# Petition for Writ of Certiorari — Pruitt v. National Casualty Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1364%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 950 ## Text , 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 (QUES TILING FIREONE EID s vscnccvscscnscscssccnnnnncensnsetecsezanesens I PARTIES FO THE PROCEEDINGS........cesesessosssscossseneeses Vv Fame WIE PAL) BRIO Beeb vn catcsansccceccsncscecesesshinnaseapiastinnes X STATE STATUES, REGULATIONS, GUIDELINES, PU cinalcayiceanussadsccodasdcbatccdecsous shbndeaeecacnteneabeuleeueaeainabatien XI PA sc sin asieusatinsenevecciecamereectsinstbaeoiasinlenereael XI PE GAD NED SUMNI WY cncevensicnsvennacanness shsnbeuineninchiconsineaeabinenes ] BASIS FOR JURISDICTION..................0006 snievepniinbenmaiehaien 3 PR FEE RCE GO CRUE Ce eiccnsessicvssnssnsinnsvsorenesssectuomnievanll 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 Ly Ser OMG ee 21 GF SER CCR EE Medan ed eee 12 Ag BERSRRSUA LA ee Gee PR sen ees 11 ot Sy 08 SAR aeese A. aaNet UIE af 12 OI 12 TABLE OF AUTHRORITIES- (CONTINUED) I a idee a sea 7 NRIIED Th IU isrssensscsnichcisenicsenessaitvichesaninniehciiesnsieheiathtbaniblacaipidiiediia diets 13 UINEE TITER. SERIE BD cincccikncctinirinehesnindsiedebscnniosiianieadietitiate tabla 6 Se | aera smn eve Paras Ny se Te 6 SG Bee ecnscttvenisausricnnsnintnssinnceneendiinnidebitinignintieaiinmblaeidaua: 7 I Be Ge cectetnsncsuvinsctcciencestcnieaiaeieundcamaeasna ine 19 IN Tie viinistinascnesnishhsnepsnaatinnisiaantagspatinemicsamainainnn 13 8 ne ee RI SO NY fue ene 13 Pe RUNING BR cicicicsmncniconiceann adovsbianiasualiaiiaiiiials 12 RED: FOR ennernrienssernianiohiaaaaaaaaaa 10 PENI GRE D .cesaininuinerstnirinneneestnnianintitetndatniaaiaanae 7 SOIR WET 8 Diinrceenssxscersnnecennssunnenianennninenanbanaaiiane 7 EINE STI A FF cctsvesionsersywinsrantntsvinsinaacininaiaesiaemeanen 8 IRIN GER. OO C8 vnrcisanrermnttsennenhaeniniiaaees x AGOOTE SRG NET FEE CE is oicccsicsiccomnrerraaa 12 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