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Defoor v. Northbrook Excess & Surp. Ins.

OPINION FILED NOVEMBER 21, 1984.

MARTIN L. DE FOOR, PLAINTIFF-APPELLEE,

v.

NORTHBROOK EXCESS & SURPLUS INSURANCE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Brian B. Duff, Judge, presiding.

PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, property vendee, pursuant to a sales agreement that required him to insure the subject property for the benefit of the vendors, purchased a fire insurance policy from defendant insurer, listing as named insureds himself and the vendors. The policy contained an "Other Insurance" clause, limiting defendant's liability to a pro rata share in the event the named insured procured other insurance. Unbeknownst to plaintiff, the property vendors purchased insurance on the subject property from two other insurance companies, whereon plaintiff was not a named insured.

Following a fire, plaintiff and the property vendors filed a claim under the policy issued by defendant. The property vendors also made claim under their other policies. Defendant, claiming that the separate policies held by the property vendors constituted "Other Insurance" as to plaintiff, made only a prorated payment of loss, collectively, to the three named insureds.

Plaintiff brought an action to recover the difference between the entire agreed-on building damage and the prorated payment, claiming that the other policies held by the vendors did not constitute "Other Insurance" as to him.

The trial court granted plaintiff's motion for summary judgment, and defendant appeals.

We affirm the decision of the trial court.

BACKGROUND

Plaintiff, Martin L. DeFoor, contracted with Ladislav and Beverly Vyskocil to purchase a building. The purchase agreement required plaintiff to insure the subject premises for the benefit of the vendors. Accordingly, plaintiff purchased a fire insurance policy from defendant, Northbrook Excess & Surplus Insurance Company (Northbrook), listing as named insureds himself and the Vyskocils. The Northbrook policy contained an "Other Insurance" provision, limiting Northbrook's liability to a pro rata share in the event other insurance was written "in the name of the insured."

Without plaintiff's knowledge or consent, the Vyskocils purchased two separate policies on the subject property, one from St. Paul Surplus Lines Insurance, and the other from underwriters at Lloyds. These policies listed only the Vyskocils as named insureds.

Subsequently, a fire broke out on the subject property, resulting in loss and damage in the amount of $48,608. Plaintiff and the Vyskocils both made claims under the Northbrook policy. The Vyskocils also made claim under their two separate policies of insurance. Defendant, claiming that the two separate policies held by the Vyskocils constituted "other insurance" as to plaintiff, as well as to the Vyskocils, refused to pay plaintiff the full amount of the fire loss. Asserting that all three named insureds were entitled only to a prorated portion of the entire loss due to the triggering of the "Other Insurance" clause, Northbrook paid plaintiff and Vyskocils, collectively, the proportionate sum of $28,481.25.

Plaintiff brought an action against Northbrook for breach of the insurance contract, praying for $20,126.75, the difference between the full amount of the building loss and damage and the proportionate payment made by Northbrook. Plaintiff moved for summary judgment on the grounds that the other policies held by the Vyskocils did not constitute "Other Insurance" as to him as contemplated by the clause in his policy. The trial court granted plaintiff's motion and directed Northbrook to pay plaintiff the prayed for amount. It is from this order granting summary judgment that Northbrook now appeals.

OPINION

• 1 On appeal, it is our task to determine if the trial court's grant of summary judgment was proper. Summary judgment is properly granted when the pleadings, depositions, and admissions, on file, together with any affidavits, establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Lesnik v. Estate of Lesnik (1980), 82 Ill. App.3d 1102, 403 N.E.2d 683.) This reviewing court must therefore decide whether the trial court correctly found that no genuine issue of material fact has been raised, and if none was raised, that the plaintiff was entitled to judgment in his favor as a matter of law. Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App.3d 17, 414 N.E.2d 865.

• 2, 3 We need not concern ourselves here with the first level of inquiry in determining the propriety of the trial court's grant of summary judgment, for the facts of the instant case are undisputed. There is clearly no genuine issue as to any material fact. The only issue before us is legal in nature, namely, whether the two policies of insurance held by the Vyskocils as property vendors constitute "Other Insurance" as to plaintiff, the property vendee, pursuant to the provision in the Northbrook policy. In order to find that the trial court was correct in granting plaintiff's motion for summary judgment, ...


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