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11/23/88 Joe & Dan International v. United States Fidelity &

November 23, 1988

JOE & DAN INTERNATIONAL CORPORATION, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

UNITED STATES FIDELITY & GUARANTY COMPANY ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES (MICHAELS-PETERSON INSURANCE SERVICE, INC., ET



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

al., Defendants-Appellees and

Cross-Appellees)

533 N.E.2d 912, 178 Ill. App. 3d 741, 127 Ill. Dec. 830 1988.IL.1692

Appeal from the Circuit Court of Cook County; the Hon. Warren D. Wolfson, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

These consolidated appeals arise from the lawsuit of plaintiff, Joe & Dan International Corp., against defendants, United States Fidelity & Guaranty Company , Mid-National Insurance Service, Inc., and its president, David Pomper (hereinafter collectively Pomper), Michaels-Peterson Insurance Service, Inc., and its president, Sam Schacter (hereinafter collectively Schacter). After a jury trial in the circuit court of Cook County, the court entered judgment on the verdicts returned for plaintiff against USF&G and Pomper and for Schacter against plaintiff.

Plaintiff's amended complaint for declaratory judgment contained four counts pleaded in the alternative Count I, against USF&G, alleged the following: that on December 26, 1984, Sam Schacter, plaintiff's insurance broker, requested of USF&G, through its agent David Pomper, that it reissue a previously cancelled "all risks" policy on a "named perils" basis only, excluding coverage for burglary, to cover plaintiff's retail clothing business. On that date, David Pomper, as USF&G's agent, advised Sam Schacter that plaintiff was "bound," i.e., covered by insurance. On January 24, 1985, a fire occurred on plaintiff's business premises which totally destroyed its business property. After plaintiff, through Schacter, notified USF&G, through Pomper, of the fire, Pomper advised Schacter that plaintiff was covered by insurance. Thereafter, Pomper denied that plaintiff had been "bound" and informed Schacter that USF&G would not cover plaintiff's fire loss. Plaintiff relied on Pomper's advice to Schacter that it was covered by insurance and did not seek insurance coverage elsewhere. At no time prior to the fire did USF&G or Pomper advise plaintiff or Schacter that USF&G would not cover plaintiff on a "named perils" basis only, excluding burglary. On the basis of the foregoing, plaintiff claims USF & G is bound by the acts of its agents to cover plaintiff's fire loss.

Count II, against Pomper, alleged that, from the time plaintiff first obtained business insurance from USF&G through Pomper, the latter had, inter alia, warranted to plaintiff and Schacter that he had the authority to act as USF&G's agent and, specifically, to bind USF&G to cover plaintiff on a "named perils" basis only, excluding burglary. Plaintiff, relying on Pomper's warranty of authority, believed it was covered on a "named perils" basis by USF&G. Pomper did not have the authority warranted and is therefore liable for plaintiff's fire loss due to the breach of warranty.

Count III was stricken before trial. Count IV of the complaint alleged that Schacter, as plaintiff's insurance broker, owed plaintiff a duty to obtain insurance coverage, which he undertook after cancellation on December 14, 1984, of plaintiff's "all risks" coverage by USF&G, or to advise plaintiff promptly if no coverage was available. Schacter breached that duty by negligently failing to obtain coverage and to advise plaintiff thereof. Schacter's failure to obtain insurance coverage on a "named perils" basis only, excluding burglary, proximately caused plaintiff's damages from the fire loss.

Each defendant filed counterclaims for contribution against the other defendants. USF&G alleged that Pomper had no authority after December 14, 1984, to bind insurance with USF&G as insurer and plaintiff as insured. It further alleged that any liability to plaintiff would be solely the result of Pomper's breach of duty and unauthorized representations to Schacter. Pomper alleged that, on or about December 26, 1984, he requested that USF&G issue a "rewrite" of plaintiff's previously cancelled "all risks" policy on a "named perils" basis, including fire protection. He further alleged that USF&G negligently failed: (1) to process the request for a "rewrite" promptly; (2) to promptly notify Pomper of the status of the request; and (3) to notify plaintiff that Pomper had limited authority to bind coverage for USF&G. Lastly, Pomper alleged that Schacter breached his duty to obtain insurance coverage for plaintiff, failed to advise plaintiff thereof, failed to ascertain the extent of Mid-National's authority to bind coverage for USF&G on rewritten policies and failed to monitor the status of the request for coverage.

USF&G now appeals the trial court's denial of its motions for directed verdict, a judgment notwithstanding the verdict (judgment n.o.v.) or a new trial. Pomper appeals the trial court's denial of his motions for judgment n.o.v. or a new trial, the dismissal of his counterclaim against USF&G, the directed verdict for USF&G on its counterclaim against him and the denial of a directed verdict on, and the dismissal of, his counterclaim against Schacter. Plaintiff cross-appeals the denial of prejudgment interest and prays, in the event relief is granted to any defendant, for a new trial as to all defendants, including Schacter.

We have considered the arguments of USF&G and Pomper regarding the denial of directed verdicts and judgments notwithstanding the verdicts in plaintiff's case against them. However, those arguments do not convince us that the standard established for such relief in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, is satisfied here. We therefore affirm the denial of that relief by the trial court.

USF&G and Pomper make various arguments respecting the denial of their motions for new trial. We believe that Pomper's assertion that the verdicts rendered against him and USF&G in plaintiff's favor were legally inconsistent is ...


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