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01/08/87 J. Roth Builders, Inc., v. Aetna Life and Casualty

January 8, 1987





503 N.E.2d 782, 151 Ill. App. 3d 572, 104 Ill. Dec. 920 1987.IL.7

Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.


JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JOHNSON, J., concur.


Plaintiff brought an action against Larry Behmer, alleging that Behmer, on September 20, 1979, had caused a fire which totally destroyed a residence in Lisle, Illinois, which was built and owned by plaintiff. Judgment was entered on a jury verdict in favor of plaintiff and against Behmer in the amount of $103,000. Plaintiff then brought this garnishment action against Aetna Life and Casualty Company (Aetna), which had issued a liability policy to Behmer. Aetna moved for summary judgment because of a clause in its policy which excluded coverage for expected or intended occurrences and the jury had found that Behmer wilfully caused the damage. Summary judgment was entered in favor of Aetna. Plaintiff now appeals, contending that factual questions existed concerning whether Behmer had the mental capacity to form the intent to injure, or to have an expectation of injury, making summary judgment inappropriate.

Aetna's motion for summary judgment states that the jury in Roth v. Behmer was given instructions on wilful and wanton conduct and found plaintiff had met its burden of proof showing Behmer wilfully and wantonly set fire to plaintiff's premises.

In its response, plaintiff admitted that the jury had determined that Behmer was guilty of wilful and wanton conduct but pointed out that the jury did not make any findings as to the mental state of Behmer at the time of the fire. Furthermore, plaintiff claimed there was no evidence at the trial of Behmer's mental state, which was not an issue. Rather, plaintiff maintained, Behmer did not have the mental capacity necessary to form the intent to injure plaintiff's property and the exclusion did not apply. Plaintiff attached the affidavit of Dr. Bennett Braun, which stated as follows:

"1. I am Bennett G. Braun and I am in the private practice of psychiatry as Director of Associated Mental Health Services in Chicago, Illinois. The resume attached hereto as Exhibit "A" is a partial curriculum vitae and is correct and accurate.

2. I have examined Larry Behmer on August 5, 1982.

3. I am of the opinion that at the time of the fire of September 20, 1979, which the jury found to have been set by Larry Behmer, Mr. Behmer lacked the mental capacity necessary to form an intent to injure and to conform his behavior to the mandates of the law."

Aetna filed a motion to strike the Braun affidavit because: Braun examined Behmer approximately three years after the fire; Braun had no personal knowledge of Behmer at the time of the fire and consequently Braun did not allege facts of which he had personal knowledge as required by Supreme Court Rule 191 (87 Ill. 2d R. 191); Braun failed to put forth with any particularity the facts upon which he relied; Braun alleged no facts admissible in evidence to which he could testify and, in fact, admitted his incompetency in his affidavit; and paragraph 3 was an opinion without a factual basis and a Conclusion contrary to Rule 191. Furthermore, Braun's discovery deposition, according to Aetna, established that he lacked sufficient knowledge since Braun stated he had conducted a one-hour interview on August 5, 1982, stated that he was "not geared" to doing a full in-depth psychiatric evaluation and was unable to express an opinion on whether Behmer had changed. Braun also indicated that he could make no evaluation if Behmer had set the fire and Behmer never told Dr. Braun he set the fire.

As part of its motion to strike, Aetna also contended Dr. Peter Broido, who treated Behmer for his burns, was in a better position to evaluate his intent. At his deposition, Broido had testified Behmer told him "a very strange story" as to how he sustained his burns and stated that he thought Behmer "knew exactly what he was saying and doing at all times."

On June 27, 1985, the trial court entered summary judgment for Aetna. On July 26, 1985, plaintiff filed a petition for reconsideration stating that the court had expressed concern at the lack of detail in the original affidavit of Dr. Braun and seeking leave to file another affidavit containing substantial detail as to his specific findings. Plaintiff stated that Dr. Braun was now of the opinion that Behmer, at the time he set the fire, a fact already proved, was suffering from a specific psychological disease or condition known as "intermittent explosive disorder." Based on this condition, plaintiff maintained a factual question existed whether Behmer was capable of forming an intent or expectation that his conduct would cause the property damage in this case. Plaintiff, relying on Aetna Casualty & Surety Co. v. Dichtl (1979), 78 Ill. App. 3d 970, 398 N.E.2d 582, maintained that, if ...

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