J. Roth Builders, Inc. v. Aetna Life and Cas. Co.

• Decision Date: 08 January 1987
• Docket Number: No. 86-0262,86-0262
• Citation: 503 N.E.2d 782,104 Ill.Dec. 920,151 Ill.App.3d 572
• Parties: , 104 Ill.Dec. 920 J. ROTH BUILDERS, INC. Plaintiff-Appellant, v. AETNA LIFE AND CASUALTY COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 782

503 N.E.2d 782

151 Ill.App.3d 572, 104 Ill.Dec. 920

J. ROTH BUILDERS, INC. Plaintiff-Appellant, v. AETNA LIFE AND CASUALTY COMPANY, Defendant-Appellee.

No. 86-0262.

Appellate Court of Illinois,

First District, Fourth Division.

Jan. 8, 1987.

Kurt G. Beranek, Francis P. Kasbohm, Chicago, for plaintiff-appellant.

Gooding and Hayes, Chicago (Barbra L. Hayes, of counsel), for defendant-appellee.

Justice LINN delivered the opinion of the court:

Plaintiff brought an action against Larry Behmer, alleging that Behmer, on September 20, 1979, had caused a fire which totally destroyed a residence in Lisle, Illinois, which was built and owned by plaintiff. Judgment was entered on a jury verdict in favor of plaintiff and against Behmer in the amount of $103,000. Plaintiff then brought this garnishment action against Aetna Life and Casualty Co. (Aetna) which had issued a liability policy to Behmer. Aetna moved for summary judgment because of a clause in its policy which excluded coverage for expected or intended occurrences and the jury had found that Behmer wilfully caused the damage. Summary judgment was entered in favor of Aetna. Plaintiff now appeals, contending that factual questions existed concerning whether Behmer had the mental capacity to form the intent to injure, or to have an expectation of injury, making summary judgment inappropriate.

Aetna's motion for summary judgment states that the jury in Roth v. Behmer was given instructions on wilful and wanton conduct and found plaintiff had met its burden of proof showing Behmer wilfully and wantonly set fire to plaintiff's premises.

In its response, plaintiff admitted that the jury had determined that Behmer was guilty of wilful and wanton conduct but pointed out that the jury did not make any findings as to the mental state of Behmer at the time of the fire. Furthermore, plaintiff claimed there was no evidence at the trial of Behmer's mental state, which was not an issue. Rather, plaintiff maintained, Behmer did not have the mental capacity necessary to form the intent to injure plaintiff's property and the exclusion did not apply. Plaintiff attached the affidavit of Dr. Bennett Braun which stated as follows:

"1. I am Bennett G. Braun and I am in the private practice of psychiatry as Director of Associated Mental Health Services in Chicago, Illinois. The resume attached hereto as Exhibit "A" is a partial curriculum vitae and is correct and accurate.

2. I have examined Larry Behmer on August 5, 1982.

3. I am of the opinion that at the time of the fire of September 20, 1979, which the jury found to have been set by Larry Behmer, Mr. Behmer lacked the mental capacity necessary to form an intent to injure and to conform his behavior to the mandates of the law."

Aetna filed a motion to strike the Braun affidavit because: Braun examined Behmer approximately three years after the fire; Braun had no personal knowledge of Behmer at the time of the fire and consequently Braun did not allege facts of which he had personal knowledge as required by Supreme Court Rule 191 (87 Ill.2d R. 191); Braun failed to put forth with any particularity the facts upon which he relied; Braun alleged no facts admissible in evidence to which he could testify and, in fact, admitted his incompetency in his affidavit; and paragraph 3 was an opinion without a factual basis and a conclusion contrary to Rule 191. Furthermore, Braun's discovery deposition, according to Aetna, established that he lacked sufficient knowledge since Braun stated he had conducted a one-hour interview on August 5, 1982, stated that he was "not geared" to doing a full in-depth psychiatric evaluation and was unable to express an opinion on whether Behmer had changed. Braun also indicated that he could make no evaluation if Behmer had set the fire and Behmer never told Dr. Braun he set the fire.

As part of its motion to strike, Aetna also contended Dr. Peter Broido, who treated Behmer for his burns, was in a better position to evaluate his intent. At his deposition, Broido had testified Behmer told him "a very strange story" as to how he sustained his burns and stated that he thought Behmer "knew exactly what he was saying and doing at all times."

On June 27, 1985, the trial court entered summary judgment for Aetna. On July 26, 1985, plaintiff filed a petition for reconsideration stating that the court had expressed concern at the lack of detail in the original affidavit of Dr. Braun and seeking leave to file another affidavit containing substantial detail as to his specific findings. Plaintiff stated that Dr. Braun was now of the opinion that Behmer, at the time he set the fire, a fact already proven, was suffering from a specific psychological disease or condition known as "intermittent explosive disorder." Based on this condition, plaintiff maintained a factual question existed whether Behmer was capable of forming an intent or expectation that his conduct would cause the property damage in this case. Plaintiff, relying on Aetna Casualty and Surety Co. v. Dichtl (1980), 78 Ill.App.3d 970, 34 Ill.Dec. 759, 398 N.E.2d 582, maintained that, if Behmer was suffering from a mental disease or defect at the time of the fire, his conduct did not fall within the policy exclusion so that this competent psychiatric testimony presented a factual issue precluding summary judgment.

Dr. Braun's supplemental affidavit stated that he examined the medical records of Dr. Daljit Kaur and Dr. Eric Van Doren and Behmer's deposition testimony; that he had been furnished information from attorney Kurt G. Beranek (plaintiff's counsel) relative to Behmer's background and had information obtained from Susan Behmer. Braun then concluded that on September 20, 1979, Behmer was suffering from intermittent explosive disorder and at that time lacked the mental capacity to control his behavior and conform to the mandates of law. Braun set forth the diagnostic criteria for such a diagnosis: (a) several discrete episodes of loss of control of aggressive impulses resulting in serious assault or destruction of property; (b) behavior that is grossly out of proportion to any precipitating source of psychological stress; (c) absence of signs of generalized impulsivity or aggressiveness between episodes; and (d) not due to schizophrenia, anti-social personality disorder or conduct disorder. Dr. Braun stated that Behmer's medical background included episodes of rage during the two-year period prior to the fire for which he sought medical attention. Behmer also had a history of three head injuries in the past nine years. Prior to the fire, he had occurrences of violence which included the throwing of furniture, physical abuse of his wife, and physiological changes manifested by "bulging of the eyes." Braun stated that head trauma such as that existing in Behmer's history and his use of alcohol such as existed on the night of the fire, lowered the threshold for violent outbursts characterized by the intermittent explosive disorder condition, and there was no specific evidence of generalized impulsivity or aggressiveness between episodes. In addition, immediately before the fire, Behmer had suffered a violent outburst of rage at a tavern and he got into a fight. Finally, Dr. Braun stated that, on and prior to the time of the fire, Behmer was experiencing a number of factors which impacted his mental state, including his mother developing cancer between 1978 and 1979, deterioration of his marriage, deterioration of his business affairs resulting in bankruptcy, development of ulcers, and inability to remember rage attacks documented in Dr. Kaur's records.

On December 23, 1985, after hearing argument, the court declined to vacate the order granting Aetna summary judgment and sustained the motion by Aetna to strike the supplemental affidavit. The court described the affidavits of Dr. Braun as "wholly inadequate." The court also upheld its earlier order of June 27, 1985, striking the original affidavit.

During argument on June 27,...