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01/20/95 LEE SHER v. DEANE H. TANK

January 20, 1995


Appeal from the Circuit Court of Cook County. The Honorable Edward J. Finnegan Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

The plaintiff, Lee Sher, appeals from a jury verdict in favor of the defendant, Deane H. Tank, Inc. (Tank). She maintains that trial errors occurred that require a new trial; she does not contend that the verdict was against the manifest weight of the evidence.

The plaintiff, individually, and as administrator of the estate of her daughter, Darcy Sher, filed a complaint for breach of contract against Travelers Insurance Company (Travelers) and Tank. She alleged that she had engaged Tank as a broker to obtain insurance for her with Travelers; the insurance was to cover certain items of jewelry owned by the plaintiff and her daughter. She alleged in the two-count complaint that Tank, acting as the agent of Travelers, forged the plaintiff's signature to an application for insurance which omitted a "clear history that the Plaintiff had verbally advised the Defendant"; failed to properly schedule jewelry with Travelers after Tank specifically had been given the schedule by the plaintiff; and failed to advise Travelers that the plaintiff had had "two small jewelry losses three years prior to the placement of the insurance after having been so advised by the Plaintiff." Count I sought compensatory damages in the sum of $117,900. Count II sought $250,000 in punitive damages and further alleged that Tank had "willfully and wantonly informed the plaintiff that full insurance had been obtained when the same was not true."

Tank filed affirmative defenses including an allegation that the plaintiff had "misrepresented [her] prior loss history on [the] application of insurance, [her] statements under oath and in [her] sworn Proof of Loss." Shortly before the trial was to begin, Travelers settled with the plaintiff for $35,000.

The plaintiff testified that she spoke on the telephone to David Tank, the son of the owner of the defendant agency in November 1988. She told him that she was anxious to have her jewelry and the jewelry of her daughter insured because she had had a very recent jewelry loss due to a "robbery" in 1988. She also told him about some items stolen from her car in 1987. These were losses in excess of $40,000. She also told him about a claim for a curtain loss that she had made to Allstate Insurance Company, which had occurred less than a year before the 1988 jewelry loss. She received $1,000 from Allstate. She also told Tank that previously she had been insured by Fireman's Fund Insurance Company and that she had received a notice from Fireman's Fund that they were not going to renew her coverage. Tank never told her that her prior losses would bar her from getting coverage with Travelers. She never signed any written documents for Tank or his agency; and she never authorized Tank to sign any documents on her behalf, including the application for insurance.

She originally submitted an appraisal from Hoffman's Jewelry for the three pieces of jewelry that she wanted to insure with Travelers. These pieces had originally been purchased by her husband from Hoffman's. She felt that the $50,000 appraisal for the ring was too high; and she took it to Milada, a different jeweler, who appraised the ring at $38,500. She spoke to David Tank after she submitted the additional Milada appraisal. He indicated that she was insured on all three items. She paid the premium that was submitted to her. All three items were stolen on March 10, 1989, from her Lincolnwood home. The stolen jewelry included pieces she had replaced from an earlier burglary in 1988. None of the jewelry stolen in 1988 was ever recovered. She immediately contacted the Tank agency about the loss. She was questioned by Travelers attorneys; and she did not attempt to conceal any prior claims from losses she sustained.

On cross-examination, the plaintiff testified that she did not recall any burglary jewelry loss claim made to Farmer's Insurance Company in 1982 or 1983. She testified that she had made a claim for jewelry loss against Underwriters Insurance Company for loss of a ring in 1983 and that she made a claim with Fireman's Fund for jewelry loss in 1984. She also testified that she had made a claim for a jewelry loss on a previous occasion when she had insurance with Travelers.

During her cross-examination she was also asked if she had been asked the following questions and made the following answers in sworn statements to representatives of Travelers:

"Q: Is it correct that other than the Fireman's Insurance claim that you had in 1988, that's the only other burglary or theft claim that you have had; is that correct?

A: To my knowledge, yes.

Q: Would it be fair to say that other than the loss you had with Fireman's Fund Insurance Company in 1988, you nor your husband have been involved in any other burglaries or ...

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