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Unitrin Preferred Insurance Co. v. Dobra

Court of Appeals of Illinois, First Division

November 25, 2013

UNITRIN PREFERRED INSURANCE COMPANY, as subrogee of Emin Tuluce and Annalisa Tuluce, Plaintiff-Appellant,
v.
FLAVIU GEORGE DOBRA, d/b/a FGD Construction, Defendant-Appellee.

Appeal from the Circuit Court of Cook County. No. 08 L 012772 Honorable Thomas E. Flanagan, Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Hoffman concurred in the judgment and opinion.

OPINION

CUNNINGHAM JUSTICE

¶ 1 Plaintiff-appellant, Unitrin Preferred Insurance Company (Unitrin), appeals from a judgment entered by the circuit court of Cook County, which denied Unitrin's motion for a new trial following a jury verdict in favor of defendant-appellee, FGD Construction (FGD). Unitrin's action arose as a result of a fire which damaged the home of Unitrin's insured, the Tuluce family. The jury found that FGD's actions in applying flooring finish to the Tuluce home was not a proximate cause of the fire and ruled in favor of FGD. At trial, the trial court admitted testimony of FGD's expert witness who opined on the issue of the cause and origin of the fire. On appeal, Unitrin contends that: (1) the trial court erred in allowing FGD's proffered expert witness to testify as to the cause and origin of the fire; and (2) the expert witness's testimony usurped the role of the jury and prejudiced Unitrin. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 Emin and Annalisa Tuluce (collectively, Tuluce) contracted with FGD to install and finish hardwood flooring in the Tuluce home in Barrington, Illinois. On September 15, 2007, FGD was to complete the flooring work at the Tuluce home and apply Synteko floor finish to the first floor of the home. The Synteko floor finish used was a flammable liquid and vapor. The Synteko product warned users to eliminate all pilot lights, and to keep the house ventilated when using the product. The Tuluce family went to a hotel for the night, and while flooring work was being completed FGD's employees worked at the Tuluce home until approximately 5 p.m. on the day in question. At approximately 8:30 or 9 p.m. that night, one of FGD's employees returned to the residence to retrieve equipment and to check to see if the floor finish had dried.

¶ 4 On September 16, 2007, at approximately noon, the Tuluce family returned to their home and discovered the Barrington fire department had been summoned. The fire was extinguished and the fire department's investigation began. Unitrin paid to repair the damage resulting from the fire and sought to recover $929, 677.22 from FGD, giving rise to this lawsuit.

¶ 5 Unitrin and FGD retained experts to examine the scene and physical evidence of the Tuluce home. Photographs were taken during all inspections. Unitrin and FGD each retained a certified fire cause and origin expert and an electrical engineer. Each came to different conclusions as to the cause and origin of the fire. At a preliminary hearing, each expert gave a completely different opinion regarding the origin and cause of the fire.

¶ 6 In addition to the conflicting fire cause and origin experts' testimony, there was also conflicting testimony from firefighters who were at the scene of the fire. One firefighter testified that the fire originated in the first-floor kitchen. He came to this conclusion based on the "burn patterns." Those patterns suggested the fire burned from the "top down from the kitchen to the basement." Another firefighter testified that during his extinguishment of the fire, he stood on the kitchen countertop and kicked the television set off the countertop. He said that there was no fire on the kitchen countertop or the television.

¶ 7 On March 4, 2011, prior to trial, FGD retained Dr. Frederick Mowrer (Dr. Mowrer), a fire scientist and fire protection engineer, to testify at trial. Dr. Mowrer has a bachelor of science degree from the Illinois Institute of Technology in fire protection and safety engineering, a master of science degree in engineering, and a Ph.D. degree in fire protection engineering and combustion science from the University of California Berkley. Dr. Mowrer has authored numerous publications in the field of science and fire protection engineering, including a number of published articles related to the spread of fire, fire development, and fire dynamics. Dr. Mowrer has been a member of the National Fire Protection Association (NFPA) for 35 years. He was also involved in the development of NFPA 921 Guide for Fire and Explosion Investigations (NFPA 921), which has been an important and widely used reference source in fire cause and origin determinations, since its inception in 1992. Additionally, Dr. Mowrer served on the NFPA technical committee on fire tests and was chairman of the NFPA research section.

¶ 8 Dr. Mowrer's testimony dealt with which of the experts' opinion was correct as to the cause and origin of the fire. According to Dr. Mowrer, Unitrin's expert's opinions as to the cause and origin of the fire was inconsistent with the evidence. However, FGD's expert's opinion as to the cause and origin of the fire was consistent with the evidence. The basis for Dr. Mowrer's opinion was a review of the photographs of the scene and Dr. Mowrer's testing of the two hypotheses developed by the fire cause and origin experts through the application of NFPA 921.

¶ 9 Prior to trial, Unitrin submitted two motions in limine to bar certain testimony of Dr. Mowrer. Only one of these motions is at issue in this appeal. In the motion in limine at issue, Unitrin sought to preclude Dr. Mowrer's opinions regarding which expert's opinion was correct as to the cause and origin of the fire. Unitrin alleged that Dr. Mowrer lacked the qualifications to indirectly opine as to the cause and origin of the fire because Dr. Mowrer was not an expert in the field of fire cause and origin. Unitrin argued that Dr. Mowrer was a fire protection engineer, which is different from a fire cause and origin expert, and, as such, was not qualified to give testimony as to the cause and origin of the fire. Additionally, Unitrin argued that Dr. Mowrer's method of reviewing photographs to reach his conclusion was improper. Unitrin also argued that allowing Dr. Mowrer to testify as to the cause and origin of the fire was cumulative of the testimony of FGD's expert.

¶ 10 On July 12, 2011, the trial court entertained lengthy arguments on the motion in limine and initially barred Dr. Mowrer from testifying as to his opinion on the cause and origin of the fire. The trial court expressed that there was a "serious question about whether or not Dr. Mowrer would be qualified to express an opinion as to the fire's origin." The trial court's reasoning in barring Dr. Mowrer's testimony was as follows:

"[Dr. Mowrer did not] have the right to add his weight to say that [he] thinks that he has an opinion with regard to the [fire's] origin and that the origin articulated by another witness is the origin because [Dr. Mowrer] wasn't retained for that purposeand [by allowing Dr. Mowrer's testimony] ...

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