NO. 4-01-0591

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

TOWNE REALTY, INC., and ZILBER, LTD.,

		Plaintiffs-Appellants,

		v.

JOHN C. SHAFFER, an Individual,

		Defendant-Appellee.	)

)

)

)

)

)

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)	Appeal from

Circuit Court of

Sangamon County

No. 00L76

Honorable

Donald M. Cadagin,

Judge Presiding.

_________________________________________________________________

		JUSTICE STEIGMANN delivered the opinion of the court:

		In September 2000, plaintiffs, Towne Realty, Inc., and

Zilber, Ltd. (collectively Towne and Zilber), filed an amended

complaint against defendant, John C. Shaffer, seeking to recover

for property damage caused by a fire in an apartment Shaffer

rented from Towne and Zilber.  In October 2000, Shaffer filed a

motion to dismiss the amended complaint under sections 2-615 and

2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-

619 (West 2000)), arguing that the language of his lease agree

ment with Towne and Zilber precluded them from suing him for

property damage caused by fire.  Following a June 2000 hearing,

the trial court granted Shaffer's motion to dismiss.

		Towne and Zilber appeal the trial court's dismissal of

their amended complaint, and we affirm.     

	I. BACKGROUND

		In January 1998, Shaffer entered into an agreement with

Towne and Zilber to lease an apartment in the Lincoln Tower building in Springfield for a three-month period (from February

1, 1998, through April 30, 1998).  The form lease agreement,

which was drafted by Towne and Zilber, provided, in pertinent

part, as follows.  Under paragraph two, the "yield-back" clause,

Shaffer agreed to

		"keep the [apartment], *** in good order and

repair and be responsible for any damage to

the premises, appliances, furniture, furnish

ings[,] and equipment, except such as is

caused by normal wear and tear."  

That paragraph also provided that "[a]t the expiration or termi

nation of this lease, [Shaffer] will yield up the demised pre

mises in good condition and repair, ordinary wear and tear

excepted."  

		Under paragraph three of the lease, Shaffer agreed 

		"not to use or keep in or about the premises

anything which will affect the validity of or

increase the premiums on [Towne and Zilber's]

property damage and liability insurance poli

cies on the subject premises."  

		Paragraph four provided, in pertinent part, as follows:

			"[Shaffer] shall hold [Towne and Zilber]

harmless for any loss or damage which

[Shaffer] may sustain:

			* * *

				(c) From fire, water, rain, frost, ice, snow, gas, odors[,] or

fumes from any source whatsoever

and from injury or damage caused by

the bursting or leaking of pipes or

the failure or backing up of sewer

drains and pipes.

				(d) From any injury to any

person or damage to any property." 

		Under paragraph six of the lease, Shaffer agreed to 

		"keep the premises in good order and repair

and be responsible for any damage to the

premises, appliances[,] and equipment

thereon, except such as is caused by normal

wear and tear." 

		Paragraph 14 of the lease provided as follows:

			"If during the term of this lease the

building is so damaged by fire or other casu

alty, not occurring through [Shaffer's] neg

ligence, that the demised premises is ren

dered wholly unfit for occupancy and the

demised premises cannot be repaired within

thirty (30) days from the happening of said

casualty, then this lease shall cease and

terminate from the date of such casualty."

		Paragraph 23 of the lease provides as follows:

			"[Shaffer] hereby expressly waives and releases any cause of action or right of

recovery which [Shaffer] may have hereafter

against [Towne and Zilber] for any loss or

damage to the leased premises or to the con

tents thereof belonging to [Shaffer], caused

by fire, explosion, or any other risk covered

by [Shaffer's] insurance."

		Paragraph 11 of the "Rules and Regulations" portion of

the lease provided that "[i]t is the responsibility of [Shaffer]

to provide insurance coverage for his personal property." 

		At some point before Towne and Zilber and Shaffer

entered into the lease, Travelers Indemnity Company issued an

insurance policy to Towne and Zilber (hereinafter the Travelers

policy), which covered damage to property caused by fire, among

other things.  

		In March 2000, Towne and Zilber filed a complaint

against Shaffer, alleging that on March 9, 1998, a lit candle or

oil lamp in Shaffer's apartment caused a fire in the Lincoln

Tower building.  In September 2000, Towne and Zilber filed an

amended complaint, alleging that Shaffer acted negligently when

he (1) placed a lit candle or oil lamp near combustible material

in such a way that it created a fire risk to his apartment and

the Lincoln Tower building and (2) failed to extinguish the lit

candle or oil lamp prior to leaving it unattended.  Towne and

Zilber sought $671,463.95 for damage to its property, all but

$10,000 of which was covered by the Travelers policy.

		In October 2000, Shaffer filed a motion to dismiss the

amended complaint under sections 2-615 and 2-619 of the Code (735

ILCS 5/2-615, 2-619 (West 2000)), arguing that (1) "[f]or all

practical purposes, this is a case brought in the name of the

insureds, Towne Realty and Zilber, Ltd., for the use and benefit

of Travelers Indemnity Company"; and (2) when Towne and Zilber

and Shaffer entered into the lease agreement, they contemplated

that Towne and Zilber and its insurer would bear the risk of loss

due to fire.

		Towne and Zilber later filed a response to the motion

to dismiss, arguing that the lease imposed liability on Shaffer

for negligently caused fires.  Following a June 2000 hearing on

Shaffer's motion to dismiss, the trial court took the matter

under advisement.  The court subsequently granted the motion to

dismiss, upon finding that (1) "the lease provides [Towne and

Zilber] would maintain fire insurance on the premises"; and (2)

Shaffer was a coinsured under Towne and Zilber's insurance

policy.  

		This appeal followed.     

	II. ANALYSIS

A. Standard of Review

	1. Section 2-619 Motions To Dismiss

		Section 2-619 motions to dismiss provide a means for

disposing of issues of law or easily proved issues of fact. 

Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993).  In the present case, the ground advanced for dismissing the complaint is that the claims asserted

therein are barred by a defense that completely negates the

asserted causes of action.  See Payne v. Lake Forest Community High School District 115, 268 Ill. App. 3d 783, 784-85, 644 N.E.2d 835, 836 (1994); 735 ILCS 5/2-619(a)(9) (West 1998).  The

trial court should grant the motion and dismiss the complaint if,

after construing the allegations in the light most favorable to

the plaintiff, no set of facts can be proved that would entitle

the plaintiff to recover.  We review de novo the trial court's granting of a defendant's section 2-619 motion.  Henrich v. Libertyville High School, 186 Ill. 2d 381, 386, 712 N.E.2d 298, 301 (1998).

	2. Section 2-615 Motions To Dismiss

		In Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d 1172, 1175 (1997), the supreme court addressed the standard of

review for cases dismissed pursuant to section 2-615 of the Code

and wrote the following:

		"The question presented by a section 2-615

motion to dismiss is whether the allegations

of the complaint, when viewed in a light most

favorable to the plaintiff, are sufficient to

state a cause of action upon which relief can

be granted.  [Citations.]  A cause of action

will not be dismissed on the pleadings unless

it clearly appears that no set of facts can

be proved which will entitle the plaintiff to recover.  [Citation.]

			***  Since ruling on a motion to dismiss

does not require a court to weigh facts or

determine credibility, we review the com

plaint de novo." 

	B. Shaffer's Motion To Dismiss

		Towne and Zilber argue that the trial court erred by

granting Shaffer's motion to dismiss the amended complaint.  We

disagree.  

		Under Illinois law, a lease is an agreement subject to

the law of contracts.  American Apartment Management Co. v. Phillips, 274 Ill. App. 3d 556, 559, 653 N.E.2d 834, 836 (1995).  Leases should be construed as a whole to ascertain the parties'

intent (see Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 320, 597 N.E.2d 622, 625 (1992) ("courts must look to the

lease 'as a whole' and the spirit of the agreement between the

parties")), and the words used should be given their plain and

generally accepted meaning (Book Production Industries, Inc. v. Blue Star Auto Stores, Inc., 33 Ill. App. 2d 22, 31, 178 N.E.2d 881, 885 (1961)).  In instances where the terms of a lease are

unambiguous, they must be enforced as written, and no court can

rewrite a lease to provide a better bargain to suit one of the

parties.  Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 349, 736 N.E.2d 145, 154 (2000).  If uncertainties exist regard

ing the meaning of the language of the lease, courts construe the

language against the lessor and in the lessee's favor.  American National Bank & Trust Co. v. Lembessis, 116 Ill. App. 2d 5, 11, 253 N.E.2d 126, 128 (1969); see also Restatement (Second) of

Contracts §206, Comment a, at 105 (1981) ("Where one party chooses the terms of a contract, he is *** more likely than the

other party to have reason to know of uncertainties of meaning. 

Indeed, he may leave meaning deliberately obscure, intending to

decide at a later date what meaning to assert.  In cases of

doubt, therefore, so long as other factors are not decisive,

there is substantial reason for preferring the meaning of the

other party.  The rule is often invoked in cases of standardized

contracts and in cases where the drafting party has the stronger

bargaining position"). 

		Our supreme court has previously considered whether a

tenant can be held liable for negligently causing fire damage to

leased premises.  In the seminal case, Cerny-Pickas & Co. v. C.R. Jahn Co., 7 Ill. 2d 393, 131 N.E.2d 100 (1955), the landlord rented an industrial building to the tenant, who later negli

gently caused a fire in the building.  The landlord and the

landlord's insurer later filed a cause of action against the

tenant to recover damages for the loss of the building and

equipment therein.  The jury returned a verdict against the

tenant, and the appellate court affirmed.  On appeal to the

supreme court, the tenant argued that the lease exempted it from

any liability to the landlord or the landlord's insurer subrogee

for any loss caused by the fire.  Cerny-Pickas, 7 Ill. 2d at 394, 131 N.E.2d at 101.  

		The lease in Cerny-Pickas, as here, did not expressly provide for the tenant's nonliability for fires it might negli

gently cause.  However, the supreme court ruled that even when

such an express provision is absent, the lease may still, "when

all of its provisions are considered, show that the parties

themselves intended that the lessee should not be liable.  That

determination is to be made upon a consideration of the instru

ment as a whole."  Cerny-Pickas, 7 Ill. 2d at 396, 131 N.E.2d at 102-03.  The court rejected the landlord's argument that the

parties intended that the tenant was to remain liable for negli

gently caused fire damage, stating that "[i]t is more reasonable

to assume *** that laymen would regard the word 'fire' as includ

ing all fires whether of negligent origin or otherwise."  Cerny- Pickas, 7 Ill. 2d at 397, 131 N.E.2d at 103.  The court further reasoned as follows:

		"Under the construction urged by the les

sor[,] it would be necessary for both parties

to the lease to carry fire insurance if they

are to be protected.  The lessee would have

to insure against fires due to his negli

gence, and the lessor against fires due to

other causes.  Whether the kind of policy the

lessee would have needed was commercially

available when the present lease was entered

into is at best dubious.  ***  The parties contemplated that the risk of loss by fire should be insured against [by the lessor] and we see no reason to suppose that they did not contemplate the customary insurance policy which covers both accidental and negligent fires.  ***  From the lease as a whole we conclude that the lessee was not to be liable

for loss by fire regardless of the cause of

the fire, and that the parties intended that

the lessor should look solely to insurance as

compensation for damage caused by any kind of

fire."  (Emphasis added.)  Cerny-Pickas, 7 Ill. 2d at 398, 131 N.E.2d at 103.  

		Finally, the court stated as follows:

		"'The ancient law has been acquiesced in, and

consciously or unconsciously, the cost of

insurance to the landlord, or the value of

the risk enters into the amount of rent.' 

[Lothrop v. Thayer, 138 Mass. 466, 475 (1885).] ***  'They necessarily consciously

figured on the rentals to be paid by the

tenant as the source of the fire insurance

premiums and intended that the cost of insur

ance was to come from the tenants.  In prac

tical effect[,] the tenant paid the cost of

the fire insurance.' [General Mills v. Goldman, 184 F.2d 359, 366 (8th Cir. 1950).]"  Cerny-Pickas, 7 Ill. 2d at 398, 131 N.E.2d at 104.  

Accordingly, the court held that the lease absolved the tenant of

any liability for negligently causing fire damage to the build

ing.  Cerny-Pickas, 7 Ill. 2d at 398, 131 N.E.2d at 104.

		In Stein v. Yarnall-Todd Chevrolet, Inc., 41 Ill. 2d 32, 33-34, 241 N.E.2d 439, 440 (1968), the lessors rented a

commercial building to the tenant, who later allegedly negli

gently caused a fire in the building.  On appeal, the supreme

court considered the lease in light of Cerny-Pickas and concluded that it manifested an intent to exculpate the lessee from liabil

ity for negligently causing fire damage.  Stein, 41 Ill. 2d at 40, 241 N.E.2d at 443.  Although the lease did not expressly

provide that the lessors would procure fire insurance, the

supreme court noted that "it is obvious, pursuant to a common

business practice which the lessors acknowledge, that they would

make certain that valuable commercial property *** would be

insured against the catastrophic hazards of fire."  Stein, 41 Ill. 2d at 36, 241 N.E.2d at 442.  

		The Stein court also construed a lease provision requiring the lessee to pay increases in insurance premiums

caused by lessee, as follows:

			"Obviously, any obligation to pay the

lessors for premium increases would pertain

only to insurance which the lessors would

maintain, and not to insurance the lessee was required to secure and maintain.  *** 

'Clearly under this section of the lease it was contemplated that the lessor would carry insurance on the property and look to the insurance for compensation for any loss by fire.  If the parties had intended otherwise, there would have been no reason for such

provision.' [Citation.]"  (Emphasis added.) 

Stein, 41 Ill. 2d at 37, 241 N.E.2d at 442.

		Faced with a situation in which the landlord implicitly

agreed to provide fire insurance, the Stein court recognized the basic absurdity of also placing a duty on the tenant, who in

effect paid for the landlord's insurance through rental payments,

to seek a separate policy to protect against its own negligence. 

In that regard, the court stated:

			"It would be a tortured construction,

indeed, to say that under the lease here it

was proposed that the lessor would procure

fire insurance to cover fire risks save those

which might be attributable to the negligence

of the lessee or its employees.  Under such a

construction[,] the lessee, to protect it

self, then would seek an unusual, if not

unique, policy to cover the risk of its own

negligence, but nothing more.  The only rea

sonable conclusion we can draw is that the parties intended, judging by their entire

expression in the lease, that the lessors

were to procure fire insurance and were to

look to it to protect them from loss by fire,

including fires which might be caused by the

lessee's negligence."  Stein, 41 Ill. 2d at 38, 241 N.E.2d at 443. 

		In Dix, 149 Ill. 2d at 317, 597 N.E.2d at 623-24, the supreme court revisited the issue of a tenant's liability for

negligently caused fire damage to leased property.  In that case,

the lease between the landlord and the tenant contained no

provision regarding fire insurance, and the only provision that

could be considered to relate to that issue provided that "[t]he

[t]enant will assume their [sic] own risk for their [sic] per sonal property and [the landlord] will not be responsible for

fire, wind, or water damage."  Dix, 149 Ill. 2d at 318, 597 N.E.2d at 624.  The landlord's insurance company subsequently

sought to recover damages from the tenant because the tenant

allegedly caused fire loss to the rental property due to his

negligence.  The trial court found that (1) the parties did not intend for the tenant to be liable for fire damage to the land

lord's property and (2) the tenant was a coinsured under the

landlord's insurance policy.  After the appellate court reversed

the trial court's decision, the tenant appealed to the supreme

court.  Dix, 149 Ill. 2d at 317, 597 N.E.2d at 623.

		The supreme court, construing the lease as a whole and looking to the "spirit of the agreement between the parties,"

concluded that the lease reflected the intent of the parties to

exculpate the tenant from both accidental and negligently caused

fires.  Dix, 149 Ill. 2d at 320, 597 N.E.2d at 625__.  The court stated, in pertinent part, as follows:

			"The lease 'as a whole' indicated that

the tenant wanted shelter for one year for

which he promised to pay a modest rent, fur

nish his own utilities, perform certain ser

vices on the farm, and assume the risk for

his own personal property.  The landlord

agreed.  Although one may be critical of the

grammar, punctuation[,] or even the style of

the lease, it is difficult to find fault with

the spirit of the document.  In drafting this

document, the landlord expressly placed minor

duties on the tenant.  'As a whole,' the

lease does not reflect any intent that, dur

ing the course of the one-year term, the

tenant would be responsible for any fire

damage to the realty and be required to pay

an additional $40,579 to the landlord.  Such

a proposition would probably be beyond the

wildest dreams of the parties."  Dix, 149 Ill. 2d at 321, 597 N.E.2d at 625.

		The Dix court further concluded that the parties intended for each to be responsible for his own property, finding

it "significant that the parties, who obviously considered the

possibility of fire, expressly provided for the tenant's personal

property but failed to do so with respect to the leased pre

mises."  Dix, 149 Ill. 2d at 322, 597 N.E.2d at 626.  The court explained:

			"'"Fire insurers expect to pay fire

losses for negligent fires and their rates

are calculated upon that basis; indeed, we

may well assume that a great majority of

fires are caused by someone's negligence in a

greater or lesser degree."  [Citations.]' 

[Citation.]

			Under the insurance company’s argument:

'it would be necessary for both parties to

the lease to carry fire insurance if they are

to be protected.  The lessee would have to

insure against fires due to his negligence,

and the lessor against fires due to other

causes.  ***  The parties contemplated that the risk of loss by fire should be insured against and we see no reason to suppose that they did not contemplate the customary insur ance policy which covers both accidental and negligent fires.' [Citation.]"  (Emphasis added.)  Dix, 149 Ill. 2d at 322, 597 N.E.2d at 626. 

		Finally, relying on Cerny-Pickas, the Dix court rea soned that the tenant was a coinsured on the landlord's insurance

policy, and stated, in pertinent part, as follows:

			"Under the particular facts of this

case, the tenant, by payment of rent, has

contributed to the payment of the insurance

premium, thereby gaining the status of co-

insured under the insurance policy.  Both the

landlord and tenant intended that the policy

would cover any fire damage to the premises

no matter who caused it, and to conclude

otherwise would defeat the reasonable expec

tations of the parties."  Dix, 149 Ill. 2d at 323, 597 N.E.2d at 626.

		Accordingly, the court concluded that "under the

provisions of the lease as a whole, the reasonable expectations

of the parties, and the principles of equity and good conscience,

the [landlord's] insurance company cannot maintain a subrogation

action against the tenant."  Dix, 149 Ill. 2d at 323, 597 N.E.2d at 626.  

		Our review of the above supreme court decisions reveals

that the key factor in determining whether the parties intended

to exculpate the tenant from liability for negligently caused

fire damage to the leased premises is the allocation of insurance

burdens as evidenced by the lease.  When the provisions of the lease either explicitly or implicitly indicate that the lessor

will obtain insurance against the risk of fire loss to its

building, the tenant will normally not be liable for negligently

causing fire damage to that building unless the parties' contrary

intent is clear.  Such a rule gives effect to the parties'

probable and customary intent that the landlord is to look to the

insurance he has agreed to procure for indemnification for fire

loss.  As the aforementioned supreme court decisions make clear,

(1) when the parties contemplate that the landlord will insure

against the risk of fire loss to his building, and (2) when the

lease does not plainly evince the parties' intent that the tenant

will be liable for fire damage due to his negligence, it would be

incongruous to require both the landlord and the tenant to insure

the leased building.  In addition, as the Dix court explained, under such circumstances, the tenant is essentially a coinsured

under the landlord's insurance policy by virtue of his payment of

rent. 

		Thus, in this case, Shaffer is not liable for negli

gently caused fire damage to the Lincoln Tower building unless,

under the provisions of the lease, the parties' contrary intent

is beyond question.  Our review of the lease as a whole shows

that such a contrary intent is not clearly evident.     

		First, we reject Towne and Zilber's contention that

under the provisions of the lease, Shaffer is liable for fire

damage to the Lincoln Tower building caused by his negligence.  A

reading of the lease indicates that the parties considered the contingency of fire within the Lincoln Tower building.  The lease

also shows that the parties contemplated that Towne and Zilber

would obtain insurance against the risk of fire loss to the

Lincoln Tower building.  Paragraph 11 of the rules and regula

tions of the lease provides that it is Shaffer's responsibility

to insure his own personal property.  However, no requirement was

stated that Shaffer insure the leased apartment itself or the

Lincoln Tower building.  Paragraph three, on the other hand,

directs that Shaffer "not use or keep about the premises anything

which will affect the validity of or increase the premiums on

[Towne and Zilber's] property damage and liability insurance

policies on the subject premises."  This language demonstrates

that the parties contemplated that Towne and Zilber would main

tain insurance on the Lincoln Tower building.  See Stein, 41 Ill. 2d at 37, 241 N.E.2d at 442 (construing a lease provision similar

to paragraph three in this lease).

		Towne and Zilber rely heavily on the fact that the

yield-back clause does not explicitly exempt fire damage from

Shaffer's obligation to return the premises in good condition. 

While the yield-back clause of a lease is an indicator of the

parties' intent, failure to exempt fire damage therein merely

raises ambiguity with respect to that intent.  See Continental Casualty Co. v. Polk Brothers, Inc., 120 Ill. App. 3d 395, 401, 457 N.E.2d 1271, 1276 (19834) (discussing such a clause).  The

yield-back clause in Stein is particularly instructive because in that case, only damage by fire "beyond lessee's control" was exempted, strongly indicating that fires due to the lessee's

negligence were not to be exonerated.  The Stein court rejected this interpretation and construed the yield-back clause in

relation to another lease provision requiring lessee to pay for

increases in insurance premiums caused by lessee as evincing the

landlord's intent to exculpate the lessee from liability and look

only to the insurance proceeds for indemnification.  Stein, 41 Ill. 2d at 37-40, 241 N.E.2d at 442-43; see also Continental, 120 Ill. App. 3d at 401-024, 457 N.E.2d at 12776-787 (concluding that the

lessee was not liable for negligently caused fire damage under

the lease even though the yield-back clause did not specifically

exempt fire damage: "Lessee shall return the premises and all

equipment and fixtures therein in as good condition as when

[l]essee took possession, ordinary wear and tear excepted"). 

		Towne and Zilber also point to paragraph six of the

lease, under which Shaffer agreed to "be responsible for any

damage to the premises, appliances[,] and equipment thereon,

except such as is caused by normal wear and tear."  However, that

language is of a general nature referring to "any damage" and

makes no reference to damage caused by fire.  Although three of

the lease provisions specifically address fire damage, none of

those provisions purport to hold Shaffer liable for negligently

caused fire damage.  (Paragraph four holds Towne and Zilber

harmless for any fire damage Shaffer might sustain.  Paragraph 14

provides that if Shaffer's apartment is rendered unfit for

occupancy due to fire not resulting from Shaffer's negligence, the lease would terminate.  Under paragraph 23, Shaffer waived

any cause of action against Towne and Zilber for damage to his

apartment or its contents resulting from fire.)    

		This lease, which was drafted by Towne and Zilber,

could have expressly provided that Shaffer would be liable for

fire damage to the Lincoln Tower building resulting from his own

negligence.  However, it did not.  See Windsor at Seven Oaks v. Kelly, 113 Ill. App. 3d 978, 980-81, 448 N.E.2d 251, 253 (1983) ("Where a landlord has drafted the lease, a court will not impose

a responsibility upon the tenant unless the circumstances and the

contract clearly indicate that the tenant intended to assume such

a responsibility"). 

		Accordingly, because the lease as a whole does not

evince the parties' intent that, during the course of his three-

month lease, Shaffer would be liable for negligently caused fire

damage to the Lincoln Tower building, we conclude that the trial

court did not err by granting Shaffer's motion to dismiss Towne

and Zilber's amended complaint. 

		Our conclusion comports not only with our supreme

court's decisions on this issue but also with the realities of

apartment renting.  As the court wrote in Peterson v. Silva, 428 Mass. 751, 754, 704 N.E.2d 1163, 1165-66 (1999): 

		"'Prospective tenants ordinarily rely upon

the owner of the dwelling to provide fire

protection for the realty (as distinguished

from personal property) absent an express agreement otherwise.  Certainly it would not

likely occur to a reasonably prudent tenant

that the premises were without fire insurance

protection or if there was such protection it

did not inure to his benefit and that he

would need to take out another fire policy to

protect himself from any loss during his

occupancy.'  [Citations.]  This reasoning is

echoed in R.E. Keeton, Insurance Law §4.4(b),

at 210 (1971):  'Probably it is undesirable,

from the point of view of public interest,

that the risk of loss from a fire negligently

caused by a lessee be upon the lessee rather

than the lessor's insurer.  Allowing the

lessor's insurer to proceed against the les

see is surely contrary to expectations ***.... 

[P]erhaps [the courts] should at least adopt

a rule against allowing the lessor's insurer

to proceed against the lessee when lease

provisions are ambiguous in this regard and

the insurance policy is silent or ambigu

ous.'"   				

	III. CONCLUSION

		For the reasons stated, we affirm the trial court's

judgment.						

		Affirmed.

		KNECHT, J., concurs.

		COOK, J., dissents.

			JUSTICE COOK, dissenting:

		I respectfully dissent.  I would reverse and remand the

decision of the trial court.  

		"Although a tenant is generally liable for fire damage

caused to the leased premises by his negligence, if the parties

intended to exculpate the tenant from negligently caused fire

damage, their intent will be enforced."  Dix, 149 Ill. 2d at 319, 597 N.E.2d at 625.  "The lease between the landlord and the

tenant must be interpreted as a whole so as to give effect to the

intent of the parties."  Dix, 149 Ill. 2d at 320, 597 N.E.2d at 625.  

		In Cerny-Pickas, 7 Ill. 2d at 395, 398-99, 131 N.E.2d at 102, 103, the supreme court held the tenant to be covered by

the landlord's fire policy where the yield-back provision pro

vided that lessee "will yield up said premises to Lessor in good

condition and repair (loss by fire and ordinary wear excepted)." 

There was a similar clause, albeit one "not entirely free from

ambiguity," in Stein, 41 Ill. 2d at 39, 241 N.E.2d at 443.  The very simple lease in Dix did not contain a yield-back clause, but the supreme court did not view that as fatal to the tenant's

position.  Dix seems to have expanded Cerny-Pickas to provide coverage for the tenant (1) where the lease as a whole shows the

intent of the parties that the lessee should not be liable; or

(2) where the lease is basically silent on the subject but there is some suggestion the landlord will obtain a fire policy; but

not (3) where the lease expressly provides the tenant is respon

sible for damage. 

		Dix found it significant that the very simple lease before it assigned responsibility for damage to the tenant's

personal property (tenant, not landlord, responsible), but failed

to address responsibility for damage to the leased premises, and

the landlord took out a fire insurance policy to cover the leased

premises.  Dix, 149 Ill. 2d at 322, 597 N.E.2d at 626.  In the present case, the lease does address responsibility for damage to

the leased premises and it expressly makes the tenant responsible

for that damage.  Both the maintenance-of-the-premises clause and

the yield-back clause provide that lessee shall "be responsible

for any damage to the premises," furnishings, and equipment,

except "as is caused by normal wear and tear."  The landlord in

this case did take out a fire insurance policy which covered the

leased premises, but so did the tenant (a liability policy). 

This is not a case where we suspect some informal agreement that

one person or the other will take out a policy which protects

both.

		Defendant Shaffer directs our attention to the clause

dealing with the use of the premises, providing that "Lessee

shall not use or keep in or about the premises anything which

will affect the validity of or increase the premiums on the

Lessor's property damage and liability insurance policies on the

subject premises."  This language does suggest that the lessor will obtain fire insurance, but as discussed above, there is no

indication here that lessor will obtain insurance and lessee need

not do so.  The clause also discusses the lessor's liability

insurance.  Is the lessee to be covered by the lessor's liability

insurance?  If lessee is playing with a gun in his apartment and

negligently injures someone passing by on the street, must

lessor's liability insurance provide coverage?  It would impose a

severe burden to require an insurer to cover the liability of an

individual with whom it had not dealt.  See Dix, 149 Ill. 2d at 325, 597 N.E.2d at 627 (Freeman, J., specially concurring)

(expressing concern that the logical import of these arguments

might make the tenant a coinsured of the landlord's negligence

liability policy).  The fire in this case damaged other apart

ments.  What logic is there in making Shaffer a coinsured of

Towne and Zilber's fire policy as to those other apartments? 

Certainly Shaffer would be liable for any damage to the individ

ual property of other tenants.  Must Towne and Zilber's liability

policy provide coverage for that damage?   

		This lease makes the tenant "responsible for any damage

to the premises."  If the tenant lets his sink overflow, damaging

the apartment and those below, if the tenant's children knock

holes in the walls, if the tenant's dog scratches the floors, the

tenant is responsible.  Why should a tenant be responsible in all

these situations but relieved of responsibility if he abandons

burning candles which damage the apartment?  Making individuals

responsible for the damage they cause encourages individuals to act carefully.  We should be cautious in destroying that incen

tive.  

		If there were no insurance here, if this were simply a

suit between the landlord and tenant, the tenant would clearly be

liable.  There is no justification for changing that result when

the parties have purchased insurance.  

		The majority states that "[t]his lease, which was

drafted by Towne and Zilber, could have expressly provided that

Shaffer would be liable for fire damage to the Lincoln Tower

building resulting from his own negligence.  However, it did

not."  Slip order at 18.  I suggest that the lease did so pro

vide.  "The Lessee hereby agrees to keep the premises in good

order and repair and be responsible for any damage to the pre

mises."  In hindsight any provision could be more specific

(tenant shall be responsible for fire damage, damage caused by

overflowing sinks, damage caused by children, and damage caused

by dogs), but specificity carries its own problems.  The lease

here expressed the intent that the tenant would be responsible

for "any damage."  A specific reference to fire damage could give

rise to the argument that damage other than fire damage was not

covered, the rule of ejusdem generis.  The fact that this lease did not specifically refer to fire damage did not make it ambigu

ous.  

		The doctrine of construction against the drafter is not

really a rule of construction at all.  Instead of attempting to discern the intent of the parties, the doctrine simply decides

who will win the case, like flipping a coin.  The rule is at best

a secondary rule of interpretation, a last resort which may be

invoked only after all the ordinary interpretive guides have been

exhausted.  Premier Title Co. v. Donahue, 328 Ill. App. 3d 161, 165-66, 765 N.E.2d 513, 517 (2002).  We are not at that stage in

this case.  This lease expressly makes the tenant liable for any

damage to the apartment and does not require either the landlord

or the tenant to obtain insurance which covers the other.