Cavin v. Charter Oak Fire Ins. Co.

• Decision Date: 06 December 1978
• Docket Number: No. 78-50,78-50
• Citation: 384 N.E.2d 441,23 Ill.Dec. 647,66 Ill.App.3d 808
• Parties: , 23 Ill.Dec. 647 Robert R. CAVIN and Mary Cavin, Plaintiffs-Appellants, v. The CHARTER OAK FIRE INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 441

384 N.E.2d 441

66 Ill.App.3d 808, 23 Ill.Dec. 647

Robert R. CAVIN and Mary Cavin, Plaintiffs-Appellants, v. The CHARTER OAK FIRE INSURANCE COMPANY, Defendant-Appellee.

No. 78-50.

Appellate Court of Illinois, Second District.

Dec. 6, 1978.

Slovacek & Slovacek, Crystal Lake, for plaintiffs-appellants.

Kell, Conerty & Poehlmann, Woodstock, for defendant-appellee.

SEIDENFELD, Presiding Justice:

Robert Cavin and Mary Cavin, plaintiffs, sued the defendant, Charter Oak Fire Insurance Company, on an insurance policy insuring their rental property against damage from vandalism. Summary judgment was granted in favor of the insurance company based upon the pleadings, including the insurance policy and the deposition of the plaintiffs. Plaintiffs appeal.

In issue is the interpretation of the exclusion of coverage for vandalism and malicious mischief,

"while the dwelling is Vacant beyond a period of 30 consecutive days." Section I-8. (Emphasis added.)

The trial court concluded that the term "vacant" was synonymous with "unoccupied" and on this basis found no coverage as a matter of law since the fact that the premises had been unoccupied by any persons for more than 30 days was conceded. We cannot agree.

The policy term was June 20, 1973 to June 20, 1974. The testimony of the Cavins in their deposition includes the facts that no persons were living in the premises on December 8, 1973 when the alleged damage occurred; that no one had lived in the premises since the last part of February, 1973; that there were no tenants during that period because the dwelling was being remodeled from an existing two furnished apartments to a contemplated three furnished apartment dwelling; but that each apartment was completely furnished up to the date of the loss. There was also testimony that the insured property adjoined the home of plaintiffs and that they stored material in the basement of the rental dwelling for a fence they planned to erect between the buildings as well as other materials in connection with the planned remodeling.

The interpretation of the term "vacant" as used in a policy is a question of law; but whether at the time of loss the insured dwelling was "vacant" is a question of fact. (See, e. g., Home Ins. Co. v. Mendenhall, 164 Ill. 458, 469, 45 N.E. 1078 (1897); Gash v. Home Insurance Co. of N. Y., 153 Ill.App. 31, 33 (1910).) Ordinarily, a type of exclusion here involved has been phrased in terms of "vacant or unoccupied" or, phrased in the conjunctive, "vacant and unoccupied." (See, e. g., Schuermann v. Dwelling House Ins. Co., 161 Ill. 437, 440, 43 N.E. 1093 (1896).) Where the question of occupancy has been an element of the exclusion the phrase has been interpreted to mean that the dwelling was without an occupant at the time of the loss, that is, that no person was living in it. (161 Ill. 437, at 440, 43 N.E. 1093; American Ins. Co. v. Padfield, 78 Ill. 167, 169 (1875). See, also, Anno. 47 A.L.R.3d 398, 409-413.) In Gash v. Home Insurance Co. of N. Y., 153 Ill.App. 31, 33, there is dicta that "vacant" by itself means "empty of everything but air"; whereas "unoccupied" means "no one has the actual use or possession." (See, also, Schuermann v. Dwelling House Ins. Co., 161 Ill. 437, 440, 43 N.E. 1093.) Even where the exclusion has related to premises which are "vacant and unoccupied" or "vacant or unoccupied" with no discussion that distinguishes between the two words, vacant, unoccupied, the opinions have recognized that it is a relevant inquiry to determine whether substantial articles are left in the building as showing whether the building is "occupied." (See, Dunton v. Connecticut Fire Insurance Company, 371 F.2d 329, 330 (7th C.C.A. 1967).) Thus in Dunton, the court of appeals concluded "that the use of a building to store a few articles does not show that the building is still occupied." (371 F.2d at 330-331). In Home Ins. Co. v. Mendenhall, 164 Ill. 458, 469, 45 N.E. 1078, the court concluded that leaving "some trifling articles in the house" raised a question of fact as to whether the premises were vacant and unoccupied. In American Ins. Co. v. Padfield, 78 Ill. 167, 170 after an evidentiary trial which showed that only a table, crib and mattress had been left in the premises, presumably belonging to the tenant and left without intention to hold possession of the premises, the court concluded that the premises were therefore vacant and unoccupied.

Here, of course, we are dealing with an exclusion clause which uses only the term "vacant." If any ambiguity exists because of the lack of reference to occupancy which would limit the insurance company's liability the construction must be in favor of the insured. (See, e. g., Pierce v. Standard Acc. Ins. Co., 70 Ill.App.2d 224, 230, 216 N.E.2d 818 (1966).) In Knoff v. United States Fidelity and Guaranty Co., 447 S.W.2d 497 (1969), the Court of Civil Appeals of Texas in reference to an insurance policy which contained only...