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7 July 2000

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JUSTICE McLAREN delivered the opinion of the court:

Defendant and counterplaintiff, State Farm Fire and CasualtyCompany (State Farm), appeals from the trial court's grant ofsummary judgment in favor of plaintiffs and counterdefendants,Stuart L. and Rebecca A. Whitt, and the court's denial of itsmotion for summary judgment. We reverse.

State Farm provided homeowners' insurance to the Whitts since1977. On July 17-18, 1996, a massive rainstorm dropped almost 17inches of rain in the Aurora, Illinois, area. During that storm,water entered the Whitts' home in Aurora around the basement windowcasings, through a hole in the furnace room wall, under doors tothe house and the garage, and through the roof and a skylight. Eventually, water filled the entire basement of the home and thefirst floor to a depth of over four feet. The Whitt family leftthe home via boat and canoe.

The Whitts filed a claim with State Farm under the homeowners'policy then in effect. On August 10, 1996, State Farm paid theWhitts $1,432.86 for water damage resulting from rain entering thehome through the roof and skylight. However, coverage was deniedfor the remainder of the claim.

On November 27, 1996, the Whitts filed a six-count complaintagainst State Farm and their State Farm agent, seeking to recoverfor the water damage to their home. Counts I through V werebrought against State Farm alleging breach of contract (count I),estoppel (count II), consumer fraud (count III), common-law fraud(count IV), and bad faith (count V). Count VI alleged negligenceagainst the Whitts' insurance agent. State Farm filed acounterclaim seeking a declaratory judgment that the Whitts'homeowners policy did not provide coverage for the water damagealleged in the Whitts' complaint and that State Farm was notobligated to pay for water damage to the Whitts' home. After anexchange of discovery, the Whitts and State Farm filed cross-motions for summary judgment. The trial court denied State Farm'smotion but granted the Whitts' motion for summary judgment as tothe counterclaim, ordering that State Farm was estopped fromasserting the water damage exclusion of the homeowners' policy inthe cause of action. The Whitts' motion for summary judgment as tocounts I, II, III, and V of their complaint was denied. StateFarm's motion to reconsider was denied, and, on May 24, 1999, thetrial court entered a final order of judgment on counts I and II ofthe Whitts' complaint in the principal amount of $168,377. CountsIII through VI were dismissed with prejudice. This appealfollowed.

The homeowners' policy at issue provided in relevant part:

"2. We do not insure under any coverage for any loss whichwould not have occurred in the absence of one or more of thefollowing excluded events. We do not insure for such lossregardless of: (a) the cause of the excluded event; or (b)other causes of the loss; or (c) whether other causes actedconcurrently or in any sequence with the excluded event toproduce the loss; or (d) whether the event occurs suddenly orgradually, involves isolated or widespread damage, arises fromnatural or external forces, or occurs as a result of anycombination of these:

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c. Water Damage, meaning:

(1) flood, surface water, waves, tidal water, overflow ofa body of water, or spray from any of these, all whetherdriven by wind or not;

(2) water from outside the plumbing system that entersthrough sewers or drains, or water which enters into andoverflows from within a sump pump, sump pump well or any othersystem designed to remove subsurface water which is drainedfrom the foundation area; or

(3) natural water below the surface of the ground,including water which exerts pressure on, or seeps or leaksthrough a building, sidewalk, driveway, foundation, swimmingpool or other structure.

However, we do insure for any direct loss by fire,explosion or theft resulting from water damage, provided theresulting loss is itself a Loss Insured."

In his deposition, Stuart Whitt testified that he received abrochure describing the "State Farm Homeowners Extra" (HomeownersExtra) insurance policy in 1982, when he and his wife purchased thehome involved in this case. Stuart testified that he looked at thepicture on the front of the brochure and, inside the brochure, atdrawings of the different coverages provided by Homeowners Extraand the captions beneath them. The brochure contained a series of35 captioned drawings depicting the coverages contained in theHomeowners Extra policy. The only water-related pictures includedin this series were "Water damage," which depicts rain fallingthrough an open window and puddling on a floor; "Windstorm, Hail";"Weight of ice, snow or sleet"; "Freezing of plumbing system";"Tearing or bulging of water heating appliances"; and "Water escapefrom plumbing, heating, air conditioning systems or householdappliances." Immediately below the series of drawings, in boldblack print larger than the print used in the captions, thebrochure stated:

"This brochure contains only a general description ofcoverages and is not a statement of contract. All coveragesare subject to the exclusions and conditions in the policyitself."

Stuart was unsure if he had read that statement. He was sure thathe did not read the language on the next page, wherein the brochureprovided:

"And, you have comprehensive all-risk protection against lossfrom practically any cause (except a few such as normal wearand tear, deterioration, vermin, rodents, war, radiation,smog, settling, flood, earthquake, landslide, backing up ofsewers and drains)."

The trial court found that the word "flood" contained in thebrochure was "at best ambiguous as it applies to rain producedsurface water infiltration and therefore is insufficient for thepurpose of notifying the plaintiff of a limitation as to damagecaused by surface water in a policy otherwise extendingcomprehensive coverage."

State Farm first contends that the trial court erred infinding the term "flood" to be ambiguous and granting the Whitts'motion for summary judgment. Summary judgment is appropriate whenthe pleadings, depositions, and admissions on file, together withthe affidavits, demonstrate that there exists no genuine issue asto any material fact and that the moving party is entitled tojudgment as a matter of law. McNamee v. State, 173 Ill. 2d 433,438 (1996). A court considering a summary judgment motion mustconstrue the pleadings, depositions, admissions, and affidavitsstrictly against the moving party and liberally in favor of thenonmovant. Outboard Marine Corp. v. Liberty Mutual Insurance Co.,154 Ill. 2d 90, 131-32 (1992). Summary judgment should be grantedonly where the movant's right to judgment is clear and free fromdoubt; it should be denied where a reasonable person could drawdivergent inferences from undisputed facts. Outboard Marine, 154Ill. 2d at 102. On appeal, summary judgment rulings are given a denovo review. Outboard Marine, 154 Ill. 2d at 102.

The court's primary purpose in construing an insurancecontract is to give effect to the intent of the parties, which mustbe determined from the language of the policy where that languageis unambiguous. Dobosz v. State Farm Fire & Casualty Co., 120 Ill.App. 3d 674, 678 (1983). The parties' intentions must be enforcedas written unless they are ambiguous or enforcement wouldcontravene public policy. Wallis v. Country Mutual Insurance Co.,309 Ill. App. 3d 566, 571 (2000). Policy language must be readwith reference to the facts at hand and in conjunction with theinsured's reasonable expectations and the coverage intended by thepolicy. Wallis, 309 Ill. App. 3d at 571. Clear and unambiguouspolicy language must be given its clear and ordinary meaning, nota distorted meaning used to reach a desired result. Wallis, 309Ill. App. 3d at 571.

We conclude that the trial court erred in granting summaryjudgment in favor of the Whitts. The trial court based its grantof summary judgment on the "ambiguous" use of the word "flood" inthe listing of exceptions to coverage contained in the brochure. However, we find no such ambiguity. A flood is "[a]n inundation ofwater over land not usually covered by it. Water which inundates[an] area of surface of earth where it ordinarily would not beexpected to be." Black's Law Dictionary 640 (6th ed. 1990). Inthis case, almost 17 inches of rain fell in the Aurora area,inundating the land in and around the Whitts' home. The inside ofthe Whitts' home and the land surrounding their home was land notusually covered by water and where water would not be expected tobe. The use of the word "flood" in the brochure was not ambiguous.

The Whitts argue, and the trial court found, that Dobosz, 120Ill. App. 3d 674, controls this case. In Dobosz, water leakedthrough the walls of the policyholders' basement and caused damageto the basement. In wording almost exactly the same as the policyin the case before us, the policy excluded:

" 'Water Damage, meaning:

a. flood, surface water, waves, tidal water,overflow of a body of water, or spray from any of these,whether or not driven by wind;

b. water which backs up through sewers or drains, or

c. natural water below the surface of the ground,including water which exerts pressure on, or seeps orleaks through a building, sidewalk, driveway, foundation,swimming pool or other structure.' " Dobosz, 120 Ill.App. 3d at 678.

State Farm denied coverage and, in the ensuing lawsuit, the trialcourt, after a bench trial, entered judgment for State Farm. Thiscourt reversed and entered judgment for the Doboszes. At issue wasthe brochure that State Farm had sent to the Doboszes prior totheir purchase of the policy. The brochure was very similar to thebrochure in the case before us; it used the captioned drawings todescribe coverage, including the "Water damage" shown by the openwindow through which rain is falling and accumulating on the floor.

This court found that the policyholders had relied on thebrochure in choosing their insurance coverage and that there was acontradiction between the brochure, which advertised coverage for"Water damage," and the actual policy terms. Therefore, it treatedthe brochure as part of the insurance contract. See Dobosz, 120Ill. App. 3d at 679. The court then construed the ambiguity infavor of the insured and found that the policy with the brochureprovided coverage for the water damage caused by the leak. SeeDobosz, 120 Ill. App. 3d at 679-80. The court also found thatState Farm was estopped from relying on the exclusionary clause ofthe policy because the brochure misrepresented the coverage. Boththe brochure and the representations of the insurance agent led "toa reasonable expectation of comprehensive coverage of a widevariety of risks" and "clearly implied coverage." Dobosz, 120 Ill.App. 3d 680-81.

However, Dobosz, while similar, is distinguishable from thecase before us. Dobosz was not a summary judgment case; a benchtrial was held. The plaintiff's reliance on the policy in Doboszcould be found after a trial; in the case before us, reliance andreasonable belief are not to be found as undisputed fact at thesummary judgment phase. In addition, the brochures, while verysimilar, were not the same. In Dobosz, the court found that thedisclaimer, which told the reader that the brochure was only adescription of coverage and not a statement of coverage, was in"small black print at the bottom." Dobosz, 120 Ill. App. 3d at677. Here, the disclaimer was in bold black print in letterslarger than those used in the captions describing coverage. Inaddition, Dobosz makes no mention of any listing in the brochure ofexceptions to coverage; here, the brochure clearly lists "flood"and "backing up of sewers and drains" as exceptions to coverageunder the policy. Dobosz does not control this case.

We further conclude that the trial court erred in not grantingState Farm's motion for summary judgment. Even treating thebrochure as part of the homeowners' policy (see Dobosz, 120 Ill.App. 3d at 679), the policy clearly and unambiguously excludedcoverage for the water damage claimed by the Whitts. The singledrawing in the brochure of rain water entering an open window andaccumulating on the floor, captioned "Water damage," does not makeambiguous the clear exclusions of "flood" and "surface water." This drawing, even taken in its most literal sense, would includeonly water damage done by water entering the house through an openwindow. In fact, State Farm paid the Whitts for damage resultingfrom rain entering through a skylight and the roof. However, boththe brochure and the policy clearly exclude the rest of the damagesuffered by the Whitts, and only a tortured reading of thoseinstruments could find coverage for that damage. In hisdeposition, Stuart stated that he looked at the front cover of thebrochure and the drawings associated with the provided coverages. He was unsure if he had read the bold-print disclaimer on thebrochure, which advised that the brochure was not a statement ofcontract and that the policy itself contained exclusions andconditions. He did not read the section of the brochure thatlisted exceptions to coverage, including flood and backing up ofsewers and drains. It is unclear to us how a term that wasadmittedly never read can cause confusion to the person who neverread it. The facts of the policy, the damage, and the cause of thedamage were undisputed, and the clear, unambiguous language of thepolicy showed the intent of the parties. Further, the brochuredoes not create an ambiguity regarding the lack of flood coverage.As a matter of law, State Farm was entitled to judgment. Therefore, the trial court erred in denying State Farm's motion forsummary judgment on the counterclaim.

For these reasons, the judgment of the circuit court of KaneCounty granting summary judgment in favor of the Whitts isreversed, and the court's award of $168,377 is vacated. Thecourt's denial of State Farm's motion for summary judgment on thecounterclaim is reversed, and judgment in State Farm's favor isentered.

Reversed.

INGLIS and HUTCHINSON, JJ., concur.