Petition for Writ of Certiorari — Pruitt v. National Casualty Insurance

, Supreme Court, U.S

a. Op

x JUN 21 1996

‘ No. 96-313

(

In The

Supreme Court of the Anited States

October Term, 1996

James Pruitt

Petitioner

v.

National Casualty InsuranceCompany

On the Petition for Writ of Certiorari

To The Appellate Court,

of Illinois, Third District

PETITION FOR WRIT OF CERTIORARI

James Pruitt

Petitioner

304 N. Broadway

Joliet, Illinois 60435

(815) 723-7586

QUESTIONS PRESENTED FOR REVIEW

1. Do the following democrations indicate offer, acceptance,

consideration, breach and damages?

Approximately 3:30 p.m. on February 13, 1992,

Respondent for a valuable consideration, through David

McElwee, Agent from O'Dell and Wathan Insurance Agency,

Inc., entered into an agreement in writing with Petitioner, a

copy of it is attached, marked "Exhibit E" and made a part of

this petition. In it, Petitioner and Respondent agreed that

Respondent wouid insure Petitioner's property (building) and

personal property (contents) against loss by fire. Petitioner on

his part agreed to pay a down payment and balance of

premium in monthly installments. Petitioner has performed all

the conditions of the agreement on his part to be performed.

Respondent has failed to perform the agreement in that

he failed to pay $75,000 for damage to the subject building,

$50,000 for damage to Petitioners personal property and

weekly lost net business profit, or any part of that sum,

although payment demanded by Petitioner are proper.

Petitioner has been damaged by the loss of two

businesses, the use of settlement proceeds, the earned interest

from settlement proceeds and had to incur substantial court

cost to bring forth this suit to recover said insurance benefits to

which he is rightfully entitled.

2. Whether the Appellate Court of Illinois Third District

exceeded it's reviewing authority or otherwise erred in finding

that executing of the insurance contract and delivered by

Respondent to Petitioner before March 14, 1992, constituted

the only act to which the Respondent is obligated to pay

petitioner for loss of building, personal property, and loss

profits. Specifically, whether the Appellate Court applied an

improper standard or otherwise erred upholding the decision

of the Trial Court, without regard to the Illinois Insurance

Codes and based it's decision solely on the Court's reading of

the defense counsel, the two police officers, and the two

expert fire investigators histories. And in failing to set aside

the Trial Court's Judgment in favor of the Respondent and

review the case according to Illinois Civil Appellate Practice,

the Illinois Insurance Codes, the usual course of judicial

proceeding and other appeal courts on the same.

3. Whether the Trial Court abused its discretion by denying

Petitioner's Motion for Judgment Notwithstanding the Verdict

or otherwise erred when Petitioner submitted all fact evidence

to indicate the Respondent's breach of said multi-peril contract.

4. Whether the Trial Court exceeded its reviewing authority

or otherwise erred in denying Petitioner's Motion for New

Trial when: all of the deliverations of the jury were tainted by

improper remarks, (by defense counsel and his withesses) or

prejudicial consideration and the court's failing to determine

that the findings of the Jury was unreasonable, arbitrary and

not based upon any of the evidence.

5. Whether the Appellate Court exceeded its reviewing

authority or otherwise erred by, considering the conflict

testimonies by the Respontent's witnesses only in it's review,

and not reviewing the facts evidence submitted to the courts

according to the Supreme Court Rules, Illinois Insurance codes

and codes of Judicial proceeding as other cases of the same

ili

has been decided.

6. Why should the respondent's Bill Of Cost be taxed

against petitioner when the courts disregarded the documents

provided by petitioner to the courts, and with disregard for the

documentation provided by petitioner to the respondent, did

unreasonable and vexatious deny said claim for property loss

in direct violation and breach of said multi-peril insurance

policy and the Illinois Revised Statutes, and result of said

vexatious deny, petitioner has had to incur substantial legal

expenses and costs to bring this suit to recover said insurance

benefits to which he is nghtful entitle.

PARTIES TO THE PROCEEDING

The parties to the proceeding in the UNITED STATES

SUPREME COURT are those in the caption, except for the

respondent, Thomas J. Finn, represented the respondent in

Illinois Trial Court of the Twelfth District No. 93L88 and the

same in the Appellate Court of Illinois Third District No.

3-95-0221.

TABLE OF CONTENTS

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STATE STATUES, REGULATIONS, GUIDELINES,

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REASON FOR GRANTING THE WRIT............c::cceeeseeeees 7

I. THIS CASE PRESENTS AN IMPORTANT

QUESTION OF THE LAW ABOUT THE

EXTENT TO WHICH CONSISTENT WITH

THE FEDERAL RULES, ILLINOIS CIVIL

APPELLATE PRACTICE CODES, ILLINOIS

INSURANCE CODES, THE UNUSUAL

COURSE OF JUDICIAL PROCEEDING

APPLIED TO ALL CIVIL CASES, BUT THE

OUT COME OF THIS CASE IS DIFFERENT,

ey

TABLE OF CONTENTS- ( CONTINUED)

a. The Appellate Court of Ilinois Third District Erred in

Failing to Make a Separate Determination of the Trial

Court of the Twelfth Judicial Circuit, that the Insurance

Policy Indicated Offer, Acceptance, and Consideration

Provisions, and Plaintiff's Statement Cause of Action

as Evidence.

Ht THE APPELLATE COURT OF ILLINOIS THIRD

DISTRICT ERRED IN AFFIRMING THE JUDGMENT

ENTERED BY THE TRIAL COURT OF ILLINOIS

TWELFTH JUDICIAL CIRCUIT IN FAVOR OF THE

DEFENDANT AND IN FAILING TO DETERMINE

WHETHER THE VERDICT WAS IN ACCORDANCE

WITH THE PLEADING SET FORTH IN............0cccce0000- 13

A. Plaintiff's Complaint, "Breach of Contract”:

B. The Defendant's Rejected Proof of Loss Statemtns

and Letter of Pleadings Exhibit [, ................ pp. 89 -91

fil THE APPELLATE COURT DECISION UPHOLDING

THE JUDGMENT OF THE CIRCUIT COURT OF WILL

vii

TABLE OF CONTENTS (CONTINUED)

COUNTY, ILLINOIS CONFLICTS WITH PRECEDENTS

OF ILLINOIS CIVIL APPELLATE PRACTICE, ILLINOIS

INSURANCE CODES, AND PRECEDENTS OF THIS

RIN Wi sinsictban aietbaichacsLakslaciiven soectnuanscpemabeeeeneatecesssoiegid paaiieaesoiaat 19

A. The Appellate Court Erred in Failing to Make a

Separate Determination of Whether the Conflicting

Testimonies by the Defendant's Witnesses were within the

Complaint and Pleadings of the Case where there was no

Evidence Submitted by the Witnesses or the Defendant of the

Alleged Objections and Refusal to Pay Over the Insurance

PR I oasis Bisssh csdsicienictanerinnsadtoaeaiee cabiees 19

B. The Appellate Court Erred in Upholding the Judgment

Entered by the Trial Court in Favor of the Defendant. And in

Failing to Make a Separate Determination of Whether "All of

the Evidence, when Viewed in its Aspect Most Favorable to

the Opponent, So Overwhelmingly Favors Movant that no

Contrart Verdict on that Evidence Could Ever Stand", and....... 24

TABLE OF CONTENTS - (CONTINUED)

Contrary Verdict Based on that Evidence Could Ever Stand”,

aS The Appellate Court Erred in Upholding that the Trial

Court Property Denied Plaintiff's Motion for New Trial when

the Finding of the Jury was Unreasonable, Arbitrary and not

Based upon any of the Evidence...........cccccccceceeceeeseeses.... 26

IV. ASIDE FROM THE DOCTRINAL IMPORTANCE

OF THE QUESTIONS PRESENTED, AN ADDITIONAL

REASON TO GRANT THE PETITION IS THE

DRAMATIC IMPACT THE DECISION BELOW WILL

HAVE ON THE ENTIRE COURT'S DECISION OF AN

INSURANCE COMPANY'S EXECUTING AND

DELIVERING AN INSURANCE CONTRACT, AND

REFUSAL TO PAY OVER THE POLICY PROCEEDS.

THIS COURT'S DECISIONS UPHOLDING THE

ILLINOIS'S INSURANCE CODE, AND THE USUAL

COURSE OF APPELLANT PROCEEDINGS ARE

ARBITRARY AND CAPRICIOUS. ........cccccccesccoseseeeeesce.. 28

ix

TABLE OF AUTHORITIES

U.S. - Hall v. Time Insurance Co., M.D. GA., 671 F. Supp.

Latex Glove Co., Inc., v. Alfred J. Giraen, 146 Ill. App. 3d

GR, BT, BE, BoB cresccccsncctcnasttnnniitetvitininnnmensnichinpiiniis 7

Rodney K. Mohr v. Dix Mutual County Fire Insurance

Company, 143 Ill App. 3d 989, 97 Til. Dec. 831.................... 8

Beddow v. Hicks, 303 Il. App. 247, 25 N.E. 2d 93............... 8

F.E. Homes & Son Const. Co., Inc., v. Giualdoni, Electric

Service, Inc. 61 Ill. Dec. 883; 435 N.E. 2d 724, 105 Il App......8

City of Cleveland v. Petr Kiewit Sons’ Co., 624 F. 2d 749 (6th

RR Fee cecnscncenssocanentnsnanisnemisndescnnsebiemonstdennnians ebiinepinnennin 11

Harms v. Zurich Insurance Co., 527 F 2d $28 (8th Cir. 1975)..11

Peterson v. Durand Farmers Mkt. Five Insurance Co., 30..3 IL

U.S. - Time Oil Co.v. Cigna Property & Casualty Insurance Co.,

SecA COMg SUP Es CUMNIA iO linctnnessctncsereneechenthsousesteuionepusen 13

PL | a

Evidence 222 (1)

ee

TABLE OF AUTHORITIES - (CONTINUED)

Villa, 202 Ill. App. 3d at 1089, 148 Ill. Dec. 372, 560 N.E. 2d

969; Accord Topp v. Logan (1990), 197 Ill. App 3d 285, 298,

143 Ill. Dec. $19, 554 N.E. 2d 454; Monier v. Winkler

(1987), 158 Il. App. 3d 724, 729, 110 IL Dec. 411. $11,

PRE GH te isieneicbndinnnpaidiibatibiiaincicbcscmatiiie sen in et 18

MO. - Continental Casualty Co. v. Monarch Transfer &

Storage Co., 23 S. W. 2d 209; Vt. - Aseltine v. Perry, 54 A.

190, 75 Vt. 208; U.S. - Gilbane v. Fidelity & kCasualty Co. of

N. Yn., R.L, 163 F. 673, 90 C.C.A. 265; Neb - Bleicher v.

Heater, 4 N.W. 2d 897, 141 Neb. 787..0.0....-ccccccccceseceecees. 19

Frank A. Queen et al. v. Vermont Mutual Insurance

Company, 32 Mass. App. Ct. 343..........cccccccccccessoseccoceeeee. 20

R. Stern and E. Gressman, Supreme Court Practice 208-09

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TABLE OF AUTHRORITIES- (CONTINUED)

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TABLE OF CONTENTS (CONTINUED)

APPENDICES:

A ORDER OF APPELLATE COURT... App. 1

Files November 16, 1995

B PETITION FOR REHEARING............... App. 11

Filed December 4, 1995

C APPELLATE COURT DENIED PETITION FOR

Filed December 30, 1995

E PETITION FOR LEAVE TO APPEAL... App. 46

Filed January 11, 1996

F THE SUPREME COURT NOTICE, NENIED

a cscs csscsssecsansess........ App. 72

Filed April 2, 1996

G PLAINTIFF'S COMPLAINT....................., App. 73

Filed July14, 1993

TABLE OF CONTENTS (CONTINUED)

H AMENDED COMPLAINT........:.:s:ssesseesssesseeeses App. 75

Filed September 27, 1993 27, 1993

I RESPONDENT'S PLEADING. .........ccscessessees0eeee App. 88

Filed, October 28, 1992

3 POST Wanal TION sect App. 93

Filed February 22, 1995

K CIRCUIT CLERK DENYING POST TRIAL MOTION

Filed March 6, 1995

OPINIONS BELOW

On February 8, 1995 , the Will County Circuit Court

granted Respondent, National Casualty Insurance Company a

Jury Verdict against Petitioner's complaint which sets forth

Cause of Action for Breach of Contract. Petitioner, filed a

Notice to Respondent for post-trial or a new trial February 22,

1994, and filed Motion for a Post Trial or an New Trial and

Judgment Notwithstanding Verdict on February 22, 1995. On

March 3, 1995, an Amended Motion was filed. On March 6,

1995, Petitioner's Post Trial Motion, Motion for a New Trial

and Motion for Judgment Notwithstanding Verdict was

denied. On March 27, 1995, a Notice of Appeal was filed.

On November 16, 1995, the Appellate Court of the Third

District, Will County, Illinois affirmed the judgment of Trial

Court of the Twelfth Judicial Circuit, Will County Dlinois, A

true and Accurate copy of Opinion is attached, AL. EX. A. P.

1-8.

On December 4, 1995, a Petition for Rehearing was

filed in the Appellate Court. A true and Accurate copy is

attached PL. EX. B.P.9-19. On December 20, 1995, said

Petition for Rehearing and Certificate of Importance was

denied by the Appellate Court. A true and accurate copy is

attached PL.EX.C. P. 20. On December 30, 1995, Petitioner

filed an Affidavit of Intent to File a Petition for Leave to

Appeal. A true and accurate copy is attached, PL.EX. D.P. 21.

Basis for Jurisdiction

Tire Appellate Court of Illinois Third District affirmed the

decision of the Circuit Court of the Twelfth Judicial Circuit,

Will County, Llinois November 16, 1995. The Appellate

Court, on December 20, 1995 denied Petition for Rehearing

and Petition for Certificate of Importance. On April 3, 1996,

The Supreme Court of the State of Illinois Denied Petition for

Leave to Appeal. On April 22, 1996, a request was filed with

the Illinois Supreme Court to Stay of Mandate and Notice of

Filing a Wnt of Certiorarito the United States Supreme Court.

The United States Supreme Court has Jurisdiction to

review this Judgment under 28 U.S.C. 1257, which states in

part, “[F]inal" Judgments... renderéd by the highest court of a

2

Basis for Jurisdiction

state in which a decision could be had, may be reviewed by the

Supreme Court by Writ of Certiorari...where any title, right,

privilege, or immunity is... claimed under the Constitution or

Statutes of...the United States." In the present case, a “right under

the Fourth Amendment of the United States Constitution.

STATEMENT OF THE CASE

compensatory, consequential, and punitive damages for fraud,

vexatious delay in settling his claim, and breach of contract. The

Circuit Court, Will County, Illinois, Edwin B. Grabick, Jr., entered

Judgment in favor of Respondent and Petitioner appealed March

27, 1995, in the Appellate Court of Illinois Third District.

November 16, 1995, the Order of the Court was filed in the

Clerk's Office, Ex. A pp. 1-8.

December 4, 1995, a Petition for Rehearing was filed, Ex. G3

3

pp. 9 - 26.

December 20, 1995, the Appellate Court overruled and denied

Petition. Ex. C. p. 27.

January 11, 1996, a Petition for Leave to Appeal in the State of

Illinois SupremeCourt, eas filed Ex. J.PP. 57 - 75.

Apail 3, 1996, The Supreme Court of Tlinois denied Petition Ex.K. p 76.

Petitioner was for three years, from 1989 - 1992, a business

owner duly organized and existed under the laws of the State of

Illinois. The Petitioner owned and operated a restaurant and lounge

under the nave of "The Other Place” upon the premises and

building located at 738-740 Collins Street, Joliet, Will County,

The Petitioner maintained and had in effect a special multi-peril

insurance policy which on February 13, 1992, approximately 3:30

p.m. at Appellant's business, David McElwee, Agent of O'Dell and

Watham Insurance Agency, Inc. sat together and executed a

contract.

On March 14, 1992, Respondent, National Casualty Insurance

Company executed and delivered to Petitioner his insurance policy

4

No. MP 002 170. Under the terms Respondent insured

Petitioner against loss or damages by fire to the premises

described in the policy in the amount of $75,000 for the

building and $50,000 for personal property of the term of

March 14, 1992, until March 14, 1993.

On April 27, 1992, while the policy was in fulll force, a fire

occured upon the premises and building of the subject

property there by destroying said building, Petitioner's personal

property, and business. The total loss sustained as a result of

this denial was more than the$75,000 for the building and the

$50,000 for insured personal property, the amount of the

policy in force at the time of the fire.

The Petitioner promptly performed all the conditions of

the policy of insurance on his part to be performed, with

giving immediate written notice of such loss and furnishing

swom proof of loss.

On October 28, 1992, six months later, the Respondent

denied the rejected Petitioner's claim for fire loss and property

damage for the following reasons:

5

A. Intentionally setting or procuring the setting of the fire

in question;

At the trial two fire investigation experts testified that the

fire had been started when someone poured flammable liquid

on the floor and ignited the liquid. Laboratory tests were

negative. No witness was called at the trial to testify and no

other evidence or proof was submitted to the Court for this

cause.

B. Falsely swearing in Petitioner's examination under oath;

C. Lack of an insurable interest in the property (building

and contents) at the time of the loss. A true and accurate copy

of Defendant's pleadings is attached as Exhibit J.P. 46 - 48.

This issue of Petitioner's Insurable Interest in the property

was not presented to the jury nor were any jury instructions

regarding this defense tendered, see Trial 251.

No part of the $75,000 for the building nor the $50,000

for Petitioner's personal property, the amount of the insurance

payable under the terms of the policy in case of loss, has been

paid.

As a direct and proximate result of said vexation denied,

Petitioner has lost his businesses, has been denied the sue of

the settlement proceeds, has been denied the interest camed

from said settlement proceeds, and has had to incur substantial

Genial of insurance claim, by filing a complaint for Breach of

I. THIS CASE PRESENTS AN IMPORTANT

QUESTION OF LAW, ABOUT THE EXTENT TO

WHICH, CONSISTENT WITH THE FEDERAL

RULES, ILLINOIS CIviz. APPELLATE PRACTICE

7

CODES, ILLINOIS INSURANCE CODES, AND THE

USUAL COURSE OF JUDICIAL PROCEEDINGS

APPLIED TO ALL CIVIL CASES, BUT, THE

OUTCOME OF THIS CASE IS DIFFERENT.

A The Appellant Court of Illinois Third District Erred in

Failing to Make a Separate Determination of the Trial

Court of the Twelfth Judicial Circuit, that the Insurance

Policy Indicated Offer, Acceptance and Consideration

as well as Petitioner Performance of all Contractural

Provisions, set forth in the amended complaint as

Evidence, Ex. H., pp. 48 - 53.

This case presents the important question of the Rule,

Insurance § 559, 559 (1), if the Company denies liability for a

loss, and : sfuses to pay it either for that or another reason,

placing it's refusal on a definite ground other than want of

notice and proof of loss or a defect in their form or substance,

it waves the right to insist on the failure to give notice and

make requisite proof as a defense to an action on the policy,

U.S. - Hall v. Time Insurance Co., M.D. Ga., 671 F. Supp.

768; see also Insurance 559 (1), 560 (3), (1).

The Appellate Court failed to determine the denial and delay

of the Respondent case. The Appellate Court overlooked

Illinois Insurance Rule, Contract 332 (1), Complaint which

sets forth cause of action for breach of contract must allege

facts sufficient to indicate offer, acceptance and consideration

as well as Petitioner's performance of all contractural

provisions, fact of Respontent’s alleged breach, and existence

of damages as consequence thereof. The Appellate Court's

failing to apply this rule to this case, conflicted with the

Appellate Court of Illinois First District, Third Division in

Lates Glove Co, Inc. v. Alfred J. Gruen, 146 IIL App. 3d 868,

100 Ill Dec. 488. The Appellate Court of Iinois Third

District decision in the instant case is in conflict with the

Appellate Court of Iinois, Fourth District dicision. Given the

importance of the questions presented and the possibility of a

conflict among the two Appellate Courts is that the Appellate

Court of Illinois Third District overlooked Illinois Insurance

Rule 602.3, in determining the Petitioner could recover

damages for profit lost due to the Respondent's allegedly

vexatious delaying settling his claim arising when

property and personal property was destroyed by fire. In

Rodney K. Mohr v. Dix Mutual County Fire Insurance

Company, 143 Ill. App. 3d 989, 97 Ill. Dec. 831, Illinois

Appellate Court Fourth District held that insured could

recover damages for profit lost due to insurer's allegedly

vexatious delay in settling his claim arising when farm

equipment was destroyed by fire. The conflict between

the two Appellate Courts is an additional reason for

granting certiorari. The Appellate Court of Illinois Third

District failed to determine Illinois Insurance Code,

Damages 147, 163 (1) complaint seeking damages for

loss of profits due of contract must allege facts which

show that allegedly lost profit can be proved with

reasonable certainty, were proximately caused by

wrongful act of Respondent and were reasonable within

contemplation of parties at time contract was formed.

The Appellate Court of Illinois Fourth District held

10

that: when lost profits sought in breach of contract action arise

out of collateral transaction, Petitioner must established

damages 11

with reasonable certainty and also show lost profit were within

contemplation of the parties at time they entered the

agreement. The Appellate Court of Illinois overlooked Illinois

Insurance 602.3, and failed to determine whether the

Defendant has engaged in vexatious and unreasonable delay in

settling claim, as progibited by Insurance Code. The Court

failed to consider that Petitioner was forced to file suit to

recover and that Petitioner was deprived of use of his property.

This question was resolved in Rodney K. Mohr v. Dix Mutual

County Fire Insurance Company by the Appellate Court of

Illinois. Fourth District where the Appellate Court of Illinois

Appellate practice and the usual course of judicial proceedings,

in this case see Insurance 602.10 1, see also FE. Homes &

Son Const. Co., Inc., v. Gualdaoni Elec. Service, Inc. 61 IIL

Dec. 883, 435 N.E. 2d 724, 105 Il. App. 3d 1135. This Case

11

also presents the important question of why, in Beddow v

Hicks, 303 IL App. 247, 25 N.E. 2d 93, did the Appellate

Court of Illinois Third District hold, Insurance 114, the insured

is entitled to recover under a fire policy when he has an

“Insurable Interest" for losses under term of the policy not

exceeding the amount for which he is unsured, and in this case

the same court overlooked, or failed to determine the Rule. In

Rodney K. Mohr v. Dix Mutual County Fire Insurance

Company,Appellate Court of Mlinois Fourth District,

Defendant's conduct constituted a violation of Section 155 of

the Illinois Insurance Code (Ill Rev. Stat. 1983, Ch. 73 Par.

767).

The Appellate Court of Illinois Third District, ORDER,

stated, “when the Petitioner's property was destroyed by fire,

the Respondent refused to pay over the policy proceeds". The

Appellate Court erred in determining whether the Respondent

violated Section 155 of Illinois Insurance Code (IIL Rev. Stat.

1983, Ch 73, Par. 767), which conflicted with Illinois

Appellate Court's ORDER, also stated, "The Petitioner sued

12

aT

|

f

:

'

Appellate Court's ORDER, also stated, "The Petitioner sued

the Respondent for breach of contract” The Appellate Court

II. THE APPELLANT COURT OF ILLINOIS THIRD

DISTRICT ERRED IN AFFIRMING THE JUDG-

MENT ENTERED BY THE TRIAL COURT OF

ILLINOIS TWELFTH JUDICIAL CIRCUIT IN

FAVOR OF THE DEFENDANT AND IN FAILING

TO DETERMINE WHETHER THE VERDICT WAS

IN ACCORDANCE WITH THE PLEADINSET FORTH.

13

A. Respondent's Complaint, "Breach of Contract".

Exhibit H, pp. 48 - 53.

As a general rule Contract 332 (1), "Complaint which sets

forth cause for breach of contract must allege facts suffricient

to indicate offer, acceptance, and consideration, as well as

plaintiffs performance of all contractural provisions, facts of

defendant's alleged breach and existence of damage as

consequence thereof", as Petitioner did in the complaint,

Exhibit., pp. 48 - 53. The Illinois Appellant Court rendered a

decision in conflict with this rule and with the Appellant Court

of Dlinois First District, Third Division, in Latex Glove Co.

Inc., v. Alfred J. Gruen, 146 Il. App. 3d 868, 100 IIL Dec.

488 (1986).

B. The Respondend rejected Proof of Loss Statement

and Letter of Pleadings, Exhibit I, pp. 54 - 56.

As a general rule, Insurance § 544, the issue of action on

insurance policy are confined to such matter as are

affirmatively alleged on the one side and surriciently denied on

the other. Matters constituting an affirmative defense not

14

City of Cleveland vy. Peter Kiewit Sons’ Co., 624 F. 2d 749

he sustained as a result of the fire". The Appellate Court erred

in upholding the remark of the Respondent without proof or

evidence, and erred in failing to determine Whether the

remarks was justified on the grounds of Illinois Insurance

Code, and the usual course of judicial Proceedings.

The Appellate court of Iiinois Third District erred in

affirming the Judgment entered by the Trial Court of Illinois

15

Twelfth Judicial Circuit without determining whether the

verdict was in accordance with the pleadings, evidence, or

findings, which conflicts with Ilinois Insurance 188 (3). _ The

Appellate Court is in direct conflict with Ilinois usual course

of judicial proceedings and Illinois Civil Appellate Practice

3451, which sets forth that " if there is no evidence on even as

essential issue in favor of the party holding the burden of proof

in an issue, the Court should direct a verdict. A court property

directs a verdict when the opposing party has failed to produce

some required element of proof in support of its cause of

action.

Petitioner Complaint, Ex. H., pp. 48 - 53, set forth cause

of action for the Respondent breach of contract. February 8,

1995, judgment was entered in favor of the Respondent,

February 22, 1995, an Amended Motion was filed. The issue

raised by the motion is whether there is a total failure of proof

on any necessary clement of the Petitioner's case; and since

they submitted no proof of evidence of his pleadings, was the

judgment of a legal presumption? The Trial Court denied

16

© eee

Petitioner's motion was completely abusive and was not proper

according to Illinois Civil Practice (2.4), (2.5), S$ 4098. See

Fed. R. Civ. P. 50 (6). See also Appeal and Error 302 (1).

March 27, 1995, Petitioner filed an Appeal in the

Appellate Court of Illinois Third District. Petitioner submitted

all fact evidence to the Court that would give the Court

reasons to determine the case according to Dlinois Insurance

Codes, Ilinois Civil Appellate Practice and the usual course of

judicial proceedings. After the Appellate Court Review, the

Order was in error in affirming the Judgment of the Trial

Court that conflicted with all Illinois Insurance Code. The

Appellate Court erred in failing to determine the case

according to Illinois Civil Appellate Practice. The Appellate

Court Decision «onflicted with other Illinois Appeal Courts of

the same matter.

Appellate Court rendered a decision in conflict with Illinois

"Fire Insurance § 254", fire insurance in a personal contract

with the insured, and not a contract in rem. It's purpose is not

to insure property against fire, but to insure the owner of the

17

property against loss by fire. U.S. - Time Oil Co. v. Cigna

Property & Cas. Ins. Co., W.D.Wash., 743 F. Supp. 1400.

See Insurance 124. In the Appellate Court's ORDER, " The

Petitioner, James Pruitt, insured his business against the risk of

fire by purchasing an insurance policy from the Respondent,

National Casualty Insurance Company, the Appellate Court

erred in failing to determine that Petitioner was rightfully

entitled to recover under a fire policy, when he has an

"Insurable interest" for losses under terms of policy and Illinois

Insurance Code 114. The Appellate Court's decision, Ex. A.

p. 1, stated, "The insurance policy at issue became effective in

March, 1992. It provided coverage for the building housing

the Plaintiff's business,, a restaurant and lounge called "The

Other Place", as well as coverage for the building’s contents”.

A serious controversy arises here. The Appellate Court error

in failing to determine the Petitioner is entitled to recover from

the policy. This issue conflicts with the Appellate Court of

Illinois Second Division in Patterson v. Durand Farmers Mut.

Fire Ins. Co., 303 Il. App. 128, whereof the Court held that

18

the Company having refused to pay the suit resulted in a

judgment in favor of Petitioner. The Appellate Court of

Hinois Third District rendered a decision in conflict with

Ilinois Insurance 128 (1) which sets forth cause of action of

establishing an insurance contract between insured and insurer.

Ii. THE APPELLATE COURT DECISION

UPHOLDING THE JUDGMENT OF THE

CIRCUIT COURT OF WILL COUNTY,

ILLINOIS CONFLICTS WITH

PRECEDENTS OF ILLINOIS CIVIL

APPELLATE PRACTICE, ILEINOIS

INSURANCE CODES, AND PRECEDENTS

OF THIS COURT.

A. The Appellate Court erred in failing to made

a separate determination of whether the

conflicting testimonies by Respondent's

Witnesses were within the complaint and

pleadings of the case where there was no

evidence submitted by the insurance policy

19

proceeds;

The Jury in this case did not hear conflicting testimony as

to the Respondent breach of contract which Petitioner

complaint sets forth cause of action, they heard conflicting

testimony as to the time Petitioner closed and left to check in

the motel prior to going to breakfast. NIP’S-Cab, owned and

driven by L.B. Pruitt, stated that he received a call to pick up

the Petitioner approximately 2:15 a.m., arriving around 2:30

a.m., waited approximately 15 minutes for the Partitioner to

appear. Several minutes later the Petitioner appeared.

According to the cab driver's testimony, it was about 3:00 a.m.

or after before Petitioner left. The police officer drove past

the building and noticed smoke coming from the building, in

his written report stated that he passed the building about 2:45

a.m. and noticed a Circle Cab parked in front. He did not see

Nip's Cab parked there at 2:45 a.m. but approsimately at 3:08

a.m. he noticed smoke coming from the building by being on a

call about 1/2 block past Petitioner’s business. L.B. Pruitt

testified that when he left from in front of Petitioner's business

20

approximately 3:00 a.m. or later, there was no sign of smoke

or fire to be observed. This is one conflict of testimony of the

Respondents.

Petitioner testified that he closed his business at 12:00 a.m.

as usual on Sunday night. After a birthday party ending at

approximately 12:30 a.m. in his lounge. A friend helped clean

up and stock the beer coolers, finishing approximately at 1:30

a.m. Because Petitioner's car had been hit by a drunk driver

and totaled Friday night before the fire occurred, his girlfriend

called a cab while Petitioner was changing clothes. The cab

came right away and his girlfriend went out to the cab so that

the cab would not leave. At approximately 1:45 a.m..

Petitioner came out, he and the friend who helped to clean up.

The cab driver took us to the parking lot joined by the hotel

and restaurant where we had breakfast before walking to the

motel and checking in at 3:08 a.m. A written statement of

Petitioner's girlfriend and friend who helped clean up were

taken by the Defendant's private investigation officer weeks

after the fire, and submitted to the Court for evidence.

21

Another police officer testified that he had interviewed

Petitioner following the fire and Petitioner stated that he had

taken by the Defendant's private investigation officer weeks .

after the fire, and submitted to the Court for evidence.

ate ath a on ee

Another police officer testified that he had interviewed

Petitioner following the fire and Petitioner stated that he had

interviewed Petitioner following the fire and Petitioner stated

that he had checked into the motel prior to going to breakfast.

The police officer did not submit a written statement to the

Court for evidence that he had even talked to Petitioner. This

is another conflict in the case of the Respondent's witnesses.

In petitioner's girlfriend's written statement, the city

inspector, the imsurance agent; who sold Petitioner the

insurance contract, the Petitioner and all of the other witnesses

called, all testified that Petitioner and girlfriend lived in one

apartment above the lounge. The police officer testified that

the building contained no furniture, as if they were supposed

to see furniture and clothes after the building was destroyed by

”~ fire; no floor or roof was left on the building after the fire.

a ~

ee

uty

Pe

LO te ge ee

Petitioner also submitted photograph taken by the guest who

had the birthday party the night business bumed up, to the

Court for evidence of stock that was there after Petitioner

closed and left the business.

The Respondent called two Fire investigation experts, each

testified that flammable liquid had been poured on the floor

and ignited because of the holes in the floor, although

laboratory test for petroleum based accelerates were negative.

This is another conflict in testimony by the Respondent's

witness who had no evidence to submit to the Court

Petitioner testified that where the experts claimed the holes

were burned in the floor is where the friend who helped clean

up put the garbage to be taken out Monday when Petitioner

returned to open the business.

If the Courts would have weighed the evidence submitted

and set aside the verdict for the Respondent, it would have

been able to determine that the Jury's verdict was contrary to

the manifest weight of evidence as set forth in Appeal and

Error 281 (1), and would have ordered a new trial. The

Appellate

23

Court erred by not reviewing the evidence and using the

conflicting testimony of the Respondent's witnesses to

determine its decision to affirm the judgment of the Circuit

Court, Will County, Illinois.

B. The Appellant Court erred in upholding the Judgment

entered by the Trial Court in favor of the Respondent

and in failing to make a separate determination of

whether “all of the evidence, when viewed in it

aspect most favorable to the opponent, so over-

whelmingty favors movant that no contrary verdict

based on the evidence could ever stand”.

At trial Petitioner's complaint of breach of contract; and

Respondent's pleading that the Petitioner intentionally set the

fire and made material misrepresentation about the losses be

sustained as a result of the fire was never introduced by the

trial judge as issues and did not determine those issues, in the

instructions submitted by the Respondent and given to Jury.

The issues raised at trial by the defense counsel was only

statement tendered to establish and disprove material facts of

24

Tan

a ee

Petitioner. See Evidence 222 (1).

The Appellate Court erred in overlooking the fact that the

Petitioner proved all of the clement of a prima facie case,

including duty, breach, proximate cause, and the extent of

damage, whereas the trial court did not so conclude.

Mizowek, 64 Ill. 2d at 310, Ill. Dec. 23, 356 N.E. 2d 32.

At trial the Jury did not have any evidence submitted to the

court of the Respondent statements as to the denial of

insurance covered by the insurance policy executed and

delivered March 14, 1992.

At trial Judgment N.O.V. was unproperty denied because

‘Petitioner submitted the insurance policy as the contract

entered into between Petitioner and the Respondent and

complaint which set forth cause of action for breach of

contract, to the courts for evidence to be viewed in its aspect

most favorable.

At tal the Respondent submitted no evidence for the

Court to weigh, nor did the Respondent call a witness to testify

on behalf of his statement in his pleadings. The police

25

officers, and the two fire investigation experts only testified as

to the time of the fire, the extent of damage, and the amount

of damage. None of them submitted any evidence to the

- Court, other than the laboratory test for petroleum-based

accelerate which were negative.

C. The Appellate Court erred in holding that the trial

court properly denied plaintiff's motion for new trial

when the finding of the jury was unreasonable,

arbitrary and not based upon any of the evidence.

The verdict was against the manifest weight of evidence

because the finding of the Jury was unreasonable, arbitrary

and was not based upon any of defendant's evidence, and it is

affirmatively shown that the Trial Court clearly abused its

discretion. Villa, 202 Il. App. 3d at 1089, 148 IIL Dec. 372,

560 N.E. 2d 969; Accord Topp v. Logan (1990), 197 Ill. App.

3d 285, 298, 143 Ill Dec. 519, 554 N.E. 2d 454; Monier v.

Winkler (1987), 158 IL App. 3d 724, 729, 110 IIL Dec. 411,

511 N.E. 2d 246.

The Appellate Court erred by not determining that the

SOP E eT Het sae rt mye mn

26

Complaint did set forth cause of action of Respondent's breach

of contract.

The defense counsel tendered Proposed instructions for

ihe Jury, all of which was given and not one of the allogedty

breach of contract, or Respondent's objections although, the

tendered and proposed was motivated by nothing more than a

desire to curtail expression of a particular point of view on

The instructions did not tract the language of Insurance

188 (3) “Instructions given in such an action for premiums,

must be in accordance with, and be appropriate under, the

pleading in the case". MO.-Continental Casualty Co. v.

Monarch Transfer & Storage Co., 23 S. W. 2d 209;

Vt-Aseltine V. Perry, 54 A. 190, 75 Vt. 208; U.S. - Gilbane v.

Fidelity & Casualty Co. of N.Y., RL, 163 F. 673, 90 C.C.A.

265; Neb - Bleicher v. Heater, 4 N.W. 2d 897, 141 Neb. 787.

The Court of Appeals, after finding that the LP.L

instructions are sufficient to inform the Jury of the principles

of law involved in the case, failed separately to inquire as to

whether the L.P.L instruction did or not tract the language set

forth in Ex. H., pp. 48 - 53 or Ex. L, pp. 54 - 46.

IV ASIDE FROM THE DOCTRINAL IMPORTANCE

OF THE QUESTIONS PRESENTED, AN

ADDITIONAL REASON TO GRANT THE

28

Aside from the doctrinal importance of the questions

presented, an additional reason to grant the petition is the dramatic

impact the decision below will have on the entire Court's decision of

an insurance company’s executing and delivering and insurance

contract and refusal to pay over the policy proceeds. The Court's

decision upholding the Illinois Insurance Code, and the Usual Course

of appellate proceedings.

The Appellate Court's decision, if left in place, will cast

into doubt of what the Insurance Code actually meant, and what Appellate

2

Courts actually represent. The Appellate Court's decision in the

instant case is in conflict with the appeal Court of Massachusetts,

Middlesex decisions to recover from a fire loss. Frank A. Queen v.

Vermont Mutual Insurance Company, 32 Mass. App. Ct 343. The

Conflict between the two Appeal Courts is an additional reason for

granting certiorari See R. Stem and E. Gressman, Supreme

Court, the approach adopted by the Appellate Court of Ilinois Third

Dstnct will Significantly impair future attempts by Appeals Courts to

provide solutions to other insurance problems. Review by the Court

is essential to correct the decision by the Appellate Court of Ilinois

CONCLUSION

In order to obtain uniformity in construction of

constitution and to obtain equality for persons in the several

_ states in the rights and protections secured by the Constitution,

Petitioner prays this Court issue its writ of Certiorari and

Accept Jurisdiction over this Cause.

Tel.: 815-723-7586

30

He

APPENBICES

APPENDIX A

[FILED NOVEMBER 16, 1995]

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

NO. 3-95-0225

JAMES PRUITT,

Petitioner

Versus

NATIONAL CASUALTY INSURANCE COMPANY,

Respondent

ON APPEAL from the Circuit Court of the 12th Judicial

Circuit

Will County, Illinois.

Before: GRABIEC, Circuit Judge

ORDER OF APPELLATE COURT

ORDER

The Plaintiff, James Pruitt, insured his business against the

risk of fire by purchasing and insurance policy from the

defendant, National Casualty Insurance Company. When the

plaintiffs property was destroyed by fire, the defendant

refused to pay over the policy proceeds. According to the

defendant, the plaintiff intentionally set the fire and made

material misrepresentations about the losses he sustained as a

result of the fire. The plaintiff sued the defendant for breach

of contract. After a jury trial, judgment was entered in favor

of the defendant. We affirm.

The insurance policy at issue became effective in March

1992. It provided coverage for the building housing the

plaintiff's business, a restaurant and lounge called "The Other

Place," as well as coverage for the building's contents. In the

early morning hours of April 27, 1992, the building was

destroyed by fire.

App. 2

At trial, the plaintiff, preceeding pro se, called two wittnesses

who had been in the lounge the evening before the fire.

These witnesses testified that they left the lounge

between midnight and 1 a.m.. One witness testified

that she returned to the parking lot around 2 a.m. and

the building appeared to be empty. That witness did

not attempt to enter the building to determine

whether anyone was in fact there. The other witness

testified that he did not return to the lounge after

leaving.

The plaintiff testified that he closed the lounge

around midnight and that he and his girlfriend

cleaned up after closing. He testified that he and his

girlfriend usually spent Sunday nights in a hotel in

chicago but since he had been experiencing car

problems they decided to spend the night at a local

motel. After the defendant had locked the enctrances

to the lounge, he and his girlfriend rode in a cab to

the motel's parking lot. Instead of registering

App. 3

immediately, they went to a restaurant next door for breakfast.

Following breakfast, they proceeded to the motel, checking in

at approximately 3 am.. The motel's records show that the

plaintiff checked in at 3:11 a.m.

A taxi driver testified that he zeceives a call to pick up the

plaintiff and his girlfriend at the lounge at approximately 2:15

a.m.. He drove to the lounge, atriving around 2:30 a.m.. The

plaintiffs girlfriend came out of the building and got into the

cab. They waited approximately 15 minutes for the plaintiff

to appear. When he did not, the driver sent the girlfriend in to

check in the plaintiff. Several minutes after she returned, the

plaintiff appeared. The driver took them to a local motel,

droping them off shortly after 3 a.m..

A police officer testified that he drove past the lounge at

3:08 a.m. and noticed smoke coming from the building. He

informed the dispatcher, and the fire department arrived within -

five minutes.

By that time, flames were visible from the rear of the

App. 4

building.

Another police officer testified that he had interviewed the

plaintiff following the fire.

at the interview, the plaintiff stated that he had checked into

the motel prior to going to breakfast. He also claimed that he

had been living in one of the apartments over the lounge and

had lost furniture and other personal belongings as a result of

the fire. Moreover, he claimed that he had lost approximately

$1000 worth of inventory from the business.

The defendant called two fire investigation experts. cach

expert testified that the fire had been started when someone

poured a flammable liquid on the floor of the lounge and

ignited the liquid. They reached this conslusion based on the

presence of holes in the floor of the lounge. According to the

experts, fires burn up and out. The only way a fire would

cause these kinds of holes would be if there was something

that would act like a wick and hold the flame near the floor. A

flammable liquid would cause that kind of reaction. Laboratory

App. 5

tests for petroleum-based accelerants were negative. No tests

were performed which would detect alcohol-based accelerants.

In addition, one of the experts testified that the apartments

over the lounge were empty. He also testified that the

business; coolers were empty. The other expert testified that

the only inventory he saw was less than one full case of beer.

The defendant tendered proposed instructions for the jury,

all of which were given. The plaintiff objected to three of

these instructions. The first was a standard LP.L instruction.

The other two were instructions that tracked the language of

the insurance policy and explained sow any damages should be

computed. The Plaintiff did not offer instructions of his own.

The plaintiff, again pro se, argues first on appeal that the

trial court erred in instructing the jury.

The test for determining the propriety of submitted

instructions is whether, when taken as a whole, they fully and

fairly apprise the jury of the relevant principles. (Eiliott v.

App. 6

Koch (1990), 200 IIL App. 3d 1, 558 N.E.2d 493.)

Non-pattern instructions should be brief, impartial and free

from argument. Aieger v. Manhattan Coffee Co. (1983), 112

IL App. 3d 518, 445 N.E.2d 844.

After carefully reviewing the instructions given to the jury,

we find that, taken as a whole, they are sufficient to inform the

jury of the principles of law involved in the case. The LP.L

instruction informed the jury that its duty was to determine the

facts of the case from the evidence presented and cautioned

that arguments are not evidence. It fairly and accurately stated

the principles of law which governed the jury's performance.

from argument. Therefore, we hold that the trial court did not

err in instructing the jury.

attacks upon the jury's verdict for the defendant. In the related

argument, he contends that the trial court erred in denying his

motion for a new trial.

App. 7

When testimony is conflicting, it is the jury's duty to

determine the credibility of the witnesses and weigh the

evidence. (Coduti v. Hellwig (1984), 127 IL App. 3d 279,

469 N.E.2d 220.) The jury's findings will not be overtuned on

appeal unless they are against the manifest weight of the

evidence. (Cosmopolitan National Bank v. Cook (1984), 103

Ml. 2d 302, 469 N.E.2d 183.) A judgment is against the

manifest weight of the evidence only when the opposite

conclusion is apparent, or when the findings appear to be

unreasonable, arbitrary or not based on the evidence. (Duffek

v. Vanderhei (1980), 81 IIL App. 34 1078, 401 N.E.2d 1145.)

A new trial may be granted only when the jury's verdict is

against the manifest weight of the evicence. Mizowek v. De

Franco (1976), 64 Il. 2d 303, 356 N.E.2d 32.

In the case at bar, there were many conflicting accounts

facing the jury. The plaintiff claimed that he and his girlfriend

went to breakfast before checking in to the motel. The police

officer who initially questioned the plaintiff testified that the

App. 8

plaintiff told him that they had checked in before cating. The

plaintiff claimed that he had lost furniture, personal belongings

and $1,000 worth of inventory. Other witnesses testified that

the building contained no furniture or personal belongings and

that the inventory destroyed was minimal. In addition, there

was some conflict regarding the time at which the plaintiff and

his girtfriend took a cab to the motel.

It was the jury's duty to sort out these differing

accounts and determine which were credible and

which not. Apparently, the jury chose not to believe

the plaintiff's version of events. We cannot say that

this decision was unreasonable, arbitrary or not

based on evidence. Consequently, we hold that the

jury's verdict was not against the manifest weight of

the evicdence. Moreover, we hold that the trial

court properly denied the plaintiff's motion for a

new trial.

The judgment of the circuit court of Will County

App. 9

is affirmed.

Affirmed.

BRESLIN, J., with LYTTON and SLATER, JJ.,

concurring.

STATE OF ILLINOIS, )

APPELLATE COURT, ) 3,

THIRD DISTRICT, )

As Clerk of the Appellate Court, in

and for said Third District of the State of Ilinois, and keeper

of the Records and Seal thereof, I do hereby Certify that the

foregoing Appellate Court in the above-entitled cause, now of

record in this office.

In Testimony Whereof, I hereunto

set my hand and affix t he seal of

said Appellate Court at Ottawa,

this 16th day of November in the

year of our Lord one thousand

nine hundred and ninety-five.

_/S/ Gist Fleshman

Clerk of the Appellate Court

App. 10

APPENDIX B

FILED DECEMBER 4, 1995

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

NO. 3-95-0225

JAMES PRUITT,

Petitioner

Versus

NATIONAL CAULALTY INSURANCE COMPANY

Respondent

PETITION FOR REHEARING

PETITION FOR REHEARING

To The Honorable Justices of the Appellate Court of Ilinois,

Third District:

Petitioner James Pruitt, Appellant

In the above entitled Case, represents that points were

overlooked or misapprehended by the Court in it's

determination of this Case, Namely:

The Court overlooked the settled rules of Law that

A.44CJ.C.S. Insurance § 254, b. Fire insurance. Fire

insurance is a personal contract with the insured, and not a

contract in REM. It's purpose is not to insure property against

fire, but to insure the owner of the property against loss by

fire. See points and authorities V Page 3 of .«ppellant's brief.

B. 45 C.J.S. Insurance 456 Evidence

The insurance company has the burden of proving the

existence of a binding insurance contract between the parties

and the amount of permiums due thereon, and insured must

App. 12

prove a defense of payment or release. The usual rules as to

admissibility and weight and sufficiency of evidence apply.

Insurance 114 Necessity in General

Ii. App. 1977. In order to collect under an insurance

agreement, one must have an insurable interest in the insured

item. Reznick v. Home Insurance Company, 4 Ill. Dec. $25,

360 N.E. 2d 461, US ILL. App. 3d 1058 IIL App. 1940

The insured is entitled to recover under a fire policy

when he has an "insurable interest” for losses under terms of

the policy not exceeding the amount for which he is insured.

Beddow V. Hicks, 2 S N.E. 2d 93, 303 Il. App. 247

Il. App. 1942. A contract of insurance is on of

"indemnity" merely and any person having an interest in

property may, through an insurance contract, indemnity

himself against loss by fire or other insurable casualty.

LeDoux V. Dettmering, 43 N.E. 2d 862, 316 IIL

The Appellant is entitled to recover on fire policy

because hehad an msurable interest in the property which the

App. 13

appellee had an insurance contract with appellant to insure

personal property and building against loss by fire.

Il.

The Court misaprehended the fact in finding that on or

about February 13, 1992 in the city of Joliet, Will County,

Illinois Appellant and Appellee entered into a written contract,

a copy of which is attached to appendix for Appellant Brief.

Pp Al-16

By the terms of that contract, Appellee agreed to insure a

building and personal property owned by Appellant at 738-40

Collins Street, in the city of Joliet, Will County, Illinois. A

copy of which is attached to appendix for Appellant's brief.

By the terms of that contract, agreed to construct abuilding

and property owed by Appellant has performed all the

condition on his part under the terms of the contract.

Appellee failed to fulfill the contract on his part, in that he

failed to pay Appellant or make any offer which he was

obligated to, by the contract that Appellant and Appelice

App. 14

entered into,February 13, 1992.

Appellant has been damaged for more than the $75,000

for the building and the $50,000 for personal property that the

contract was entered into, by Appellant and Appellee. Also

Appellant has lost his businesses by reason of the breach.

iL.

The court overlooked the settled rules of Law:

1. Insurance 560 (3) If a fire insurance company objects

to the notice or proof of loss on specified ground it

cannot afterward urge any other ground of objection.

2. Insurance § 1300, Denial of Liability or refusal to pay.

A. Original - A fire insurance company denial of

liability or refusal to pay constitutes a waiver

of policy requirements as to notice and

proof of loss.

B. A denial of Liability on a fire insurance

proof of loss where the denial is unqualified

in character.

App. 15

a

Insurance S 1261 Denial of liability or refusal to pay:

A denial of liability by an insurance company on the

grounds is a waiver as to a want of, or defects in notice and

proof of loss.

Insurance 559,559 (1)

Broadly stated, the nule is that, if the company denies

liability for a loss, and refuses to pay it either, for that or

another reason placing its refusal on a definite ground other

than want of notice and proof of loss or defects in their form

or substance, it waives the right to insist on the failure to give

notice and make request proofs as a defense to an action on

the policy, although it has been said that denial of liability is

evidence of waiver rather than a waiver itself.

Trial handbood for Illinois Lawyers-Civil § 62.18.

Damages for breach of contract.

The measure of damages for breach of contract is the

amount which will compensate the injured person for the loss

which fulfillment of the contract would have prevented or the

break of it has entailed. 22 AmJar 2d. Damages § 46.

App. 16

Damages § 62.20. Damages to Personal Property.

If the property is destroyed, the measure is the value just

before the occurence, New York, C. S.L.R.W. V American

Transit Lines, Inc. (1951) 408 Ill 336, 97 N.E. 2d 264, unless

there is salvage value, in which case, such value is deducted

from the value before the occurrence. LP.I. Civil 30.14

IV.

The court overlooked the settled rule of law that

insurance § 1249 - Fraud, False Swearing, Misrepresentation,

or Concealment. Insurance 552-553 (2),562.3, 562.3 (1-3),

563.4, 562.4 (1).

To establish the defense of misrepresentation of proof of

loss, an insurance company must demonstrate that

representations made by insured were relevant, material and

intentionally false.

The Appellee did not establish a preponderance of

evidence the defense of fraud or misrepresentation or

concealment of material facts in the proof of loss.

App. 17

a

“

Insurance 544 Issues, Proof and Variance

Material allegations in the pleadings in an action of an

insurance policy must be proved if but in issue. The

Appellee's attorney or the court did not deliver into issues of

the complaintsy and to the burden of proof. No witnesses or

any evidence was introduced by the Appellce's attorney for the

complaints.

In Appellant Brief Argument IV. Appellant argues that

as a direct and approximate result of Appellee vexations delay

in settling claim, Mohr V. Dix Mut Country: Fire Insurance

Company, (1986 4th District) 143 II App. 3d 998,97. Illinois

Dec.831, 493. N.E. 2d .638, Appellant has been denied the

use of the settlement proceeds, has been denied the interest to

App. 17be earned from said settlement proceeds; and has had

to incursubstantial legal expenses and court costs to bring forth

this suit to recover said insurance benefits to which he is

rightfully entitled, Illinois Revised Statutes, 1989, Chapter 73,

paragraph 767. Insurance § 1261 "A denial of liability by an

insurance company of other grounds is a waiver as to a want

App. 18

of or defect in, notice and proof of loss."

Illinois Revised Statutes, 1989 Sets forth the following:

In any action by or against a company wherein is an issue

the liability of a company on a policy or policies of insurance

or the amount not to exceed any on of the following amounts: ss

A. 25% of the amount which the court or jury finds

such party is entitled to recover against the company

exclusive of all costs:

B. $25,000

C. The excess of the amount which the court or jury

finds such party is entitled to recover, exclusive of |

costs, over the amount, if any, which the company

offered to pay in settlement of the claim prior to the

action.

The trial court never presented the issue of whether the

insurers refusal to pay insured is vexatious or unreasonable,

therefore it was not acted upon by the trial court.

App. 19

15.1 Trial Handbook for Illinois Lawyers - Civil Burden of

Proof, Generally - Normally, in civil cases the party having the

burden of proof is required to prove his case by a

preponderance of the evidence. Reivitz V. Chicago Rapid

Transit Company (1927) 327 ILL 207, 158 NE 380. The test

is whether one having the burden of proof has proved that his

position "is the more probably true than not true.” See 64.26

for a discussion of instruction on the burden of proof in civil

cases.

64.26 Instructions on Burden of Proof - It is the duty of

the court to instruct the jury as to the burden of proof and

preponderance of the evidence. Smith V. Metropolitan Life

Ins. Co. (1943) 317 Il App 624 47 NE 2d 330. Normally , it

is also the duty of the court to give instructions to guide the

jury in determining the credibility of the witnesses, if

requested. DesPlaines V. Winkleman (1995) 270 Il 149,

IIONE 417.

The court did not instruct the jury as to the burden of

App. 20

proof and preponderance of the evidence of a breach of

contract. Neither did the judge instruct the jury as to the

Appelice's complaint of intentionally setting a fire or

misrepresentation as claimed by the Appellee. Nor were there

agency hired by the Appellee did not appear in court to testify

of the complaints claimed by the Appellee.

V.

The court overlooked the settled rules of post - trial

motions a Common Law.

Arest of Judgement was denied, and should have been

granted, because the common law records was inadequate to

The complaints made by the Appellee “on it's face fails to

state a proper cause of action (as distinguished from a

defective statement of a good cause of action) See CCP

2-1204.

Judgement notwithstanding the verdict was denied and

App. 21

should have been granted, because, mo evidence was

introduced in the court that the Appellee did not breach the

contract, according to S. Ct. Rule 133 (C). The Appellant was

entitled to judgement as a matter of law, because Appellee

Appellee submitted no proof on an essential clement of the

cause of action to support a verdict and judgement. The

motion asks the court to set aside the verdict rendered by the

jury, review all evidence and pray for a final judgement in

favor of the Appellant.

A new trial should have been granted because, the jury

verdict was contrary, to the :manifest weight of evidence."

A new trial should have been granted because, the jury

verdict was unreasonable arbitrary, and unsupported by the

evidence."

A new trial should have been granted because of the

misconduct of the Appellee's Counsel:

1. Conduct of Appellee's Counsel was improper and

resulted in undue prejudice to Appeliant and to he

App. 22

a

trial of the cause in the following specifics:

a. Appelice's Counsel in rebuttal argument made

repeated references to facts not in evidence.

b. Appeliece's Counsel persisted in a line of

no witnesses or evidence viewed in aspect

most favorable to the Appellee.

c. Appellee's Counsel used the A.T.F. agent with

photographs taken by the Jolict Fire Depart-

ment that did not show the cause and origin of

the fire. They only showed the jury the extent

of the loss and the quantities of the property in

the building. They made repeated statements

to the jury that they knew to be improper, and

which matters had no place in the Breach of

Contract Complaint.

Trial Handbook for Illinois Lawyers - Civil

Chapter 63.22 Demonstration or Reenactment of Evidence.

App. 23

a

t

'

i

Counsel may not, during arguments have a party or

witness demonstrate the manner in which an event occurred

See motion for judgement Notwithstanding, the Verdict,

Motion in Arrest of Judgement, and Motion for New Trial in

Appendix for Appellant Brief pages A 54 - A 65. also see

Appallant Brief, "Points and Authorities,” pages 2 - 3.

VL

The court misapprehended the fact in finding that the

case at bar is a Breach of Contract case, not an ARSON case

to find Appellant guilty. The Appellee refused to pay the

policy proceeds. That the Appellant signed a contract which

became effective in March 1992. According to the Appelice,

the Appellant intentionally set the fire and made material

misrepresentations about the losses he sustained 2s the result of

the fire.

LE.P. § 3451 - Failure to prove material allegations of

pleading. There was no evidence or even one essential issue

in favor of the Appellee holding the burden of proof on the

App. 24

issues the Appellee refused to pay over the policy proceeds.

The court should have directed the verdict. LC.P. 3502.

L.C.P.§ 3451 - Lack of evidence by Appellee.

LC.P. § 3508 - Lack of evidence to support counter

‘claim.

In the Circuit Court of the 12th Judicial Circuit, the

Appellee did not offer proof or evidence of these complaints.

The court misapprehended the fact that Appellant had a

contract with the Appellee to provide insurance for his building

and personal property against loss by fire. Once Appellant

fulfilled his obligations of the contract, the Appellee refused to

pay over the policy proceeds, not to prove what time Appellant

left his business what time he arrived at the restaurant for

breakfast or what time he checked into motel. The witnesses

the Appellee called to the stand, made statements speculating

arson, without proof of evidence or cye witnesses.

At trial, the Appellant, pro se, called two witnesses to the

stand, who had not been in the lounge the evening before

App. 25

TTF

ei i a ee, a

the fire, but worked and assisted Appellant's business for three

years. These witnesses knew as much about Appellant's

business as the Appellant. There were times during the three

years of buslaces these witnesses opened and closed

Appellant's businesses.

Both witnesses returned to their cars, not parked in a

parking lot, because Appellant business did not have a parking

lot, parked less than twenty feet of the entry into Appellant's

business, they knew Appellant's businesses were closed and he

was gone when they returned to their cars around 2am. A

usual routine is if plaintiff is leaving the business premises

temporarily after closing and returns later, these witnesses will

close and remain there until the Appellant returns. If the

Agpdlinit Goss sth oneen, evecyene leaves toapiteee

The evening of April 26, 1992, Appellant had a birthday

party in the lounge that lasted until 12:00 midnight, which left

a lot of garbage to be cleaned up. Eugene Massey, the witness

who did not show up in court to testify but issued a statement

App. 26

that had been taken by the Appelice's investigating team

previous to the trial day was motioned to be read by the

Appelice's attorney to the jury. See Appellant's Brief Page 15,

and R.C. 235, this witness helped clean up after the party was

over, not the girlfriend. The girlfriend cleaned the restaurant

after she sold out of stock around 10:00 p.m. See appendis

for brief A 39 - A 45.

The Appellant's businesses -were never opened on

Sunday past 12:00 midnight Sunday until 4:00 p.m. Monday.

Other days Appellant would open his business at 10:00 a.m.

and close Monday, Tuesday, | Wednesday, Thursday at 2:00

a.m. Friday and Saturday closed lounge at 3:00 am. and

restaurant at 4:00 a.m. The reason Appellant chose to leave at

12:00 midnight every Sunday night was his only day off from

12:00 a.m. Sunday until 4:00 p.m. Monday evening. If

Appellant stayed opened his friends and relatives would come

by not ready to go home and knock on the doors

App. 27

;

and windows. The only reason he called a cab and went to a

local restaurant and motel is that two days prior to Appellant

businesses being destroyed by fire, Appellant's car was struck

and totalled by a drunk driver while parked in front of

businesses.

The court misapprehended the facts in finding that

testimony of the cab driver ant the police officer who drove

past the lounge at 3:08 a.m. and noticed smoke coming from

the building. The NIPS taxi driver testified he received a call

to pick-up Appellant at approximately 2:15 a.m. arriving

around 2:30 a.m. He waited approximately 15 minutes for the

Appellant to appear. At 2:45 a.m. the driver sent the girlfriend

for the Appeilant. Several minutes after she returned, the

Appellant appeared, making it approximately 3:00 a.m. before

the driver left Appellant's business to drop them off at the

restaurant, not the motel which would have made it

approximately 3:15 a.m. The motel record indicated that

Appellant checked in at 3:11 a.m., which is correct. However

App. 28

Appellant and girlfriend had already spent approximately one

hour at the restaurant next door to the motel prior to check in.

In reply brief of Appellant, P-13, Exhibit A which

Officer Underwood advised that approximately 15 minutes

prior the fire being discovered he observed a brown cab

belonging to Circle Cab Co. parked in front of 738 Collins

Street, Appellant's businesses, at approximately 2:45 a.m.

The Nips cab driver testified that by the time he arrived at |

2:30 a.m. and waited for the Appellant to come out it was

approximately 3:00 a.m. The cab driver, the Appellant nor

the girlfriend ever saw a Circle Cab parked in from of the

| businesses at any time. Neither did the police officer see

NIPS Cab parked in front waiting for the Appellant to

come out. The reason the officer did not see a NIPS cab

parked in front of Appellant's businesses and NIPS <ab did

not see Circle cab parked in front of Appellant's businesses is

because Appellant closed the businesses and left the premises

in NIPS cab at 1:45 a m. arrived at Georgio's restaurant

App. 29

approximately 2:00 am. The Appellant remained at the

restaurant for about an hour and then checked in to the motel

at 3:11 am. When Appellant's witnesses returned to their

cars at 2:00 am. which was twenty feet from Appellant's

businesses, if business was still open they would have come in.

However, witnesses knew the business was. closed and the

Appellant was gone so they got in their cars an d left. The

front of Appellant's businesses were all glass and you could see

into them a block away. The NIPS cab driver stated in his

testimony that he did not see any smoke at 3:00 a.m.

However, if he was there between 2:45 a.m. and 3:00 a.m. he

would have seen smoke like Officer Underwood. There is a

discrepancy between the time the NIPS cab actually left the

Appellant's businesses which was 1:45 a.m. not 2:45 a.m. The

cab driver also stated he did not have a record of fares the

night of the fire.

The Mayor, the liquor commissioners, the police

department, the insurance agent, salesmen, friends, relatives

App. 30

and most of the customers knew the Appellant lived in the

building that housed his two businesses. People would come

by after Appellant closed and knock on the windows and doors

to buy ribs and rib tips that had been put away in the coolers to

take home to heat up. That is why Appellant would leave on

Sunday nights and return Monday evening with my stock,

because people would not let Appellant rest if Appellant stayed

there. Anytime Appellant wanted to rest Appellant would

have to leave the building. The Electric, Gas, Telephone and

Joliet Water Department all knew Appellant lived in the

building for more than a year. Appellant did not have a lot of

household furniture in the building, which Appellant did not

need since all entertainment was done in the lounge. But

Appellant did have a bed, two sofas, a love seat, table and

chairs, refrigerator, stove, a lot of clothes and other

personal items that Appellant had collected and saved most of

his life. On occasion Appellant would go upstairs and rest for

4 or 5 hours, no more than that, because Appellant spent

App. 31

Pe ee ee eee

|

hours a day, six days a week cunning his businesses. So

Appellant did not have much time to spend in a house.

Appellant had a bed in his office, sometimes after businesses

would close, Appeliant would sleep in the office until it was

How did the investigation experts expect to come to the

building the next day, which was completely destroyed by the

fire. The roof burned off, the second floor bumed up

collapsing onto the first floor burning everything. How did

they expect to find furniture or anything else except four brick

walls standing with no support. Everything that was loose that

was burned was thrown out on the side walks by the Joliet Fire

Department. There was so much Tubbish on the sidewalks

so people could walk on it. The remaining walls were

dangerous with no support that the City of Joliet

| Neighborhood Services had them torn down within six days

after the fire.

Sunday night, April 27, 1992, Approximately 12:30 a.m.

App. 32

ee

Ba he ates OT tA a Frat ay

Eugene Massey helped the Appellant clean the lounge after the

party ended. He gathered all garbage from party and from

Saturday's birthday party that had been put in storage rooms.

Empty beer boxes that had been left behind the bar plus three

large garbage containers and placed all of them in back of the

lounge near the back door to be taken out Monday evening

when Appellant returns to the business. It was in that area in

which the investigating experts claimed holes were burned in

the floor. After he finished cleaning up and vacuuming he

went into the restaurant and sat at the counter with Appellant's

girlfriend while the Appellant went into the washroom to wash

up and to the office which was located next to the washroom

to change clothing. During that time the Appellant's girlfriend

called out to say the cab had arrived. Appellant said to her,

"Go on out so that the cab won't leave." Three or four

schasai Wie in eopals Wa te Wai ili neat Wd Oil in

my tie and said “you better hurry up or the cab is going to

leave." Appellant said "O.K. go back out, I'm on my way, I have to

App. 33

ee eee

tum out the lights.” Eugene Masscy was standing inside the

restaurant at the door we went out to get into the cab. He

asked where we were going and Appellant said "I don't know,

probably to a restaurant on the west side and have coffee and a

sandwich and unwind for a while before going to the motel to

rest because I am very tired from the three birthday parties

and I need a lot of rest before I open on Monday evening.” So

he went across the street to a lounge where Martha Jean

Rainey, Remy Richards and some other customers that had

been at Appellant's lounge. That was about 1:45 am.

because the lounge across the street and all bars in Joliet close

at 2:00 a.m. not 3:00 a.m. as the cab driver stated. If that

was true Eugene Massey would have not been able to go

across the street to that lounge because it would have been

closed.

VIL.

The court overlooked the settled rule of the Supreme

Court, Rule 366. Purpose of instructions is to convey to the

App. 34

monds of the jurors the correct principles of law applicable to

the evidence submitted to them. No evidences were submitted

to the Jury and no witnesses testified as to the Appellant

intentionally set the fire and made material misrepresentations

about the losses he sustained as a result of the fire. The court

errored in instructing the jury pursuant to the Appellant's

testimonies of the investigating experts who did not submit any

evidence to the Jury of a witness to testify of the investigating

experts who did not submit any evidence to the Jury or a

witness to testify of the Appellee's pleading, directed the Jury

tat Appellant may have been responsible and compromised

the Appellant of fair trial treatment by the Jury. The Jury was

misled by improper arguments not predicated and evidence

confined to the issues of the case, LC.D. § 3553, 3554. The

instructions or the testimonies were not in accord with the

pleading of the case. No time during the trial, did the court

deect On Aeiediind w oitgen Gulapitnd tannatinn, 00

App. 35

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stated in S. Ct. Rule 239, Instructions (G). See Appellant -

Brief p. 17.

VII

The court misapprehended the fact that the Appellant's

burden of proof wasproved by a preponderance of evidence.

He had an insurance contract with the Appellee to insure his

loss by fire, see sppendix for Appellant - Appellant's Brief

Al7. Appellant's business and personal properties were

destroyed by fire April 27, 1992. The Appellant reported the

fire as the contract required.

At trial, the witnesses that the Appellant called or the

Appellant told the Jury what happened. Appellant told the

Jury exactly what was taking place the evening prior to the

fire. Appellant told the court exactly the routines of his

businesses for the past three years, but it was approximately

12:30 a.m. by the time the people left the birthday party. The

Appellant and a friend cleaned the lounge before Appellant

App. 36

and girlfriend left about 1:45 a.m. in a cab, (see Appendix p.

A 40) because the Appellant's car was totalled by a drunk

driver two nights before the fire, nothing else was unusual.

The two witnesses Appellant called gave their testimonies

to the court and submitted written statements that were taken

by the Appeliee's investigators to the court. The Appellee's

counsel had the opportunity to cross examine them for

anything that would relate to his pleading. See: testimony of

Jean Rainy, Report of proceedings p. 50. Written statement

Appendix for Appellant, Brief A 46 - 48. Remy Richards

testimony, Report of proceedings p. 54. Cross examination

Report of proceedings p. 56. Written statement appendix for

Appellant, Brief A 49 - 50. Eugene Massey written statement

Stipulate - Report of proceedings p. 235.

The conflicting testimonies were the testimonies of the

Appellaee's witnesses making statements with unsupported

evidences.

The Taxi driver that testified in court, did not submit into

App.37

court any evidence material for the jury to review. In his

telephone statement taken by Joe Mazzone, a fire investigator.

june 16, 1992 the cab driver stated that he did not log the time

that night, April 27, 1992. He stated that he thought the call

came in about , 2:00, 2:35, 2:40 or "something like that.” He

got over to Allen Street around 2:45. He also stated that he

met his wife when he was returning from the motel and she

told him “the place you just picked the people up from bumed

to the ground.” The fire department report shows that they

did not get the fire under control until about 6:00 or 7:00 am.

So here is a conflicting testimony with out evidence.

A police officer testified he drove past the lounge at

3:08 a.m. He had no written report to submit to the court for

Another police officer testified that he had interviewed

the Appellant following the fire, he did not bring his report to

App. 38

submit to the court for evidence. Again he answered only

questions that Appellee's counsel had previously reviewed with

him outside the court room.

The two fire investigating experts that the Appcilee

called, neither one of them submitted a written report, lab tests

or anything else into court for <vidence. One of the

investigating experts used the photographs that were taken by

the Fire Department. The investigating expert had no

knowledge of these photographs because he did not direct the

photographer in taking the photographs. The photographs

used were not taken until the day after the fire. The photographs

that were shown and discussed to Jury by the Appelice's

extent of loss not the cause.

If the photographer and firemen had discussed the

photographs, they could have stated that the photos fairly and

accurately portrayed the scene as they saw it during and

immediately after the fire. Instead the A.T.F. officer and the

App. 39

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oto AL Te Ta eb rity Phe 40

Appelice's counsel put on a show to the Jury with photographs

that neither one had any knowledge of. See Reply brief pp. 1 - 2.

In addition, one of the experts testified that the

apartments over the lounge were empty. The Appellant stated

how could he expect to find anything in the apartments when

the building burned to the ground and the second floor

collapsed onto the first floor. The same goes for the stock.

Everything that was burned or broken was thrown out onto the

sidewalk.

If the original investigators that were hired by the

Appellee would have come to court with their reports then

there would not have been conflicting testimony. They did not

have anything to report so there was no reason to testify. That

left the Appellee’s counsel with no one to testify. Appellee's

counsel had to make phone calls to ask other witnesses to

come and testify about the fire which they had little or no

knowledge about. These witnesses did not have time to

prepare or bring any prepared statements or evidence with

App. 40

them. That is where the conflicting testimonies come in. The

Appellant filed a con:plaint for Breach of Contract July 14,

1992, Appendix A 21, and an amended complaint September

27, 1993, Appendix A 26 - 31. Of the complaints filed. It

was the burden of proof for the Appellee to come to trial and

submit evidence and present witnesses to the Jury and he did

not do so. Therefore, the Jury's verdict for the Appellee was

improper.

In view of the matters overlooked or misrepresented by

the court as previously pointed out. Petitioner, requests that

rehearing be granted in this case, and that upon the rehearing,

the Judgement of this court be reversed and that of trial court

be remanded for a new trial or that the Appellate Court enter a

finding that the Appellee, National Casualty Company, is liable

for the Appellant's losses under the said policy of insurance.

In respect to the subject premises, building and personal

property.

Dated_/2-¢ _, 1995

APPENDEIX C

FILED DECEMBER 20, 1995

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

JAMES PRUITT

PETITIONER

VERSUS

NATIONAL CASUALTY INSURANCE COMPANY

RESPONDENT

ORDER Denying Petition For Rehearing

Be it remembered, That, to wit: On the 20th day of

December, 1995, certain proceedings were had and orders

made and entered of record by said Court, among which is the

App. 42

Now on this day this cause coming on for hearing upon

the petition for rehearing filed by the Appellant, herin, and the

Court having duly considered said petition, as well as the

matters and things alleged in support thereof, and being now

fully advised in the premeses;

It is ordered by the Court that said petition for rehearing

be and the same is hereby overruled and denied.

Petition for Certificate of Importance is also denied.

/S/Gist Fleshman_

Clerk of the Court

App. 43

APPENDIX D

[FILED DECEMBER 30, 1995]

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

JAMES PRUITT

PETITIONER

VERSUS

NATIONAL CASUALTY INSURANCE COMPANY

RESPONDENT

AFFIDAVIT OF INTENT TO FILE PETITION FOR

LEAVE TO APPEAL

JAMES PRUITT, on oath states:

The opinion of the appellate Court of Illinois for the

Third District in "James Pruitt v. National Casualty Insurance

Company,” No. 3-95-0225 was rendered on November 16,

1995.

I am the Plaintiff - Appellant of record.

Plaintiff - Appellant intends in good faith to file a petition

for leave to appeal to the Supreme Court of Illinois within the

time provided by law.

WAN

‘G Oa

Joliet, Mlinois 60435

815-723-7586

App. 45

APPENDIX E

FILED JANUARY 11, 1996

IN THE SUPREME COURT, OF THE

STATE OF ILLINOIS

NO. 80439

JAMES PRUITT,

Petitioner

Versus

NATIONAL CASUALTY INSURANCE COMPANY,

Respondent

PETITION FOR LEAVE TO APPEAL

PLAINTIFF PETITIONER, JAMES PRUITT, PURSUANT

TO ILLINOIS SUPREME COURT RULE 315S(a),

RESPECTFULLY PETITION THIS COURT FOR LEAVE

TO APPEAL FROM THE JUDGMENT OF THE

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT.

JURISDICTIONAL STATEMENT AND

JUDGEMENT BELOW

On february 8, 1995, the Will County Circuit Court granted

Defendant-Respondent, National Casualty Insurance Company

a Jury Verdict against Plaintiffs Complaint which sets forth

Cause of Action for Breach of Contract. James Pruitt filed a

Notice to Defendant for post-trial or a new trial February 22,

1995. On March 3, 1995 an amended motion was filed. On

March 6, 1995, plaintiff's post trial motion, motion for a new

trial and motion for judgment notwithstanding verdict was

denied. On March 27, 1995 a

Notice of Appeal was filed. True and accurate copies of

motions, complaints, notices and denials is filed, ¢.g. as Exhibit

App. 47

4

4

i eer ads RAC SS EAE PL tains CR CUS “AACR GET ta DO Ee 0 cans anlar

We Ue lag ee oT Late ©

A 22, A 54, A 55, A 56 - 64, A 65, and A66. On November

16, 1995, the Appellate Court of the Third District, Will

County, Illinois affirmed the Judgment of Trial Court of the

Twelfth Judicial Circuit, Will county Illinois. A true and

accurate copy of opinion is attached, PLEX. A. P. 1-8

December 4, 1995, a Petition for Rehearing was filed in the

Appellate Court. A true and Accurate copy is attached PL.

EX. C. P. 9- 19. On December 6, 1995, a Petition for

Certificate of Importance was filed in the Appellate Court. On

December 20, 1995, said Petition for Rehearing and

Certificate of Importance was denied by the Appellate Court.

A true and accurate copy is attached PL. EX. C. P. 20. On

December 30, 1995 Plaintiff filed an Affidavit of Intent to file

a Potliion for Leave-to Appeal A true and Accurate copy is

attached, PL. EX. D.P. 21.

POINTS RELIED UPON FOR REVERSAL

To the Honorable Justices of the Supreme Court of Ilinois:

Plaintiff-Petitioner in the above-entitled cause represents that

App. 48

Points were overlooked or misapprehended by the Court in

determination of this cause, namely:

I

THE COURT MISAPPREHENDED THE FACT IN

FINDING THAT EXECUTION OF THE INSURANCE

CONTRACT NO. MP 022170 AND DELIVERED BY

DEFENDANT TO THE PLAINTIFF BEFORE MARCH 14,

1992 CONSTITUTED THE ONLY ACT TO WHICH

DEFENDANT IS OBLIGATED TO PAY PLAINTIFF FOR

LOSS OF BUILDING, PERSONAL PROPERTY AND

LOSS PROFITS, ATTACHED AS EXHIBIT E., P. 29 - 45

IN FACT, EXHIBIT E IS DATED MARCH 14, 1992,

WELL BEFORE THE DATE PLAINTIFF HAS SUFFERED

LOSS IN DIRECT VIOLATIONS AND BREACH OF

SAID MULTI-PERIL INSURANCE POLICY AND THE

ILLINOIS REVISED STATUTES, 1989, CHAPTER 73,

PARAGRAPH 767.

Plaintiff, after execution of Exhibit E.. March 14, 1992

App. 49

:

|

.

and after loss of building and loss of personal property April

27, 1992, provided defendant with all documentation that was

required by the insurance contract to date, defendant has

unreasonably and vexatiously denied said claim and

unreasonably and vexatiously delayed in settling said claim and

caused plaintiff to lose two businesses, loss of property and

loss of profit. The violations of which defendant pleaded are

by no means limited for denial to execution of_Exhibit E

The Judgment of the Appellate Court of Illinois (Third

District) Conflicts with the decision of the Appellate Court of

the First District, Third Division in Latex Glove Co., Inc. V

Alfred J. Gruen, 146 IL APP. 3d 868, 100 ILL. Dec.488 (ist

Dist.1986). The Appellate Court of the First District held that

a Compiaint which sets forth Cause of Action for Breach of

Contract must allege facts sufficient to indicate offer,

acceptance and consideration, as well as Plaintiff's

performance of all provisions.

The Third District Appellate Court is incompatible with

App. 50

this Court and Created a conflict of interest between the

insurer and the insured. Therefore, regardless, of the conflicts

in the testimonies this Court places upon the witnesses at trial,

that gave this Court reasons to affirm the decision of the Trial

Court, ExhibitA attached to the petition, the defendant is

guilty of Breach of Contract executed March 14, 1992 that

gives Plaintiff the nght to any recovery.

I

IN AFFIRMING THE DECISION OF THE TRIAL

COURT, THE APPELLATE COURT HAS MISAPPLIED

THE LAWS GOVERNING DAMAGES FOR LOSS OF

BUILDING, PERSONAL PROPERTY. LOSS OF PROFITS

DUE TO BREACH OF CONTRACT.

While the Latex Glove Co. Enc. decision holds that a

prayer for damages against Alfred J. Gruen, the Appellate

Court of the First District held that seeking damages for loss of

profits due to Breach of Contract must allege facts which show

that allegedly lost profits can be proved with reasonable

App. 51

certainty, were proximately caused by wrongful act of

defendant, and were reasonable within coutemplation of

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parties at the time Contract was formed. The Appellate Court

PMT, ATI tain

of the Third District overlooked the settled rules of law of the

State of Illinois affirming the decision of the Trial Court

allowing an insurance company to execute insurance contracts

tits oe ite & Rak it

and refuse to pay for loss for any reason they want.

. The Plaintiff's businesses, building and personal property

was completely destroyed by fire, so there is no questions of

, allegedly lost profits, building and personal property being

proved with reasonable certainty.

i

THE APPELLATE COURT HAS MISPLACED THE

BURDEN OF PROOF IN THE CAUSE IN REQUIRING

THE PLAINTIFF TO PROVE ESSENTIAL ELEMENTS

OF PLAINTIFF'S CASE, WHEN DEFENDANT PROOF

ITSELF FAILED TO ESTABLISH THE SAME.

The judgement of the Appellate Court of Illinois (Third

App. 52

District) conflicts with the trial handbook for Illinois Lawyers

-CIVIL, Ch. 15.1 which states - Normally, in civil cases, the

party having the burden of proof is required to prove his case

by the preponderance of the evidence. In James Pruitt vs.

National Casualty Insurance Co. the decision holds that a

prayer for punitive damages against an insurer docs not

inherently create a conflict of interest between the insurer and

the insured, the Third District's decision is to the contrary

because the decision allows the insured to execute contracts

and not pay claims based on their own discretion, regardless to

evidence, proof or witness. In James Pruitt Vs. National

Casualty Insurance Co. the defendant refused to pay over the

policy proceeds, because of discretions that plaintiff

about the losses he sustained as a result of the fire. The

Plaintiff sued the Defendant for Breach of Contract because

the Defendant did not present any proof, witness or evident to

deny the claim.

App. 53

ee

ee er re ee me ae

IV

IN AFFIRMING THE DECISION OF THE TRIAL

COURT, THE APPELLATE COURT HAS MISAPPLIED

THE LAWS GOVERNING THE POWER OF A TRIAL

JUDGE TO ENTER JUDGMENT, NOTWITHSTANDING

THE VERDICT OF THE JURY AND GRANT A NEW

TRIAL.

The defendants pleadings were that the Plaintiff

intentionally set the fire and made material misrepresentations

about the losses he sustained as a result of the fire. No witness

testified at the trial that the fire was intentionally set.

Laboratory tests for petroleum-based accelerants were

negative. The only evidence adduced at the trial was that

Plaintiff's building and personally property was destroyed by

fire. The Joliet Fire Department and the Bureau of Alcohol,

Tobacco and Firearms only made discretion about the fire.

Either one adduced any evidence at trial that the fire was

intentionally set. The defendant plead that Plaintiff made

material misrepresentations about the losses he sustained as a

App. 54

result of the fire. This defense was not presented to the jury,

nor were any jury instructions regarding this defense tendered.

The Appellate Court affirming the decision of the Trial

Court. Conflicts with the rule of the Illinios Civil practice,

Volume III (14.39).

All of the evidence adduce at the trial by the Plaintiff

was so overwhelmingly favor that no verdict for the defendant

could ever stand. Plaintiff's Complaint was that defendant

violated and breached the subject riulti-peril insurance policy.

Plaintiff submitted the insurance policy to the Court for

evidence and submitted a Sworn Statement in proof of loss to

the Court for evidence. The defendant submitted no proof on

an essential element of the Cause of Action. Therefore, the

post-trial motion that prayed for judgment notwithstanding the

verdict and a new trial was proper.

Vv

IN AFFIRMING THE DECISION OF THE TRIAL

COURT, THE APPELLATE COURT HAS MISAPPLIED

App. 55

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THE LAW GOVERNING THE POWER OF A TRIAL

JUDGE TO ENTER JUDGMENT OF WHETHER AN

INSURER'S REFUSAL TO PAY IS VEXATIOUS OR

UNREASONABLE.

The judgment of the Appellate Court of Illinois (Third

District) conflicts with the decision of the Fifth District in

Kohlimeier V . Shelter Insurance Company, 170 ILL. APP.

30 643, 121 ILL. Dec 288, 525, NE 20 94 (Sth Dist. 1988).

The decision holds that the determination of whether an

insurer's refusal to pay is vexatious or unreasonable is for the

Trial Court, not the jury. In the Amended Complaint filed in

the Circuit Court, September 27, 1993, EX. H, Count I

VEXATIOUS DENIAL/DELAY. The Trial Judge never

mentioned anything of Plaintiff's complaints to the court in

order to make determinations. Therefore, the Appellate Court

utterly failed to review the conditional ruling of the Trial Court

of whether an insurer's refusal to pay is vexatious or

unreasonable.

App. 56

STATEMENT OF FACTS

Appellant was for three years, from 1989 - 1992, a

business owner duly organized and existed under the laws of

the State of Illinois. The Plaintiff owned and operated a

restaurant and lounge under the name of "The Other Place”

upon the premises and building located at 738 - 740 Collins

Street, Joliet, Will County, Illinois.

The Plaintiff maintained and had in effect a special

multi-peril insurance policy which on February 13, 1992

approximately 3:30 p.m. at Appellant's business, David

McElwee, Agent from O'Dell and Watham Insurance Agency

Inc. sat together and executed a contract.

On March 14, 1992, Defendant, National Casualty

Insurance Company executed and delivered to Plaintiff his

insurance policy, No. MP 002 170. Under the terms,

Defendant insured Plaintiff against loss or damages by fire to

the premises described in the policy in the amount of $75,000

for the building and $50,000 for personal property of the

App. 57

for the term of March 14, 1992 until March 14, 1993. A

copy of the policy is attached, PL. EX. F., P. 38.

On October 28, 1992, six months later the defendant

. denied and rejected plaintiff's claim for fire loss and property

. damage for the following reasons:

At the trial two fire investigation experts testified that the

fire had been started when someone poured flammable liquid

on the floor and ignited the liquid. Laboratory tests were

negative. No witness was called at the trial to testify and no

other evidence or proof was submitted to the Court for this

cause,

B. Falsely Swearing in Plaintiffs examination under

oath.

The examination under Oath was not admitted into

evidence and this defense was not presented to the jury, nor

C. Lack of an insurable interest in the property (building

and contents) at the time of the loss. A true and accurate copy

of defendant's pleadings is attached as Exhibit L_ p. 46-48.

The issue of Plaintiffs Insurable Interest in the property

was not presented to the jury nor were any jury instructions

regarding this defense tendered.

No part of the $75,000 for the building nor the $50,000

for Plaintiff's personal property, the amount of the insurance

payable under the terms of the policy in case of loss, has been

paid to the Plaintiff by the Defendant.

As a direct and proximate result of said vexation denied

by the Defendant, Plaintiff has lost his businesses, has been

denied the use of the settlement proceeds, has been denied the

interest earned from said settlement proceeds, and has had to

incur substantial expense to bring forth this suit to recover said

insurance benefits to which he is entitled according to the

‘tie.ois Revised Statutes.

On July 17,1993, Plaintiff proceeded to recover loss of

App. 59

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businesses, loss of building and loss of personal property and

extended loss of business profit by the wrongful denial of

insurance claim, by filing a complaint for Breach of Contract

in the Circuit Court of the Twelfth Judicial Circuit, Will

County, Ilinois. See PL. EX.G., P. 39 and PL. EX. H., 40 -

45.

ARGUMENT

The Supreme Court should take this case because this

case involved points that were overlooked and misapprehended

by the Appellate Court of the Third District in its

determination of this cause. The points that are involved in the

case are of such importance that they should be decided by the

Supreme Court.

I

THE APPELLATE COURT FAILED TO EXAMINE

ADDUCED EVIDENCE AT TRIAL THAT GAVE THE

TRIAL COURT REASONS TO DENY PLAINTIFF'S

MOTION FOR JUDGMENT NOTWITHSTANDING

App. 60

a

VERDICT / NEW TRIAL WHERE THE DEFENDANT

PRESENTED NO PROOF, NO EVIDENCE, NO WITNESS

TO THE PLEADINGS AND LABORATORY TESTS FOR

ACCELERANTS WERE NEGATIVE.

The Trial Court improperty denied plaintiff's post-trial

motion for judgment notwithstanding verdict/new trial where

the defendant submitted no evidence, no proof, and no

witnésses to the pleadings, that the appellate court affirmed the

decision of the Trial Court misapplied the laws governing

post-trial motion for judgment adduced at trial that gave the

Trial Court reasons to deny Plaintiffs motion for judgment

notwithstanding verdict/new trial where there was no proof or

evidence and no witnesses to the pleadings of defendant. The

reviewing court should have set aside a jury determination.

The motion for N.O.V. and New Trial was addressed to the

Trial Court's discretion. A clear abuse of discretion

affirmatively appears on the record and the reviewing court

should have set aside a jury determination and examined

App. 61

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Whether the evidence adduced at trial supported the

defendant's affirmative pleadings.

The verdict for the Defendant was not in accord with the

pleadings evidence or findings. Therefore, the evidence

viewed in aspect was not favorable to the Defendant. The

evidence Plaintiff submitted to the trial court was

preponderance of evidence and the complaint of Plaintiff

clearly stated as a Cause of Action. Exhibit E and Exhibit F is

of preponderance of evidence of Plaintiff complaint. The

defendant had a personal contract with the Plaintiff and not a

contract in REM, its purpose being not to insure property

against fire, but to insure the owner of the property against loss

by fire, Insurance 254.

The post trial motion should have been granted because

the motion for judgment notwithstanding the verdict essential,

that the evidence was not in accord with the pleadings, or

findings, and it was legally insufficient as required by the Code

of Civil Procedure. _A new trial should have been granted,

App. 62

because the trial judge or the tendered instructions did not fully

and fairty inform the Jury as to the differing burdens of proof

according to $. CT Rule 239, Instructions (G), S. CT Rule

366 Note 657, andi Illinois Civil Practice 3553 and 3554.

In the case at bar, the Trial Courts denial of Plaintiffs

motion for N.O.V. and New Trial was completely abusive and

was not proper in light of the evidence presented to the jury.

The Appellate court should have disturbed the trial court's

ruling, because the evidence adduced at Trial did not prove the

defendant's affirmative pleadings and proved that Plaintiff's

complaint breach of contract was truc.

ARGUMENT

Il

THE TRIAL COURT FAILED TO DETERMINE

WHETHER THE INSURER REFUSED TO PAY IS

VEXATIOUS OR UNREASONABLE. THE APPELLATE

COURT AFFIRMED. THE APPELLATE COURT

EXAMINE NOT WHETHER THE EVIDENCE COULD

App. 63

bepeiacind (Ur end dad egg chedien eal

HAVE SUPPORTED A VERDICT FOR THE

DEFENDANT, BUT FAIL TO EXAMINE WHETHER A

CONTRARY VERDICT IS CLEARLY EVIDENCE.

LIABILITY UNDER THE INSURANCE POLICY

NUMBER MP022170 WAS ESTABLISHED WHEN IT

WAS EXECUTED AND DELIVERED TO PLAINTIFF

MARCH 14, 1992. THE APPELLATE COURT FAILED

TO REVIEW THE TRIAL COURT FINDING UNDER AN

ABUSE OF DISCRETION STANDARD WHERE THE

TRIAL COURT IMPROPERLY DENIED PLAINTIFFS

MOTION FOR NOTWITHSTANDING VERDICT/NEW

TRIAL.

The Trial Court should have determined whether an

insurer's refusal to pay is vexatious or unreasonable.

Kohimeier V. Shelter Insurance Company, 170 Ill. App. 3 d

643, 121 Ml. Dec. 288, 525,NE 2d 94(Sth dist, 1988). The

Appellate Court Affirming the decision of the Trial Court.

Conflicts with the rule of the Ilinois Civil Practice, Volume III

App. 64

(14.39). Plaintiff submitted the insurance policy to the Court

for evidence and submitted a Sworn Statement in proof of loss

to the Court for evidence. The evidence adduce at the trial by

the Plaintiff was so overwhelmingly favor that no verdict for

the defendant could ever stand. The pleadings of defendant

was that the Plaintiff intentionally set or procured the setting of

the fire in question and made false misrepresentations about

the fire. Another one of the Defendant;s affirmatively plead

was that Plaintiff had no insurable interest in the subject

property. These issues were never brought up at trial and

discussed to the jury. Nor were any jury instructions regarding

these pleadings tendered. Although to established the defense

of misrepresentation of proof of loss, an insurance company

must demonstrate that representations made by insured were

relevant, material, and intentionally false Insurance 1249.

The Appellee did not establish the defense of fraud,

misrepresentation or concealment of material fact in the proof

of loss. Material allegations in the pleadings in any action on

App. 65

an insurance policy must be proved if put in issue Insurance

344 Issues, Proof and Variance. The evidence aiduced at

trial clearly did not establish defendant's affirmatively

pleadings, EX.I, p. 46-48. As the record reveal, no

sufficient evidence existed for the jury to return a

verdict in defendant's favor. The Appellate Court

should have examined whether the evidence adduced

at trial supported the Defendant's affirmatively

pleadings for the jury to return a verdict in

Defendant's favor. The test is whether a contrary

verdict is clearly evidence. Johnson V. Chicago

Transit Authority, 248 ILL. App. 3d 91, 287, Ill. Dec

842, 618 NE 2d 433 (1st Dist. 1993). No review of

the records indicates that defense counsel's argument

was based solely upon the defendant's pleadings.

EX.I, P. 46 - 48 or no evidence adduced at trial.

Therefore, the issues were an abuse of discretions.

App. 66

In any action by or against a company where in as

an issue, the liability of a company on a policy or policies of

insurance or the amount of the loss payable there under or for

an unreasonable delay in settling a claim; and it appears to the

court that such action or delay is vexatious and unreasonable,

the court may allow as part of the taxable costs in the action

reasonable attorney fees, other costs, plus an amount not to

exceed any one of the following amounts:

a. 25% of the amount which the court or jury finds such

party is entitled to recover against the company

exclusive of all costs;

b. $25,000.00

C., The excess of the amount which the court or jury finds

such party is entitle to recover, exclusive of costs,

over the amount, if any, which the company offered to

pay in settlement of the claim prior to the action.

App. 67

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ARGUMENT

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THE JURY SHOULD HAVE VOTED FOR

PLAINTIFF, BECAUSE, DEFENDANT NATIONAL

CASUALTY INSURANCE COMPANY VIOLATED AND

BREACHED THE SUBJECT MULTI-PERIL. INSURANCE

POLICY EXECUTED AND DELIVERED TO PLAINTIFF

MARCH 14, 1992

The defendant violated and breached the subject multi-peril

insurance policy by unreasonably refusing to pay for loss of building

and personal property. A denial of liability by an insurance

company on the grounds is a waivery as to a want of, or defect in

notice and proof of loss Insurance 1261 Denial of Liability of

Refusal to Pay. The defendant submitted no proof on an essential

element of the Cause of Action.

Broadly stated, if the company denies liability for a loss

and refuses to pay if either, for that or another person placing

its refusal on a definite ground other than want of notice

App. 68

and proof of loss and defects in their forms or substance, it

waves the right to insist on the failure to give notice and make

request proofs as a defense to an action on policy, Insurance

559, 559 (1). The pleadings made by the defendant on its

face fail to state a proper cause of action, (as distinguished

from a defective statement of a good cause of action,CCP

2-1204, P.12

In Plaintiff's complaint filed July 14, 1992, in Circuit

Court of the Twelfth Judicial Circuit, for Breach of Contract,

Amended Complaint, September 27, 1993, Plaintiff sued the

Defendant for Breach of Contract because the Defendant did

not present any proof, witness, or evident to deny the claim.

Mohr V. Dix Mut. Country Fire Ins. Co. 143 ILL. App 3 d

998, 97 ILL. Dec 831,493 NE 2d 638 (4th Dist. 1986)

Plaintiff pays for judgment against National Casualty

Company, defendant for judgment, in the sum of $75,000 for

the building, $50,000 for personal property and $2,000 per -

week for net lost business profit from August 5, 1993 and

App. 69

thereafter, plus reasonable attorney's fees, plus cost of suit,

plus , an amount not to exceed one of the following:

1. 25% of the amount which the Court or Jury finds

such party is entitle to recover against the

company, exclusive of all costs:

2. $25,000;

3. the excess of the amount which the Court or Jury

finds such party is entitled to recover exclusive of

all costs, over the amount, if any, which the

company offered to pay in settlement of the

claim prior to actions. A true and accurate copy

of Plaintiffs COMPLAINT is Attached = as

ibit 40 - 45.

A fire insurance company’s denial of liability or refusal to

pay constitutes a waiver of policy requirements as to notice

and proof of loss Insurance 1300. A denial: of liability on a

fire insurance policy will constitute a waiver of notice and

proof of loss where the denial is unqualified in character.

App. 70

The measure of damages, for Breach of Contract is the

amount which will compensate the injury person for the loss

which fulfillment of the Contract would have prevented the

Breach if it has entailed, Trial Handbook for Dlinois Lawyer -

Civil_ 62.18

CONCLUSIONS

Wherefore, James Pruitt, Plaintiff-Petitioner prays for the

Supreme Court to take this case because this case involved

points that were overlooked and misapprehended by the

Appellate Court of the Third District in its determination of

this cause and prays that this Court provides Plaintiff with such

relief as it may deem proper.

Respectfully Submitted,

es Pruitt

304 Broadway

Joliet, Ilinois 60435

(815) 723-7586

App. 71

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APPENDIX F

FILED APRIL 3, 1996

IN THE SUPREME COURT OF THE

STATE OF ILLINOIS

NO. 80439

James Pruitt

Petitioner

Versus

National Casualty Insurance Company

Respondent

ORDER Denying Petition for Leave to Appeal

No. 80439 - James Pruitt, petitioner, v. National Casualty

Insurance Company, respondent. Leave to appeal, Appellate

The Supreme Court today DENIED the petition for leave

Court, Third District.

The Supreme Court today DENIED the petition for leave

to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate Court

on April 25, 1996.

App. 72

APPENDIX G

FILED JULY 14, 1993

IN THE CIRCUIT COURT OF THE

TWELFTH JUDICIAL CIRCUIT

WILL COUNTY, ILLINOIS

NO. 93-L-8851

James Pruitt,

Petitioner

versus

National Casualty Insurance Company,

Respondent

PETITIONER COMPLAINT AND AMENDED

COMPLAINT

THIS CAUSE IS BEFORE THE CIRCUIT COURT of

the CIRCUIT COURT of the TWELFTH JUDICIAL CIRCUIT

WILL COUNTY, ILLINOIS, upon the conclusion of a Jury

trial, February 6, 1995 and Commenced on February 8, 1995

The Court heard the testimony of numerous witnesses and had

before it a number of documents and personnel records to

App. 73

examine. The Court did not advise the Jury of the nature of the

case, nor did it consider all the evidence and submit it to the

Jury to make a decision on the following findings of fact and

consideration of law.”

Wherefore, James Pruitt, Plaintiff, prays that the Circuit

Court of the Twelfth Judicial Circuit, Will County, Hlinois will

enter the Post Trial Motion for Judgment Notwithstanding

. Verdict/nNew Trial, and prays for Judgment against National

Casualty Compagny in the sum of $75,000 for damages to the

subject building, $50,000 fur damages to his personal property

and $2,000 for weekly lost net business profit from August 8,

a993 and each week thereafter and such other relief as this

| Court may deem proper.

. Respectfully Submitted,

pacts Nai

Johet, Ilincis 60435

815-723-7586

App. 74

FINDING OF FACT

COMPLAINT

See Attached Pages

APPENDIX H

MENDED COMPLAINT

FILED SEPTEMBER 27, 1993

See Attached Pages

App. 75

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COMPLAINT

Suing For Breach Of Contract

A. Designated Premises: 738 Collins St., Joliet, Illinois -

Restaurant & Tavern. Property Covered: Building $75,000.00

Limits of Liability. General Building form MPOO1O Section1.

B. Designated Premises: 738 Collns St, Joliet, Illinois.

Restaurant & Tavern. P)property Covered: Personal Property of

Insured. $50,000.00 Limit of Liability. General Personal

Property form MPOO12 Section 1

Suing for Damages Caused To Business

$2,000.00 per week for damages caused to The Other Place

Bar-B-Q and Lounge business since the presentation and

acceptance of the proof of loss. Special Multi-Peril Policy

Conditions and definitions MPOO9O, Section 1, Company

options. The Company did not give notice within thirty (30)

days after it had received a signed sworn statement of loss of the

option to take all or any of the property damaged at an agreed

oa

value or to repair, rebuild or replace it with equivalent property.

App. 76

Suing The Company For Denying The Claim On Insufficient

Evidence

Conditions Applicable to section 1 MPOO90 Mortgage

CERTIFICATION

I hereby certify, under penalty of perjury, that all facts set

forth in this complaint are true and correct, except those facts

stated upon information and belief, and as to those facts, I

believe them to be true.

Notary Public

AMENDED COMPLAINT

COUNT I

DECLARATORY JUDGMENT

Now comes the plaintiff, JAMES PRUITT, by and

through his attorneys, WRIGHT & BABCOCK, LTS., and

for Count I of his Complaint against the defendant,

NATIONAL CASUALTY COMPANY, states as follows:

1. The plaintiff resides in Joliet, Will County, Ilinois,

and the defendant, NATIONAL CASUALTY COMPANY, is

a registered Illinois insurance company which does business in

Will County, Ilinois.

2. On April 27, 1992, the plaintiff, JAMES PRUITT,

owned and operated a restaurant and lounge under the nameof

"The Other Place" upon the premises and building located at

738-740 Collins Street, Joliet, Will County, Illinois, further

plaintiff possessed liquor licenses in his name for said business

issued by the State of Illinois and the City of Joliet.

3. On April 27, 1992, there was in effect an office

App. 78

lease for the subject premises and building located at 738 - 740

Collins Street, Joliet, Ilinois with the plaintiff, JAMES

PRUITT, as lessee and Roberto Olivas as lessor, copy attached

hereto as Exhibit A. :

4. That the plaintiff owned and operated the restaurant

and lounge upon the subject premises and building which also

contained apartments on the second floor where the plaintiff

maintained his personal residence on April 27, 1992.

5. On April 27, 1992, the plaintiff maintained and had

in effect a special multi-peril insurance policy with property

coverage for the subject building in the sum of $75,000.00

and personal property in the sum of $50,000.00.

6. On April 27, 1992, a fire occurred upon the

premises and building of the subject property thereby

destroying said building, plaintiffs personal property and

plaintiff's business.

7. The plaintiff, JAMES PRUITT, promptly proceeded

to file a claim with the defendant, NATIONAL CASUALTY

App. 79

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COMPANY, and submitted a Sworn Statement In Proof Of

Loss,

8. On October 28, 1992, the defendant, NATIONAL

CASUALTY COMPANY, denied and rejected plaintiff's

claim for fire loss and property damage for the following

reasons:

A. Intentionally setting or procuring the setting of the

fire in question, and,

B. Falsely swearing in plaintiffs examination under

oath , and,

C. Lack of an insurable interest in the property

(building and contents ) at the time of loss.

9. As a result of the fire damage to his business and

the subject building, the plaintiff has incurred substantial loss

of business, loss of profit and loss of property, and, further,

that plaintiff has suffered further and ¢..tended loss of business

profit in the sum of $2,000 per week by the wrongful denial of

his insurance claim since he has not received the insurance

App. 80

proceeds which are necessary for plaintiff to rebuild the

subject building and to restore the operation of his business.

10. _ It is the position of the plaintiff, JAMES PRUITT,

that he has a proper claim under said insurance policy for

property loss for the subject building and for his personal

property in respect to the occurrence of April 27, 1992 and

that the defendant's denial of the insurance coverage is unfounded.

11. That an actual controversy exists between the

parties hereto.

WHEREFORE, for Court I of his Complaint, the

plainuff, JAMES PRUITT, prays as follows:

A. That the court declare the rights and liabilities of

the parties under the policy of insurance aforementioned.

B. That the court enter a finding that the defendant,

NATIONAL CASUALTY COMPANY, is liable for plaintiff's

losses under the said policy of insurance in respect to the

subject premises, building and personal property.

C. That the court enter a finding that the defendant,

App. 81

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NATIONAL CASUALTY COMPANY, in the sum of

$75,000.00 for loss of the subject building, $50,000.00 for

loss of the plaintiff's personal property and lost business

weekly net profit in the sum of $2,000.00 for each week from

August 5, 1992 until the final decision of the court.

D. That this court provide the plaintiff with such

relief as it may deem proper.

COUNT II

VEXATIOUS DENIAL/DELAY

Now comes JAMES PRUITT, plaintiff, by and through

his attorney, WRIGHT & BABCOCK, LTD., and for Count

II of his Complaint against NATIONAL CASUALTY

COMPANY, defendant, states as follows:

1-11 Plaintiff states and realleges paragraph 1 through

11 of Count I of his Complaint as and for paragraphs 1

through 11 of Count II of his complaint.

12. With disregard for the documentation provided by

JAMES PRUITT, plaintiff, to date, NATIONAL

App. 82

CASUALTY COMPANY, defendant, has unreasonably and

vexatiously denied said claim and unreasonably and

vexatiously delayed in settling said claim for property loss in

direct violation and breach of said multi - peril insurance policy

and the Illinois Revised Statutes.

13. That as a direct and proximate result of said

vexatious delay by NATIONAL CASUALTY COMPANY,

JAMES PRUITT has been denied the use of the settlement

proceeds, had been denied the interest to be earned from said

settlement proceeds, and has had to incur substantial legal

expenses and court costs to bring forth this suit to recover said

insurance benefits to which he is rightfully entitled.

14. That the Illinois Revised Statutes, 1989, Chapter

73, Paragraph 767, provides, inter alia:

In any action by or against a company wherein is

in issue the lability of a company on a policy or

policies of insurance or the amount of the loss

payable thereunder, or for an unreasonable

App. 83

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. delay in settling a claim, and it appears to the

Court that such action or delay is vexatious and

unreasonable, the Court may allow as part of the

taxable costs, plus an amount not to exceed any

one of the following amounts:

a. 25% of the amount which the Court or Jury

finds such party is entitled to recover against the

company, exclusive of all costs;

b. $25,000.00;

¢. The excess of the amount which the Court

or jury finds such party is entitled to recover,

exclusive of costs, over the amount, if any,

which the company offered to pay in

settlement of the action.

WHEREFORE, for Count II of his complaint, the

plaintiff, JAMES PRUITT, prays for judgment against

NATIONAL CASUALTY COMPANY, defendant, as

follows:

App. 84

A. For a judgment in the sum of $75,000.00 for

the building, $50,000.00 for personal property

and $2,000.00 per week for net lost business

profit from August 5, 1993 and thereafter, plus,

B. Reasonable attorneys fees, plus,

C. Costs of suit, plus,

D. An amount not to exceed one of the following:

1. 25% of the amount which the Court or jury

finds such party is entitled to recover against

the company, exclusive of all costs;

2. $25,000.00

3. The excess of the amount which the Court or

jury finds such party is entitled to recover,

exclusive of costs, over the amount, if any,

which the company offeredto pay in

settlement of the claim prior to the action.

E. Such other relief as this Court may deem proper.

App. 85

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BREACH OF CONTRACT

Now comes JAMES PRUITT, plaintiff, and for Count I

of his Complaint against NATIONAL CASUALTY

COMPANY, defendant, states as follows:

1 - 11. Plaintiff states and realleges paragraphs 1

through 11 of his Complaint as and for

paragraphs 1 through 11 of Count III of

his Complaint.

12. that NATIONAL CASUALTY COMPANY

defendant, in violation and breach of the

subject multi-peril insurance policy with

JAMES PRUITT, plaintiff, has now

denied overage with disregard for JAMES

PRUITT, plaintiff, having met the policy

criteria for the subject property damage

coverage.

WHEREFORE, JAMES PRUITT, plaintiff for COUNT I

App. 86

of his Complaint prays for judgment against NATIONAL

CASUALTY COMPANY in the sum of $75,000 for damage

to the subject building, $50,000 for damage to his personal

property and $2,000.--for weekly lost net business profit from

August 8, 1993 and each week thereafter and such other relief

as this Court may deem proper. 77) ees aw aa

James Pruitt

304 N. Broadway

Joliet, Dlinois 60435

(815) 723-7586

App. 87

APPENDIX I

FILED OCTOBER 28, 1992

RESPONDENT'S PLEADINGS

Claim No. 212142-74

James Pruitt, d/b/a THE OTHER PLACE

Policy No. MP022170

Date of Loss 4-27-92

See Attached Pages

App. 88

Dear Mr. Pruitt:

National Casualty Company hereby rejected and returns to you

the instrument purported to be a Sworn Statement in Proof of

Loss rendered by you to the undersigned insurance company

in connection with an alleged loss caused by fire on April 27,

1992.

The policy of insurance upon which your claim is made

contains the following provisions:

Concealment or Fraud.

Thig policy is void if any insured has intentionally

concealed or misrepresented any material fact or

circumstance relating to his msurance.

This company shall not be liable for loss by fire or

other perils insured against in this policy caused

directly or indirectly, by: neglect of the insured to use

all reasonable means to save and preserve the property

at and after a loss.

App. 89

Conditions suspending or restricting insurance.

Unless otherwise provided in writing added hereto, this

company shall not be liable for loss occurring:

(a) while the hazard is increased by any means within

the control or knowledge of the insured;

We also deny any and all liability for your violation of the

following Warranty contained in your Swom Statement in

Proof of Loss:

Said loss was not caused by design or procurement on

the part of the insured or this affiant: nothing had been

done by or with the privity or consent of the insured or

9 this affiant to violate the conditions of the policy

or render it void...

You have violated the aforementioned terms and conditions of

the policy of insurance, the warranty of the Sworn Statement

in Proof of Loss and the public policy of the State of Illinois

by cither intentionally setting or procuring the setting of the

fire in question and by falsely swearing in your examination

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under oath.

We also deny any and all liability to you for your lack of an

insurable interest in the property at the time of loss.

You are hereby notified that the above-noted policy of

insurance also contains the following provision:

SUIT. _No suit or action on this policy for the recovery

equity unless all requirements of this policy shall have

twelve (12) months nest after inception of loss.

Section 9.19.80(b) (8) (c) of the Rules and Regulations of the

Illinois Department of Insurance requires that our company

advise you that the above-noted time period to bring suit has

been tolled from August 11, 1992 until the date of this notice.

This time period has been tolled 78 days. You have until

July 16, 1993 to comply with this provision.

Neither this rejection of your purported Sworn Statement in

Proof of Loss, nor this denial of liability is to be construed as a

waiver of any of the rights of National Casualty Company

App. 91

under its policy of insurance number MP 022170, nor is it our

purpose by this letter to waive any additional defenses which

further investigation or discovery procedures, if suit is instituted,

may reveal

Part 919 af the Rules af the Ilinois Department of Insurance requires

that our company advise you that if you wish to take this

matter up with the Illinois Department of Insurance, it

maintains a Consumer Division in Chicago at 100 West

Randolph Street, Chicago, Illinois 60601 and in Springfield at

320 West Washington Street, Springfield, Illinois 62767.

Very truly yours,

/s/ Shirlee Blount

Shirlee Blount

Sr. Claims Examiner

App. 92

APPENDIX J

FILED FEBRUARY 22, 1995

AMENDED MARCH 3, 1995

IN THE CIRCUIT COURT OF THE

TWELFTH JUDICIAL CIRCUIT WILL COUNTY

ILLINOIS

NO. 93-L 8851

James Pruitt

Petitioner Versus

National Casualty Insurance Company,

Respondent

POST TRIAL MOTION for Judgment Notwithstanding

Verdict and For a New Trial

Petitioner, for this motion requests that this court

reinstate the Cause of Action in the above referenced matter

and that a Status date be set to reappear before this court for a

New Trial because the Respondent did not prove the reason

to refuse to pay over the policy proceeds. The Respondent

App. 93

i aa elacal

nor his witnesses furnished information to the jury for such

verdict.

1) On January 9, 1995, on the courts own motion case

was reset to Jury status trial call . Cause was set for

status 2-6-95 at 9:30 a.m. Judge Grabiec, 1-18-95

status call case scheduled for 2-3-95, at 1:35 p.m..

2) On February 6, 1995, trial began with a witness

called to the stand to testify for the plaintiff bought

the property from, testified that there was no

contract he had with the intent to redeem his

property back.

David McElwee (agent from O'Dell & Wathan Insurance

Agency Inc.) testified that he sold the plaintiff the insurance

before February 26, 1992. The policy did not go into effect

until March 14, 1992, because of the previous policy ending

date.

Kenneth Alexander (Inspector from Joliet Neighborhood

Services) testified as to the condition of the building when

App. 94

plaintiff bought the property to open the lounge and Bar-b-que

restaurant. He verified that the building was to be torn down

by the City of Joliet, and plaintiff had to rebuild the building

up to the city code.

Martha Jean Rainy testified that she worked for plaintiff for

two years ending when the business was destroyed by fire.

She testified that April 26, 1992 on the night of the fire, she

left about 1:00 a.m. and went across the street to another bar,

leaving her car parked in front of the plaintiff's business

(named "The Other Place") and when she returned to her car

about 2:00 a.m. the plaintiff's business was closed and he was

gone.

Remy Richards testified that he was a regular customer of the

plaintiffs business which sometimes he did pick up stock for

the business. He testified that he was at the plaintiff's business

the night of April 26, 1992 (the night of the fire) and left at

about 1:00 a.m. He was across the street with some friends.

App. 95

a

i a

He left his car parked by plaintiff's business. He returned to

his car at 2:00 a.m. and plaintiff business was closed and he

was gone.

Arthur Baker testified that he was a regular customer of the _

plaintiff, and he never observed any financial problems or any

other problems of the business.

Eugene Massey did not show up to testify but, a statement had

been taken by the defendant investigating team, previous to the

trial date. It was motioned to be read to the jury. In his

statement he stated that he helped the plaintiff clean the

business the night of April 26, 1992 (the night of the fire) he at

around 1:30 or 1:45 am., he joined the others across the

street. He left his car parked in front of the business till

around 2:00 am. and the plaintiff was gone. He testified that

the business was closed at this time.

Of the essential requirement to the existence burden of proof

required, the plaintiff proved his case by a preponderance of

evidence. The burden of proof has proved that the plaintiff's

App. 96

position is more probably true than not truce.

The defendant had a personal contract with the plaintiff and

not a contract in REM, its purpose being not to insure property

against fire, but to insure the owner of the property against loss

by fire. See Fire Insurance 254. Plaintiff had Insurance

before the fire on April 27, 1992 and after the fire. That is the

Burden of Proof in facts and evidence is clear.

The defendant fail to provide evidence essential to the case.

Their advisors, frontier adjusters, Roy Christensen who the

Insurance Company had as the Adjuster of the fire fail to

produce evidence material to the issue of the case and did not

come to trial to testify in behalf of the company. Mazzone

Investigation Service was the Insurance Company's Main

Investigators, fail to produce evidence material to the issues of

the case and did not come to trial to testify for the Insurance

Company.

Fred B. Gewalt of SCS Research located in Barrington, IL.

has done all over Joliet taking statement of people about

App. 97

Ys ORO CS UE se Nh te, tt la ten Bs ee

es

Plaintiff fail to produce evidence material to the issues of the

case and did not come to trial to testify. A Joliet police officer

came to the stand and testified that he and another officer were

driving past the Plaintiff's business and observed smoke in the

area and saw that it was coming from the plaintiff's business,

they then called the Fire Department. He did not state any

evidence or produce any material to the issue of the case. Fire

investigator Derick took the stand and stated that minutes after

the fire was put out he momentarily entered the structure and

noticed burning in the rear portion of the structure. He did not

produce any evidence material to the issue of the case and

which is in his possession or under his control.

There were no evidence depositions taken by none of th

Investigators. February 8, 1995 trail ended of the case matters

with judgement not withstanding the verdict, the defendant,

nor his advisors, or investigators provided any evidence

essential to the case that gave the Insurance Company reasons

for denial or information and evidence material to the jury for

such verdict.

App. 98

COUNT Il

BREACH OF CONTRACT

Now comes JAMES PRUITT, plaintiff, and for Count I

of his Complaint against NATIONAL CASUALTY

COMPANY, defendant, states as follows:

1 - 11. Plaintiff states and realleges paragraphs 1

through 11 of his Complaint as and for

paragraphs 1 through 11 of Count III of

his Complaint.

12. that NATIONAL CASUALTY COMPANY

defendant, in violation and breach of the

subject multi-peril insurance policy with

JAMES PRUITT, plaintiff, has now

denied overage with disregard for JAMES

PRUITT, plaintiff, having met the policy

criteria for the subject property damage

coverage.

WHEREFORE, JAMES PRUITT, plamtiff, for COUNT II

App. 99

ee es ee PR Sa OT EE

of his Complaint prays fro judgment against NATIONAL

CASUALTY COMPANY in the sum of $75,000 for damage

to the subject building, $50,000 for damage to his personal.

property and $2,000.—-for weekly lost net business profit from

August 8, 1993 and each week thereafter and such other relief

ee

oie we)

James Pruitt

304 N. Broadway

Joliet, Illinois 60435

(815) 723-7586

App. 100

APPENDIX K

FILED MARCH 6, 1995

IN THE CIRCUIT COURT OF THE

TWELFTH JUDICIAL CIRCUIT WILL COUNTY

ILLINOIS

NO. 93-1-8851

James Pruitt,

Petitioner

Versus

National Casualty Insurance Company,

Respondent

ORDER DENYING POST TRIAL MOTION

for Judgment Notwithstanding Verdict And New Trial

App. 101

This matter coming to be heard on plaintiff's post trial

motion, due notice having been given and the court being fully

advised in the premises

IT IS HEREBY ORDERED:

Plaintiff's motion for judgement not withstanding the verdict is

denied. Plaintiffs motion for a new trial is denied.

Name: Thomas Finn

Attorney for: Defendant

Address: 309 W. Washington

City: Chicago, IL 60606

Atty. ARDC #: 06189092

Telephone: 312-368-4554

Dated: March 6, 1995

Entered:

/s/ Edwin B. Goobiec

Judge

Twelfth District Circuit Judge

App. 102