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Moore v. Farmers Insurance Exchange

OPINION FILED DECEMBER 29, 1982.

JOHN W. MOORE, PLAINTIFF-APPELLANT,

v.

FARMERS INSURANCE EXCHANGE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County; the Hon. John Leifheit, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Plaintiff, John W. Moore, appeals from a judgment entered on a jury verdict in favor of defendant Farmers Insurance Exchange. The case was tried on count I of plaintiff's third amended complaint alleging defendant's wrongful failure to pay a claim for fire damage to his house and contents under a homeowner's policy issued to plaintiff by defendant. Defendant raised the affirmative defenses of plaintiff's misconduct in causing the fire and plaintiff's false swearing as to the cause of the fire and the amount of the loss. The jury returned a verdict for defendant and answered two special interrogatories supporting each of these affirmative defenses. Count II alleging wilful, wanton and vexatious refusal to pay and count III seeking attorney fees, costs and statutory damages under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 767) were reserved for judgment by the court pending judgment on count I. After trial, the court granted summary judgment for defendant on counts II and III.

Plaintiff raises the following issues on appeal: (1) the jury verdict was against the manifest weight of the evidence due to inadequate circumstantial evidence connecting plaintiff to the fire's origin; (2) the court erred in admitting evidence of the presence of accelerants in plaintiff's home four days after the fire without proof that the premises were in the same condition at the time of the fire as when the evidence of accelerants were found; (3) defendant failed to prove the affirmative defense of plaintiff's false swearing; (4) the court erred in limiting plaintiff's offer to prove he was eligible for unemployment compensation; (5) the court allowed improper impeachment of plaintiff's witness Robert Carter; (6) the court erred in allowing defendant's investigator to give an opinion as to the most direct route between two locations in the city of Aurora; (7) defendant's motion for summary judgment on counts II and III should have been denied; and (8) this court should reverse the trial court on the evidence and enter judgment for plaintiff.

Plaintiff testified in his case-in-chief that his home suffered extensive damage from a fire occurring at approximately 2 a.m. on January 3, 1980. At the time of the fire, plaintiff stated he was insured against fire loss by defendant. Plaintiff testified that defendant did not pay the claim he filed under this policy.

On January 16, 1980, plaintiff filed a sworn proof of loss form with defendant estimating his personal property loss at $18,000 and damage to the premises at $25,000. A list of the personal property that plaintiff claimed he lost in the fire, which noted the value of each item, was attached to the proof of loss.

John Braun, a building contractor, also testified for plaintiff. He testified that he had submitted a $21,559 estimate for the repair of plaintiff's home to defendant.

Defendant, then, presented its case. Assistant fire chief Gene Plott testified for defendant that the fire department received a call regarding the fire at plaintiff's house at 1:17 a.m. on January 3, 1980. He arrived at the scene within three minutes of the call. Plott observed no signs of forced entry, and it was necessary for the fire fighters to force open the front and back doors because they were locked. Plott stated that fire was coming out of the windows on the south side of the house and glass may have been out of the windows on that side. Fire fighters kicked out the rest of the windows to get hoses in.

After extinguishing the blaze, Plott investigated the scene but was unable to determine the cause of the fire. He testified that plaintiff's dog was not found in the garage. Plott testified that plaintiff arrived about 2:40 a.m. and spoke with him. He noticed that plaintiff "seemed very, very calm," but admitted that some fire victims react in a calm manner.

A number of defense witnesses testified to plaintiff's financial status. John Heffernan of General Finance Co. testified that plaintiff obtained a $2,412 loan on December 17, 1976, which matured December 17, 1979, with $1,175.28 owing on that date. Plaintiff did not pay this balance. Paul Anderson of the Old Second National Bank testified that plaintiff refinanced an auto loan with the bank on June 11, 1979, for $6,458.34. At the time of the fire, plaintiff was 2 1/2 payments behind on his $153.77 monthly payments. Plaintiff had a business checking account at the bank with a $3.50 balance and a savings account with a $22.37 balance on December 24, 1979.

Other defense witnesses testified that plaintiff was two quarterly payments behind on his water bill with $56.09 outstanding and that he had been delinquent in paying his electric bill since August 1, 1979. Commonwealth Edison had received two partial payments since then, but plaintiff was still $201.70 in arrears. Several of plaintiff's creditors testified that his being in arrears and paying irregularly were not unusual for him.

Plaintiff testified under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60) examination that he locked the doors and left his house "possibly" between 9:30 and 11 p.m. on January 2, 1980. He stated that his dog was in the garage at the time of his departure. He went from his home to either the Capricorn Lounge or Hugh Farrell's house. At some point in the evening he did go to Farrell's, though he was unsure of the time he arrived. Plaintiff testified that he went from Farrell's to Robert Carter's house at approximately 12:30 or 1 a.m. on January 3, 1980. He indicated that he stayed at Carter's approximately 1 1/2 to two hours. Plaintiff stated that at that time he and Carter went out for cigarettes. He testified that they first drove to the Village Gas Station at Loucks and New York Streets, which was closed. They then went across the street to the Capricorn Lounge, which was also closed. Next, they drove to the 7-Eleven store at Claim and Ohio Streets. He learned of the fire while at the 7-Eleven.

When asked by defense counsel whether he crossed Ohio Street on his route from the Capricorn Lounge to the 7-Eleven plaintiff responded "yes." However, he changed his testimony immediately stating that he did not cross Ohio Street because, if he had, he could have seen his house on the way. Plaintiff said the route he took was Kendall Street to Claim Street.

The evidence showed that from the time plaintiff left his home until the time he learned of the fire he was never more than a few minutes drive away from his house.

After learning of the fire, plaintiff went to his house and looked through it. He testified that nothing was missing at that time, though he did not check the closets.

Plaintiff testified that he had attempted to sell his house in 1978 and that a "For Sale" sign was in the window of his home at the time of the fire. Plaintiff testified his house was not for sale at the time of the fire and that he had never attempted to rent the house nor did he have a "For Rent" sign in the window.

He testified that he opened his business, Johnny's Beauty Box, in March or April 1979. At that time he had no other employment but "believed" he was receiving sick pay from his former employer. The sales tax returns for plaintiff's business showed no sales between May and September 1979. October sales were shown as $1,365. The October return also indicated plaintiff was ceasing business operations. Plaintiff denied investing $7,700 in this business and was impeached by his prior deposition, which indicated the investment of this sum.

Defense witness Emily Flores, a neighbor of plaintiff, testified that a "For Sale" and a "For Rent" sign were side by side in plaintiff's front porch window on the date of the fire.

Robert Jaske, a claims representative for defendant, testified that he learned of the fire on January 4, 1980. He went to the scene on that date and noticed "trailers" (burn patterns) "in the dining room extending into the living ...


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