Wells v. State Farm Fire & Cas. Co.
| Decision Date | 28 April 2020 |
| Docket Number | No. 1-19-0631,1-19-0631 |
| Citation | 439 Ill.Dec. 866,148 N.E.3d 919,2020 IL App (1st) 190631 |
| Parties | Gia WELLS, Plaintiff-Appellant and Cross-Appellee, v. STATE FARM FIRE AND CASUALTY CO., Defendant-Appellee and Cross-Appellant. |
| Court | United States Appellate Court of Illinois |
Edward Seward, of Seward & Szczygiel, P.C., of Chicago, for appellant.
Michael Resis and Joseph P. Carlasare, of SmithAmundsen LLC, of Chicago, for appellee.
¶ 1 In May 2016, plaintiff Gia Wells submitted a claim to her insurer, defendant State Farm Fire and Casualty Co. (State Farm), after discovering water in the basement and the second-floor bathroom of her property. Ultimately, State Farm denied coverage, and Gia filed a second-amended, two-count complaint alleging that State Farm (1) breached the insurance contract and (2) acted vexatiously and unreasonably in denying her claim, in violation of the Illinois Insurance Code (Code) ( 215 ILCS 5/155 (West 2016) ). The circuit court granted State Farm's motion to dismiss Gia's contention under the Code and permitted her to voluntarily dismiss the remaining count.
¶ 2 On appeal, Gia asserts the court erroneously dismissed her claim that State Farm acted vexatiously and unreasonably in denying coverage. State Farm contends on cross-appeal that the court entered an improper nunc pro tunc order vacating its prior finding that Gia willfully failed to appear for her deposition. We affirm the court's judgment.
¶ 5 Charles Wottrich, Gia's first husband, procured the policy at issue for the house located at 3740 Merioneth Drive in the Village of Crete (property). "Coverage A" applied to the dwelling, while "Coverage B" applied to personal property. In addition, Coverage B covered loss caused by the following:
Both Coverage A and Coverage B incorporated the exclusions provided in "Section 1—Losses Not Insured," which similarly stated as follows:
We note that the policy also contained exclusions for corrosion and vandalism to the dwelling while vacant.
¶ 6 Finally, the policy contained the following condition:
¶ 8 After Gia reported the flooding to State Farm in May 2016, it hired EFI Global, Inc., (EFI) to assist in the investigation. EFI's initial report, published in January 2017, noted that the waterline on the basement walls was 73 inches high and it was unclear how often the two-story residence was occupied. The report found that the gas used at the property was inadequate to appropriately heat it and that water froze inside the pipes, causing a pipe failure in the second-floor bathroom. Ultimately, water flowed from there into the basement.
¶ 9 In April 2017, EFI published a report addendum at the direction of State Farm based on the receipt of additional information. Specifically, "the utility-supplied water service to the residence had been discontinued sometime prior to 2017." The addendum determined that "utility-supplied water could not have been the source of the flooding," that the volume of water that could have escaped from the second-floor was insufficient to cause the basement flooding, and that it was improbable that the ground water would have caused that extent of flooding. Additionally, EFI concluded that fractures to the piping in the basement caused the basement to flood but that the cause of the fractures could not be determined, in part because of corrosion on the pipes. EFI's addendum did not identify potential causes for the fractures. EFI stated, "[i]t is highly probable that the flooding of the basement resulted in the loss of heating to the residence, which in turn resulted in the freezing in the upstairs piping." After State Farm asked EFI to discuss the candidate causes of the initial piping facture in the basement, EFI published a second addendum in May 2017. EFI identified the potential causes as freezing, corrosion, and vandalism.
¶ 10 Meanwhile, on April 19, 2017, Gia submitted to examination under oath. Gia testified that, when Charles died in 2006, she continued to use the property as her address but slept at her mother's home. From 2006 to 2012, she went to the property every day. She reduced visits to once or twice a week in 2012. According to Gia, she married Mark Wells on December 9, 2015, and lived full-time at his home in Steger, Illinois, but never officially moved in with him. She kept less of her personal belongings at Mark's house than at her mother's house and kept most of her belongings at the property.
¶ 11 Gia testified that, during the first week of January 2016, she and Mark went on their honeymoon to Mexico for 7 to 10 days. The December before the honeymoon, she had stopped by the property to pick up clothing and change the furnace filter. Additionally, the heat was left on an automatic setting. She did not recall going to the property again until May 2016.
¶ 12 At that time, Gia went to the property to clean and prepare for remodeling. In order to transfer from well water to city water, the property was repiped before Charles died in 2006. As of May 2016, however, Gia had not yet had the walls and floors repaired. When Gia went to the property, she saw that the basement was full of water. After that day, Gia went to the property to pick up her mail once or twice a week but did not always go inside. Mark went to the property more frequently but similarly did not go inside every time.
¶ 13 Gia acknowledged that a lien had been placed on the property at some point for failing to pay a water bill, but she subsequently paid the bill. Additionally, Gia testified that she tried to obtain all of the water bills at State Farm's request but "they," apparently referring to the Village of Crete (Crete), did not have them. Gia testified that she never had the city water turned off, although Crete had turned it off due to nonpayment, and her well water was never disconnected.
¶ 14 On July 10, 2017, State Farm determined that the loss was not covered. According to State Farm, its investigation revealed that the property was unoccupied at the time of the loss and that Gia neither maintained heat nor turned off the water supply and drained the system and appliances. While the precise cause of the piping fracture in the basement could not be determined, EFI identified three candidate causes, all of which would have been excluded under the policy.
¶ 15 State Farm also found Gia violated the concealment and fraud provision with respect to the duration of her travels, the time spent at the property and her ability to obtain information regarding water service to the property. State Farm further noted that, while Gia represented that she and Mark married in December 2015, both the marriage certificate and Mark stated that the marriage occurred in December 2014.1
¶ 17 Gia then commenced this action on November 22, 2017, and ultimately filed a second-amended complaint, alleging that State Farm breached the insurance contract and acted vexatiously and unreasonably in denying coverage, in violation of section 155 of the Code. Gia alleged that the State Farm representative who inspected the property in June 2016 noted that she lived there part-time and intended to remodel the property to live there full-time. Additionally, that representative noted that Gia had been on a honeymoon for the five months preceding her discovery of the loss and observed that personal property was present. Despite this, State Farm improperly determined that the property was unoccupied.
¶ 18 Gia further alleged that in January 2017, several months after the loss was reported, State Farm determined that an expert opinion was necessary. EFI issued an initial report finding that frozen pipes in the upstairs bathroom caused the loss but was directed to make a different determination after State Farm learned that municipal water service had been cut off prior to the loss. EFI then issued an addendum, which concluded that the initial report was erroneous and that fractures had occurred in the basement piping. According to Gia, State Farm, "[d]issatisfied with [EFI's] inability to determine the cause of the fracture of the piping in the basement," then insisted that EFI issue a second addendum identifying the cause of the fractures. EFI's second addendum stated that EFI could not eliminate corrosion, freezing, or vandalism as potential causes. Gia stated that, "[d]espite concluding that the claim would be denied in June 2016, [State Farm] did not deny [Gia's] claim until more than one year later."
¶ 19 State Farm filed...
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Victim A. v. Song
...of judgment was entered nunc pro tunc to March 16, 2020. See Wells v. State Farm Fire & Casualty Co. , 2020 IL App (1st) 190631, ¶ 42, 439 Ill.Dec. 866, 148 N.E.3d 919 (generally, a trial court loses jurisdiction to vacate or modify its judgment 30 days after entering the judgment but at an......
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Victim A. v. Song
...of judgment was entered nunc pro tunc to March 16, 2020. See Wells v. State Farm Fire & Casualty Co., 2020 IL App (1st) 190631, ¶ 42, 148 N.E.3d 919 (generally, a trial court loses jurisdiction to vacate or modify its judgment 30 days after entering the judgment but at any time may modify i......