Smith v. United Farm Mutual Reinsurance

619 N.E.2d 263, 249 Ill. App. 3d 686
CourtAppellate Court of Illinois
DecidedAugust 30, 1993
DocketNo. 5-91-0838
StatusPublished
Cited by4 cases

This text of 619 N.E.2d 263 (Smith v. United Farm Mutual Reinsurance) 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
Smith v. United Farm Mutual Reinsurance, 619 N.E.2d 263, 249 Ill. App. 3d 686 (Ill. Ct. App. 1993).

Opinions

PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal is from the circuit court’s orders granting summary judgment in favor of the defendants and denying plaintiff’s motion for summary judgment. We reverse and remand.

In January of 1984, Gary Smith purchased a homeowner’s policy from United Farm Mutual Reinsurance (United Farm) through his insurance broker, Ron Clark Insurance, Inc. (Agency), and paid the premium through July 20, 1984. On May 22, 1984, plaintiff’s wife Beatrice Smith advised an employee at the Agency that she and her husband would be moving to Florida and that they had rented their house in Eldorado, Illinois, to the Shivley family. Cecile Weidemann, an employee at the Agency, advised Beatrice Smith that the homeowner’s policy would have to be cancelled and that a renter’s policy would be issued. Weidemann signed Gary Smith’s name to a policy-release statement, signed her own name as a witness, and then forwarded the document to United Farm, which can-celled the homeowner’s policy and issued a refund check. This check was forwarded to the plaintiff in Florida. A renter’s policy was also forwarded to the plaintiff. Plaintiff cashed the refund check. Thereafter, United Farm sent a premium statement for the renter’s policy to the Smiths’ address in De Land, Florida, and required payment of $51 by June 14, 1984, in order to maintain the renter’s policy. Plaintiff did not pay the premium by June 14, 1984. During June of 1984, the Smiths moved from De Land, Florida, to Lake Helen, Florida, but did not inform United Farm or the Agency of their new address.

United Farm maintains that on June 22, 1984, it mailed notice of cancellation of the renter’s policy for nonpayment of premium to De Land, Florida, the last residence known to United Farm. The notice stated that the cancellation was to become effective on July 2, 1984. Plaintiff denies receiving a notice of cancellation on either the homeowner’s or renter’s policy. The Smiths returned to Illinois at the end of June 1984. On approximately July 2, 1984, plaintiff received an additional premium statement that gave him until August 23,1984, to pay the premium on the renter’s policy.

On July 12, 1984, plaintiff was told via telephone that his house was on fire. En route to the fire plaintiff and his wife stopped at the Agency and paid the premium on the renter’s policy. Subsequently, the Agency returned the premium and denied the claim. Plaintiff filed suit claiming coverage under either the homeowner’s insurance policy or the renter's policy. All parties filed motions for summary judgment, and the court entered summary judgment in favor of the defendants and against the plaintiff. Plaintiff appeals.

Before considering the summary judgment issue, it is necessary to first address plaintiff’s argument that the trial court erred in striking his and his wife’s affidavits which were filed in opposition to United Farm’s motion for summary judgment.

With regard to the affidavit of Gary Smith, the trial court based its ruling on its finding that , the affidavit of Gary Smith contained hearsay, was conclusory, and was not based entirely on Gary Smith’s personal knowledge. Plaintiff submits that the affidavit is completely supported by admitted documentary evidence in the record. He argues that the purpose of the affidavit was to correct the mistakes he made in his deposition. The affidavit provides in pertinent part:

“1. That I am the Plaintiff in this case, because my name is on the insurance policies that are described in the complaint.
2. That my wife, Beatrice Smith, had the sole contact with the insurance company, and I had no contact whatsoever with the insurance company, or the insurance agency between the dates of May 22, 1984, and July 12, 1984. Even the mailings were received by my wife, especially down in Florida.
3. If I am called to testify at the trial, I will testify under oath that when I gave my deposition on November 21, 1986, I made several errors. In the first place, I seldom received the mail. My wife, Beatrice, received the mail. I did not pay much attention to what was received in the mail, because I knew that my policy was paid up until the middle of July, and I did not figure that we could be without coverage no matter what bills the insurance company sent.
4. A [sic] the deposition, I was studying the documents and testifying from the insurance policies and the premium notices and the refund notice, all of which were attached to the complaint.
I never saw a cancelled policy, so when I said on Page 16 ‘that I received a cancelled policy and a check,’ I was totally wrong. I must have taken that from the letter dated June 1, 1984, that says:
‘Mr. and Mrs. Smith, Enclosed please find your new policy showing rental dwelling. Premium due of $51.00 by June 14, 1984. You will receive a refund shortly from cancellation of your previous policy. Thanks, Cecile K. Weidemann.’
5. At the deposition, I looked at the $29.00 refund statement, and I surmised that I received the B.W. policy attached to the complaint with the refund check, but I learned from my wife, Beatrice, that that is not so. The refund check came toward the end of June and there was no policy with it, just Exhibit 1. Ron Clark and the other insurance people told me that right after the fire, that [sic] I had been cancelled out and I guess I just took them at their word. Even my attorney thought that I had signed a cancellation of the first policy because the insurance company told him that I did. When he finally got a copy of the cancellation, I showed him that I never signed it nor had I gone to Ron Clark’s office before July 12, 1984, so I could not have signed it. Only then did he realize that the first policy was never cancelled.
I have read my wife’s Affidavit and I will adopt it completely. It comes back to me that the parts that I was aware of happened just as she said it. It is unfortunate that I was called for the deposition because I knew far less about what happened than Beatrice did.”

Under Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)), an affidavit submitted in connection with a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure (735 ILCS 5/2 — 1005 (West 1992)) shall be made on the personal knowledge of the affiant and shall not consist of conclusions but of facts admissible in evidence. Parts of paragraphs 3 and 4 and most of paragraph 5 of Gary Smith’s affidavit contain conclusory statements as to plaintiff’s beliefs and possible reasons why plaintiff may have testified the way he did at his deposition. In addition, paragraph 5 relates statements made by others to the affiant and the purported beliefs of others. These paragraphs contain conclusory and hearsay statements and do not meet with the requirements of Rule 191(a). (See Kalb v. Village of Oak Lawn (1984), 128 Ill. App. 3d 481, 470 N.E.2d 1268; International Society for Krishna Consciousness, Inc. v. City of Evanston (1977), 53 Ill. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Safeway Insurance Co. v. Ebijimi
2018 IL App (1st) 170862 (Appellate Court of Illinois, 2018)
In re Estate of Zivin
2015 IL App (1st) 150606 (Appellate Court of Illinois, 2015)
Taylor v. Peoples Gas Light & Coke Co.
656 N.E.2d 134 (Appellate Court of Illinois, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
619 N.E.2d 263, 249 Ill. App. 3d 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-united-farm-mutual-reinsurance-illappct-1993.