Frank J. Vlcek and Lydia Vlcek v. Northwestern Mutual Insurance Company, a Corporation

Seventh Circuit

Frank J. Vlcek and Lydia Vlcek v. Northwestern Mutual Insurance Company, a Corporation

421 F.2d 176, 1970 U.S. App. LEXIS 11376

Court of Appeals for the Seventh Circuit·Decided January 5, 1970·No. 17542_1·Published

Opinion

PER CURIAM.

The plaintiffs, owners of a home which was destroyed by fire, brought suit against their fire insurance carrier, Northwestern Mutual Insurance Company. The defendant moved for summary judgment on the ground that the plaintiffs had given statements to an insurance adjuster admitting that they had set fire to their house. The summary judgment was granted.

In affidavits filed in opposition to the motion for summary judgment, the plaintiffs deny making the statements attributed to them, and in the alternative, contend that if they did make the statements, they did so under duress. Thus we are presented with the question of whether these later sworn statements are sufficient to create an issue of fact.

*177 See Greenebaum Mortgage Company v. Town and Garden Associates, 385 F.2d 347 (7th Cir. 1967).

The defendant relies on Burnley v. Moore, 41 Ill.App.2d 156, 190 N.E.2d 141 (1963) and Meirer v. Pocius, 17 Ill.App.2d 332, 150 N.E.2d 215 (1958). In those cases the court concluded that there was no issue of fact which would block the granting of summary judgment even though an attempt was made to repudiate an earlier statement under oath. In the case at bar, however, there is no indication that the initial statements made by the Vlceks were made under oath. We believe that an issue of fact has been created by the Vlceks’ repudiation of the earlier statements attributed to them.

The judgment of the district court is reversed and the case is remanded for further proceedings.

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PER CURIAM.

The plaintiffs, owners of a home which was destroyed by fire, brought suit against their fire insurance carrier, Northwestern Mutual Insurance Company. The defendant moved for summary judgment on the ground that the plaintiffs had given statements to an insurance adjuster admitting that they had set fire to their house. The summary judgment was granted.

In affidavits filed in opposition to the motion for summary judgment, the plaintiffs deny making the statements attributed to them, and in the alternative, contend that if they did make the statements, they did so under duress. Thus we are presented with the question of whether these later sworn statements are sufficient to create an issue of fact.

*177 See Greenebaum Mortgage Company v. Town and Garden Associates, 385 F.2d 347 (7th Cir. 1967).

The defendant relies on Burnley v. Moore, 41 Ill.App.2d 156, 190 N.E.2d 141 (1963) and Meirer v. Pocius, 17 Ill.App.2d 332, 150 N.E.2d 215 (1958). In those cases the court concluded that there was no issue of fact which would block the granting of summary judgment even though an attempt was made to repudiate an earlier statement under oath. In the case at bar, however, there is no indication that the initial statements made by the Vlceks were made under oath. We believe that an issue of fact has been created by the Vlceks’ repudiation of the earlier statements attributed to them.

The judgment of the district court is reversed and the case is remanded for further proceedings.

Frank J. Vlcek and Lydia Vlcek v. Northwestern Mutual Insurance Company, a Corporation, 421 F.2d 176, 1970 U.S. App. LEXIS 11376 (7th Cir. 1970).

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