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Cummings Foods v. Great Central Insurance

OPINION FILED AUGUST 5, 1982.

CUMMINGS FOODS, INC., D/B/A CUMMINGS IGA FOODLINER, PLAINTIFF-APPELLANT,

v.

GREAT CENTRAL INSURANCE COMPANY, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff sued to recover damages against defendants arising out of the theft of approximately $22,000 from plaintiff's grocery store in Brighton, Illinois. It appeals the order of the trial court which dismissed all counts of plaintiff's second amended complaint for failure to state a cause of action.

In count I of plaintiff's second amended complaint, recovery was sought against defendant, Great Central, under the terms of a comprehensive insurance agreement which provided coverage for robbery as defined in the policy. Count II, which was also directed against Great Central, sought recovery of punitive damages and attorney's fees "under the statute" for defendant's alleged wilful, wanton, and malicious denial of coverage. Count III of plaintiff's complaint sought damages against defendant, Glenn-Wohlberg & Co., for its alleged breach of a duty to place the insurance with a "reliable insurer" and, like count II, count IV sought recovery of punitive damages and attorney's fees for Glenn-Wohlberg's alleged wilful, wanton, and malicious denial of plaintiff's claim. Count V requested damages from Wetterau Foods for its breach of duty to "provide a reliable insurance agent" and count VI contained a request as in count IV for punitive damages and attorney's fees.

Disputed paragraph three, which is the only definition of robbery claimed to be applicable by plaintiff, defined robbery as:

"[T]he taking of insured property * * * by any other overt felonious act committed in his [a custodian's] presence and of which he was actually cognizant, provided such other act is not committed by an officer, partner, or employee of the insured."

In count I it is alleged that on May 12, 1980, Jim Cummings had the sum of $22,000 ready to be deposited in the bank when six women entered the store whom he suspected would be shoplifters. It was alleged that Cummings left the money in the store office with the door open, and proceeded to the counter to sack groceries to prevent suspected shoplifting. One of the women led Cummings down the store aisles engaging him in conversation, while yet another went to the checkout counter. It is alleged that Cummings became suspicious of the women's actions and turned toward the door to see the balance of the women run out to three automobiles parked near the front of the store. The complaint further alleged that Cummings observed that the women had taken the money, and immediately called the Brighton police department informing the dispatcher that a robbery had occurred. A police report incorporated by reference in the complaint indicates that the women had occupied the employees in the store with questions over store products, but that no witness saw the women in or near the office, or with the money. No allegation is made by plaintiff that these suspects were convicted of the alleged offense, or found with the money.

The first issue we address on appeal is plaintiff's contention that defendant Great Central's failure to challenge coverage under the robbery clause of the agreement in its motion to dismiss requires that we treat such defense as waived.

The complaint makes no specific allegation which stated what portion of the insurance agreement afforded coverage for the claimed loss. Defendant's motion not only alleged generally that the count failed to state a cause of action, but also suggested that plaintiff had failed to set forth the policy provision at issue. In defendant's legal memorandum, which accompanied the motion, defendant mentioned several possible bases under the policy which plaintiff conceivably could have claimed coverage under, including the robbery provision.

• 1 While we agree with plaintiff's suggestion that issues and grounds not raised in a motion to dismiss are not preserved for review (Berry v. G.D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550), we conclude that plaintiff was apprised of defendant's challenge in the memorandum and by the general reference in the motion that plaintiff had not alleged that coverage was provided for in any provision, implicitly including the robbery clause. We find sufficient specification in defendant's motion to comply with section 2-615's requirement that the motion specify the defects complained of (Ill. Rev. Stat. 1981, ch. 110, par. 2-615(a)), and reject plaintiff's argument that defendant has waived any challenge to plaintiff's claim of coverage under the robbery portion of the insurance agreement.

Plaintiff next argues that the facts as pleaded in count I established that an overt felony took place while the custodian, Jim Cummings, was present and actually cognizant thereof within the meaning of the policy language. Plaintiff additionally suggests that the insurance clause is ambiguous, and because of this the policy should be construed against the maker, Great Central.

The standard for ruling on a motion to dismiss is well established. On appeal from a ruling on a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615), all well-pleaded facts and reasonable inferences therefrom stand admitted and the complaint should be dismissed only if no set of facts, as pleaded by plaintiff, could state a cause of action. (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill.2d 379, 432 N.E.2d 849.) For reasons given below, we believe the trial court properly dismissed counts I through VI of plaintiff's second amended complaint.

The policy language at issue has been interpreted by Illinois courts>. Grimes v. Maryland Casualty Co. (1939), 300 Ill. App. 62, 20 N.E.2d 982; Sinda v. Home Indemnity Co. (1955), 4 Ill. App.2d 546, 124 N.E.2d 557.

In Grimes, suit was brought against an insurer under a policy of robbery insurance which defined robbery in the same language as that at bar, with the exception that the custodian there was required to be "`actually cognizant at the time of the felony.'" (300 Ill. App. 62, 64.) In Grimes, the insured's employee had been directed to a railroad freight terminal to pick up a shipment of candy and tobacco. The employee parked the delivery truck, walked into the freight terminal, and raised the freight terminal door when he observed the delivery truck being driven away from the loading area.

The trial court directed a verdict for the defendant and on appeal, the case was decided on the question of whether the custodian was present when the overt felony occurred. Finding the contract unambiguous, the court applied holdings from cases which considered whether a will was attested in the testator's presence to the requirement of the custodian's presence. The court construed the word "presence" to require unobstructed physical presence at the place of the overt felony and sustained a directed verdict for the defendant since there was a brick wall, or closed door, between the custodian and the goods at the time the overt felony was commenced. (300 Ill. App. 62, 65-66, 20 N.E.2d 982, 983-84.) The court ...


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