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Unitrin Preferred Insurance Co. v. Dobra

Court of Appeals of Illinois, First District, 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.

Held[*]

In an action arising from a fire that occurred while defendant construction company was applying floor finish to the home of plaintiff's insureds, the jury's finding that defendant's actions were not the proximate cause of the fire was upheld on appeal over plaintiff's contention that the trial court's admission of the testimony of defendant's expert witness as to the cause and origin of the fire usurped the role of the jury and prejudiced plaintiff, since defendant's expert was qualified to testify based on his experience and training, there was no indication plaintiff was precluded from introducing its own expert testimony, and the province of the jury was not invaded merely because plaintiff did not like the outcome.

Appeal from the Circuit Court of Cook County, No. 08-L-012772; the Review Hon. Thomas E. Flanagan, Judge, presiding.

Leahy, Eisenberg & Fraenkel, Ltd., of Chicago (Robert Ostojic, of Appeal counsel), for appellant

Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd., of Chicago (Edward J. Murphy, of counsel), for appellee.

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 theTuluce 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 ...


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