annum from the date of the filing of the answer of the defendants in this cause, July 25, 1959, to the date hereof." The court further found that the plaintiffs were not entitled to attorney's fees.

We believe the determinative question here presented is whether there is a "triable issue of fact." In a summary judgment proceeding, the right of the moving party should be free from doubt. If, upon an examination of the pleadings, depositions, and affidavits, it can be fairly said that a material dispute exists as to the facts, a motion for summary judgment should be denied. On the other hand, where the record shows there is no triable issue of fact, a summary judgment will be granted. Tuohey v. Yellow Cab Co., 33 Ill. App.2d 180, 183, 180 N.E.2d 691 (1962).

We are concerned with the following policy provisions:

"CONDITIONS SUSPENDING OR RESTRICTING INSURANCE.

"Unless otherwise provided in writing added hereto this Company shall not be ...


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