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FIFTH DIVISION
June 13, 2003

Following a hearing, the trial court granted a motion forsummary judgment in favor of Northern Insurance Company of New Yorkfinding that the collapse of the roof of Johnson Press of America,Inc.'s warehouse was not covered by the insured's insurance policy. This appeal followed.

On appeal, Johnson Press of America, Inc., argues that: (1)the trial court erred in granting the summary judgment motion infavor of the defendant; (2) the trial court should have construedan ambiguous insurance policy provision against the drafter andfound for the insured; and (3) the trial court erred in findingthat defendant did not violate the "bad faith clause" in section155 of the Illinois Insurance Code. 215 ILCS 5/155 (West 1998). For the following reasons, we affirm the trial court's summaryjudgment order.

BACKGROUND

Johnson Press of America, Inc. (plaintiff), purchased aproperty insurance policy (policy) from Northern Insurance Companyof New York (defendant), providing insurance coverage for twobusiness locations. This policy covered the period from June 5,1997, to June, 5, 1998. The policy covered one location at 800North Court Street and another location at 1305-09 North MainStreet in Pontiac, Illinois. The Court Street facility was whereplaintiff conducted its day-to-day printing operation and wasinsured for $2,500,000. The Main Street location was used as awarehouse and was insured for $170,000.

The Main Street location consisted of two warehouses adjacentto each other. One building was a one-floor prefabricated steelwarehouse built during the 1950s. Adjacent to the steel warehousewas a two-story brick building built during the early 1900s. Thetwo buildings shared a common masonry wall, which had been part ofthe older brick building. This brick building had been vacant andwas not part of plaintiff's daily business operation.

On June 1, 1998, at around 5:30 p.m., without any interferencefrom natural forces, portions of the roof, the second floor, andthe first floor of the old brick building collapsed into thebasement. This collapse rendered the masonry walls unstable.Consequently, the City of Pontiac ordered that the warehouse berazed. On June 3, 1998, the plaintiff filed a claim for thedamages caused by the roof's collapse.

On June 3, 1998, defendant retained an independent claimsadjuster, L.W. Rogers & Company (Rogers), to review plaintiff'sinsurance claim. On the same day the assignment was received,Rogers sent its general adjustor, R.F. Ramsey (Ramsey), to view thedamaged building. At the site, Ramsey was met by Glen Rustman(Rustman), an employee of the plaintiff. After surveying the site,Ramsey filed a report.

Separately, the defendant also retained Stuart K. Jacobson andAssociates, Ltd. (Jacobson), an architectural and structuralengineering firm, to assist in assessing plaintiff's insuranceclaim. On June 5, 1998, Jacobson sent James Senffner (Senffner) toinspect the collapsed building. After an on-site survey, Senffnerfiled a report.

Based upon Senffner's report, defendant denied plaintiff'sinsurance claim reasoning that the cause(s) of the roof's collapsefell under the exclusion clauses of the policy.

Plaintiff retained an engineering firm, Shefee Lulkin &Assoc., Inc., to review the Senffner report. Lulkin filed areport.

THE INSURANCE POLICY

The insurance policy covered the building, fixtures,machinery, equipment, and personal property against loss caused bycertain accidental fortuitous events. Under the "Exclusions"section, it enumerated conditions that the insurer would not coverin the event the building collapsed. The "Exclusions," in pertinentpart, read:

EXCLUSIONS

1. * * *

2. We will not pay for loss or damage caused by or resultingfrom any of the following:

a. * * *

b. * * *

c. * * *

(1) Wear and tear;

(2) Rust, corrosion, fungus, decay, deterioration,hidden or latent defect or any quality in propertythat caused it to damage or destroy itself.

* * *

f. Continuous or repeated seepage or leakage of waterthat occurs over a period of 14 days.

* * *

3. We will not pay for loss or damage caused by or resultingfrom any of the following

* * *

c. Faulty, inadequate or defective:

* * *

Maintenance, * * * of part or all of any property on oroff the described premises."

EXPERT WITNESSES' TESTIMONY
RAMSEY'S REPORT

On June 3, 1998, Ramsey, the general adjustor of Rogers, wentto survey the collapsed building. Ramsey was accompanied byRustman.

After the survey, Ramsey filed a report stating that theplaintiff was the owner of the collapsed building. It was a two-story brick building with a full basement built around 1900. Therewas a one-story steel building built around 1955 that was attachedto the south wall of the collapsed building. The steel buildingwas currently used as a warehouse.

Ramsey further reported that after Rustman left the scene,neighbors living near the collapsed building approached and toldRamsey that the roofing of the collapsed building had been blowingoff the building for several years prior to its collapse. Theneighbors also told Ramsey that the plaintiff had not been usingthe building for more than five years.

Ramsey wrote that there was no storm in the Pontiac area onthe date of the collapse. In his opinion, the collapse occurred asa result of long-term decay due to the plaintiff's failure tomaintain the roofing of the building.

JAMES SENFFNER'S REPORT

When Senffner arrived on the scene, he was also met byRustman. Rustman told Senffner that the plaintiff only used thebuilding's basement to store old equipment. The first and secondfloors were not used at all. The plaintiff used the adjacent steelbuilding as a warehouse.

In a written report, Senffner wrote that a large portion ofthe roofing material was missing prior to the roof's collapse. Asthe roof collapsed, it caused a large portion of the first and thesecond floors to collapse into the basement. The wooden stairsleading to the first floor were deteriorated and collapsed. Therewere severe water stains and fungal growth on the second-floorframing. The brick mortar of the building was soft anddeteriorated, and there was severe efflorescence (water damage) onthe surface of the brick wall.

Senffner concluded that the building had severe wood decay. This decay was caused by water infiltration. The water infiltrationresulted from the fact that a portion of the roof was missing. Since part of the roof was missing, it allowed water to enter thefirst - and second-floor stairwells to cause the wood decay. Because the stairwell of the building was in such poor shape,Senffner was unable to enter and examine the interior of thebuilding.

Senffner also observed efflorescence present on the lowersurface of the wall. This indicates that water was entering thewall from the top of the building and evaporating on the outside ofthe masonry wall. All these resulted from a leak in the roof. Senffner did not collect any debris to conduct tests.

DEPOSITION OF JAMES SENFFNER

In a deposition, Senffner testified that he had examined 50 to100 buildings within the last two years. Senffner did not examinethe interior of the building in question because it was unstableand capable of further collapse. He opined that the buildingcollapse was not caused by a freeze/thaw cycle, vandalism, or heavysnowfall from the last winter.

Further, Senffner observed fungal growth on more than 10 roofbeams and joists. Fungal growth on the wood indicates that themoisture content is above 20%. Senffner further testified thatthere was also efflorescence on the walls of the building. Efflorescence will develop when water migrates through the masonrywall and evaporates on the surface of the wall. It usually takesthree months for efflorescence to develop on a wall. Senffner alsotestified that there was no evidence of termite infestation. Basedon his observations of the structure's general condition, Senffnerconcluded that the deterioration was due to water infiltrationsthat ultimately led to the collapse of the roof.

SHEFEE LULKIN'S REPORT

Plaintiff retained Shefee Lulkin & Assoc., Inc. (Lulkin), to review Senffner's report. In the report, Lulkin stated thatSenffner did not pinpoint the cause of the initial failure that ledto the roof collapse. Lulkin criticized the methodology thatSenffner used in conducting his survey. Lulkin believed thatSenffner should have collected debris and conducted tests toascertain what caused the initial collapse.

DEPOSITION OF SHEFEE LULKIN

In a deposition, Lulkin testified that he had never visited the site of the collapsed building nor did he see the pictures thatSenffner took of the building. Lulkin testified that he had noreason to doubt that a large portion of the roof material wasmissing prior to the roof's collapse. He had no evidence that the impact of a falling load caused the collapse of the warehouse. Lulkin also had no reason to doubt that there was an area in thebasement with water dripping. Lulkin further testified that itwould take several seasons for fungal growth to develop on thewood. Lulkin testified that "whatever member [support beams orcolumns] failed first, was due to long-term deterioration and waterinfiltration."

OTHER EVIDENCE
LETTERS FROM THE CITY OF PONTIAC BUILDING SAFETY SERVICES

On November 18, 1996, the City of Pontiac's building safetyservices wrote to the plaintiff stating that its warehouse had"loose material on the roof." Since the building was located in anarea with a large amount of residential traffic, this posed asafety hazard. The agency directed plaintiff to respond within fivedays to resolve the matter.

About 11 months later, on October 1, 1997, the City ofPontiac's building safety services again wrote to plaintiff statingthat even though the plaintiff had contacted the building safetyservices and promised to remedy the roof problem, nothing had beendone to correct the problem. In this second letter, the buildingsafety services wrote "[w]ith recent winds, this office hasreceived several complaints of the same nature regarding yourbuilding. Some of the roofing material is extremely large and haslittered the neighbors' yards. You have ten days from receipt ofthis letter to contact this office and set a timetable foralleviation of this violation."

CITIZEN'S COMPLAINT

Jan Kennedy, a neighbor who lived near the collapsed building,had lodged six complaints with the City of Pontiac's buildingsafety services complaining that roofing material from theplaintiff's building had blown off and landed in her yard.

DEPOSITION OF GLEN RUSTMAN

Rustman testified that he first worked for Johnson Press from1959 to 1995, then he went to work for Johnson Press of America. He testified that the insured building consisted of two structures. One structure was a metal building built around 1955. The otherstructure was the razed building. It was a two-story brickbuilding built around 1900. The plaintiff used the basement of thecollapsed building as a storage area. Rustman further testifiedthat he was responsible for the maintenance for the brick building. However, no record of the building's maintenance was kept. Rustmanfurther testified that even though he was responsible formaintaining the building, he did not go inside the building tophysically examine the premises. Instead, he would do a "driveby," checking on the structure. If a window was broken, he wouldreplace it. Rustman testified that there was some maintenance workdone on the roof prior to January 1995. A roofing company wascontracted to patch the leaky areas on the roof. Rustman testifiedthat he did not go up to the roof of the building from 1995 to1998. Rustman also remembered that there were neighbors' complaintsabout roofing materials that had blown into the neighbors' yards.

LETTER FROM INSURANCE COMPANY

When the plaintiff purchased the insurance policy in 1996, thedefendant sent an insurance representative, Sonia Snyder (Snyder), to visit the buildings covered by the policy. After the visit,Snyder sent a letter reminding the plaintiff that the automaticsprinklers should be tested on a quarterly basis and that the holesin the wall connecting the sprinkled and the unsprinkled areasshould be filled with noncombustible material. The letteraddressed the conditions of the building located on 1503 North MainStreet. This letter was obviously referring to the steel building.

TRIAL COURT'S RULING

After reviewing the cross-motions for summary judgment andsupporting material, the trial court ruled that the insurancepolicy was an all-risk policy. Based on the reports and testimonyof the experts retained by the litigants, the roof's collapse wascaused by long-term deterioration and water infiltration. Sincethere was no genuine issue of material fact, the trial court deniedthe plaintiff's motion for summary judgment and granted thedefendant's motion for summary judgment.

ANALYSIS

The standard of review for a trial court's decision on amotion for summary judgment is de novo. See Doe v. Goff, 306 Ill.App. 3d 1131, 1134 (1999).

SUMMARY JUDGMENT

Summary judgment is proper if the pleadings, depositions andadmissions on file, together with the affidavits, if any, show thatthere is no genuine issue as to any material fact and that themoving party is entitled to judgment as a matter of law. 735 ILCS5/2-1005(c) (West 2000). The purpose of summary judgment is not totry a question of fact, but simply to determine whether a genuineissue of triable fact exists. Watkins v. Schmitt, 172 Ill. 2d 193,203 (1996). It is well established that in determining whether agenuine issue of material fact exists, a court must construe thepleadings, depositions, admissions and affidavits strictly againstthe movant and liberally in favor of the opponent. Schmitt, 172Ill. 2d at 203. In addition, any evidence that would beinadmissible at trial cannot be considered by the court in supportof or in opposition to the motion for summary judgment. Schmitt,172 Ill. 2d at 203-04.

In order to withstand a motion for summary judgment in alawsuit involving an insurer's failure to pay a claim under an all-risk insurance policy, the insured bears the initial burden ofpresenting, through the papers on file, sufficient factsestablishing a prima facie case. Wallis v. Country MutualInsurance Co., 309 Ill. App. 3d 566, 570 (2000). This requires ashowing that (1) a loss occurred, (2) the loss resulted from afortuitous event, and (3) an all-risk policy covering the propertywas in effect at the time of the loss. Wallis, 309 Ill. App. 3d at570.

Once an insured establishes a prima facie case, the burdenthan shifts to the insurer to show that the loss resulted from aperil expressly excluded from coverage. Wallis, 309 Ill. App. 3dat 570. See also International Surplus Lines Insurance Co. v.Pioneer Life Insurance Co. of Illinois, 209 Ill. App. 3d 144, 148(1990).

In Illinois, it is the insurer's burden to affirmativelydemonstrate the applicability of an exclusion. Board of Educationof Maine Township High School District No. 207 v. InternationalInsurance Co., 292 Ill. App. 3d 14, 18 (1997). Furthermore, Illinois courts will liberally construe any doubts as to coveragein favor of the insured, especially when the insurer seeks to avoidcoverage based on an exclusion to the policy. Yamada Corp. v.Yasuda Fire & Marine Insurance Co., 305 Ill. App. 3d 362, 371(1999). If the insurer meets this burden through the presentationof undisputed facts, summary judgment is appropriate.

In this case, there is no dispute that the plaintiff'swarehouse roof collapsed. There is also no dispute that the policywas in effect at the time the collapse occurred. Consequently, inorder to prevail, the plaintiff needs to show that its lossresulted from a fortuitous event.

"Fortuitous" means happening by chance or accident, oroccurring unexpectedly or without known cause. Black's LawDictionary 664 (7th ed. 1999). The Restatement of Contracts definesa fortuitous event as an event that, as far as the parties areaware, is dependent on chance. Restatement of Contracts