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Dobosz v. State Farm Fire & Cas. Co.

OPINION FILED DECEMBER 29, 1983.

GLEN T. DOBOSZ ET AL., PLAINTIFFS-APPELLANTS,

v.

STATE FARM FIRE & CASUALTY COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Glen T. Dobosz and Suzanne L. Dobosz (Dobosz) purchased a home and obtained a Homeowners Insurance "`All-Risk' Special Policy" from the State Farm Fire & Casualty Company (State Farm), purportedly in reliance on a brochure. Subsequently, water leaked through the basement walls of the home causing damage in the amount of $1,409.66. State Farm refused to pay, relying on an exclusion in the policy. Following a bench trial in a small claims action judgment was entered for State Farm. Dobosz appeals.

The coverage was purchased in July of 1980 and renewed for another year in July 1981. In April 1982 water leaked through the walls of plaintiffs' basement and sump pump pit, causing the sump pump to stop and allowing water to accumulate in the basement. The ensuing damage was repaired at the cost of $1,409.66. When Dobosz presented a claim under the homeowners insurance policy State Farm denied coverage, asserting that the policy excluded that type of water damage. The trial court entered judgment for State Farm, finding that, despite the representations in the brochure, the policy excluded the type of damages claimed.

When Dobosz contacted State Farm agent Paul Buchholz to inquire about obtaining homeowners' insurance, Buchholz sent Dobosz a copy of State Farm's brochure, indicating that it described the various types of coverage available. Buchholz recommended the "All-Risk" policy, said it was the "Cadillac of the line," told Dobosz that it would take a long time to explain the policy itself, and indicated that the brochure would show what the policy covered. Dobosz received the brochure, examined it, and instructed Buchholz to issue the insurance. Dobosz testified that he relied on the brochure to indicate the risks against which the home would be insured.

The brochure contains a series of captioned pictures, depicting three types of coverage: the "Basic policy," the "Broad policy," and the "`All-Risk' Special policy." Under the heading for the insurance form Dobosz chose, reading, "The `All-Risk' Special policy adds these coverages for your home plus many others not specifically excluded," 10 pictures appear. One, captioned "Water damage," depicts an open window through which rain is falling and below which a puddle has formed. No water-related risks are pictured under the Basic policy with the possible exception of a depiction labeled "Windstorm, Hail." However, the section describing the Broad policy indicates that it covers damage resulting from "Freezing of plumbing systems," "Tearing or bulging of water heating appliances," "Weight of ice and snow," and "Water escape from plumbing, heating, air conditioning or appliances."

The brochure in small black print at the bottom states:

This brochure contains only a general description of coverages and is not a statement of contract. All coverages are subject to the exclusions and conditions in the policy itself.

Dobosz did not read the policy itself until after the damage occurred and testified that he had not received the policy previously. Buchholz testified that he sent the policy to Dobosz, along with a transmittal sheet, which indicated that the policy was enclosed. Dobosz admitted that he received the transmittal sheet, but denied that he received the policy; however, he never called Buchholz to request a copy of the policy, claiming that he did not think insurance companies typically sent the policies to insureds. The trial court did not determine whether the policy was actually sent to Dobosz.

The standard policy which was placed in evidence, as relevant here, excludes loss from

"Water Damage, meaning:

a. flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;

b. water which backs up through sewers or drains, or

c. natural water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure. * * *"

The issue is whether an advertising brochure, containing a pictorial representation captioned "Water damage," distributed by an insurance company through its agent, constitutes part of the insurance contract and ...


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