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Wernowsky v. Economy Fire & Cas. Co.





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Adams County, the Hon. Dennis K. Cashman, Judge, presiding.


The plaintiffs, Charles Wernowsky and Barbara Wernowsky, brought this action to recover the proceeds of a homeowner's insurance policy issued by the defendant, Economy Fire & Casualty Company, Inc., and for penalties for the defendant's refusal to settle their claim. The claim arose from a fire at the plaintiffs' home. Following a bench trial in the circuit court of Adams County, the court held that the defendant was not liable for the loss. The court found that Charles Wernowsky had set the fire, either by himself or with the aid of another, and that Barbara Wernowsky had taken part in the ensuing attempt to defraud the defendant. Accordingly, the trial judge entered judgment for the defendant on its affirmative defense that the plaintiffs had submitted a fraudulent proof of loss. The appellate court reversed that judgment, concluding that a new trial was necessary because evidence of the plaintiffs' other recoveries for fire losses had been admitted without a sufficient foundation. (122 Ill. App.3d 891.) We allowed the defendant's petition for leave to appeal (94 Ill.2d R. 315(a)) and now affirm the decision of the appellate court.

The fire in question here occurred on January 1, 1982, in Quincy; firefighters arrived at the plaintiffs' house shortly before 9 a.m. that day. They found no one on the premises. Two arson investigators testified in the defendant's behalf at trial, and both of them believed that the fire was incendiary in origin. One of the investigators, a firefighter who had responded to the call, estimated that the house had been burning for 15 or 20 minutes before his arrival.

At trial the plaintiffs vigorously contested the evidence that the fire was incendiary in origin, though they did not present in their own behalf any expert testimony regarding the cause of the fire. Additionally, they denied having any part, either intentional or accidental, in causing the fire at their home. Charles Wernowsky testified that at the time of the fire he was at a friend's house in Quincy, that his wife, Barbara, was in Rock Island, and that their two children were in St. Louis. Wernowsky spent the night preceding the fire drinking at several taverns. He and a friend, John Knowles, left the last tavern at about 5 or 5:30 a.m. on January 1 and went to Knowles's house, where Wernowsky fell asleep and later learned that his house was burning. This was corroborated by Knowles, who testified that he received a telephone call at about 9 or 9:30 a.m. reporting the fire at the Wernowskys' house.

According to Wernowsky, he and his wife paid $31,500 for the house in 1978, remodeled it extensively, and at the time of the fire were trying to sell it for $59,500; it was insured for $45,000. Mr. Wernowsky testified that his net pay at that time was $800 a week. He also testified about crimes that had been committed against his property over a period of several years, to suggest that the fire, if it was incendiary, might have been set by an enemy or vandal.

Defense counsel was permitted, over objection, to question Mr. Wernowsky about other fire losses that he had incurred. This testimony revealed that three other buildings owned in whole or in part by the plaintiffs had burned, and all three of those losses had resulted in insurance recoveries. The first fire occurred in 1977 at the plaintiffs' home in Quincy. The plaintiffs paid $15,000 for the property, lived there for seven months, and recovered from their insurer $25,000 for the destruction of the house and $12,000 for the destruction of its contents. The second fire occurred in 1979 in Marblehead, Illinois, in a building that was being operated as a children's game room. The Wernowskys were co-owners of the property with John Knowles and his wife. The purchase price was $1,500, the period of ownership preceding the fire was four or five months, and the amount recovered was $4,500. The third fire also occurred in 1979, at a summer house in the Quincy area that the Wernowskys owned together with the Knowleses. There, the purchase price was $15,000, the period of ownership preceding the fire was eight or nine months, and the amount recovered was $30,000. Mr. Wernowsky explained that in none of those instances did the insurer dispute the validity of the claim.

The trial judge regarded the other fire losses and insurance recoveries as relevant evidence of the plaintiffs' motive here, and in ruling for the defendant he expressly relied on that proof.

The appellate court ordered a new trial, agreeing with the plaintiffs that the evidence of the other insured fire losses was inadmissible without some showing of the wrongful or fraudulent nature of those claims.

The defendant argues at the outset that the plaintiffs invited the error that they now complain of by objecting at trial to evidence of the suspicious circumstances surrounding one of the fires. From our review of the record, however, we conclude that the plaintiffs' objection was to the entire line of evidence, not just to the details of the fire. The plaintiffs were not adopting the view that the evidence of other recoveries would be admissible without an appropriate foundation.

Evidence of crimes, wrongs, or acts other than the one at issue may be admissible if offered for some purpose other than as proof merely of a person's disposition to behave in a certain way. (People v. Bartall (1983), 98 Ill.2d 294; Joseph Taylor Coal Co. v. Dawes (1906), 220 Ill. 145; see Fed. R. Evid. 404(b).) The purpose here of the evidence of the other fire losses and insurance recoveries, the defendant maintains, was as proof of motive. In admitting the evidence the trial judge said that it was "for the limited purpose of showing motive." Later, in explaining his ruling, he said:

"The Court obviously did not want to — nor is it proper in my opinion — consider all of the circumstances surrounding these claims. Thus to do so would be, in essence, to place the Plaintiffs in this case on trial for claims that have already been honored and paid by insurance companies.

The Court cannot consider nor do I in my admission of that evidence suggest that I will allow that evidence to be considered by me for purposes of suggesting that those other fires were incendiary in nature or were arson or were intentionally set by the Plaintiffs, only that there would be a motive to permit or allow fires such as those to exist and come into being so that money could be obtained as a result.

The obvious probative value is to then show that there would be a motive to allow something of that nature to occur ...

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