{ "id": 3322553, "name": "ROBERT R. CAVIN et al., Plaintiffs-Appellants, v. THE CHARTER OAK FIRE INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Cavin v. Charter Oak Fire Insurance", "decision_date": "1978-12-06", "docket_number": "No. 78-50", "first_page": "808", "last_page": "811", "citations": [ { "type": "official", "cite": "66 Ill. App. 3d 808" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "70 Ill. App. 599", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5254032 ], "year": 1896, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app/70/0599-01" ] }, { "cite": "447 S.W.2d 497", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10145502 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "501" }, { "page": "501" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/sw2d/447/0497-01" ] }, { "cite": "70 Ill. App. 2d 224", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588630 ], "year": 1966, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/70/0224-01" ] }, { "cite": "371 F.2d 329", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2046553 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "330" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/f2d/371/0329-01" ] }, { "cite": "47 A.L.R.3d 398", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1973, "pin_cites": [ { "page": "409-13" } ], "opinion_index": 0 }, { "cite": "78 Ill. 167", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 823928 ], "weight": 2, "year": 1875, "pin_cites": [ { "page": "169" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill/78/0167-01" ] }, { "cite": "161 Ill. 437", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3122678 ], "weight": 3, "year": 1896, "pin_cites": [ { "page": "440" }, { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill/161/0437-01" ] }, { "cite": "153 Ill. App. 31", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 878169 ], "weight": 2, "year": 1910, "pin_cites": [ { "page": "33" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-app/153/0031-01" ] }, { "cite": "164 Ill. 458", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5503537 ], "weight": 2, "year": 1897, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill/164/0458-01" ] } ], "analysis": { "cardinality": 424, "char_count": 7274, "ocr_confidence": 0.895, "pagerank": { "raw": 1.211648592708002e-07, "percentile": 0.5961204687995323 }, "sha256": "5211396380199586b3bf38e15191a63433e4d39ea1170c1bbe65d62bbefb1f35", "simhash": "1:d63a4418750ee650", "word_count": 1183 }, "last_updated": "2023-07-14T21:04:20.946597+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT R. CAVIN et al., Plaintiffs-Appellants, v. THE CHARTER OAK FIRE INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nRobert Cavin and Mary Cavin, plaintiffs, sued the defendant, Charter Oak Fire Insurance Company, on an insurance policy insuring their rental property against damage from vandalism. Summary judgment was granted in favor of the insurance company based upon the pleadings, including the insurance policy and the deposition of the plaintiffs. Plaintiffs appeal.\nIn issue is the interpretation of the exclusion of coverage for vandalism and malicious mischief, \u201cwhile the dwelling is vacant beyond a period of 30 consecutive days.\u201d (Emphasis added.) The trial court concluded that the term \u201cvacant\u201d was synonymous with \u201cunoccupied\u201d and on this basis found no coverage as a matter of law since the fact that the premises had been unoccupied by any persons for more than 30 days was conceded. We cannot agree.\nThe policy term was June 20,1973, to June 20,1974. The testimony of the Gavins in their deposition includes the facts that no persons were living in the premises on December 8, 1973, when the alleged damage occurred; that no one had lived in the premises since the last part of February 1973; that there were no tenants during that period because the dwelling was being remodeled from an existing two furnished apartments to a contemplated three furnished apartment dwelling; but that each apartment was completely furnished up to the date of the loss. There was also testimony that the insured property adjoined the home of plaintiffs and that they stored material in the basement of the rental dwelling for a fence they planned to erect between the buildings as well as other materials in connection with the planned remodeling.\nThe interpretation of the term \u201cvacant\u201d as used in a policy is a question of law; but whether at the time of loss the insured dwelling was \u201cvacant\u201d is a question of fact. (See, e.g., Home Insurance Co. v. Mendenhall, 164 Ill. 458, 469 (1897); Gash v. Home Insurance Co., 153 Ill. App. 31,33 (1910).) Ordinarily, a type of exclusion here involved has been phrased in terms of \u201c Vacant or unoccupied\u2019 \u201d or, phrased in the conjunctive, \u201cvacant and unoccupied.\u201d (See, e.g., Schuermann v. Dwelling House Insurance Co., 161 Ill. 437, 440 (1896).) Where the question of occupancy has been an element of the exclusion the phrase has been interpreted to mean that the dwelling was without an occupant at the time of the loss, that is, that no person was living in it. (161 Ill. 437, 440; American Insurance Co. v. Padfield, 78 Ill. 167,169 (1875). See also Annot., 47 A.L.R.3d 398, 409-13 (1973).) In Gash v. Home Insurance Co., 153 Ill. App. 31, 33 (1910), there is dicta that \u201cvacant\u201d by itself means \u201cempty of everything but air\u201d; whereas \u201cunoccupied\u201d means \u201cno one has the actual use or possession.\u201d (See also Schuermann v. Dwelling House Insurance Co., 161 Ill. 437, 440.) Even where the exclusion has related to premises which are \u201cvacant and unoccupied\u201d or \u201cvacant or unoccupied\u201d with no discussion that distinguishes between the two words, vacant, unoccupied, the opinions have recognized that it is a relevant inquiry to determine whether substantial articles are left in the building as showing whether the building is \u201coccupied.\u201d (See Dunton v. Connecticut Fire Insurance Co., 371 F.2d 329, 330 (7th Cir. 1967).) Thus in Dunton, the court of appeals concluded \u201cthat the use of a building to store a few articles does not show that the building is still occupied.\u201d (371 F.2d 329, 330.) In Home Insurance Co. v. Mendenhall, 164 Ill. 458, 469 (1897), the court concluded that leaving \u201csome trifling articles in the house\u201d raised a question of fact as to whether the premises were vacant and unoccupied. In American Insurance Co. v. Padfield, 78 Ill. 167, 170 (1975), after an evidentiary trial which showed that only a table, crib and mattress had been left in the premises, presumably belonging to the tenant and left without intention to hold possession of the premises, the court concluded that the premises were therefore vacant and unoccupied.\nHere, of course, we are dealing with an exclusion clause which uses only the term \u201cvacant.\u201d If any ambiguity exists because of the lack of reference to occupancy which would limit the insurance company\u2019s liability the construction must be in favor of the insured. (See, e.g., Pierce v. Standard Accident Insurance Co., 70 Ill. App. 2d 224, 230 (1966).) In Knoff v. United States Fidelity & Guaranty Co., 447 S.W.2d 497 (Tex. Civ. App. 1969), the Court of Civil Appeals of Texas in reference to an insurance policy which contained only the term \u201cvacant\u201d ruled that the term was not synonymous with \u201cunoccupied\u201d; that the term \u201cvacant\u201d means \u201cwithout contents of substantial value\u201d in the sense not necessarily of monetary value but of \u201csubstantial utility\u201d (447 S.W.2d 497, 501). The trial court judgment in favor of the insured as a matter of law was reversed and the cause was remanded so that the trier of the facts could determine whether \u201cthere was furniture of substantial value in the house and therefore it was not vacant.\u201d (447 S.W.2d 497, 501.) We find the reasoning persuasive and applicable here.\nUnder the facts the insurance company has not shown as a matter of law that the alleged complete furnishings were not of substantial value and that therefore the dwelling was vacant.\nThe insurer has also argued that in addition to the restriction as to vandalism and malicious mischief a reading of other provisions of the policy precludes recovery. Reference is made to the standard conditions suspending or restricting insurance \u201cwhile the hazard is increased by means within the control or knowledge of the insured\u201d or while a building \u201cis vacant or unoccupied beyond a period of 60 consecutive days.\u201d It appears, however, that these provisions were specifically waived by the \u201cGeneral Conditions\u201d of the policy \u201cModification of Terms\u201d (relative to \u201cuninsurable and excepted property\u201d). But in any event, whether the hazard has been increased would in our view be a triable issue of fact making summary judgment inappropriate. See Crete Farmers\u2019 Mutual Township Insurance v. Miller, 70 Ill. App. 599, 601 (1896); Knoff v. United States Fidelity & Guaranty Co., 447 S.W.2d 497, 502 (Tex. Civ. App. 1969).\nFurther, the \u201cSpecial Conditions\u201d grant permission for the insured premises to be \u201cvacant or unoccupied\u201d \u201cfor certain specified perils\u201d and state that \u201ca building in the course of construction shall not be deemed vacant\u201d; and that the insured may \u201cmake alterations, additions and repairs, and to complete structures in course of construction.\u201d These provisions raise a further question of fact, whether the premises were in fact in the course of construction or alteration within the policy terms and therefore excepted from the vacancy exclusion.\nWe therefore reverse the judgment and remand the cause for an evidentiary hearing consistent with the views we have expressed.\nReversed and remanded.\nWOODWARD and NASH, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SEIDENFELD" } ], "attorneys": [ "Slovacek & Slovacek, of Crystal Lake, for appellants.", "Kell, Conerty & Poehlmann, of Woodstock, for appellee." ], "corrections": "", "head_matter": "ROBERT R. CAVIN et al., Plaintiffs-Appellants, v. THE CHARTER OAK FIRE INSURANCE COMPANY, Defendant-Appellee.\nSecond District\nNo. 78-50\nOpinion filed December 6, 1978.\nSlovacek & Slovacek, of Crystal Lake, for appellants.\nKell, Conerty & Poehlmann, of Woodstock, for appellee." }, "file_name": "0808-01", "first_page_order": 830, "last_page_order": 833 }