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Mutlu v. State Farm Fire and Casualty Co.

February 11, 2003

HAN MUTLU, PLAINTIFF-APPELLANT,
v.
STATE FARM FIRE AND CASUALTY COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 01 L 4142 Honorable Ronald F. Bartkowicz, Judge Presiding.

The opinion of the court was delivered by: Justice Hall

Unpublished

The plaintiff, Han Mutlu, filed a three-count complaint against the defendant, State Farm Fire and Casualty Company, alleging a breach of contract (count I), a violation of section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2000)) (count II) and a breach of the common law duty of good faith and fair dealing (count III). The plaintiff voluntarily dismissed count III. The circuit court granted summary judgment to the defendant on both counts of the complaint. The plaintiff appeals.

On appeal, the plaintiff raises the following issues: whether the circuit court erred when it entered partial summary judgments for the defendant and whether the circuit court abused its discretion when it failed to compel the defendant to comply with discovery prior to ruling on the defendant's motions for partial summary judgment. We affirm the judgment of the circuit court.

BACKGROUND

I. The Policy

The plaintiff purchased from the defendant a condominium unit owners insurance policy, which provided coverage between November 24, 1997, and November 24, 1998. The policy provided coverage for claims made against the plaintiff because of bodily injury or property damage due to an occurrence. The policy defined "occurrence" as meaning:

"an accident, including exposure to conditions, which results in:

a. bodily injury; or

b. property damage; during the policy period."

Property damage is defined as:

"physical damage to or destruction of tangible property, including loss of use. Theft or conversion of property by an insured is not property damage."

In addition, the policy also provided that policy did not provide coverage for:

"a. bodily injury or property damage:

(1) which is either expected or intended by an insured; or

(2) to any person or property which is the result of willful and malicious acts of the insured."

II. The Litigation

The plaintiff filed the instant lawsuit on April 9, 2001. The following facts are taken from the allegations contained in the complaint.

On October 6, 1997, the plaintiff filed suit against the 1550 Lakeshore Drive Condominium Association (the Association) (Mutlu v. 1550 Lake Shore Drive Condominium Ass'n, No. 97 CH 12528). The Association filed a counterclaim against the plaintiff seeking injunctive relief and alleging that he continuously ran the hot water in his unit to the detriment of his neighbors and in violation of Illinois law. On or about March 12, 1998, the plaintiff tendered the defense of the Association's counterclaim to the defendant. On May 8, 1998, the defendant denied coverage and refused to defend the plaintiff on the Association's counterclaim. As a result, the plaintiff expended in excess of $100,000 in defense and investigation expenses in connection with the Association's counterclaim.

In another suit filed by the plaintiff (Mutlu v. Brodny, 97 L 10292), Phyllis Brodny, a resident of the condominium building in which the plaintiff resided, filed a counterclaim against the plaintiff. After initially agreeing to defend the plaintiff against Ms. Brodny's counterclaim, the defendant subsequently notified the plaintiff that it did not have a duty to indemnify him and declined to defend him against any of the counterclaims filed against him by Ms. Brodny.

Eventually, the Association paid the plaintiff $700,000 and issued a letter explaining that the plaintiff was not responsible for the hot water deficiencies and apologizing to the plaintiff.

After the suit in this case was filed, the plaintiff served interrogatories and a production of documents request on the defendant. However, State Farm refused to answer them.

On September 14, 2001, the defendant filed a motion for partial summary judgment as to count I of the complaint. In support of its motion, the defendant argued that the plaintiff failed to allege that any property damage had occurred or that any physical damage was the result of an occurrence as defined by the insurance policy in this case because it was the result of deliberate, intentional and malicious acts by the plaintiff.

In response, on October 11, 2001, the plaintiff filed a motion to stay summary judgment proceedings and to compel discovery. On October 24, 2001, the circuit court entered an order continuing generally the plaintiff's motion to stay and compel discovery. On November 26, 2001, the plaintiff filed a response to the defendant's motion for partial summary judgment and a cross-motion for partial summary judgment.

On February 1, 2002, the circuit court issued a memorandum and order granting the defendant's motion for partial summary judgment as to count I of the complaint.

On February 7, 2002, the defendant filed a motion for partial summary judgment as to count II of the complaint. The motion was granted by the circuit court on February 19, 2002.

The plaintiff filed a timely notice ...


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