Cunningham v. Millers General Insurance

591 N.E.2d 80, 227 Ill. App. 3d 201, 169 Ill. Dec. 200, 1992 Ill. App. LEXIS 606
CourtAppellate Court of Illinois
DecidedApril 15, 1992
Docket4-91-0576
StatusPublished
Cited by44 cases

This text of 591 N.E.2d 80 (Cunningham v. Millers General Insurance) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cunningham v. Millers General Insurance, 591 N.E.2d 80, 227 Ill. App. 3d 201, 169 Ill. Dec. 200, 1992 Ill. App. LEXIS 606 (Ill. Ct. App. 1992).

Opinion

JUSTICE COOK

delivered the opinion of the court:

Plaintiffs, John T. Cunningham and Cora L. Cunningham, appeal from a jury verdict entered in the circuit court of Macon County in favor of defendant, Millers General Insurance Company. Plaintiffs argue the trial court improperly allowed the jury to hear evidence of a prior fire at plaintiffs’ property. We disagree and affirm.

Plaintiffs owned and occupied a residence in Decatur, Illinois, which was insured against fire by defendant. At about 1 a.m. on March 1, 1987, after Cora Cunningham returned from working a 3:30 p.m. to 12 midnight shift, plaintiffs left to visit relatives in Chicago. A few hours later, at approximately 3:25 a.m., the Decatur fire department received a call for a fire at plaintiffs’ home. When fire fighters arrived at the scene, the fire was already very smoky and extremely hot. At that time plaintiffs were driving to Chicago. Plaintiffs spent the day in Chicago, then returned to Decatur at dawn on March 2, and discovered the fire had occurred. Several fire investigation experts independently concluded that the fire was intentionally started based on (1) the pattern of the fire, which indicated that it was set using liquid accelerants, and (2) samples from plaintiffs’ home, which confirmed the presence of kerosene and naphtha. There was no direct evidence as to who set the fire. Plaintiffs submitted a sworn proof of loss to defendant, but defendant denied the claim.

On February 9, 1988, plaintiffs filed a complaint against defendant. A jury trial was held from March 25 through March 28, 1991. At the start of the trial plaintiffs made a motion in limine to prevent defendant from introducing evidence of a prior fire at their home in 1981. After a hearing the trial court denied the motion in limine, but reserved the right to modify the ruling. During the trial, plaintiffs attempted to show that someone else could have started the 1987 fire. Plaintiffs testified about threats, including a bomb threat received before the fire, and an arson attempt on one of their vehicles. Their testimony was supported by the testimony of Terry L. Brown, fire inspector, and Rick Jones, investigator for the Decatur police department.

During the trial, defendant introduced evidence of the prior fire. On cross-examination during their case in chief, and on direct examination during their rebuttal testimony, plaintiffs testified that their home had been damaged by a fire in 1981, and that they had recovered $30,000 on their insurance based on that fire. At the time of the 1981 fire plaintiffs had also been traveling to Chicago in the early morning, after Cora worked second shift. The Decatur fire department had been called to the 1981 fire at about 2:30 a.m., not long after plaintiffs had left for Chicago. Plaintiffs testified that they often left for Chicago early in the morning after Cora worked second shift.

Defendant called Thomas Chamblin, a certified fire inspector with more than 20 years of experience. In 1981 Chamblin investigated the earlier fire and classified it as suspicious. Illustrating his testimony with photographic slides, Chamblin described the physical evidence at the scene. Chamblin testified the fire started on the floor in one of the bedrooms, and was hot and low burning, which indicated an accelerant had probably been used on the floor. Chamblin had determined that the resulting hole in the bedroom floor was the point of origin, even though it was located away from any natural source of ignition that might have caused the fire. During the 1981 fire investigation Chamblin had tested the premises for accelerants, but had not found any present. Chamblin explained that because accelerants could have been consumed by the fire or removed during fire-fighting efforts, a negative test did not prove that accelerants had not been used. On cross-examination, Chamblin indicated that in an unusual situation the burn pattern of the 1981 fire could have existed without the use of accelerants.

Relying on Wernowsky v. Economy Fire & Casualty Co. (1985), 106 Ill. 2d 49, 477 N.E.2d 231, plaintiffs argue the trial court erred in allowing testimony about the 1981 fire. In Wernowsky, plaintiffs sued to recover the proceeds of a homeowner’s insurance policy issued by defendant on plaintiffs’ home after it burned. Defendant was allowed to introduce evidence that plaintiffs had suffered three fire losses in the four years immediately prior to the fire which was the subject of the case. The trial court in Wernowsky determined that the occurrence of the prior fires should be admitted to show motive or knowledge, but decided not to allow an explanation by defendant of the circumstances surrounding the previous fires, reasoning that would be unfair to plaintiffs. The supreme court held the other fires could not be admitted without some showing that the other fires were incendiary in origin, and some evidence either direct or circumstantial that the insureds participated in them. (Wernowsky, 106 Ill. 2d at 55, 477 N.E.2d at 234.) The supreme court did not hold that evidence of prior fires could never be admitted, but only that there was insufficient foundation for admission of that evidence in the case before it. Although more foundation was laid in the present case than in Wernowsky, we need not decide whether the evidence was properly admitted here.

Defendant argues plaintiffs failed to preserve the Wernowsky issue for review because, after the court’s ruling on the motion in limine, they failed to make any objection at the time the evidence was introduced. We agree.

A motion in limine permits a party to obtain, in advance, an order excluding inadmissible evidence and prohibiting interrogation concerning such evidence. The moving party will thereby be protected from any prejudicial impact the mere asking of the questions and making of the objections may have upon a jury. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549, 416 N.E.2d 268, 271.) A disadvantage of a motion in limine is that a court rules on it in a vacuum, before hearing the full evidence at trial that may justify admission or require exclusion. Trial judges should be cautious in entering broad in limine orders, attempt to anticipate proper evidence that might be excluded by the order (People v. Williams (1978), 60 Ill. App. 3d 529, 535, 377 N.E.2d 367, 371 (Green, P.J., dissenting)), and make the order clear and precise so that all parties concerned have an accurate understanding of its limitations. (Reidelberger, 83 Ill. 2d at 550, 416 N.E.2d at 271; Lundell v. Citrano (1984), 129 Ill. App. 3d 390, 395, 472 N.E.2d 541, 545 (order barred presentation of any diagnosis or medical opinion “ ‘other than by competent medical testimony’ ”).) An unclear order in limine is worse than no order at all; even if the court concludes the evidence is inadmissible, it has the discretion to deny the motion in limine. (Williams, 60 Ill. App. 3d at 533, 377 N.E.2d at 370.) To prevent confusion and misunderstanding during trial, both the motion in limine and the resulting order should be in writing. Lundell, 129 Ill. App. 3d at 395, 472 N.E.2d at 545.

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Cite This Page — Counsel Stack

Bluebook (online)
591 N.E.2d 80, 227 Ill. App. 3d 201, 169 Ill. Dec. 200, 1992 Ill. App. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-millers-general-insurance-illappct-1992.