Industrial Enclosure Corp. v. Glenview Insurance Agency, Inc.

884 N.E.2d 202, 379 Ill. App. 3d 434, 318 Ill. Dec. 647, 2008 Ill. App. LEXIS 90
CourtAppellate Court of Illinois
DecidedFebruary 11, 2008
Docket1-05-0783
StatusPublished
Cited by3 cases

This text of 884 N.E.2d 202 (Industrial Enclosure Corp. v. Glenview Insurance Agency, Inc.) 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
Industrial Enclosure Corp. v. Glenview Insurance Agency, Inc., 884 N.E.2d 202, 379 Ill. App. 3d 434, 318 Ill. Dec. 647, 2008 Ill. App. LEXIS 90 (Ill. Ct. App. 2008).

Opinion

JUSTICE GARCIA

delivered the opinion of the court:

The plaintiff, Industrial Enclosure Corporation (IEC), was awarded $567,172 in damages after a jury trial. The defendant, Glenview Insurance Agency, Inc. (Glenview), filed a motion for judgment notwithstanding the verdict contending that the court erred in denying its motion for a directed verdict based on the absence of any evidence that (1) Glenview proximately caused the damages suffered by IEC under its negligence claim, and (2) Glenview breached its duty to IEC in the procurement of the property insurance under its breach of contract claim.

The court granted the motion for judgment notwithstanding the verdict as to each ground. The court also explained that the jury was improperly instructed as to the duty owed by Glenview to IEC.

The plaintiff appeals that order, contending sufficient evidence was presented at trial to support its claims of breach of contract and negligence. For the reasons that follow, we affirm.

BACKGROUND

The plaintiff, IEC, based in Aurora, Illinois, manufactures industrial boxes. The defendant, Glenview, is an insurance agency located in Glenview, Illinois. Glenview employee Marcus Toral managed IEC’s account. John Palmer, IEC’s president, was responsible for purchasing IEC’s property insurance.

IEC and Glenview first did business in 1992, with Glenview procuring a property insurance policy from Chubb Insurance Company for IEC. During these meetings, Palmer and Toral also discussed the possible purchase of flood insurance. Palmer chose not to purchase flood insurance because IEC’s headquarters had never been flooded, though sewer backup and runoff were concerns. The Chubb policy was renewed through 1996. While a flood coverage rider was discussed several times, it was never added to the policy.

In 1996, Palmer and Toral began to shop around for competitively priced coverage. Palmer’s brother found an attractive quote from Amerisure that Chubb Insurance was not willing to meet. At the same time, Toral obtained a quote from The Maryland Insurance Group/ Northern Insurance Company (Maryland). Maryland was willing to lower its premium price to win IEC’s business.

Palmer accepted the Maryland quote and the policy became effective on June 1, 1996. Palmer testified that based on his conversations with Toral, he expected the coverage limits on the Maryland policy to be comparable to or better than those of the Chubb policy. The policy papers were delivered at the end of July.

On July 17 and 18, the Aurora area experienced rainfall measuring more than 17 inches. Palmer testified that after the storm there was damage to IEC’s building and equipment, including several feet of standing water inside the building. An adjuster from Maryland examined the site and determined the occurrence to be outside the coverage of the policy because the damage to the building was caused by floodwater and surface water. In its August 4, 1996, letter, Maryland informed IEC that the areas around the building showed “physical evidence characteristic of general flooding.” The letter characterized the water inside the building as “caused directly or indirectly by flood waters from a nearby creek and surface run off that accumulated from surrounding property on higher ground.” As the policy excluded “[fllood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray,” Maryland declined coverage of the storm damage as flood related. IEC believed that the damage inside the building was caused by sewer backup and hired its own experts to prove that.

On November 25, 1996, IEC submitted a proof of loss statement to Maryland totaling $2,294,704.51 for the loss of July 18, 1996, contending the loss was caused by water backup and overflow from a sewer, drain and/or sump pump, coverage it had under the policy.

Maryland advised IEC by letter dated January 15, 1997, that it was denying coverage because it believed that the policy did not provide coverage for IEC’s flood-related loss. The letter stated, “Although the flooding throughout the area no doubt overcharged the sewer system in and around [the IEC] building, significant surface storm water runoff caused the damage at [the IEC] facility.” IEC sued. After a trial in federal court, a jury returned a verdict against Maryland and awarded IEC approximately $1.1 million in damages, with $167,000 of that amount designated as lost profits. No appeal was taken.

IEC then filed this action to recover attorney fees and costs in the federal litigation, as well as lost profits and other expenses that IEC did not recover in the federal action. IEC alleged that Glenview breached its duty to procure an insurance contract consistent with its wishes and that Glenview was negligent as to the Maryland policy it did procure.

After a trial, the jury found for IEC and awarded damages in the amount of $567,162. Glenview filed a motion for a judgment notwithstanding the verdict, arguing that the court erred in denying its motion for a directed verdict because Glenview was not the proximate cause of the damages claimed by IEC and that Glenview owed no duty to IEC to interpret the Maryland insurance policy as to the term “surface water.” The trial court granted Glenview’s motion, holding that the proximate cause of the damages claimed by IEC was Maryland’s wrongful denial of IEC’s claim and not any act by Glen-view. The trial court also ruled that Glenview did not have a duty to inform IEC that Maryland might determine that flooding caused by surface water would or could nullify the sewer drain coverage. IEC now appeals.

ANALYSIS

A judgment notwithstanding the verdict can only be granted when all the evidence, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict based on that evidence can stand. Maple v. Gustafson, 151 Ill. 2d 445, 453, 603 N.E.2d 508 (1992), citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). This court applies a de novo standard to our review of decisions on motions for judgment notwithstanding the verdict. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242 (1999).

I. Breach of Contract Claim

IEC first contends that Glenview’s sale of the Maryland policy to IEC without an explanation of the differences between the coverages offered by Maryland and Chubb Insurance violated the parties’ contract to procure insurance. IEC contends that Glenview breached their contract to procure insurance with coverage for sewer and drain backup not “impaired by flooding caused by surface water or general flooding.”

An insurance broker, in general, must exercise reasonable skill and diligence when the agent negotiates and procures an insurance policy according to the wishes of the client. Pittway Corp. v. American Motorists Insurance Co., 56 Ill. App.

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Bluebook (online)
884 N.E.2d 202, 379 Ill. App. 3d 434, 318 Ill. Dec. 647, 2008 Ill. App. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-enclosure-corp-v-glenview-insurance-agency-inc-illappct-2008.