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Wasik v. Allstate Insurance Co.

July 30, 2004

[5] MARTIN WASIK, PLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Lake County. No. 02--AR--1738. Honorable Henry C. Tonigan, III, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Callum

[8]  I. INTRODUCTION

[9]  After a fire destroyed his garage and its contents, plaintiff, Martin Wasik, made a claim under a homeowners insurance policy that defendant, Allstate Insurance Company, had issued to him. Claiming that plaintiff's stepson intentionally started the fire, defendant denied coverage. Plaintiff commenced this breach-of-contract action. The trial court denied plaintiff's motion for summary judgment and granted defendant's motion for summary judgment. On appeal, plaintiff argues that, because he is an innocent insured, the acts of his stepson cannot be imputed to him to deny coverage. We reverse.

[10]   II. BACKGROUND

[11]   In his complaint, plaintiff alleged that he complied with his obligations under the policy and that defendant breached the policy by failing to pay plaintiff's claim. Defendant raised as affirmative defenses that (1) the fire was the result of the intentional act of an insured, William Fort, and (2) insureds William and his wife, Kathleen Fort, made material misrepresentations regarding the circumstances of the loss. Each party moved for summary judgment. See 735 ILCS 5/2--1005 (West 2002). The materials submitted in connection with the motions reveal the following.

[12]   Plaintiff submitted a claim for $8,082, and William and Kathleen submitted a $55,000 claim for loss of personal property they stored in plaintiff's garage. William and Kathleen are not parties to this litigation, and their claim is not at issue here.

[13]   During his examination under oath, plaintiff testified that he lived in a single-family home with a detached garage. His wife, Nancy, lived with him until her death in May 2001. When plaintiff and Nancy married in 1976, Nancy had two children from a previous relationship, including William Fort. In June 2001, William, Kathleen, and their son were living in plaintiff's home. William and Kathleen did not pay plaintiff rent and did not contribute toward household expenses. They stored their belongings in plaintiff's garage.

[14]   Plaintiff was out with his biological daughter when the fire occurred on June 17, 2001. William called plaintiff to inform him of the fire and said that he was working in the yard when the fire occurred. William said that, before the fire, he was in the garage looking for charcoal lighter fluid. About 30 minutes later, William smelled smoke and then discovered the fire. Plaintiff had no independent knowledge of the circumstances surrounding the fire.

[15]   During his examination under oath, William Fort testified that he and his wife moved into plaintiff's home in May 2001 because their unemployment benefits were about to expire and they had been evicted from their home in McHenry. Shortly thereafter, William's and Kathleen's teenage son moved into plaintiff's home. At the time of his testimony, William was still paying overdue electric, gas, and telephone bills for the McHenry home. Although he could not remember for certain, William believed that he had returned to work shortly before the fire.

[16]   Between 1 and 1:30 p.m. on June 17, 2001, William and his son went out to the garage to look for a pair of shorts for Kathleen. While William looked for the shorts, William's son found some charcoal for a barbecue. William and his son left the garage after about five minutes. William went next door to borrow lighter fluid from a neighbor. William used the lighter fluid and returned it. He lit the grill, and he and his son started cleaning gutters. Shortly thereafter, William smelled smoke and then saw smoke and fire coming from the garage. William opened the garage doors and used a garden hose to spray water on the fire. Also, he unsuccessfully attempted to remove the automobile that was parked in the garage. After several minutes, the fire department arrived and extinguished the fire. William called plaintiff to inform him about the fire. William testified that he was not sure what caused the fire and denied starting it. He and his family moved out of plaintiff's home in either July or August 2001.

[17]   Kathleen testified that she and William moved into plaintiff's home in February 2001. She likewise recalled that William had returned to work shortly before the fire. At the time of the fire, Kathleen was inside cooking vegetables. She saw William and her son go out to the garage to look for lighter fluid. She learned about the fire when her son came inside looking for an extinguisher. Her son dialed 9-1-1, and she stayed on the telephone with the operator. William came inside to get the keys to the car parked in the garage. From inside the house, Kathleen saw William using a garden hose to water down the car. Kathleen did not believe that the fire was set intentionally.

[18]   According to the fire department report, when firefighters arrived on the scene, William was attempting to extinguish the fire with a garden hose. There was heavy damage to the structure and to furniture and clothes stored in the garage. A strong odor of flammable liquid was present near a mattress. William told the fire department investigator that he and his family were evicted from their home in February 2001 and had been living with plaintiff since that time. William and his family stored their belongings in the garage. On the day of the fire, William and his son entered the garage to find some clothes and left when they did not find what they were looking for. William's son reported that William borrowed charcoal lighter fluid from a neighbor. William told the investigator that he lit the grill and then began working in the yard. He smelled smoke and then saw smoke coming from the garage. The report concluded that the fire was suspicious.

[19]   At defendant's request, a fire investigator examined the scene. According to his report, the investigator observed low burn patterns at or near floor level. Tests of a sample of stacked cardboard found at the center of the garage revealed the presence of a medium petroleum distillate. William told the investigator that, about five minutes before the fire, he and his son were in the garage looking for clothing. William did not notice anything unusual. About five minutes after leaving the garage, William smelled and saw smoke coming from the garage. Patty Seebock, a neighbor, reported that she saw William and his son leaving the garage. About five minutes later, she heard someone yell "fire." Another neighbor, Sam Gattuso, reported that William asked to borrow lighter fluid. Gattuso gave William lantern fuel, and William returned it about 15 minutes later. Shortly thereafter, Gattuso heard people yelling "fire." The investigator concluded that the fire originated at or near floor level, was incendiary, and was caused by the ignition of a flammable liquid by an open flame.

[20]   The trial court granted defendant's motion for summary judgment and denied plaintiff's motion. The court found that (1) William Fort was an insured under plaintiff's policy, (2) there was no evidence to suggest that William was not responsible for the fire, (3) the policy clearly and unambiguously precluded recovery by plaintiff, (4) William made material ...


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