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02/02/88 Paul K. Mcginnis Ex Rel. C v. Earl Lashelle

February 2, 1988

PAUL K. MCGINNIS EX REL. C.I.E. SERVICE CORPORATION, SUBROGEE, PLAINTIFF-APPELLANT

v.

EARL LASHELLE, JR., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

519 N.E.2d 699, 166 Ill. App. 3d 131, 116 Ill. Dec. 631 1988.IL.117

Appeal from the Circuit Court of Carroll County; the Hon. John W. Rapp, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The plaintiff, Paul McGinnis, appeals from an order of the trial court dismissing his amended complaint which, on behalf of the plaintiff's insurance company, C.I.E. Service Corporation , sought subrogation for fire loss from the defendants, Earl LaShelle, Jr., and Ann LaShelle. On appeal, the plaintiff contends that the trial court erred in dismissing his complaint because (1) the defendants were liable for damages to the leased premises resulting from their own negligence; and (2) the defendants were liable for damages to the leased premises resulting from their breach of a contractual obligation to purchase fire insurance, and the fire loss was caused by the defendants' negligence.

On May 1, 1985, the plaintiff and defendants entered into a one-year lease agreement for the Scenic Ridge Supper Club (supper club) located in Thomson, Illinois. The lease agreement stated in toto :

"This agreement made this day, May 1, 1985 between Paul K. McGinnis and Earl LaShelle Jr. and Ann LaShelle of Savanna, Illinois, to lease the Scenic Ridge Supper Club for one(1) year from this date, May 1, 1985 to May 1, 1986.

They must pay for license, taxes, and insurance when they are due. They must also pay for upkeep of property.

The purchaser of the lease agrees that they will not commit waste on the above premises and that they will keep and maintain the premises in the same condition of repair as it exists at present time and maintain the equipment and fixtures in the same condition as it exists at the present time."

At the time the lease was executed, the plaintiff had obtained an insurance policy for the supper club through C.I.E. On January 2, 1986, a fire destroyed the supper club. Pursuant to its policy, C.I.E. paid the plaintiff $64,000 for damages resulting from the fire.

On May 23, 1986, the plaintiff filed a subrogation complaint which alleged that the defendants' negligent act of thawing pipes with a kerosene heater caused the fire at the supper club. After his complaint was dismissed, the plaintiff was granted leave to file a two-count amended complaint.

Count I alleged that, under the lease agreement, the defendants were obligated to purchase fire insurance to insure the protection of the supper club and that the defendants failed to do so. Count I further alleged that it was the defendants' obligation and duty to maintain the supper club in a manner which would not have endangered the premises and that the defendants would return the supper club in the same condition in which it was leased except for ordinary wear and tear. Count I then stated that, notwithstanding these duties, the defendants negligently caused the fire which destroyed the supper club, and as a direct and proximate result of the defendants' negligence, the plaintiff suffered $64,000 in damages.

Count II of the plaintiff's amended complaint alleged that the plaintiff assigned his interest in any claim against the defendants to C.I.E. Count II then essentially realleges the ...


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