## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Gulin o v. Econom

y Fire & Casual

ty Co. , 2012 IL App (1st) 102429

Appellate Court Caption THEODO RE GUL I NO, P laintiff-Appe llant, v. ECONOMY FI RE AND C AS UAL TY COMPANY, and METL I FE AUTO AND HOME I NSURANCE COMPANY, Defe ndants-Appe llees.

District & N o. First District, Second D ivision Docke t No. 1-10-2429

Filed Rehea ringdenied Marc h 30, 2012

May 1, 2012

Held (Note : Th is syl lab us

c ons ti tut es no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R epo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court err ed in g ranting summary judgme nt for plaintiff’s insurer in his action alleg ing brea ch of contra ct arisin g fr om the denial of plaintiff’s claim for structura l damag e to his home on the g rounds that the loss did not constitute a “collapse” u n d er the policy and that plaintiff
neg lected to use rea sonable means to prese rve t h e proper ty when endang ere d by a potentially cover ed loss, since plaintiff alleg ed sufficie nt fac ts to show a loss cover ed by his homeowner ’s policy
, h e p re s en t ed a counter aff

idavit in response to the insurer’ s motio n for summary judgme nt, he claimed he did not know the baseme nt ceiling collapsed until afte r he discovere d his baseme nt had flooded, the insurer did not question the sufficie ncy o f t h at af fidavit befor e the trial court, and under the circ umstances, a g enuine issue of materia l fac t exis ted as to the cause of the loss.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 07-L -1903; the Hon. Charles R. Winkler, J udg e, pre siding.J udg ment Reverse d and re manded.

Counsel on Appea l Theodore Gulino, pro se , and Robert D. Sheare r, J r., both of Chicag o, for appellant.

Condon & Cook, L .L .C., of Chicag o (Peter W. Schoonmaker and Guy M. Conti, of counsel), for

appellee s.

Panel J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion.
J ustice Cunningha

m concur red in the judg ment and opinion. Presiding Justice Quinn dissented, with opinion.

OP INION

¶ 1 Plaintiff, Theodore Gu l i n o , ap p ea l s the order of the circ uit court g rantingdefe ndant E c o n o my F ir e & Casualty Company ’s (Economy ) motion for summary ju d gme n t o n Gu li n o ’ s brea ch of contra ct claim. The trial court found that Gulino failed to set forth a prima facie

case that his insurance policy with Economy

cover ed water damag e to the base ment of hi s residenc e. On appea l, Gulino contends the trial court erre d in g ranting summary judgme nt wher e g enuine issues of materia l fac t exis t as to (1) whether the loss was fortuitous and thus

cover ed by the policy ; (2) whether the damag e resulted from a coll ap s e as define d in the policy ; and (3) whether an ex clusion to cover ag e applies be cause Gulino neg lected to take

rea sonable measure s “to save and prese rve proper ty at and afte r the time of a loss, or when
proper ty is endang ere d by a peril insured ag ainst.” For the following rea sons, we reve rse the judgme nt of the trial cour t and re mand for f

urther pr ocee dings.

¶ 2 J URI SDI CTI ON ¶ 3 The trial court enter ed summary judgme nt in favor of defe ndants o n J u l y 2 6
, 2 0 1 0. Plaintiff filed a notice of appea l on August 20, 2010. Acc ording ly
, this court has jurisdiction pursuant to I lli n o i s S u p reme Court Rules 301 and 303 g overning appea ls from final judgme nts entere d below. I ll. S. C t. R. 301 (ef f. Fe b. 1, 1994); R. 303 (ef f. May 30, 2008).

¶ 4 BA CKGROUND ¶ 5 I n J anuar

y 2006, Economy issued an al l -risk homeowner ’s insurance policy to Gulino

cover ing pr operty

located a t 1800 Fore st Avenue in Wilmette, I llinois

. The policy cover ed the period from J anuar

y 22, 2006, throug h J anuar y 22, 2007. I t provided that Economy “will
pay for sudde n and ac cidental dire ct phy sical loss or damag e to the property *** except as

-2-excluded in Section I –L osses We Do Not Cover.” I t further provided that Economy “will pay for sudden and acc idental direc t phy sical loss to cover ed pro p er t y including the entire collapse of a building or any part of a building” cause d by “ce rtain perils,” including “we ight of contents.” T h e p o licy define d “collapse ” as “an abrupt falling down or caving in of a building or any part of a building. Collapse does not include settling, cra cking
, sag g ing, bowing
, bending
, leaning
, shrinking, bulging or expansion. A building or any part of a building that is in dang er of falling down or caving in is not considered t o b e i n a state of collapse.” The policy excluded cover ag e for the insured’s “[n] eg lect ** * to use all rea sonable

means to save and prese rve proper ty at and afte r the time of a loss, or when p ro perty is endang ere d by

a per il insured ag ainst.” ¶ 6 On Fe bruar

y 26, 2006, Gulino returne d home at approximately 1:30 a.m. and noticed that the heat was not working

. He went down to the baseme nt to check the furna ce a nd noticed

sever al in ch es o f water on the floor. The water flowed from a pipe above the washing machine. Gulino could not find the shut-off va lve so at ar ound 8 a.m. he c alled a plumber
, who contac ted the village of Wil mette (villag e) and had the water turned off. At that point, more than a foot of water was on the basemen t fl oor. The plumber i nspecte d the property
, finding excessive amounts of paper and debris piled throug hout the residenc e. He contac ted the village
, and the following day
, the village posted a notice that the proper ty was dang erous and uninhabitable. An arc hitect reta ined by the village subsequently inspected the proper ty and found se vera l thousand pounds of paper and other debris on the first floor of Gulino’s home. Gulino was not pe rmitted to live in the r esidenc e and he moved to an extended-stay hotel. Shortly there afte r, Gulino submitt ed a claim to Economy

. Economy acknow ledg ed Gulino sustained a water loss and paid for water damag e to property in the baseme nt are a. Howeve r, it denied his structura l damag e claim on the g rounds that the loss did not constitute

a “collapse ” under the policy and that Gulino “neg lected to use rea sonable means to prese rve [t he] property

when e ndang ere d by

a potentially

cover ed loss.” ¶ 7 Gulino filed a complaint on Fe bruary 2 0
, 2 0 0 7
, and filed an amende d complaint on November 15, 2007. I n the amende d complaint Gulino a lleg ed that Economy brea ched its 1
contra ct with him when it denied his claim. Gulino further alleg ed that the loss occur red afte r the baseme nt ceiling “suddenly sag g ed,” which disabled the heating sy stem of the home and

cause d the wa t er pipes in the rea r to fre eze and split. As a result, larg e quantities of water enter ed the baseme nt causing substantial damag e. In its answe r, Economy denied t h at the ceiling “suddenly sag g ed” and claimed insufficient i n formation to admit or deny Gulino’s all eg ation that the sag g ing ceiling disabled the heating sy stem of the home. E co n o m y admitted that Gulino sustained water damag e in the baseme nt but denied that the pipes in the home froze and split. I t f

iled aff irmative defe nses asser

ting that Gulino’s alleg ed structura l damag e loss resulted from sag g ing, bowin g, o r b en ding floor joists and not the result of a “collapse ,” and that by allowing excessive quantities of debris to acc umulate on the proper ty he failed to “use all rea sonab l e m ea n s t o save and prese rve [t he] proper ty at and afte r the

Me tLi fe Aut o & H o me I nsu ra nce Com pan y was ori ginal ly named a def end ant but was 1 dis m is sed wit h pr ej udi ce on M ay 7, 200 8. T her ef ore , it is not a p ar ty to thi s a ppe al

.
-3-time of loss.” There fore
, the policy excluded cover ag e for the loss and Economy did not have

a duty to indemnify

Gulino. ¶ 8 I n his deposition, Gulino testified that p ri o r to the Fe bruar y 26, 2006, incident, which resulted in a citation from the village
, he had rec eived a citation in 2004 for having a hole in th e ro o f of his house which he had fix ed. He also stated that the hot water in his home stopped working in 2005 and he bought a new g as hot wate r heater fr om Home Depot and had it installed on J anuar

y 16, 2006. Gulino stated that the installers examined the g as line. After th e Fe b ru ary 26 incident, the village deter mined that the home was uninhabitable. Gulino notified Economy of his loss less than a wee k afte r the incident, and Economy opened a cla im file, helped pa

y for a fewwee ks’ stay

in a hotel, and se nt chec ks for water damag e to clothes and other

items that had bee n in the baseme nt. It a lso se nt some one to the house to view the prope rty , which had be en boar ded up by the villag e. ¶ 9 Gulino a sserted that a portion of the baseme nt c eiling was collapsed about eig ht inches and the collapsed ceiling subsequently disabled the heating sy stem. He further asser ted that

s o m e o f t h e pipes in the rea r of the house wer e frozen and split, which resulted in larg e quantities of water flowing in t o t h e b asement. Gulino stated that the piles of paper s and debris accumulated over a period of five y ear s or l ess. He asser ted t hat t he photogra

phs of debris on the first floor near the entry way of the home did not acc urate ly depict the amount of materia ls actua lly on that floor. He stated that he could open the front door and that “[t] he
rest of the first floor had a lot less materia ls.” Gulin o wa s i n fo rm ed that the cost of

renovating the home to bring it up to code would likel y ex ce ed $500,000. He sold the
proper ty to a deve loper who subse quently demolished the house. ¶ 10 Demetr ios Criezis testified in his deposition for the defe nse that the village reta ined him in Marc h 2006 to inspect Gulino’s proper ty and rende r an opinion on its condition. He stated that the proper

ty was neg lected and looked as if it had not been car ed for in many y ear s. The first floor of the home had piles of paper s, newspa pers, mag azine clippings, an d article s stacke d approximately six to seven fee t high. He stated that it was difficult to walk past the front door and he did not inspect the second floor of the home becau se the stairway was

cover ed with newspa

pers and inacc essible. Criezis stated that the load on the first floor from all of the debris was 420 pounds per square foot and that a standard ho m e is desig ned to withstand about 60 pounds per squa re f oot. ¶ 11 He further noticed that in the baseme nt the floor joists wer e bending and bowing and had been pulled off their beam bearing s. When asked how long it would take for s uch damag e to occur , Criezis responde d, “[I ]t ’s a g uess, probably related to the load of the paper above, I ’m not sure, it could have been six months, it could have been at least a y ear .” He opined that “the integr ity of t he st ructure ha[d] been compromised by the heavy loading of al l the
paper s stacke d above” and that the house was not safe for human occupa ncy

. He asser

ted that the overloa ding from the debris throug hout the house could have resulted in a collapse of the
structure but that it had not y et collapse d upon his inspection. ¶ 12 On April 5, 2010, Economy filed a motion for summary judgme nt a rguing that: (1) the loss was not sudden or acc idental, but instead was the inevitable result of the acc umulation of debris over seve ral y ear s; (2) the loss did not constitute a “collapse ” as define d in the

-4-policy ; and (3) the loss was the result of Gulino’s failure to use rea sonable means to prese rve

the proper

ty at the time of loss or when it was endang ere d by a potentially cover ed collapse. Gulino filed a counter aff id avit in response to the summary judgme nt motion. I n his
counter aff

idavit, Gulino stated that up to the time of the incident, he regularly visited the baseme nt two to three times a month and never notic ed “settling
, cra cking
, brea king, bending
, bowing
, bulging or expanding” of the baseme nt c eiling. He further stated that the aff ecte d joists wer e located under an are a of the foy er approximately four to seven fee t from the front door. At the time of the incident, this space was occupie d onl y wi th an empty lightwe ight desk ag ainst the wall and a stack of paper s about two fee t high. He asser ted that the first time he was awa

re of any problem with the baseme nt ceiling was Fe bruar y 28, 2006. ¶ 13 After a hear ing the trial court g rante d Economy ’s motion for summary judgme nt on J uly 26, 2010. I t stated that “f

or the re asons set forth by defe ndant, the plaintiff in this case will be unable to prove or to set forth a prima facie showing that there was a brea ch of contra ct. Neg lect, the most obvious, the other two cer tainly support it most favor ably and to the point wher e the plaintiff has not r efute d to the court’s satisfac tion the position maintained by the defe ndant duringthis hearing .” Gulino filed this timely appea l.

¶ 14 ANALYSI S ¶ 15 S u m m ar y j u d gm en t i s appropr iate when the pleading s, aff idavits, depositi o n s an d admissions in the rec ord, when viewed in the light most fa vorable to the nonmoving party , re v ea l n o genuine issue of materia l fac t and the moving party is entitled to judgme nt as a matter of law. McLear v. Villag e of Barrington
, 392 I ll. App. 3d 664, 669-70 (2009). The
purpose of summary judgme nt is not to try a question of fac t, but to deter mine whether a g enuine issue of triable fac t exis ts. Adams v. Northern Illinois Gas Co
., 211 I ll. 2d 32, 42-43 (2004). “Althoug h summary judgme nt a ids in the expeditious di sposition of a lawsuit, it is

a drastic measure and should be g rante d only if the moving party ’s rig ht to judgme nt is clea r

an d fr ee from doubt.” Land v. Board of Education
, 202 I ll. 2d 414, 432 (2002). The nonmoving party need not prove his case in response to a motion for summary judgme nt, but he must prese nt a fac tual basis entitling h i m t o j u d gment. Id. We revie w the trial court’s
g rant of summar

y judgme nt de novo

. McLear , 392 I ll. App. 3d at 669. ¶ 16 To withstand a motion for summary judgme nt in a lawsuit involving an insurer’ s failure
to pay a claim under an all-risk insurance policy
, the insur ed b ear s the initial burden of
prese nting sufficient facts es t ab l i s h ing a prima facie case

. Johnson Press of America, Inc.

v. Northern Insurance Co. of New Y ork
, 339 I ll. App. 3d 864, 871 (2003) (citing W allis v. Country Mutual Insurance Co
., 309 I ll. App. 3d 566, 570 (2000))

. To satisfy his burden, the insured must show that (1) a loss occur red, (2) the loss resulted from a fortuitous event, and (3) an all-risk policy cover ing the proper ty wa s i n effect at the time of the loss. Johnson Press
, 339 I ll. App. 3d at 871. Once the i nsured establishes a prima facie case , the burden shifts to the insurer to aff

irmatively demonstrate that the loss resulted from a peril expressly excluded from covera g e. United N ational Insurance Co

. v. Faure Brothers Corp
., 409 I ll. App. 3d 711, 717 (2011). P ro v i sions in an ins uranc e poli cy that exclude or l imit cover ag e must be construed liber ally ag ainst the insurer. Id

.

-5-¶ 17 T h e t ri al co u rt granted summary judgme nt in favor of Economy on the g rounds that

Gulino could n o t “prove or set forth a prima facie showing ” that a brea ch of contra ct

occur red. The parties a g ree that an all-r isk policy cover ing Gulino’s property was in ef fec t at the time of the loss. Howeve r, Economy urg es this court t o aff irm the trial court’s judgme nt beca

use Gulino failed to show that his loss resulted from a collapse as define d in the pol icy
, nor di d he show that the l oss was fortuitous. The int erpretation of an ins uranc e policy is a question of law subject t o d e novo revie w. Valley Forge Insurance Co. v. Swiderski Electronics, Inc

. , 223 I ll. 2d 352, 360 (2006). ¶ 18 The policy issued by Economy define s collapse as “an abrupt falling down or cavingin of a building or any part of a building.” The policy does not define “ca ving in.” We g ive an undefine d term its plain and ordinary meaning
, wh i ch can be derive d from a dictionary

. Fremont Casualty Insurance Co. v. Ace -Chicago Great Dane Corp.
, 317 I ll. App. 3d 67, 74 (2 0 0 0). Webster’s define s “ca ve” in as “to fall in or down esp[ecially ] from being undermined.” Webster’s Third New International Dictionary 357 (1981). The term connotes the undermining of a structure that can be something less than a complete falling down. The

use of the term in the policy also sug g ests that “fa lling down” is not the same as “ca ving in.” The terms are separ ated by the word “ or,” me aningthat eac h is “ separ ate and distinct” and “must be considere d separ ately as a trig g er of cover ag e.” Zurich Insurance Co. v. Raymark Industries, Inc.
, 145 I ll. App. 3d 175, 188 (1986). There fore
, Economy ’s policy cover s losses that result not only from a complete falling down, but also from the caving in, of a building
or any part of a building. ¶ 19 Although the fa ct s u n d en i ab l y show that Gulino’s house or any part of it had not completely fallen down, evidenc e supports the contention that a p o rt i o n of the baseme nt ceiling did cave in. Gulino stated that an area of t he basement ceiling was collapsed about eig ht inches. A photogr aph (labe led A-15 in the appendix to Economy ’s brief) of the baseme nt ceiling corr oborate s Gulino’s statement and further shows that the ceiling ca ved in enough to pull a pipe from i t s b ra ck ets

. In his complaint, Gulino alleg ed the collapsed ceiling disabled the heating sy stem, which cause d some of the pipes in the rea r of the house
to fre eze and spli t an d re s u lted in larg e quantities of water flowing into the baseme nt. Although Economy disputes this cause of the water d am age, Gulino at least has alleg ed sufficie nt fac ts to show a loss covere d by his insurance policy

. ¶ 20 Economy ar gu es that even if the l oss resulted from a collapse as defined i n the policy
, Gulino cannot esta

blish a prima facie case beca use the loss was not fortuitous. I t contends that a fortuitous event is one that happens by chanc e, unexpectedly
, or without known cause

. In making this argument, Economy presumes that the fac ts indisputably show that the paper l o ad on the first floor cause d the cave -in of the baseme nt ceiling

. Howeve r, the trial court

never made a specific deter mination as to the cause of the damag e. Gene rally
, the question of whether a loss is fortuitous is a leg al one for t h e co u rt s t o d eter mine. Johnson Press of America, Inc. v. Northern Insurance Co. of N ew Y o rk
, 3 39 I ll. App. 3d 864, 872 (2003). Ho wever, the deter

mination of what occur

renc e cause d the loss is one of fact
, an d i f a g enuine issue of

materia l fac t exi sts, summ ary judgme nt is not appropriate. ¶ 21 E co n o m y ’s ex p er t wi t n ess Criezis testified in his deposition that the loss was not fortuitous beca

use Gulino acc rued piles of paper and debris over “a couple of y ear s” and the

-6-weig ht of the piles cause d the floor joists to bow and bend. He opined that the damag e was

not sudden or acc ident al b ecause it occur red over a period of time and the bending of the floor joists under the weig ht of the debris was expected. He acknow ledg ed, howeve r, that the period of tim e i t wo u l d t ake for the floor joists to pull awa y from the beam bear ings is “re lated to the l oad o f t h e paper above.” He appare ntly assumed that the paper l oad above the are a of the ceiling that cave d in consisted of the six - to seven- foot piles he had observe d

on the first floor. Criezis, howeve r, never expli citly stated that he observe d the actua l paper load above the af

fec ted ce iling. ¶ 22 Economy cites to Johnson Press as support for i t s ar gu m en t

. I n Jo hnson Press , the plaintiff filed a claim for losses resulting from the J une 1, 1998, collapse o f t h e roof of a

vaca nt buildin g i t owned. Id. at 866. The person responsible for the maintenanc e of the building ac knowledg ed that he did not go inside the building to examine the pre mises, but only conducte d a “drive by ” to chec k on the structure

. He further stated that he did not g o up

on t h e ro o f from 1995 to 1998. Id. at 870. Def endant’ s expert witnesses testified that the interior of the bui lding had fung al growth and sever e water stain m arks on the roof beams and columns. The walls of the building showed water damag e, and water even dripped into the baseme nt. They co n cl u d ed that the collapse resulted from long- term deca y due to plaintiff’s failure to maintain the roofing of the building. Fur thermore
, the dilapidated condition of the building showed that the collapse was not fortuitous but rathe r was expected. Id. at 872. This court deter mined that the “plaintiff failed to establish a prima facie case that the loss was due to a

fortuitous event.” Id. ¶ 23 Unlike the plaintiff in Johnson
, who prese nted no evidenc e to ref ute the statements of the defe nd a nt’ s e xp e r t w it n e s s e s , Gu lino prese nted a counter aff idavit in response to the summary judgme nt motion. Economy argues that the counter aff idavit is “ ‘rife with conclusions and speculation.’ ” Howeve r, it did not question the sufficie ncy of the counter aff idavit befor e the trial court. There fore
, issues reg arding the sufficie ncy of the counter aff idavit are waived on revie w. Lang v. Silva , 306 I ll. App. 3d 960, 971 (1999). ¶ 24 I n his counter aff idavit, Gulino stated that up to the time of t h e co l l ap s e h e re g ularly visited hi s baseme nt two to three times a month and did not notice “settling
, cra cking
, brea king, bending
, bowing
, bulging or ex panding ” of the basement ceiling. He al s o stated that the collapsed joists wer e located under an are a of the foy er approximately four to seven fee t from the front door and in this location he had an empty lightwe ight desk ag ainst the

wa l l an d a stack of paper s only two fee t high. He aver red that he did not know of the baseme nt c eiling’ s collapse until F ebrua ry 28, 2006, afte r his ba sement had flooded. In his deposition, Criezi s acknow ledg ed that the pulling awa y of the floor joists is “re lated to the load of the paper above” but he did not state that he observe d the actua l paper load above the aff ecte d ceiling are a. Although it may well be the case that the paper load cause d the ceiling
to cave in g radua lly over tim e, given Gulino’s statements i n his counter aff idavit we find a g enuine issue of

materia l fac t exi sts as to the cause of loss. ¶ 25 I n deter

mining that Gulino failed to establish a prima facie case , the trial court clea rly did
not find him to be a cre dible witness. The court stated: “[Y]our position is that [t he weig ht] is less and it would have no b ear ing whatsoeve r on the loss sustained beca use it all of a sudden occur

red absent this stuff? The weight has nothing to do with the loss, rig ht? That is

-7-what y ou want the court to acc ept? ” Howeve r, the purpose of a motion for su m m ary

judgme nt is to deter

mine whether a triable question of fac t ex ists, not to try a question of fac t. AY H Holdings, Inc

. v. Avrec o, Inc.
, 357 I ll. Ap p

. 3 d 1 7
, 3 1 (2005). The trial court cannot make cre dibilit y deter minations or weig h the evidenc e at the summary judgme nt stag e. Pietruszynski v. McClier Corp.
, Architects & Engineers, Inc.
, 338 I ll. App. 3d 58, 67- 68 (2003). ¶ 26 Economy contends that eve n i f Gulino established a prima facie case , it is entitled to
summary judgme nt beca

use the policy ’s exclusion for neg lect applies. I t arg ues that it should
not have to pay for Gulino’s loss when he failed to p rotec t his proper ty from the endang erme nt cause d by the weig ht of the paper s and debris in his house. Once the plaintiff establishes a prima facie case , the burden shifts to the insurer to p rove that an exclusion applies. W

allis v. Countr

y Mutual Insurance Co.
, 309 I ll. App. 3d 566, 570 (2000). “ I f the insurer meets this burde n throug h the pre sentation of undisputed fac ts, summar y judgme nt is appropr iate.” Johnson Press
, 339 I ll. App. 3d at 872. As d i s cu s s ed above, Economy ’s contention that Gulino’s proper ty loss resulted from the weig ht of the paper s is not supported by undisputed fac ts. The issue of whe ther the c ollapse of a portion of the base ment ceiling

was cause d by the weig ht of the contents is in dispute, as evidenc ed by Gulino’s statements in his deposition and counter aff idavit. The g rant of summary judgme nt in favor of Economy was not prope r her e. ¶ 27 Gulino also argues that the trial court err ed in finding that documents from Home Depot

wer e in ad m issible hear say

. He contends that the documents wer e admissible as business

rec ords. Supreme Court Rule 236 require s that the proponent of a business rec ord must show that it was made (1) in the regular course of business, and (2) at or near the time of the event

or occur renc e. I ll. S. Ct. R. 236 (ef f. Aug

. 1, 1992); Kimble v. Earle M. Jorgenson Co.
, 358 I ll. App. 3d 400, 415 (2005). The se foundational require ments may be established throug h
tes t i m o n y of one who is familiar with the business and its mode of operation, or is a custodian of the records. Id. Gulino, howeve r, di d not provide any evidenc e establishing a foundation for these documents. The trial court did not err in excluding the documents from the evidenc e. ¶ 28 For the fore g oing rea sons, the judgme nt of the circ uit c ourt is r ever sed and the cause is

rema nded for further proce eding s.

¶ 29 Reverse d and re manded.

¶ 30 PRES I DI

NG JUS TI CE QUI

NN, dissenting : ¶ 31 As t h e gra n t o f s u m m ar y judgme nt in favor of Economy was entirely cor re ct , I

re s p ectfully dissent. As the majority point out, the all-risk homeowner ’s insurance policy issued to Gulino provided that Economy “will pay for sudden and acc idental direc t phy sical loss or damag e to the proper ty *** except as ex cl u d ed in Section I –L osses We Do Not Cover.” I t is well established that “ ‘[t] he natura l and ordinary conseque nces of an act do not constitute an acc ident. ’ ” Pek in Insurance Co. v. Miller
, 367 I ll. App. 3d 263, 266 (2006) (quoting Monticello Insurance Co. v. W il-Freds Construction, Inc.
, 277 I ll. App. 3d 697, 703

-8-(1996))

.

¶ 32 I n order to withstand a motion for summary judgme nt in a lawsuit involving an insurer ’s failure to pa

y a cla im under an a ll-risk insurance policy
, an insured bear s the initial burde n of prese nting sufficie nt fac ts establishing a prima facie case

. Johnson Press of America, Inc. v. N orthern Insurance Co. of New Y ork
, 339 I l l. App. 3d 864, 871 (2003) (citing W allis v. Country Mutual Insurance Co.
, 309 I ll. App. 3d 566, 570 (2000))

. This require s a showing that (1) a loss occur

red, (2) the loss resulted from a fortuitous event, and (3) an all-risk policy

cover ing the proper

ty was in eff

ect at the t ime of the loss. Johnson Press
, 339 I ll. App. 3d
at 871. Once an insured establishes a prima facie case , the burden then shifts to the insurer
to aff irmatively demonstrate that the lo ss resulted from a peril expressly excluded from

cover ag e. United National Insurance Co. v. Faure Brothers Corp.
, 409 I ll. App. 3d 711, 717 (2011). Provisions in an insurance policy that exclude or limit cover ag e must be construed liberally ag ainst the insurer. Id. ¶ 33 I n this case , both parties acknow ledg e that a loss occur red and that an all-risk policy was in ef fe ct at t h e t ime of the loss. There fore
, the issue to be decide d is whether plaintiff has made a satisfac tory

showing that the loss was a “ fortuitous event.” ¶ 34 C o n trary to the majority ’s asser tion, the trial court did not deter mine what cause d t h e flooding in plaintiff’s baseme nt but instead found that plaintiff did not prese nt a prima facie

case that the loss was the result of a fortuitous event. “F ortuitous” means happening by 2 chanc e or acc ident or occur ring unexpectedly or without known cause

. Cincinnati Insurance Co. v. American Hardw are Manufacturers Ass’n , 387 I ll. App. 3d 85, 108-09 (2008). The Restatement of Contracts define s a fortuitous event as an event that, as far as the parties are

awa re, is depende nt on chanc e. Restatement of Contracts § 291 cmt. a (1932). This court has held that “[a] loss t hat was, so far as the parties knew, an inevitable cer tainty at the time of
contra cting is not fortuitous and will not be co v er ed b y the resulting contra ct.” Johnson Press
, 339 I ll. App. 3d at 887 (citing Mattis v. State Farm Fire & Casualty Co.
, 118 I ll. App. 3 d 6 12, 621 (1983))

. “The deter mination of whether a loss is fortuitous is a lega l question for the court to deter

mine.” (I nterna l quotation marks omi tted.) Cincinnati Insur ance , 387 I ll. App. 3d at 109. Whil e the majority corr ectly state this rule of law, they treat the issue as one of f act. ¶ 35 I n this case , Demetr ios Criezis, an arc hitect hired by the village
, testified that plaintiff’s house was neg lected and looked like it ha d not been car ed for in many y ear s. He noted that debris was stacke d six to seven feet high throughout t he first floor of t h e h o use and that it

was difficult to even walk past the entry way

. This testimony was supported by photogr aphs of the house that wer e included in the rec ord. Criezis estimated that the load on the floor in the house was 420 pounds per square foot and that a standard home is desig ned to withstand ab o u t 60 pounds per square foot. He concluded that the i nteg rity of t he st ructure had b ee n compromised by the heavy loading of paper and debris on the first floor, resulting in bending

I n any event, had the tr ia l cou rt det erm ine d the cau se of the fl oodi ng in the bas ement, it 2 woul d have bee n har d- pre sse d to fi nd a cau s e m ore import ant tha n Guli no’ s fa il ure to not if y a plu m berof th e br oken pi pe f

or m ore th an s ix hour s.

-9-and bowing of the floor joists over a 6- to 12-month period. Plaintiff himself acknow ledg ed

that debris had acc umulated over “5 y ear s, more or less” and there was evidenc e that at least 45,000 pounds of mater ial was in the house. T he dilapidated c ondition of t he house, a long with the tons of materia ls stacke d i n s i d e, demonstrates that the damag e to the baseme nt ceilingdid not happen by chanc e or a ccide nt. ¶ 36 Even assuming that plaintiff established a prima facie case , plaintiff’s loss resulted from

a peril expressly excluded from the policy

. The policy prec ludes cover ag e for “neg lect by [an insured] to use all rea sonable means to save a nd prese rve the proper

ty at and afte r the time of a loss when proper

ty is endang ere d by a peril insured ag ainst.” Here, i t i s ev ident by plaintiff’s own admission that his home was filled with p apers and debris that had

acc umulated over

“5 y ear s, more or le ss.” Althoug h plaintiff disputes Economy ’s estimate that the weigh t o f the debris totaled 160,000 pounds, he acknow ledg ed that it weig hed at least 45,000 pounds. Criezis testified that the proper ty had been neg lected for sever al y ear s and the village deeme d it uninhabitable. I t is clea r, there fore
, that by permitting ex cessive
amounts of debris to acc umulate in the house over an extended period of time, plaintiff, failed to “ use all re asonable means to save and pre serve the prope rty .” ¶ 37 Gulino admitted that he never reta ined anyone to deter mine the cause of the loss. He a lso admitted that the ceiling of the baseme nt was “sag g ing.” As the majority point out, Criezis testified that the floor joists’ “bending ” and “sag g ing” took place over a period of time which “could ha ve bee n six months, it could have been at least a year .” ¶ 38 The policy expli citly provi d ed t h at “ ‘c o l l ap s e’ does not include settling, c rac king, sagging
, bowing, bending
, leaning
, shrinking, bulging or expansion.” (Emphase s added.) Fur ther, Criezis testified “the integ rity of the structure had been compromised by the heavy loadi n g of all the paper s stacke d above.” The majority asser t that Gulino filed a counter aff

idavit stating “that the aff ecte d joists wer e located under an are a of the foy er approximately four to seven fee t from the front door. At the time of this incident, this space

was occupie d only with an empty ligh t we i ght desk ag ainst the wall and a stack of paper s about two fe et hig h.” ¶ 39 This counter aff idavit is completely belied by the phot os admitted at the hea ring on the motion for summary

judgme nt. There is an ocea n of debris well in e x cess of four fee t high throug hout the foy er. Gulino authenticated these photos in his deposition. I t is these photos and Criezis’ unrebutted e x pert testimony that elicited the trial court’s comment that “Your position is that [t he weig ht] is les s and it would have no bear ing whatsoeve r on the loss sustained beca

use it all of a sudden occur red absent this stuff? The weight has nothing to do with t h e l o s s ri g ht? That is what y ou want the court to acc ept? ” The majority asser t that Criezis “neve r expli citly stated that he observe d the actual paper load above the aff ecte d ceiling .” Supra ¶ 21. In fac t, Criezis testified that there wer e tons of waste paper throug hout the house. I n his deposition, Gulino admitted that while he saw village building depar tment personne l in the baseme nt, he never saw them on the fi rst or second floor. The photos support the only rea sonable infere nce–that they wer e unable to do so beca use of the debris. As it is self-evident that load- bear ing be ams run the leng th of a home, the fac t that a s mall section of the floor above may not be buried in debris woul d n o t preve nt a beam from
separ ating from the f

oundation at the joist.

-10-¶ 40 The majority cite AY H Holdings, Inc. v. Avrec o, Inc.
, 357 I ll. App. 3d 17, 31 (2005), for the proposition that “the purpose of a motion for summary judgme nt is to deter mine whether

a triable qu estion of fac t exis ts, not to try a question of fac t.” Supra ¶ 25. AY H Holdings involved claims of profe ssional neg lige nce and brea ch of fiduciar y duty on the p ar t of an insurance broker

. The deter minative issue was whether one ag ent was a subag ent–a question of fact. Unli ke AY

H
, the onl y issue befor e the t ri al court in this case was whether plaintiff made a satisfac tory

showing that the loss was a “for tuitous event,” which is not a question of fac t but rathe r is a leg al question for the court to deter mine. Cincinnati Insurance
, 387 I ll. App. 3d at 109; Johnson Press
, 339 I ll. App. 3d at 8 7 2

. I t was also well settled that the definition of “collapse ” in an insurance policy is simil arly a question of law to be deter mined by the cour t. Indiana InsuranceCo. v. Liaskos , 297 I ll. App. 3d 569, 574 (1998). ¶ 41 I n the instant case , Gul i n o t o o k o u t a homeowner ’s insurance policy runningfrom J anuar y 22, 2006 throug h J anuar y 22, 2007. L ess than five wee ks later, Gulino returne d home to find water fl owing from a pipe in his baseme nt. Gulino did not bother to call a plumber for some 61⁄2 hours. The pl u mber noticed that the home was full of debris and notified the village of Wil mette. The village subsequently inspected the home and deter mined it to be uninhabitable. The village h ad an ar chit ect, Criezis, inspect the home. Criezis provided testimony at the hear ing on Economy ’s motion for summary judgme nt. He testified that the sag g ing of the floor had occur red fo r at l east one y ear

. Gulino himself testified that his home had been full of debris for “5 y ear s, more or less.” The majority hold that the plaintiff has met his burden of showing that the sag g ing of the joists was fortuitous. This is a question of law, not one of fac t. There is no even remotely plausible evidenc e that the sag g ing of the joists was cause d by any thing other than Gulino’s patholog ical hoarding of paper trash over a period of y ear s. Nor will such evidence b e p ro v i d ed by plaintiff on

rema nd. As “[t] he natura l and ordinary conseque nces of an act do not constitute an acc ident” (interna l quotation marks omitted) ( Pek in Insurance Co. v. Miller
, 367 I ll. App. 3d at 266), Iwould aff

irm the trial cour

t.

-11-