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H. Craig Fox v. American Economy Insurance Company

February 14, 2011

H. CRAIG FOX,
PLAINTIFF,
v.
AMERICAN ECONOMY INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

After a flood at the building plaintiff Dr. H. Craig Fox ("Dr. Fox") owned and used for his podiatry practice, Dr. Fox filed in the Circuit Court of DuPage County a suit against Defendant American Economy Insurance Company ("American"). American removed the suit to this Court.*fn1 American has filed a motion for summary judgment. For the reasons set forth below, the Court grants in part and denies in part defendant's motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. The Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This does not, however, absolve the party putting forth the fact of its duty to support the fact with admissible evidence. See Keeton v. Morningstar, Inc., __ F.3d __, __, slip. op. at 2, 2012 WL 130456 at *1 (7th Cir. 2012). Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. At the summary judgment stage, it does not suffice to rely on complaint allegations. Nor is it enough for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of his or its version of the fact.

The Court notes at the outset that defendant several times disputed plaintiff's facts without citing evidence. The result is that several of plaintiff's statements (including ¶¶ 66, 67, 71, 72, 81 and 82) are deemed admitted, because plaintiff supported those statements with evidence but defendant did not cite evidence to dispute them. Defendant also repeatedly argues that Dr. Fox's deposition testimony, merely because he is a plaintiff, cannot constitute evidence unless corroborated by other evidence. This argument fails. Rule 56 lists depositions as a form of evidence admissible at the summary judgment stage. Fed. R. Civ. P. 56(c). As the Seventh Circuit explained in Payne v. Pauley, 337 F.3d 767, 770-71 (7th Cir. 2003), a "nonmoving party's own affidavit or deposition can constitute affirmative evidence to defeat a summary judgment motion." Payne, 337 F.3d at 770-771 (explaining that when testimony or affidavits are rejected, it is not because they are self-serving or uncorroborated but rather because they lack a basis on personal knowledge). So long as the testimony is based on personal knowledge (and, here, defendant does not suggest it is not), Dr. Fox's deposition testimony is admissible for summary judgment purposes.

The following facts are undisputed unless otherwise noted.

Dr. Fox ran his podiatry practice out of a building he owned at 75 S. Broadway Street in Coal City, Illinois. The building was insured, during the period of August 1, 2003 through August 1, 2004, by a policy (the "Policy") issued by American. The Policy included an Ordinance or Law Coverage Endorsement, which provided, in relevant part:

B. Application of Coverage(s)

The coverage(s) provided by this endorsement apply only if both B.1. and B.2. are satisfied and are then subject to the qualifications set forth in B.3.

1. The ordinance or law:

a. Regulates the demolition, construction or repair of buildings, or establishes zoning or land use requirements at the described premises; and

b. is in force at the time of loss.

But coverage under this endorsement applies only in response to the minimum requirements of the ordinance or law. Losses and costs incurred in complying with recommended actions or standards that exceed actual requirements are not covered under this endorsement.

D. Coverage

1. Coverage A--Coverage for Loss to the Undamaged Portion of the Building With respect to the building that has sustained covered direct physical damage, we will pay under coverage A for the loss in value of the undamaged portion of the building as a consequence of enforcement of an ordinance or law that requires demolition of undamaged parts of the same building.

2. Coverage B--Demolition Cost Coverage

With respect to the building that has sustained covered direct physical damage, we will pay the cost to demolish and clear the site of undamaged parts of the same building, as a consequence of enforcement of an ordinance or law that requires demolition of such undamaged property. Paragraph E.6.d. Section I -- Property, Loss Conditions does not apply to Demolition Cost Coverage.

3. Coverage C--Increased Cost of Construction Coverage

a. With respect to the building that has sustained covered direct physical damage, we will pay the increased cost to:

(1) Repair or reconstruct damaged portions of that building; and/or

(2) Reconstruct or remodel undamaged portions of that building, whether or not demolition is required; when the increased cost is a ...


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