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09/19/89 Donald E. Lohrenz, v. Country Mutual Insurance

September 19, 1989

DONALD E. LOHRENZ, PLAINTIFF-APPELLANT

v.

COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE (GARTH BAECKER, DEFENDANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

545 N.E.2d 761, 189 Ill. App. 3d 810, 137 Ill. Dec. 108 1989.IL.1436

Appeal from the Circuit Court of Tazewell County; the Hon. Bruce W. Black, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The plaintiff, Donald E. Lohrenz, brought suit against the defendant-appellee, Country Mutual Insurance Company, and its agent, defendant Garth Baecker, based on an insurance policy the plaintiff had with Country Mutual. He now appeals from summary judgment granted in favor of Country Mutual on counts III and IV of his amended complaint. We note that Baecker is not a party to this appeal, since the dismissal of counts III and IV did not affect the plaintiff's suit against him.

The record shows that the plaintiff purchased a 1984 Chevrolet and asked Baecker to add it to his policy. During the conversation, Baecker asked the plaintiff whether he was familiar with the insurance option known as "Keeper Coverage." The plaintiff responded that he had seen Keeper Coverage advertised on television.

Sometime later, the plaintiff went to Baecker's office to complain about his premiums. Baecker again brought up the availability of the Keeper Coverage option. The plaintiff stated in his deposition that Baecker told him that if for any reason his car was "wrecked" and repairing it would cost more than a new car, he would get a new car. The plaintiff decided to add this coverage to his policy. We note a discrepancy in the record as to when this coverage was purchased. Baecker stated in his deposition that his records showed that the Keeper Coverage was added to the plaintiff's policy on April 17, 1984. The plaintiff believed the coverage was added to his policy between April and August of 1985.

On or about August 26, 1986, the plaintiff's car was destroyed by fire. The insurance adjuster determined that the car was totalled, estimated the plaintiff's loss was $6,500, and tendered that amount to him. The plaintiff stated in his deposition that he did not know that Keeper Coverage did not cover destruction by fire until he reported the loss to Baecker.

The plaintiff filed a complaint against Country Mutual and later in count V of his amended complaint added Baecker as a defendant. In count III of his amended complaint, he alleged that Country Mutual had

misrepresented in newspaper and television advertisements and in its newsletters the scope of coverage under the Keeper policy. In addition, the plaintiff alleged that Country Mutual through its agent, Garth Baecker, had purposely failed to inform him that Keeper Coverage did not cover losses by fire, theft, or larceny. The plaintiff alleged that the misrepresentations were made with the intent to deceive and defraud him and that he was fraudulently induced into purchasing Keeper Coverage.

Count IV alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.), based on the same set of facts alleged in count III. In both counts, the plaintiff asked for a total of $500,000 in actual and punitive damages.

Country Mutual filed a motion for summary judgment on counts III and IV. Following a hearing, the trial court granted Country Mutual's motion, finding that as a matter of common knowledge the terms "wrecked" and "accident" in the context of auto insurance connoted physical impact between the insured's vehicle and another vehicle or object. The court also found that Country Mutual had set forth evidence of a system designed to inform insureds of the contents of their policies, and that it was therefore incumbent upon the plaintiff to produce affirmative proof of an intent to deceive. Pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), the trial court found no reason to delay an appeal from its ruling, and the plaintiff brought the instant appeal.

A motion for summary judgment should be granted "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c).) Although the plaintiff, as the party opposing summary judgment, is not required to prove his case at this stage, he must provide a factual basis under which he would be entitled to judgment, and he has an affirmative duty to ...


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