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Kolivera v. Hartford Fire Ins. Co.

OCTOBER 31, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. JACOB N. BRAUDE, Judge, presiding.


This action was brought to recover on insurance policies for loss resulting from a fire occurring on October 22, 1963, and another on October 29, 1963. At the close of all the evidence the trial court directed a verdict for the defendants on the ground that plaintiffs had not established that the premises were occupied during a 60-day period prior to the fires, as required by the provisions of the policies. The facts follow.

George Kolivera owned a two-story light manufacturing building at 4248-50 West Roosevelt Road, in Chicago, with 6250 square feet of open space on each floor. Prior to March 20, 1963, the entire building was rented, with the exception of two small areas on the first floor which plaintiff Kolivera reserved for his own office, and an adjacent space which, according to his testimony, was used for a paint sundries enterprise. After March 20, 1963, the tenants had all vacated and the building was unoccupied except for the space used by Kolivera and a small area which a restaurant owner rented for storage of equipment. The building was practically destroyed by two fires — one on October 22 and one on October 29, 1963.

Kolivera carried nine fire insurance policies on the building. Hartford Fire Insurance Company, Citizens Insurance Company, and Centennial Insurance Company issued new policies within 60 days of the October 22 fire. Home Insurance Company and American Surety Company renewed existing policies within that period. The remaining defendants carried coverage which had been issued prior to the 60 days preceding the first fire. The coverage was for light mercantile purposes, and each policy contained the following provision suspending insurance coverage:

"(a) while the hazard is increased by any means within the control or knowledge of the insured; or

(b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days. * * *."

Kolivera's main occupation was the management of buildings. He also handled the purchasing assemblage and sale of three types of paint roller components under the name of Coast to Coast Metal Products. The mailing address of the company was 5611 West Chicago Avenue, where Kolivera maintained an office, and where all of the records and equipment pertaining to the paint company were kept. Kolivera testified that the Roosevelt Road building was used for assembling and packaging the roller components, and that he spent two to four days a week there, on which occasions he employed a helper.

Harriet Lakis, whom Kolivera later married, testified that she worked as a part-time secretary at the Chicago Avenue office, but that Kolivera took a typewriter from there once or twice a week to the Roosevelt Road building where she typed shipping labels for the paint roller components. Robert King, a real estate broker, testified that he had visited the building and found Kolivera and his helper working there.

It was admitted that the building had no telephone service and that it was being offered for immediate sale. Kolivera testified that the building had water and electricity, but the defendants introduced copies of electric bills which indicated that no electricity was used in the building from March 20, 1963, to the date of the first fire. Kolivera also testified at a pre-trial deposition that the building was without heat, but at the trial he testified under questioning that there was heat in the building.

Two insurance adjusters who had inspected the premises soon after the fires testified that a thick layer of dust, not attributable to the fires, was found on the floors; that the toilet facilities appeared to have been unused for a long time; and that no evidence of the alleged paint sundries operation was found on the premises. Kolivera introduced his roller component sales receipts into evidence, and these, in addition to his testimony, show that the enterprise had a gross income of less than $200 from March 20, 1963, to the date of the first fire. In the period within 60 days of the first fire, gross receipts amounted to only $30.02.

A summary judgment was entered for plaintiffs as to the three defendants who had issued new policies within 60 days of the first fire. Plaintiffs' motion for summary judgment did not include the two defendants who had merely renewed policies within this period. On appeal the plaintiffs argue:

"(1) The trial court erred in directing a verdict for the defendants on the question of lack of occupancy of the building within 60 days of the fire as required by the policies, in light of the evidence adduced at trial.

(2) Assuming the premises were vacant or unoccupied at the time of the fire, the policies either issued or renewed within 60 days of the fire require that the 60-day period be measured from the date of issuance or renewal."

• 1-4 The issue before us is whether the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based upon that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494.) In an insurance contract, what is meant by the term "occupancy" is a question of law, but whether a building was occupied within the meaning of that term is a question of fact. (Schuermann v. Dwelling House Insurance Co. (1896), 161 Ill. 437; Home Insurance Co. v. Mendenhall (1897), 164 Ill. 458.) Occupancy must be defined in relation to the purposes for which the property is designed and insured, and what constitutes such for one type of structure will not necessarily be the same for one of a different type. (American Insurance Co. v. Foster (1879), 92 Ill. 334; Western Assurance Co. v. Mason (1879), 5 ...

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