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Auto Owners Insurance Company, A/S/O John Ellis v. Thomas W. Callaghan

June 3, 2011


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 09-L-751 Honorable Michael J. Powers, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Carter

PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion. Justice O'Brien concurred in the judgment and opinion.

Justice Holdridge dissented in the judgment.


Plaintiff, Auto Owners Insurance Company, brought suit against defendant, Thomas Callaghan, to recover damages for a fire to a residence owned by its insured, John Ellis. The residence had been rented to defendant. Defendant filed a motion under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)) to dismiss the first amended complaint, which the trial court granted. Plaintiff appeals. We affirm the trial court's ruling.


John Ellis owned a single-family home in Will County, Illinois, located at 677 East North Street in Manhattan. The home was rented for $1,350 per month to defendant, pursuant to a written lease agreement. *fn1 The lease agreement, which was attached to plaintiff's first amended complaint, was a simple one-page document containing only three provisions. Of particular relevance to this appeal was the third provision, which read as follows:


At the time of execution of this Rental Agreement, Tenant shall pay to Landlord in trust the sum of $2,500.00 to be held as a non-interest bearing security deposit to pay for any damages which Tenant, their guests or invitees may inflict upon the dwelling unit. Tenant[']s liability is not limited to the amount of the security deposit. *** Upon proper expiration of this lease Tenant will turn over full possession of the premises to the Landlord and return all keys. Tenant will return entire home/apartment including stove, refrigerator, disposal, bathroom, closets, cabinets, walls, tile, floors, fixtures, windows, blinds, doors and all carpeting in the same clean condition as when received. All carpeting to be professionally cleaned at the end of the lease and a paid receipt shall be furnished to the Landlord. The Tenant will not drive nails or other devi[c]es into the walls or woodwork. We recommend heavy straight pins but all must be removed and any patching, repair and painting will be the responsibility of the Tenant. In the event that Tenant does not comply to Landlord's satisfaction, Tenant authorizes Landlord to perform necessary work and bill the Tenant and the same shall be secured as additional rent and shall be deducted from security deposit."

On April 28, 2007, the home in question caught on fire and sustained extensive damage. Ellis had a fire insurance policy on the home through plaintiff and was paid $258,500 for the damage. *fn2 In September of 2009, plaintiff brought suit against defendant under a theory of subrogation. In the first amended complaint, plaintiff alleged that defendant had negligently caused the fire that damaged the home. Defendant filed a section 2-615 motion to dismiss the first amended complaint.

A hearing was held on the motion. After listening to the arguments of the attorneys, the trial court took the matter under advisement. The trial court subsequently entered a written order granting defendant's motion to dismiss. Plaintiff appealed.


On appeal, plaintiff argues that the trial court erred in granting defendant's section 2-615 motion to dismiss the first amended complaint for damages. Plaintiff asserts that the lease agreement clearly indicates that the parties intended that defendant would be liable for any fire damage to the premises. Plaintiff asserts further that defendant was not entitled to the status of a coinsured on the landlord's fire insurance policy, based solely upon defendant's mere payment of rent. Defendant disagrees with plaintiff's assertions and argues that the trial court's ruling was proper and should be affirmed.

A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based upon defects that are apparent on the face of the complaint. Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc. , 186 Ill. 2d 419, 423 (1999). In determining whether a complaint is legally sufficient, a court must accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429 (2006). "The critical inquiry in deciding upon a section 2-615 motion to dismiss is whether the allegations of the complaint, when considered in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted." Bloomfield , 186 Ill. 2d at 424. A cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that the plaintiff cannot prove any set of facts that ...

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