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Wernowsky v. Economy Fire & Cas. Co.





Appeal from the Circuit Court of Adams County; the Hon. Dennis K. Cashman, Judge, presiding.


Rehearing denied April 19, 1984.

Fire loss.

Quaere: Is evidence of prior fire losses admissible?

Yes — but only if a foundation suggesting wrongful conduct is first produced.

We reverse and remand.

The Wernowskys filed suit seeking proceeds under a policy of insurance issued by Economy Fire & Casualty Company for a fire loss to their residence and also for attorney fees and statutory penalties for Economy's vexatious refusal to settle pursuant to section 155 of the Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767). Economy denied liability on the grounds that plaintiffs had falsely alleged in their proof of loss claim — required under the policy — that the fire did not originate by "any act, design or procurement on the part of" the Wernowskys, and that the Wernowskys attempted to deceive Economy as to the extent of the loss.

For purposes of trial, the parties stipulated to a bifurcated hearing, proceeding to trial first on the question of liability. Following a bench trial the court entered a judgment in favor of defendant on the issue of liability. The court ruled that Economy had shown by a preponderance of the evidence that the fire was intentionally set by or on behalf of Charles Wernowsky and that Barbara Wernowsky participated in a fraud against Economy.

On appeal, plaintiffs maintain (1) the trial court erred in admitting evidence of previous fire loss claims by the plaintiffs to show motive; (2) the trial court erred in taking the issue of the admissibility of the previous fire loss claims under advisement rather than ruling before trial; (3) the trial court's ruling which denied recovery by Barbara Wernowsky was against the manifest weight of the evidence; and (4) the trial judge should have recused himself from this case due to conflict.

Charles Wernowsky testified that, in the early morning hours of January 1, 1982, he was called at the home of a friend and was told his house was on fire. He further testified that his wife and children were out of town, and he had spent the previous evening drinking with friends. He stated that he and his friend, Johnny Knowles, had left the last tavern between 5 and 5:30 a.m., and Wernowsky decided to stay at Knowles' house rather than go home. Knowles corroborated Wernowsky's version of the events and stated that he never lost sight of Wernowsky from 5 a.m. until Wernowsky received the call that his house was on fire.

As part of the procedure in applying for insurance proceeds, Barbara Wernowsky, who was divorced from Charles at the time of the trial, gave a statement concerning the loss. In that statement, she said that several months prior to the fire, she had left her purse in the front seat of their unlocked pickup truck, and someone ransacked her purse and took only her keys. She did not report the theft to the police or change any of the locks on the house, and the truck was not stolen. She repeated this version at trial.

The trial court denied recovery as to Barbara Wernowsky on the ground that she participated in an attempt to defraud Economy after the fire. The court found her testimony was not reliable and was an attempt to insulate Charles Wernowsky from liability. The trial court noted that her testimony was to imply that a third person had access to the home and could have set the fire. However, no evidence was offered that anything was taken or disturbed in the house, and the fire was found to be set in such a fashion as to make the fire appear to be natural in origin.

Fire and arson investigators testified that, in their expert opinions, the fire was incendiary in origin and was intentionally started, by use of an accelerant, by a person or persons unknown. In addition, both testified that, based on the intensity of the fire and examination of the burn patterns, the fire had multiple points of origin.

Prior to trial, plaintiffs filed a motion in limine that testimony regarding the Wernowskys' three previous fire losses within four years of the loss herein be precluded as evidence in this case. The court took the issue under advisement and ruled after ...

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