Barth v. State Farm Fire and Cas. Co.

• Decision Date: 20 February 2007
• Docket Number: No. 4-06-0208.,4-06-0208.
• Citation: 867 N.E.2d 1109,371 Ill. App.3d 498
• Parties: Rodney J. BARTH, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

867 N.E.2d 1109

371 Ill. App.3d 498

Rodney J. BARTH, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellee.

No. 4-06-0208.

Appellate Court of Illinois, Fourth District.

February 20, 2007.

Justice TURNER delivered the opinion of the court:

In March 2005, plaintiff, Rodney J. Barth, filed a second-amended complaint against defendant, State Farm Fire and Casualty Company, claiming defendant failed to pay an insurance claim following a house fire. In December 2005, a jury found in favor of defendant.

On appeal, plaintiff argues (1) the trial court erred in failing to give plaintiff's instructions to the jury, (2) the trial judge erred in not recusing himself from the case, (3) the court erred in prohibiting plaintiff from presenting certain evidence, (4) the court erred in not granting the motion for judgment notwithstanding the verdict as to the second affirmative defense, and (5) the jury's verdict on the second affirmative defense was against the manifest weight of the evidence. We affirm.

I. BACKGROUND

In March 2005, plaintiff filed a second-amended complaint against defendant, seeking to recover losses that resulted from a house fire in Auburn. Plaintiff alleged (1) defendant breached its homeowner's policy by failing to pay the claim, (2) defendant's refusal to pay and/or delay in settlement was unreasonable and vexatious, and (3) the denial amounted to intentional infliction of emotional distress.

In April 2005, defendant set forth three affirmative defenses, including the "intentional act provision" of the policy, the "concealment or fraud provision" of the policy, and set-off. Under the second affirmative defense concerning concealment or fraud, defendant alleged plaintiff hid the actual status of his financial condition by misrepresenting the status of his mortgage, his satellite-television service, and his ability to withdraw money from an automated teller machine (ATM), and by not revealing the existence of his American Express card. Defendant alleged plaintiff's financial condition was a motive for the fire.

In June 2005, plaintiff filed a motion for substitution of judge for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-1001(a)(3) (West 2004)). The motion alleged Judge Patrick Kelley had recently disclosed he was an insured of defendant, thereby creating an appearance of partiality. Judge Kelley referred the motion to Judge Robert Eggers for a hearing on the matter. Judge Eggers indicated he too was insured by State Farm and reassigned the case. Judge Leo Zappa heard the motion, denied it, and referred the case back to Judge Kelley for trial. In December 2005, Judge Kelley filed an order to clarify that his prior referral of the motion for substitution to Judge Eggers was considered as a motion for recusal and Judge Kelly intended to deny that motion by referring it to Judge Eggers.

At trial, William Bolletta testified he was certified as an arson investigator in 1996. On June 2, 2003, Bolletta responded to a fire at plaintiff's home in Auburn. Upon arrival, he was advised that the fire appeared to have different points of origin. Bolletta talked to an individual, suggested by counsel to be William Penn, who remarked he had been at the scene of other fires and was "amazed" at how fast the fire department responded. Bolletta spoke with plaintiff, who was sitting in a vehicle and appeared "very agitated."

On cross-examination, Bolletta testified he believed the fire in the kitchen had "a couple of points of origin" that appeared to be unrelated. The fire in the bedroom was also unrelated to the kitchen fire. He came to the conclusion the bedroom fire was not accidental. It was Bolletta's opinion that the occupants of the house started the fire, left, then returned to see the fire did not take, and started another fire.

Plaintiff called Cheryl Jyawook as an adverse witness. She worked as a claim representative for State Farm. After the fire, Jyawook provided plaintiff with various forms to inventory property. She stated the coverage limits on the property amounted to $102,599. Jyawook determined that plaintiff was behind in his mortgage payments. Defendant denied the claim on March 31, 2004.

Plaintiff's evidence deposition was read to the jury. Plaintiff testified he suffered from polio and had been in a wheelchair since he was 12 years old. He obtained a bachelor's degree and a master's degree in education and worked in state government for over 20 years. He quit working because of his weakened physical condition and depression, and he began receiving disability income. Plaintiff paid $77,500 for his house in Auburn with monthly mortgage payments totaling $511.74. He had the house insured with State Farm. After the fire, the house was sold for $52,500.

In 2002, plaintiff did not have a driver's license and used a taxi to take him to Springfield. He met William Penn, whom he later hired to drive him when necessary. Plaintiff allowed Penn to keep his car and would call him if he needed a ride. At one point, Penn introduced plaintiff to William Burmeister, "a sidekick of Penn's."

In March 2003, plaintiff discovered he had bounced checks in his bank account. He also thought he failed to receive some of his mail. As of June 2003, plaintiff believed he had a net worth of $72,638. He had received an American Express card in January or February 2003, and the $4,202.86 in charges for February 2003 were not authorized by him. Penn had borrowed the American Express card, and plaintiff authorized the purchase of eyeglasses and a tattoo. Plaintiff did not authorize $3,200 worth of cash advances on his Visa card in March 2003. Penn also had access to the Visa card. Near the time of the fire, plaintiff gave Penn $700 in cash to pay $511.74 for the mortgage and $188.16 for the car payment. Plaintiff believed Penn did not deliver the money because the amount was not recorded. Plaintiff later made up the payments in August 2003.

On June 2, 2003, Penn and Burmeister showed up at plaintiff's residence at around 4:15 p.m. At around 7:30 p.m., the three men decided to leave. Penn lifted plaintiff into the car and placed his wheelchair in the trunk. Penn also took plaintiff's shaving kit from the house and put it in the car. Plaintiff found this "odd" but did not say anything. The men traveled to Chatham and stopped at a cigar store and then a gas station. They then drove aimlessly around Chatham before returning to Auburn at around 9 p.m. The men exited the car and talked in the garage. Some time later, Penn and Burmeister wanted to rent some movies. Penn entered the house for about 10 minutes, while plaintiff used his cellular phone to call his neighbor to borrow $20.

The men reentered the car and headed toward Virden. They stopped at a bank around 10:20 p.m. so plaintiff could get a cash advance using his Visa card. Plaintiff gave Penn the card and the personal identification number, but the transaction was declined for insufficient funds. Penn tried again with the same result. Plaintiff was "surprised" because he thought he had enough money available in the account. They continued to a video store, and Penn and Burmeister were in the store for about 20 minutes.

The men returned to Auburn, and Penn stopped the car in the driveway. Penn indicated he needed to use the bathroom. Plaintiff watched Penn open the door and noticed "what looked like steam" coming out of the house. Penn returned to the car and asked plaintiff for his keys. Penn then tried the front door and opened it, and plaintiff saw smoke. Penn came back to the car and yelled for plaintiff to call the fire department. Plaintiff made the call at 10:52 p.m. and then waited for the fire department to arrive. Because of the fire damage, plaintiff stayed at a hotel with help from the Red Cross.

After the fire, plaintiff met with representatives from State Farm. Plaintiff told Jyawook his satellite-television service had been disconnected because he owed $100. He also provided her with a copy of his credit report in August 2003. The report showed his accounts with American Express and Visa. If he failed to mention the American Express card in a June 10, 2003, recorded statement, it was "inadvertent." Plaintiff testified he did not start and did not tell anyone to start the fire. Plaintiff learned from Jyawook that Penn and Burmeister had criminal records.

On cross-examination, plaintiff acknowledged he did not identify to State Farm in his June 10, 2003, recorded statement that he had an American Express card. He received the card in February 2003 and used it "a few times." American Express contacted him in May 2003, and he was surprised at the balance. Penn had the card for several months and put off returning it. At the time of the fire, plaintiff was not current with his utility bills.

John Pinneo testified he worked as a fire investigator for the Sangamon County sheriff's office. He responded to the fire at plaintiff's residence and found the fire was suspicious. He determined at least two fires started in two separate areas of the house. Pinneo opined the two distinct and separate fires led him to conclude an incendiary arson fire had occurred. Several weeks after the fire, Pinneo asked to talk to plaintiff through his attorney, but he found the restrictions that would be placed on the interview to be unacceptable. Pinneo contacted defendant and indicated the fire had been set.

Jeff Jones worked in collections with the Bank of Springfield. Jones testified he contacted plaintiff in November 2002 to tell him he was past due on his mortgage payment. Jones contacted plaintiff in December, indicating he was past due for his November payment. As of June 2, 2003, plaintiff was two months behind on his mortgage payments, but payment would have been accepted by June 15 without a late charge being applied.

Following closing arguments, the jury found for defendant...