Appeal from the Circuit Court of Cook County. Honorable Aaron Jaffee, Judge Presiding.
Released for Publication June 25, 1997.
The Honorable Justice Gordon delivered the opinion of the court. Hourihane, J., concurring. Cousins, Jr., P.j., dissenting.
The opinion of the court was delivered by: Gordon
The Honorable Justice GORDON delivered the opinion of the court:
Vito DeFrancesco contracted to sell an apartment building located in Cicero, Illinois to defendant Nancy Stewart. After DeFrancesco delivered the deed to and possession of the premises to Stewart, but before Stewart paid him the full contract price, the building was destroyed by fire. Both Stewart and DeFrancesco submitted claims to their respective fire insurance carriers, and both collected insurance proceeds for the loss of the subject property. Plaintiff State Farm General Insurance Co. (State Farm General), DeFrancesco's insurer, brought this action against Stewart as a purported subrogee to DeFrancesco's right to payment from Stewart for the unpaid contract price on the apartment building. State Farm General sought to obtain the fire insurance proceeds which Stewart had received from her insurer, defendant Hartford Insurance Company of Illinois (Hartford), and to enjoin Hartford from paying Stewart those proceeds. State Farm General later removed Hartford as a defendant in its first amended complaint, upon learning that Hartford had already paid Stewart on her claim. State Farm General subsequently filed a motion for summary judgment against Stewart which the trial court granted. Stewart then filed a post-trial motion to vacate that order which the trial court denied. Stewart appeals from those orders.
The undisputed facts are as follows. On January 26, 1990, DeFrancesco agreed to sell Stewart an apartment building located at 5125 West Cermak Road, Cicero, Illinois. The contract between Stewart and DeFrancesco was entitled "Real Estate Sales Contract" in an emboldened typeface, and required Stewart to pay a $75,000 purchase price and additionally to assume the obligation to repay a $20,000 loan against the property to the lender, Billy Eaton. Stewart was also required to tender a $6,000 down payment to DeFrancesco, which she paid shortly after entering into the contract with DeFrancesco. The contract also contained a mortgage contingency provision and a date of closing provision, which provided in pertinent part as follows:
"4. This contract is subject to the condition that Purchaser will apply for [a] mtge within 3 months as of Feb 90 to pay off seller's balance ***. (Strike paragraph if inapplicable.) 5. The time of closing shall be January 26, 1990 prorated as of 2-1-90, or 20 days after notice that financing has been procured if paragraph 4 is operative *** at the office of [the] title company." (Emphasis in contract.)
The sales contract further provided that Stewart "agrees to pay or satisfy the balance of the purchase price *** at the time of closing ***." The contract also required DeFrancesco to deliver possession to Stewart "immediately *** after the sale has been closed." The contract also stated that DeFrancesco agrees "to convey or cause to be conveyed *** a recordable warranty deed, ***." Upon entering the contract, DeFrancesco turned over the trustee's deed (which he had received from Stewart in 1987, as discussed more fully below), the keys and the rent documents to Stewart; informed the tenants they should pay rent to Stewart; did not lease any further units; and did not enter the premises ever again.
Stewart subsequently applied to the Savings of America bank for a loan to be used to pay DeFrancesco the unpaid contract price for the apartment building. On May 11, 1990, the day of the fire, Stewart closed on an $80,000 loan from Savings of America obtained to pay DeFrancesco the $69,000 unpaid balance owing on the building under their contract. Stewart deposited the $80,000 into her personal bank account. Stewart stated that upon learning of the fire, her attorney advised her not to pay DeFrancesco the balance due on the contract "until we figured out what the insurance companies were going to do."
Both parties carried fire insurance policies on the property. Stewart was covered by Hartford, and DeFrancesco, by the plaintiff, State Farm General. DeFrancesco's State Farm General policy provided that
"In the event of any payment under this policy, the Company shall be subrogated to all the insured's rights of recovery against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights."
After the fire, State Farm General paid DeFrancesco $84,649.78 for his fire losses, an amount which represented the policy limits plus interest. Hartford paid Stewart $130,000, *fn1 for the fire damage sustained. Stewart then repaid the $80,000 loan, and used a portion of the $130,000 insurance proceeds to pay attorney fees incurred in defending against other lawsuits arising from the fire, the cost of boarding up and later demolishing the burned building, and the Billy Eaton loan. Although she repaid the Billy Eaton loan, Stewart did not pay the principal balance of $69,000 left owing on the contract to the seller, DeFrancesco.
In its second amended complaint, State Farm General claimed that, pursuant to its payment of insurance proceeds to DeFrancesco after the fire, it was subrogated to DeFrancesco's contractual right to collect the $69,000 unpaid purchase price for the property from Stewart, and that it could collect that amount out of the insurance proceeds which she had received from Hartford. In that regard, State Farm General alleged that Stewart and DeFrancesco had entered into a real estate contract on January 26, 1990 for the sale of an apartment building located in Cicero, Illinois for $75,000, and that Stewart paid a $6,000 down payment required under the contract. The complaint further alleged that the apartment building burned down on May 11, 1990, and that Stewart never paid DeFrancesco the unpaid portion of the purchase price, $69,000. State Farm General also claimed that it paid DeFrancesco $84,649.78 after the fire, that Stewart's insurance carrier indemnified her in an unspecified amount after the fire, and that as DeFrancesco's subrogee, State Farm General was entitled to $69,000 of Stewart's insurance proceeds. Attached to the second amended complaint as exhibits were a subrogation receipt, *fn2 which purports to subrogate Defrancesco's rights arising out of the May 11 fire to State Farm Fire and Casualty Insurance Company, another State Farm entity; and an explanatory affidavit of State Farm General Claim Superintendent Candace Armstrong regarding that subrogation receipt, both of which are discussed more fully below.
In her answer to the second amended complaint, Stewart alleged that State Farm General could not be subrogated to any rights that DeFrancesco may have had against her because she did not cause DeFrancesco's fire losses, and moreover that DeFrancesco had no insurable ownership interest in the property at the time of the fire because he had transferred those interests to Stewart when he contracted to sell her the subject property. Stewart further alleged that DeFrancesco's State Farm General fire loss policy did not insure him for losses arising from Stewart's failure to pay under the Stewart-DeFrancesco contract of sale, but only for his fire-related losses. Stewart also denied that State Farm General was DeFrancesco's subrogee insofar as the aforementioned subrogation receipt, attached as an exhibit to plaintiff's second amended complaint and discussed more fully below, designated State Farm Fire and Casualty Insurance Company as subrogee to DeFrancesco's rights arising out of the fire loss. Finally, Stewart denied that she held her Hartford insurance proceeds in trust for State Farm General, and stated that, in any event, she owed less than $69,000 to DeFrancesco on the building sale contract.
Attached to Stewart's answer to plaintiff's complaint was the affidavit of DeFrancesco. In that affidavit, DeFrancesco averred that Stewart originally conveyed the subject property to him in 1987 by means of a trustee's deed. DeFrancesco further stated that when he acquired the property from Stewart he assumed the duty to make payments to Billy Eaton between 1987 and 1989. He also stated that on January 26, 1990, he entered into a real estate sales contract with Stewart to transfer the property back to her, and received a $6,000 down payment from her pursuant to the contract. At that time, Stewart agreed to assume the Eaton loan repayments. DeFrancesco further averred that on January 26, 1990, he turned over the title, keys and rent documents to Stewart, informed the tenants they should pay rent to Stewart, did not lease any further units, and did not enter the premises ever again.
Stewart also separately filed an affirmative defense, wherein she alleged that title to the subject property was in a land trust at the time of the fire, and that the records of the Cook County Recorder of Deeds reflected that fact. She further stated that she notified State Farm General before the May 11 fire that she "held the equitable title to the premises" in question. Stewart also alleged that DeFrancesco therefore had no insurable interest in the subject property at the time of the fire, and that nevertheless, State Farm General carelessly and without any legal obligation to do so indemnified DeFrancesco for his loss arising from the fire. Finally, Stewart alleged that she had paid her own insurance premiums to Hartford, that State Farm General had not, and that therefore, State Farm General could not claim the benefits of her Hartford policy.
State Farm General subsequently filed its motion for summary judgment. In that motion, State Farm General argued that by paying DeFrancesco's fire insurance claim, it became subrogated to DeFrancesco's contractual rights against Stewart. In support of its motion for summary judgment, State Farm General re-submitted the aforementioned "subrogation receipt" together with the explanatory affidavit of State Farm General Claim Superintendent Candace Armstrong which were attached as exhibits to plaintiff's second amended complaint; excerpts of Stewart's deposition testimony; the DeFrancesco-Stewart contract of sale; and a Certificate of Insurance which reflects that Hartford insured Stewart on the subject property for $130,000. As discussed above, the subrogation receipt stated that DeFrancesco had subrogated all of his rights with respect to his May 11, 1990 fire loss to the State Farm entity indicated at the top of that receipt. In that regard, at the top of the receipt are listed several State Farm entities with boxes next to the name of each entity. The box next to plaintiff's name, State Farm General Insurance Co., is not checked. Instead, the adjacent box is checked, indicating that a different State Farm entity, "State Farm Fire and Casualty Ins. Co.," paid DeFrancesco for his fire-related loss and was therefore the subrogee of DeFrancesco's rights arising out of the fire.
The Armstrong affidavit specifies that plaintiff State Farm General, and not some other State Farm entity, had paid DeFrancesco for his May 11, 1990 fire loss and thereby had become his subrogee. The affidavit purports to explain that plaintiff State Farm General had inadvertently designated the wrong State Farm entity, State Farm Fire & Casualty Ins. Co., on the subrogation receipt as the entity which had paid DeFrancesco the fire insurance proceeds.
In her deposition, Stewart testified that she originally acquired the subject apartment building in 1981 in a land trust, where she held it together with certain other real estate. Stewart used the apartment building as collateral to secure a loan from the aforementioned lender, Billy Eaton. Stewart stated that in 1984, she contracted to sell the building to DeFrancesco, and in 1987, after DeFrancesco had paid her for that building, "deeded the property personally to Mr. DeFrancesco." In so doing, she directed the trustee to prepare a trustee's deed to the property for DeFrancesco, and then picked up that deed which she then gave to DeFrancesco in exchange for an agreed upon but unspecified cash payment and DeFrancesco's assumption of the Eaton loan repayment obligations. Stewart stated that in late 1989 and in early 1990 she and DeFrancesco discussed her repurchase of the property for $75,000 and her assumption of the Eaton loan repayment obligations. She stated that they entered into the aforementioned contract of sale on January 26, 1990 and that she paid DeFrancesco $6,000 as a down payment. She further testified that DeFrancesco returned the deed to her, but that her attorney advised her not to pay DeFrancesco the unpaid balance of $69,000 on the contract after the fire "until we figured out what the insurance companies were going to do." Stewart also testified that she received approximately $130,000 in insurance proceeds from Hartford for her losses arising from the May 11 fire. Stewart further stated that between 1981 and January 26, 1990, the date on which she contracted to purchase the apartment building from DeFrancesco, Stewart was the only individual to hold a beneficial interest in the land trust in which the apartment building had been held.
In response to State Farm General's motion for summary judgment, Stewart submitted the affidavit of an "expert witness," Richard Kieffer, who stated that if State Farm General had followed the generally accepted procedures employed in the insurance industry for the adjustment of insurance claims, it would have known not to pay DeFrancesco on his claim because it would have learned prior to making that payment that only Stewart, and not DeFrancesco, had an insurable interest in the subject property.
The trial court granted State Farm General's motion for summary judgment, and awarded State Farm General the amount of $69,000. Stewart filed a post-trial motion seeking vacatur of the trial court's summary judgment order, which was denied, and this appeal ensued. For the reasons which follow, we reverse.
On appeal, Stewart contends that the trial court erred in granting summary judgment in favor of State Farm General, because, she urges, State Farm General cannot be subrogated to DeFrancesco's contractual rights against her. In support, Stewart contends that because State Farm General's insurance payment to DeFrancesco was based on his fire losses and not upon his contractual losses arising from Stewart's nonpayment of the full contract price, Stewart's contractual debt to DeFrancesco was collateral to that indemnification payment. Accordingly, Stewart urges that State Farm General's subrogation to DeFrancesco's rights against Stewart would be unwarranted in the absence of an express assignment from DeFrancesco of his rights against Stewart.
In addition, Stewart contends that DeFrancesco had no insurable interest in the subject property at the time of the fire, and that therefore, State Farm General had no legal obligation to indemnify him for his purported fire losses. Thus, according to Stewart, State Farm General's payment to DeFrancesco was voluntary, thereby precluding any right to be subrogated to DeFrancesco's contractual rights against Stewart.
The right of subrogation may be grounded in equity and may also be founded upon an express or implied agreement. Bost v. Paulson's Enterprises, Inc., 36 Ill. App. 3d 135, 343 N.E.2d 168 (1976). Subrogation is defined as the substitution of one individual in the place of a claimant to whose rights he succeeds in relation to the debt or claim asserted which he has paid involuntarily. See generally Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 597 N.E.2d 622, 173 Ill. Dec. 648 (1992); Reich v. Tharp, 167 Ill. App. 3d 496, 521 N.E.2d 530, 118 Ill. Dec. 248 (1987); Continental Casualty Co. v. Polk Brothers, Inc., 120 Ill. App. 3d 395, 457 N.E.2d 1271, 75 Ill. Dec. 712 (1983); Restatement of Restitution § 162 (1937) (subrogation proper where property of one person is used in discharging an obligation owed by another). An insurer who indemnifies its insured for a loss may be subrogated to the rights of the insured against the party at fault under the equitable doctrine that the economic burden "should be shifted to the party responsible for the loss." In re Estate of Ito, 50 Ill. App. 3d 817, 823, 365 N.E.2d 1309, 1314, 8 Ill. Dec. 847 (1977). See also Central National Bank & Trust Co. v. Central Illinois Light Co., 65 Ill. App. 2d 287, 294, 212 N.E.2d 489, 493 (1965).
The prerequisites to subrogation are: (1) a third party must be primarily liable to the insured for the loss; (2) the insurer must be secondarily liable to the insured for loss under an insurance policy; and (3) the insurer must have paid the insured under that policy, thereby extinguishing the debt of the third party. See generally Dix Mutual Insurance Co., 149 Ill. 2d 314, 597 N.E.2d 622, 173 Ill. Dec. 648; Reich, 167 Ill. App. 3d 496, 521 N.E.2d 530, 118 Ill. Dec. 248; Polk Brothers, 120 Ill. App. 3d 395, 457 N.E.2d 1271, 75 Ill. Dec. 712; Restatement of Restitution § 162 (1937); Cecil G. King, Subrogation Under Contracts Insuring Property, 30 Tex. L. R. 62 (1952). However, when, as here, an insurer indemnifies its insured for property damage and then seeks to be subrogated to the insured's collateral contract rights against the third-party purchaser of that property not responsible for the loss, "the extent of the right to subrogation is *** difficult to determine *** and the fact that liability of the third party *** does not rest upon fault makes the relative equities of the insurer much less appealing". King, 30 Tex. L. R. at 71. See also Vance, Insurance § 134 (3rd ed. 1951); Note, Subrogation of the Insurer to Collateral Rights of the Insured, 28 Colum. L. Rev. 202 (1928).
There are three possible alternatives with respect to an insurer's claim of subrogation against the contract rights of an insured: first, a court may permit the insured to keep the proceeds of both the insurance indemnification and the contract price and deny subrogation; second, a court may give the insurer the benefit of the collateral obligation; or third, a court may give the third-party obligor the benefit of the insurance. See generally King, 30 Tex. L. R. at 71; Note, Subrogation of the Insurer to Collateral Rights of the Insured, 28 Colum. L. Rev. at 203. However, each alternative possesses its own deficiencies:
"To choose the first is to contravene the sound public policy which dictates that the insured should not be in a position to profit by a loss lest he be tempted to cause it, or be careless to prevent it; to choose the second is to give the insurer a windfall, for its premiums represented the fair equivalent of an obligation it contracted to incur without knowledge *** of the existence of collateral remedies or an abatement of rates in anticipation of such; to select the third is to violate the classical concept of the insurance contract as a personal one and, to some extent, the cherished privilege of the underwriter to select its obligor and determine its own moral risk." 28 Colum. L. Rev. at 204.
While there are no Illinois cases directly in point, the decisions among the various jurisdictions are divided as to the right of an insurer to be subrogated to an insured's collateral contract rights. See, on the one hand, Universal Title Insurance Co. v. United States, 942 F.2d 1311 (8th Cir. 1991); Alabama Farm Bureau Mutual Insurance Service v. Nixon, 268 Ala. 271, 105 So. 2d 643 (1958); Board of Trustees of First Congregational Church v. Cream City Mutual Insurance Co., 255 Minn. 347, 96 N.W.2d 690 (1959), which bolster Stewart's position that no subrogation should be permitted here. See, on the other hand, Twin City Fire Insurance Co. v. Walter B. Hannah, Inc., 444 S.W.2d 131 (Ky. 1969) which appears to articulate State Farm General's position that it may be subrogated to DeFrancesco's contractual rights against Stewart notwithstanding the fact that those rights are collateral and unrelated to State Farm General's indemnification payment to DeFrancesco. See generally Palmer, Law of Restitution, § 23.2 (1978).
Having reviewed these authorities, we favor the view that an insurer who indemnifies its insured for property damage may not be subrogated to the collateral contractual rights of the insured against a third-party purchaser of the subject property. The case of Board of Trustees of First Congregational Church v. Cream City Mutual Insurance Co., 255 Minn. 347, 96 N.W.2d 690 (1959), is in point. In Cream City, the plaintiffs, the trustees of a religious congregation, purchased several fire insurance policies from the defendant insurance company to cover their church property, and later entered into a contract to sell that property to the City of Austin, Minnesota. Prior to the buyer's payment of the full contract price and the church's transfer of legal title, a fire destroyed the property in question. Plaintiffs submitted claims for their losses pursuant to the insurance policies issued by defendant, and defendant refused payment. Plaintiffs then sued the defendant, who argued that the church should not be permitted to recover twice for the same loss by collecting both insurance proceeds and the unpaid balance on the contract of sale. In the event that they were forced to make payment under the policies, defendants sought to be subrogated to any rights which plaintiffs had against the buyer of the property.
In holding that defendant was required to make payment to plaintiffs under the policies and that defendant had no right to be subrogated to any rights which plaintiffs may have had against ...