Dunlap v. Illinois Founders Insurance

621 N.E.2d 102, 250 Ill. App. 3d 563, 190 Ill. Dec. 233, 1993 Ill. App. LEXIS 1114
CourtAppellate Court of Illinois
DecidedJuly 26, 1993
Docket1-91-3002
StatusPublished
Cited by14 cases

This text of 621 N.E.2d 102 (Dunlap v. Illinois Founders 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
Dunlap v. Illinois Founders Insurance, 621 N.E.2d 102, 250 Ill. App. 3d 563, 190 Ill. Dec. 233, 1993 Ill. App. LEXIS 1114 (Ill. Ct. App. 1993).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Tommie Dunlap appeals an order of the circuit court of Cook County denying plaintiff’s complaint for a declaration that defendant Illinois Founders Insurance Company (Founders) owed plaintiff coverage under a fire insurance policy.

The record on appeal indicates the following facts. On July 6, 1989, Plaintiff filed his complaint for declaratory judgment against defendant. Plaintiff alleged that defendant issued a fire insurance policy to plaintiff for a multiple-unit apartment building at 304 West 154th Place in Harvey, Illinois. This policy provided in part as follows:

“SECTION VI — PERILS INSURED AGAINST
This policy insures against all direct loss caused by:
* * *
8. VANDALISM OR MALICIOUS MISCHIEF, meaning only the willful and malicious damage to or destruction of the property covered.”

Plaintiff alleged that between August 13, 1988, and August 20, 1988, vandals entered the insured building and extensively damaged the building. Plaintiff promptly made a claim for coverage under the Founders policy. Defendant denied coverage, stating in part that: (1) plaintiff had fraudulently misrepresented material circumstances of the loss; (2) plaintiff had admitted that much of the property was damaged by theft, which is excluded under the policy; (3) plaintiff failed to protect the property from further loss; and (4) the loss was excluded from coverage under the terms of the policy. This last exclusion provided in part as follows:

“Perils Not Included. This company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly by: *** (h) order of any civil authority ***.”

Plaintiff contended in his complaint that he was not guilty of fraudulent misrepresentation, that he did not violate the terms of the policy and that the policy did not exclude coverage for his loss in this instance.

Before trial, plaintiff gave a sworn statement to defendant. Plaintiff indicated in his statement that he acquired the building at issue in 1986. According to plaintiff, the building was insured by defendant from 1986, but the 1987 renewal policy was cancelled at some point for failure to pay the premium.

The case went to trial beginning on April 30, 1991. During the trial, deposition testimony of William Cattorini, who was hired by Founders to inspect the building, was read into the record on at least two occasions. The. record indicates that Cattorini inspected the building on July 28, 1988. Cattorini indicated that the vacant apartments had been boarded up, reflecting management’s effort to maintain the building. Cattorini noted that exposed stairways were dry-rotting and recommended repairs. Cattorini also noted that a number of windows were broken or boarded up and recommended repair. Cattorini further noted that dry wall was broken, floor tiling was missing and buckling, and that some units were cluttered with debris and trash. Cattorini recalled that a number of units were vacant, but could not recall whether a majority of them were vacant. Cattorini noted in his report to defendant that the building was “starting to go,” but that it could issue a policy for another year without a major catastrophe or claim against defendant.

Cattorini characterized the neighborhood in which plaintiff’s building was located as run down and deteriorating, with many vacant buildings. He noticed gang slogans and groups of young adults on the street corners. He believed that the gangs vandalized the buildings in the neighborhood in order to further gang activities. He also stated that based on his personal knowledge of the neighborhood, it would be very difficult to put units that had been boarded up back into circulation.

Plaintiff testified that in early August 1988, 28 or 29 of the units in the building were occupied. Plaintiff stated that the building was receiving utilities and was in a state of good repair at that time.

Plaintiff testified that he left town on August 13, 1988, and returned on August 23, 1988. Plaintiff indicated that he viewed the building on August 24, 1988, and observed serious damage from vandalism had been done to the building; many windows had been broken. Approximately 24 of the units remained occupied. Plaintiff immediately called his insurance broker and spoke to an insurance adjuster the following day.

Tenants continued to vacate the building. Damage to the building from vandalism, including graffiti, also continued to occur. Plaintiff and Roy Atterbury, who had performed maintenance and janitorial work for the building, boarded up the vacant apartments as they became vacant. By the middle of September 1988, only seven or eight units remained occupied. Plaintiff signed the property over to the City of Harvey, which then destroyed the building. Plaintiff made a claim under his insurance policy, which defendant denied.

On cross-examination, plaintiff testified that he could not recall whether he had stated in an earlier affidavit that on August 2, 1988, the City of Harvey, acting through its building commissioner, posted a notice of nonoccupancy due to building code violations and terminated utility services. Plaintiff also denied, in a series of questions, that 80% of the units needed scraping and painting, repairs to doors, storm doors, window glass and screens. Plaintiff stated that he was unaware of any structural damage to the foundation of the building. Plaintiff admitted that there was a broken sidewalk at the property. Plaintiff also admitted that the stairs and rails and the landing could have used a major overhaul, but stated that it was nothing serious.

Leonard Campbell testified that he was employed as a building inspector for the City of Harvey. Campbell indicated that he determines building code violations as part of the ordinary course of his employment. Campbell indicated that after inspecting a building, he ordinarily did not report to anyone before determining whether there was a building code violation. In a case where the mayor or his director knew of the problem, Campbell stated that he would report the violations to them to determine whether they wanted the matter expedited or handled in the normal manner.

Campbell testified that he initially inspected plaintiff’s building in March 1988. At that time, Campbell noted that there were housing code violations and that the building lacked a certificate of occupancy, i.e., the building had been rented without an inspection. Campbell sent notice of these violations to plaintiff. Campbell indicated that to his knowledge, these violations were never corrected.

Campbell then testified that he returned to plaintiff’s building on July 6, 1988. In the basement of the building, Campbell observed water damage, trash and debris and evidence of rats. Campbell stated that the situation was deteriorating.

Campbell further testified that he returned to the building again on July 29, 1988.

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Cite This Page — Counsel Stack

Bluebook (online)
621 N.E.2d 102, 250 Ill. App. 3d 563, 190 Ill. Dec. 233, 1993 Ill. App. LEXIS 1114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-illinois-founders-insurance-illappct-1993.