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Lundquist v. Allstate Insurance Co., No. 2-99-0863

2nd District, 19 June 2000

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Plaintiffs, David and Kathryn Lundquist (the Lundquists), filed a declaratory judgment action against defendant, Allstate Insurance Company (Allstate), to determine whether Allstate was required to provide coverage for the fire loss of a home owned by the Lundquists. The parties filed cross-motions for summary judgment. The trial court granted summary judgment in Allstate's favor, finding that no genuine issues of material fact existed with respect to whether the Lundquists' home was vacant or unoccupied for more than 30 consecutive days prior to the loss. The Lundquists filed a timely notice of appeal. They contend that the trial court erred because genuine issues of material fact existed as to whether (1) their home was "vacant" for more than 30 consecutive days before it was destroyed by fire, (2) their home was "unoccupied" for more than 30 consecutive days, and (3) they resided in the home. The Lundquists further contend that the exclusion upon which Allstate relied is contrary to the requirements of the Illinois Insurance Code (215 ILCS 5/1 et seq. (West 1998)) and, therefore, is void. We agree with this last contention and also agree that genuine issues of material fact exist which preclude summary judgment in Allstate's favor. Consequently, we reverse.

The following facts are taken from the record. The home at issue was located at 2775 Carlisle Drive in Rockford (home or Rockford home). The Lundquists purchased the home in 1972 and lived there until August 1995, when they moved into a new house in Oregon, Illinois. On October 26, 1996, the Lundquists signed a contract to sell the Rockford home to Raoul and Melanie Perez for $150,000. The closing was to take place just prior to Christmas, 1996. The home was destroyed by fire on December 5, 1996.

Several individuals were charged with setting the fire. There had been a previous incident of vandalism at the home in October 1996. The Lundquists submitted a claim for damage caused in October 1996. David Lundquist testified in his deposition that Allstate denied that claim because "nobody was living there full time."

Allstate issued policy number 002028237 (policy) to the Lundquists for the Rockford home. The policy's effective dates were February 26, 1996, through February 27, 1997. According to David Lundquist's affidavit, he advised Allstate's agent, Robert Tucker, in July 1996 that he and his family would be moving into the Oregon house. We note that the policy was amended in September 1996 to show that the Lundquists' address had changed to 5001 South Watertown Road, Oregon, Illinois.

The policy contained an exclusion that stated that Allstate would not cover losses caused by "[v]andalism or [m]alicious mischief if your dwelling is vacant or unoccupied for more than 30 consecutive days immediately prior to the vandalism or malicious mischief." The policy did not define "vacant" or "unoccupied." The policy defined "dwelling" as "a one, two, three, or four family building structure, identified as the insured property on the Policy Declarations, where you reside and which is principally used as a private residence." The policy indicated that "you" or "your" referred to the insured or the insured's resident spouse.

The Lundquists contended that the Rockford home was not vacant or unoccupied. The affidavit of David Lundquist stated that three of his sons stayed overnight at the Rockford home on various weekends from August 1995 through the date of the fire. Between October 1996 and the date of the fire, the Lundquists' sons stayed overnight at the Rockford home two or more weekends each month. After performing repairs at the Rockford home, David Lundquist stayed overnight there at least once and possibly twice in mid-November 1996. The morning after he spent the night, Lundquist showered, shaved, and ate breakfast at the Rockford home. Throughout October and November 1996, Kathryn Lundquist visited the Rockford home weekly. She ate lunch there and cleaned the house.

At the time of the fire, the items that remained in the Rockford home included "paintings, decorations, house plants, tools, rakes, shovels, clothes, toothbrushes and other toiletries, chairs, blankets and other bedding, tables, kitchen appliances (including a refrigerator and two stoves), dishes, cooking pots, mirrors, a Gravely lawn tractor in the garage for lawn mowing, and a fully equipped weight room in the basement of the home."

The trial court ruled as follows on the parties' cross-motions for summary judgment:

"The court finds that there is no genuine issue of material fact, and that the fire loss was the result of vandalism or malicious mischief and that the subject dwelling was vacant or unoccupied for more than 30 consecutive days immediately prior to the vandalism or malicious mischief. Accordingly, the court grants Allstate's motion and denies plaintiffs' motion."

The Lundquists' appeal ensued.

A trial court properly grants summary judgment when the pleadings, depositions, and admissions on file, together with the affidavits, if any, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998). A reviewing court should reverse an order granting summary judgment if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law. American Family Mutual Insurance Co. v. Hinde, 302 Ill. App. 3d 227, 231 (1999). We apply a de novo standard of review to the trial court's decision to grant summary judgment. Hinde, 302 Ill. App. 3d at 231.

Before reaching the questions of whether genuine issues of material fact existed as to vacancy or occupancy of the subject home, we address the Lundquists' argument that Allstate's exclusion is contrary to the "Standard Fire Policy" in effect in this state (Standard Policy). Pursuant to section 397 of the Illinois Insurance Code (215 ILCS 5/397 (West 1998)), the Director of Insurance has promulgated regulations that create a uniform policy for all fire insurance contracts. All policies written in the State of Illinois must conform to the requirements of the Standard Policy. 50 Ill. Adm. Code