APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 14, 1977.
This appeal is from the judgment of the circuit court of Tazewell County rendered on the verdict in favor of plaintiff, Seid Couri, d/b/a Koliseum, against defendants, Home Insurance Company, Cincinnati Insurance Company and Heritage Fire Insurance Company of America and from the directed verdict in favor of third-party defendant, Ron Pacione Insurance Agency, against third-party plaintiff, Home Insurance Company.
Plaintiff brought this action to recover benefits under three policies of insurance covering damage by windstorm. Home Insurance Company filed a third-party action against its insurance agent, Ron Pacione.
Some time on the morning of June 21, 1974, the Koliseum Nightclub sustained damage when a tree and other debris struck the building. Plaintiff was the named insured on the three policies of property damage insurance issued by the three defendants which were sold to plaintiff at various times by the Ron Pacione Insurance Agency. The three companies refused to pay the loss and defended on the basis that plaintiff had not shown a direct loss caused by windstorm. In addition, two of the defendants, Home Insurance Company and Cincinnati Insurance Company, each asserted the affirmative defense that their policies had been effectively cancelled by notices of cancellation mailed prior to the loss. Defendant Home Insurance Company brought a third-party action against Pacione on the ground Pacione had, without authority, continued to bill plaintiff for the second- and third-year policy premiums after being advised by Home Insurance Company the policy had been cancelled in the first year.
The face values of the policies issued by the defendants were: Home Insurance Company, $20,000; Cincinnati Insurance Company, $25,000; and Heritage Fire Insurance Company of America, $50,000. The jury was instructed that the sum of the three policies as initially issued was $95,000 and was asked to determine the actual cash value of plaintiff's building and the costs of repairs to the structure. The jury found the actual cash value to be $155,000, the costs of repairs $80,000, and due to an 80 percent co-insurance clause, entered a verdict of $61,000.
The first issue in this cause is whether there was sufficient evidence to allow the jury to conclude the damage to plaintiff's building was a direct loss caused by windstorm. The complaint alleges plaintiff's building suffered damage when a tree fell against it during a windstorm. There was no eyewitness testimony regarding the occurrence of the damage or how the tree came to rest against the building. Evidence relating to the size of the tree ranged from a minimum estimate that the tree trunk was 8 to 10 inches in diameter to a maximum estimate of 24 to 36 inches. The length of the tree was placed between 20 and 23 feet and the weight estimated to be about 1 ton. The building in question was located on a large flat surface adjacent to a drainage ditch about 15 feet wide and from 4 to 10 feet deep which surrounded the base of a cliff. The distance between the base and the building was about 40 feet. The basic factual dispute is whether there was a wind of sufficient strength and force to project the tree against the building. Defendants' main argument is that the wind did not reach such strength or force and that plaintiff must rely on circumstantial evidence to establish both the windstorm and that the damage incurred was caused by the windstorm.
The evidence shows the tree was found virtually upside down with its roots sticking above the 12-foot-high roof of plaintiff's building with large clumps of dirt on its roots. It was found about 40 feet from the base of the cliff from which plaintiff contends the tree came. An argument was apparently made by defendant that the damage could have been caused by a mudslide. However, if the tree had come from the cliff it would have had to go through the 15-foot-wide drainage ditch which surrounded the base of the cliff. There was testimony the ditch was about 4 to 10 feet in depth and surrounded by a mound of dirt about 4 feet high from the top of the ditch. There is evidence the drainage ditch was not found filled with mud after the loss occurred. Furthermore, there was testimony from persons who observed the site immediately after the loss that there were no indications of a mudslide at the site.
The main testimony regarding the presence of a windstorm at or about the time of the loss was plaintiff's testimony he experienced high winds at the time he left the building at about 4:45 a.m. on the morning of the occurrence and the testimony of a meteorological technician with the National Weather Service Office at the Greater Peoria Airport, which is about 7 or 8 miles from plaintiff's building. This technician testified the highest wind speed recorded on June 21, 1974, was a gust measuring 28 miles per hour at 2:30 a.m. The next highest wind gust recorded on that date at the airport was 26 miles per hour at 10:21 a.m. He testified a 28-mile-per-hour wind would probably cause some distraction in driving and might be enough to break small limbs from trees.
• 1 Defendant cites Friedman v. Employers' Fire Insurance Co., 336 Ill. App. 140, 83 N.E.2d 40, for the proposition that in order to establish damage as a direct loss caused by windstorm, there must be evidence both that wind of sufficient velocity and force to do the damage alleged prevailed in the vicinity of the damaged property during the time the damage is alleged to have occurred, and that the wind caused the damage alleged. The Friedman rule is a correct statement of the law, but the case itself is factually distinguishable in that the skylight alleged to have been damaged in the Friedman case was already in disrepair and was located on the roof of a 2-story building surrounded by several 5- to 10-story buildings which conceivably could have insulated the building from winds of the type in evidence in the case. There the evidence showed a maximum sustained 5-minute wind of 24 miles per hour and a maximum gust of 31 miles per hour recorded 8 miles from the location of the damage. There as here, there was no testimony concerning wind speed in the immediate vicinity of the damaged building.
• 2 According to Danielson v. St. Paul Fire & Marine Insurance Co., 256 Minn. 283, 98 N.W.2d 72 (1959), and Jay Bee Warehouse Co. v. American Eagle Fire Insurance Co., 270 F.2d 883 (7th Cir. 1959), a trier of fact is not limited to the consideration of the wind speed at the precise time of the loss. In these two cases damage was caused on comparatively calm days. However, on prior days there was evidence of considerable winds. In the instant case there is no specific evidence of a windstorm at the precise time of the damage, however, there is evidence of 63-mile-per-hour winds on the day preceding and 56-mile-per-hour winds on the day following. We believe, in light of evidence of high winds at the general time of the damage in question, of some high winds on the days immediately preceding and following and the absence of a reasonable explanation for a tree being completely uprooted, the jury could have reasonably concluded the damage in question was caused by a windstorm.
• 3 The second issue is whether the court committed error in permitting plaintiff's counsel's statements during closing argument regarding the replacement costs of plaintiff's building. Defendants argue plaintiff's counsel's statement during closing argument to the effect that the replacement cost of the building was $165,000 on the day of the loss was a misrepresentation in that it did not take into consideration the manner in which the interior of the building was finished at the time of the loss. Part of the dispute in this case is related to the replacement and actual cash value of the building. The three policies of insurance contained co-insurance provisions which necessitate the determination of the actual cash value of the building to compute the total amount of insurance coverage the plaintiff was obligated to maintain to avoid becoming a co-insurer on the property. Accordingly, in this instance the insured would prefer the actual cash value to be lower and the insurers would prefer the figure to be higher.
An examination of the record reveals plaintiff's witness did testify as to a $165,000 replacement cost for plaintiff's building. Defendants' witnesses testified as to a much higher replacement cost for the building. The jury chose to use neither plaintiff's lower figure nor defendants' higher figures. Since there was in fact some evidentiary basis in the record for plaintiff's counsel's statement during closing argument, and in light of the manner in which counsel presented that portion of his argument, we hold no error was committed.
Since no issue is raised by defendant Heritage Fire Insurance Company of America regarding any alleged cancellation of its policy, the resolution of the above two issues is dispositive as ...