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Mockmore v. Stone

OPINION FILED JUNE 2, 1986.

THOMAS MOCKMORE, PLAINTIFF-APPELLANT,

v.

RAY STONE D/B/A R.V. SERVICE CENTER & EQUIPMENT ET AL., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Rock Island County; the Hon. William O'Connor, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiff, Thomas Mockmore, appeals from an order of the circuit court of Rock Island County which granted with prejudice defendant's, State Farm Mutual Automobile Insurance Company's (insurer or State Farm), motion to dismiss count II of his fourth amended complaint. Suit was brought by Mockmore against State Farm for loss under a collision insurance policy and against State Farm and Ray Stone, d/b/a R.V. Service Center & Equipment (repairer or R.V. Service), for failure to properly repair a 1977 Ford Motor Home.

The facts, according to the pleadings, indicate on May 13, 1983, plaintiff was involved in an automobile accident which damaged his motor home. State Farm, plaintiff's insurer, was notified of the damage, and they told the plaintiff to take the motor home to R.V. Service in Moline for repair. In his complaint, plaintiff alleges R.V. Service repaired the motor home in a negligent manner in that after the repairs the motor home was further damaged when water entered the interior through an improperly repaired portion of the roof. State Farm has refused to pay the repair costs incurred by plaintiff as a result of the unworkmanlike repair of defendant R.V. Service.

To recover, plaintiff filed a series of complaints which were all dismissed for insufficiencies, after each dismissal leave to amend was granted and an amended pleading was filed by plaintiff. No exception or procedure seeking to adhere to the complaint was taken concerning the earlier dismissals and no earlier error by the trial court in dismissing earlier complaints has been presented to this court.

After filing his fourth amended complaint, State Farm moved for a dismissal with prejudice of the complaint and all causes against State Farm on the basis no set of facts could be proved under the pleadings which would entitle plaintiff to recover. The trial court allowed the motion and dismissed the action with prejudice against State Farm.

The plaintiff filed a motion to reconsider alleging count II of his fourth amended complaint sufficiently set out an action for breach of the insurance contract. The trial court denied the motion and made the necessary finding under Supreme Court Rule 304(a) (103 Ill.2d R. 304(a)) to permit plaintiff to take this appeal.

The question to be decided by this court is whether the plaintiff has alleged a loss coming within the policy coverage. After a careful review of the fourth amended complaint, and cases wherein the sufficiency of the complaint has been questioned (see, e.g., Winnett v. Winnett (1974), 57 Ill.2d 7, 310 N.E.2d 1; Burks v. Sky Climber, Inc. (1974), 57 Ill.2d 542, 316 N.E.2d 516), and keeping in mind the guidelines set forth in Doyle v. Shlensky (1983), 120 Ill. App.3d 807, 458 N.E.2d 1120, we find that the allegations of the fourth amended complaint constitute the substance of a good cause of action.

While neither party to this action has called to our attention, nor have we found any Illinois case that deals with the issue, we have found numerous cases from other jurisdictions wherein the liability of the insurer for failure to exercise reasonable care in making the repairs was recognized, notwithstanding that, in some of the cases, the work was done by an independent contractor.

The action here was brought on a contract of collision insurance. The policy provides for the limit of liability as follows:

"Limit of Liability-Comprehensive and Collision Coverages

The limit of our liability for loss to property or any part of it is the lower of:

1. the actual cash value; or

2. the cost of repair or ...


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