APPEAL from the Circuit Court of La Salle County; the Hon.
LEONARD HOFFMAN, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal by plaintiff, Ralph Koehler, from a judgment entered by the Circuit Court of La Salle County on a directed verdict in favor of defendant, Wolverine Insurance Company. Plaintiff brought this action to recover damages for alleged fraudulent misrepresentation by reason of concealing certain medical insurance coverage from plaintiff. At the conclusion of plaintiff's case at a jury trial, the trial court granted defendant's motion for a directed verdict. On this appeal plaintiff argues that the trial court erred in entering a directed verdict for defendant.
From the record, it is noted that on February 8, 1973, plaintiff fell on a sidewalk in front of the American Legion Post in Mendota, Illinois, and suffered injuries necessitating his hospitalization. Subsequently plaintiff brought an action in the Circuit Court of La Salle County (case No. 73-6-733L) seeking to recover damages from the American Legion Post and the city of Mendota for the injuries sustained in his fall. Defendant Wolverine had written an insurance policy on the American Legion Post building in Mendota. In September 1974 plaintiff's suit against the American Legion Post and the city of Mendota was settled for the total sum of $3,000, and a release of all claims was executed. (Payment of $2,500 was made to plaintiff by a settlement draft of Transamerica Insurance Group, defendant's parent company.)
Prior to December 23, 1974, plaintiff brought this cause against defendant Wolverine, praying for judgment against defendant in the sum of $500 actual damages and $50,000 exemplary damages, as a result of defendant's alleged concealment of $500 medical payments coverage in connection with the settlement in case No. 73-6-733L. After the filing by defendant of a motion to dismiss, which motion was denied by the trial court, a jury trial commenced on June 1, 1976. Plaintiff's case at trial consisted of testimony from four witnesses.
William Marmion, the first witness called by plaintiff, was an agent of defendant who had written an insurance policy on the Mendota American Legion Post building. Marmion testified that the insurance policy was in effect on the date of plaintiff's accident, and that the policy contained a medical pay provision. Marmion apparently visited plaintiff at the hospital on February 8, 1973, but there was no conversation as to coverage by insurance of the Mendota Legion Post. Marmion testified that on February 9, 1973, he completed an accident report detailing plaintiff's accident, specifying that plaintiff's accident occurred on the Mendota American Legion premises, and forwarded the report to defendant's claims office. Marmion testified that he did not recall speaking with plaintiff by telephone regarding the coverage under the American Legion Post insurance policy.
Plaintiff testified as to his accident and subsequent hospitalization. Plaintiff also indicated that during his hospitalization an adjuster from defendant visited him and took a statement detailing the accident. Plaintiff testified that while he was confined at the hospital he had a telephone conversation with Marmion, wherein he said:
"Well, I asked him [Marmion] if he had any insurance on where I fell and he said no. That was the extent of the conversation."
According to plaintiff, only after the settlement of case No. 73-6-733L did plaintiff learn that there was a $500 medical pay provision included in the American Legion Post insurance policy. Plaintiff said he would not have settled that suit had he known of the medical pay provision of the policy.
Plaintiff next called Robert H. Oaks, an agent of defendant and an insurance adjuster for Transamerica Insurance Group. Oaks testified to visiting plaintiff at the hospital and preparing a report of plaintiff's accident. While Oaks was admittedly aware of the medical pay provision of the insurance policy, he testified that at no time was he asked or did he inform plaintiff or plaintiff's attorneys of the medical pay coverage.
The final witness called by plaintiff was Charles A. Kelly, claims manager for the defendant who became responsible for plaintiff's claim when the lawsuit was filed. Kelly testified that, while he was aware of the coverage included in the insurance policy on the American Legion Post, he was not asked and did not inform plaintiff personally of the provisions of the policy. Kelly testified that the settlement draft delivered to plaintiff apportioned the settlement as $2,000 to "BI" coverage and $500 to "MP" coverage, and that "BI" indicated bodily injury coverage and "MP" indicated medical payments coverage.
The trial court took judicial notice of the court file in the prior case. The complaint in that cause stated two counts, one against the city of Mendota and one against the American Legion Post. In its answer to the complaint, the American Legion Post denied that plaintiff's accident occurred on property belonging to the American Legion Post. Written interrogatories served upon the American Legion Post by plaintiff in that action inquired as to the existence of liability insurance, but did not inquire as to the existence of medical payments coverage. While plaintiff did file a motion to produce documents in that action, such motion did not request production of any insurance policy in effect on the American Legion Post property.
• 1, 2 At the close of plaintiff's case, defendant moved for a directed verdict. The trial court granted defendant's motion, and directed the jury to return a verdict for defendant. On appeal plaintiff argues that it was error for the trial court to direct verdict in favor of defendant. This court recently held, in Roedl v. Lane (3d Dist. 1976), 41 Ill. App.3d 1062, 1065-66, 355 N.E.2d 354:
"The test for determining whether a directed verdict is proper is whether all the evidence, viewed most favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) In making this determination, the trial court may not substitute its judgment for that of the jury as to the credibility of witnesses nor may the court determine the preponderance of the evidence. (Prange v. Wallenburg (1st Dist. 1975), 27 Ill. App.3d 618, 327 N.E.2d 450.) Thus, where the evidence discloses a substantial factual question * * *, or where the assessment of the credibility of the witnesses may be decisive, the court may not direct a verdict. (Liberio v. Patton (1st Dist. 1973), 9 Ill. App.3d 955, 293 N.E.2d 415.) However, a directed verdict is proper where there is some evidence supporting the non-movant which loses its significance when viewed in the context of all the evidence. (See Belleville National Savings Bank v. General Motors Corp. (5th Dist. 1974), 20 Ill. App.3d 707, 313 N.E.2d 631.) In People v. Rosochacki (1969), 41 Ill.2d 483, 490, 244 N.E.2d 136, 140, our supreme court stated:
`Our Pedrick decision fully contemplates that trial courts> are to decide when weak evidence has so faded in the strong light of all the proof that only ...