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05/17/96 J.R. COUCH v. STATE FARM INSURANCE COMPANY

May 17, 1996

J.R. COUCH, PLAINTIFF-APPELLANT/CROSS-APPELLEE,
v.
STATE FARM INSURANCE COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE/CROSS-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. No. 92-L-87. Honorable Cynthia M. Raccuglia, Judge Presiding.

Rehearing Denied June 25, 1996. Released for Publication June 25, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice. Justice McCUSKEY delivered the opinion of the court: Breslin, P. J., and Holdridge, J., concur.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

The plaintiff, J. R. Couch, filed a complaint against the defendant, State Farm Insurance Company (State Farm). Following trial, the jury awarded him $35,000 for losses sustained in a fire at his home. The plaintiff appeals from post-judgment orders entered by the trial court. The plaintiff argues the trial court: (1) abused its discretion when it denied the plaintiff's request for prejudgment interest; (2) erred in allowing State Farm credit for payments it made prior to the judgment; and (3) should have granted his post-trial request for additur. Following our careful review of the record, we affirm.

FACTS

On July 12, 1990, the plaintiff's house was destroyed by fire. The plaintiff had a homeowner's insurance policy with State Farm. On July 14, 1992, the plaintiff filed an amended complaint against State Farm, alleging that State Farm refused to pay his claim for damage to his house and personal property. He sought damages in excess of $98,115, roughly the policy limits. State Farm filed an answer and affirmative defenses, claiming the plaintiff intentionally caused the fire.

A jury trial began on December 12, 1994. We note that the transcript of most of the trial testimony is not included in the record. However, the record does include a partial transcript of the testimony of one witness, Donald Revell, a State Farm employee. Revell testified that State Farm made some payments to the plaintiff following the fire. Revell stated that State Farm paid $3,500 toward personal property losses and also paid $4,246.67 to release the plaintiff's mortgage on the home. Revell testified that State Farm was seeking a credit for these payments against any damages awarded.

The record also shows that a warranty deed was admitted into evidence. The deed indicates the plaintiff's house was purchased on October 28, 1985, for $21,620.96. The plaintiff's proof of loss submitted to State Farm was also admitted into evidence. The plaintiff claimed an actual loss of $200,300 for the house and $70,370 for the contents.

During the jury instruction conference, plaintiff's attorney, Kenneth A. Kozel, requested an instruction which said the purchase price of the house could be considered only on the issue of liability and not on the issue of damages. State Farm's attorney, John A. Beyer, objected to the instruction. Beyer argued that the plaintiff failed to present any other evidence concerning the actual cash value of the house. According to Beyer, the only evidence the plaintiff presented was testimony that it would cost $200,000 to replace the house. The trial court agreed with Beyer and rejected the instruction.

Beyer then submitted a proposed verdict form. This form included the following lines for the jury to use in assessing damages:

"Dwelling $

Less credit for payment to mortgagee $

Net dwelling damage $

Personal property ...


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