Bass v. Illinois Fair Plan Ass'n, 80-2133

• Decision Date: 28 July 1981
• Docket Number: No. 80-2133,80-2133
• Citation: 424 N.E.2d 908,54 Ill.Dec. 158,98 Ill.App.3d 549
• Parties: , 54 Ill.Dec. 158 Roosevelt BASS and Josephine Bass, Plaintiffs-Appellants, v. ILLINOIS FAIR PLAN ASSOCIATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 908

424 N.E.2d 908

98 Ill.App.3d 549, 54 Ill.Dec. 158

Roosevelt BASS and Josephine Bass, Plaintiffs-Appellants, v. ILLINOIS FAIR PLAN ASSOCIATION, Defendant-Appellee.

No. 80-2133.

Appellate Court of Illinois, First District, Second Division.

July 28, 1981.

Rabens, Formusa & Glassman, Ltd., Chicago, for plaintiffs-appellants; George C. Rabens, Chicago, of counsel.

Clausen, Miller, Gorman, Caffrey & Witous, P. C., Chicago, for defendant-appellee; James T. Ferrini, Richard A. Buchanan, Elizabeth J. Whinery, Chicago, of counsel.

STAMOS, Justice:

Roosevelt and Josephine Bass brought an action against the Illinois Fair Plan Association alleging breach of a contract to insure plaintiffs against loss by fire. Plaintiffs sought $16,354.41 for actual damage to the insured property resulting from a fire on September 14, 1974. Plaintiffs sought an additional $100,000 in punitive damages due to defendant's alleged arbitrary and oppressive conduct in failing to pay plaintiffs' claim under the policy of insurance. Judgment was entered on the jury verdict in favor of defendant. On appeal, plaintiffs contend that there was insufficient evidence to sustain the jury verdict predicated on defenses based on the terms of the insurance policy and that the trial court erred in refusing to admit into evidence the opinion of one of the plaintiffs, ostensibly knowledgeable in the field of real estate, relative to reasonable means necessary to protect the property. Plaintiffs further contend that defendant has, by its retention of premiums paid, waived any policy defenses of which defendant was aware.

Plaintiffs own a rental apartment building at 1300 South Kolin Avenue and 4337-41 West 13th Street on the west side of Chicago, Illinois. The parties entered into a contract providing insurance against loss by fire to the building owned by plaintiffs. The insurance policy ran from November 13, 1973, to November 13, 1974, and limited coverage to $60,000.

There were three separate fires at plaintiffs' apartment building during the term of the insurance policy. The first two, on June 21, 1974, and July 8, 1974, rendered all but a part of the northwest end of the building uninhabitable. Plaintiffs' claims based on these two fires were settled between the parties. It is the third fire, on September 14, 1974, in the previously undamaged northwest side of the building, that is the subject of this appeal. We note that several tenants lived in the apartment building at the time of the June and July fires. The last tenants moved out of the building about September 10, 1974, a few days prior to the third fire.

Defendant has refused to pay the $16,354.41 claimed as damages by plaintiffs and has asserted two affirmative defenses to payment, both based on the insurance policy; that the loss resulted from plaintiffs' failure to protect the property from further damage after the two previous fires, and that coverage under the policy was suspended because the loss occurred while the hazard was increased by means within the knowledge and control of plaintiffs. ¹

At trial, plaintiffs endeavored to prove that they did everything reasonably necessary to adequately protect the property from damage and that there did not exist an increase in hazard sufficient to suspend coverage under the policy. Roosevelt Bass, the plaintiff who managed the property, testified that he hired James Seaberry to board up the building after the fires of June and July 1974. Bass further testified that Robert Lucas, the janitor living in the building at the time of the first two fires, was hired to reboard the building whenever necessary and that James Washington took over when Lucas ceased reboarding. Notwithstanding some inconsistencies, both Lucas and Washington testified that they reboarded "practically everyday."

Defendant countered by offering evidence that the reboarding work was not being done. Photographs were admitted showing open access to the building going uncorrected over a 10 day period in mid-August. Albert Podosky, a city building inspector, testified that on August 5, 1974, portions of the building were open and accessible without forcible entry. Steven Hastings, an insurance adjustor with L. J. Shaw & Company in Chicago, inspected the premises on July 1, August 13, 20, 22, 27 and September 10, 1974. He testified that subsequent to August 13, 1974, he saw little or no change in the boarding. It is uncontested that the building was totally abandoned immediately prior to the fire of September 14, 1974.

Plaintiffs contend there was insufficient evidence to sustain the jury verdict and ask this court to reverse the trial court's denial of their motion for a new trial. After a trial court's denial of a motion for a new trial, the reviewing court will not disturb the findings of the jury unless the verdict is against the manifest weight of the evidence. Spankroy v. Alesky (1977), 45 Ill.App.3d 432, 439, 4 Ill.Dec. 126, 359 N.E.2d 1078; Cora v. Chicago Housing Auth. (1971), 131 Ill.App.2d 23, 29, 268 N.E.2d 497.

Each side presented evidence on the issues of protection of the premises and increase of hazard within the knowledge and control of plaintiffs (See Di Leo v. United States Fidelity & Guaranty Co. (1964), 50 Ill.App.2d 183, 191, 200 N.E.2d 405 (increase in hazard must be within knowledge and control of insured to suspend coverage).) Because the jury returned a general verdict in favor of defendant,...