Appeal from Circuit Court of Sangamon County. No. 00L200. Honorable Leslie J. Graves, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
This matter is before the court pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) and presents four questions certified for review. The questions are as follows:
"[(1)] Do lease provisions of a tenant's residential lease--which provide in substance that the landlord shall not be responsible for property damage to the tenant's personal property in case of accident and that the tenant is to purchase and look solely to his own rental insurance for any such loss--require dismissal of such tenant's suit for property damage due to fire allegedly caused by the negligence of the owner/property manager, where the tenant in fact purchases such rental insurance and recovers thereunder for such property damage?
[(2)] Does the Landlord and Tenant Act [(Act) (765 ILCS 705/1 through 5 (West 2000))] prohibit the preclusive effect of the lease language set forth in [q]uestion 1?
[(3)] Where the suit described in [(1)] above is actually being pursued by the tenant's subrogated rental insurer, in the name of the tenant, shall such insurer be afforded the same protections as its tenant under the [Act]?
[(4)] Shall the [p]laintiffs' claims against Nolan Real Estate Services, Inc.[,] and K.C. Chatham Hills, LLC, be dismissed pursuant to [section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000))] as a result of the language contained within each [p]laintiff's respective lease?"
Because we answer the second question in the affirmative, questions one and four must be answered in the negative. We answer question three in the affirmative.
The relevant facts are not in dispute. On April 5, 2001, plaintiffs, John Whitledge, Nicole Bundy, Edward White, and Christine Robinson, each filed a first-amended complaint against defendants, Nolan Real Estate Services, Inc. (Nolan), and William Klein, as an employee or agent of Nolan, for negligence related to its fireplaces in the apartments. The plaintiffs all lived in separate apartments in Chatham Hills Apartments, which was managed by Nolan. The complaint alleged that as a direct result of Nolan's negligence, on February 19, 1997, a fire occurred at Chatham Hills Apartments causing severe damage to plaintiffs' property. Plaintiff John Whitledge started a fire in his fireplace, which spread beyond the firebox and into other units.
On May 10, 2001, Nolan filed a motion to dismiss plaintiffs' first-amended complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)). The motion argued that because each plaintiff had been reimbursed by his or her own insurance company for the loss of his or her property, the complaint should be filed in the name of their respective insurance companies or for the use of their respective companies. The motion further alleged the action was barred by certain lease provisions in effect at the time of the fire. Nolan alleged each plaintiff's lease contained the following provision:
"Resident understands and agrees it shall be Resident's own obligation to ensure Resident's property and persons for whom Resident is or may be responsible. The owner is not responsible for Resident's property in case of accident." Plaintiff John Whitledge's lease contained a separate endorsement that read, in pertinent part, as follows:
"THIS LETTER IS TO ADVISE YOU THAT UPON BECOMING A RESIDENT OF CHATHAM HILLS APARTMENTS, IT WILL BE YOUR RESPONSIBILITY TO CARRY RENTERS['] INSURANCE. THE INSURANCE IS TO PROVIDE PROTECTION FOR YOUR PERSONAL POSSESSIONS. CHATHAM HILLS APARTMENTS IS NOT RESPONSIBLE FOR YOUR PROPERTY IN CASE OF AN ACCIDENT."
Plaintiff Edward White's lease contained a similar endorsement. Nolan argued that "[a] number of court decisions in Illinois have indicated that, in the event property is damaged due to fire[,] *** certain provisions in a lease agreement can bar recovery of property damage caused by the fire where available insurance exists to cover such property damage. An express provision of the lease may provide such exculpation, or such an intent can be inferred from the lease as a ...