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Wallis v. Country Mutual Insurance Company

January 04, 2000


Appeal from the Circuit Court of Kendall County. No. 96--L--46 Honorable, Thomas E. Hogan, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

This case arises out of an insurer's refusal to pay a claim for water damage to an insured's house. Plaintiffs, Larry and Mae Wallis, brought a two-count complaint against defendant, Country Mutual Insurance Company, alleging breach of contract and vexatious refusal to pay a claim. Summary judgment was granted in favor of defendant. Plaintiffs timely appeal (see 155 Ill. 2d Rs. 301, 303), arguing that summary judgment was improper because defendant failed to prove that damage to plaintiffs' house resulted from a peril excluded from the all-risk homeowner's insurance policy. We disagree with plaintiffs and affirm.


The following facts gleaned from the record are germane to our disposition and are undisputed. Other facts of more limited relevancy will be discussed only where necessary.

Plaintiffs own and reside in a single-story house with an attached garage located on four acres of land in rural Plano, Illinois. The house sits on a four-foot-deep foundation that forms a crawl space beneath the living quarters. The "Rob Roy Creek" runs behind and along one side of the property. The creek is approximately 150 feet from plaintiffs' house, at its nearest point. The creek was not forged by nature. Instead, it is a long-existing, man-made irrigation channel serving adjacent farmland. Surface water runoff from the adjacent lands generally accounts for the accumulation of water in the creek. The creek runs dry for only short periods, if at all, during the summer months.

On July 18, 1996, a severe thunderstorm struck the area in and around Plano, dumping a remarkable amount of rain in a matter of hours. According to plaintiffs, they were awakened in the early morning hours by the heavy rain, thunder, and lightning. Power to the house was out. Through the darkness, plaintiffs noticed a large quantity of water collecting in their backyard.

Heavy rains continued throughout the morning. More and more water collected in the backyard. Soon, the creek overflowed its banks, causing a rush of water to gush into the garage. Eventually the crawlspace under the house was inundated. Before long, water entered the house's living quarters. At its peak, the water reached eight inches above floor level in every room. The house and some of its contents sustained extensive damage.

At the time of the storm, an all-risk homeowner's insurance policy issued by defendant was in effect. The policy "insure[d] [plaintiffs'] property against perils" except for loss resulting directly or indirectly from certain specified exclusions, including:

"water damage, meaning: (a) flood, surface water (including water flowing naturally on or near the surface and water whose flow is artificially altered), waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind; (b) water which backs up through sewers or drains, or water which enters into and overflows from within a sump pump, sump pump well, or other type system designed to remove subsurface water which is drained from the foundation area; or (c) water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure."

Despite this exclusion, plaintiffs filed a claim under the policy. In a letter sent to plaintiffs, defendant denied the claim based upon the water damage exclusion. Plaintiffs applied for and received emergency financial assistance in the amount of $6,900 from the Federal Emergency Management Agency (FEMA).

Plaintiffs subsequently sued defendant, seeking damages for failure to pay the claim. Defendant answered the complaint and asserted an affirmative defense alleging that plaintiffs' loss resulted from a peril specifically excluded from the policy. Depositions were conducted. During plaintiffs' depositions, they repeatedly referred to the water accumulation in their house as a flood.

After completion of discovery, defendant moved for summary judgment based upon the policy's water damage exclusion. Copies of the original policy, an amendatory endorsement to the policy, and transcripts of plaintiffs' depositions were attached to the motion. Plaintiffs filed a cross-motion for summary judgment on the issue of liability. The trial court granted defendant's motion and denied plaintiffs' cross-motion and their motion to reconsider. Plaintiffs timely appeal, arguing that summary judgment was improperly granted in favor of defendant.


In deciding whether summary judgment was proper, we consider two issues. The first concerns the respective burdens of proof in a lawsuit for an insurer's failure to pay a claim under an all-risk insurance policy. The second concerns whether the record in this case clearly establishes that the damage to plaintiffs' house was caused by a peril expressly excluded from coverage and requires us to construe the policy's water damage exclusion. ...

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