{
  "id": 3232619,
  "name": "ALDEN C. SCHEWE, Plaintiff-Appellee, v. THE HOME INSURANCE COMPANY, Defendant-Appellant",
  "name_abbreviation": "Schewe v. Home Insurance",
  "decision_date": "1980-01-23",
  "docket_number": "No. 79-15",
  "first_page": "829",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "year": 1973,
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      "cite": "46 Ill. App. 2d 276",
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  "last_updated": "2023-07-14T16:24:24.666127+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ALDEN C. SCHEWE, Plaintiff-Appellee, v. THE HOME INSURANCE COMPANY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mme JUSTICE SPOMER\ndelivered the opinion of the court:\nThis appeal raises two questions: (1) the interpretation of an exclusion to coverage clause in an insurance policy issued by defendant-appellant Home Insurance Company to cover a yacht owned by plaintiffappellee Alden C. Schewe; and (2) the proper amount of recovery, if coverage is found to exist. The policy purported to insure against damage to the yacht\u2019s hull, spars, sails, tackle, fittings, machinery, and other furniture and equipment. It further provided that, with respect to any damaged plywood, metal, plastic, fiberglass, or cement portions of the yacht, the company\u2019s liability under the policy should not exceed the cost of making repairs in accordance with customary and generally accepted repair practices.\nThe insured yacht was damaged when the roof of a marina where the yacht was docked collapsed onto it after a severe ice storm. Schewe had purchased the yacht new, some three months prior to the ice storm, for *26,000, and had subsequently installed additional equipment worth about *4,000. The yacht was eventually sold for *18,000 after repairs in the approximate amount of *2,000 had been made. An expert witness called by the plaintiff at trial testified that the yacht had a market value of approximately *15,000 immediately after the damage caused by the ice storm. He further testified that the yacht could have been repaired, and its market value restored to that which it had prior to the damage, for *5,600.\nThe jury was instructed that it could award as damages the lesser of \u201cthe reasonable expense of necessary repair of the property plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after the property is repaired\u201d and \u201cthe difference between the fair market value of the property immediately before the occurrence and the fair market value of the unrepaired property immediately after the occurrence.\u201d An instruction tendered by the defendant that the proper measure of damages was the \u201creasonable expense of necessary repairs to the property which was damaged\u201d was refused by the court. The jury returned a verdict in favor of the plaintiff in the amount of *15,000.\nThe defendant\u2019s first contention on this appeal is that the plaintiffs loss was outside the coverage of the policy because of an exclusionary clause providing that the policy did not insure against damage \u201ccaused by or resulting from ice and/or freezing while afloat North of 30\u00b0 N. Latitude between December 1 and April 1.\u201d Although that clause has literal application here, we must agree with the plaintiff that it should not be given effect. The damaged yacht was afloat north of 30 degrees latitude on December 12. However, it was moored under a metal roof in a \u201cbubbled harbor\u201d designed to insure that no ice would form in the harbor. It is clear that the purpose of the exclusionary clause was to eliminate from coverage damage to a ship\u2019s hull caused by the water in a harbor freezing and contracting. The kind of damage actually caused here, brought on by the collapse of a marina roof, would have occurred whether or not the yacht was afloat. We conclude therefore that the loss was within the coverage of the policy.\nWe do agree with the defendant, however, that the verdict for *15,000 cannot stand. The jury was erroneously instructed (in accordance with Illinois Pattern Instructions, Civil, No. 30.10 (2d ed. 1971)) as if the defendant insurance company were a tortfeasor whose negligence had caused the damage to the plaintiff\u2019s property. In such a situation, the plaintiff would be entitled to be compensated for his actual damages. This action, however, was based on an insurance contract; the gist of the action was the alleged failure of the insurance company to perform its obligations to indemnify the plaintiff under the terms of its policy of insurance. The extent of the insurer\u2019s liability depended on the terms of the insurance policy. See, e.g., Continental Casualty Company v. Fleming (1964), 46 Ill. App. 2d 276, 197 N.E.2d 88.\nThe policy of insurance clearly and unambiguously limited the company\u2019s liability with respect to the kind of damage shown by the evidence here to the cost of making repairs. Insurance policies must be construed and enforced as made by the parties; the courts have no right to make a new contract for the parties, absent some contrary statutory provision or countervailing public policy consideration not present here. (See Kaszeski v. Fidelity and Casualty Co. (1972), 6 Ill. App. 3d 198, 285 N.E.2d 213, rev'd on other grounds (1973), 54 Ill. 2d 241, 296 N.E.2d 743.) It is error to instruct a jury that an insured is entitled to recover the total amount of his loss, regardless of the express terms of the policy of insurance. See Ford v. Union Automobile Indemnity Association (1923), 229 Ill. App. 264.\nHere, the plaintiff\u2019s own expert, a marine appraiser, testified that *5,600 would be sufficient to make first-class repairs to damaged portions of the yacht. We think that this figure, less the *300.00 deductible called for by the policy, was the proper measure of the plaintiff\u2019s recovery under the policy. We therefore reduce the amount of the judgment to *5,300, and otherwise affirm the judgment of the trial court.\nAffirmed as modified.\nJONES, P. J., and KASSERMAN, J., concur.",
        "type": "majority",
        "author": "Mme JUSTICE SPOMER"
      }
    ],
    "attorneys": [
      "Richard A. Cagle, of Alton (Cagle and Davis, of counsel), for appellant.",
      "Robert F. Quinn, Ltd., of Wood River, for appellee."
    ],
    "corrections": "",
    "head_matter": "ALDEN C. SCHEWE, Plaintiff-Appellee, v. THE HOME INSURANCE COMPANY, Defendant-Appellant.\nFifth District\nNo. 79-15\nOpinion filed January 23, 1980.\nRichard A. Cagle, of Alton (Cagle and Davis, of counsel), for appellant.\nRobert F. Quinn, Ltd., of Wood River, for appellee."
  },
  "file_name": "0829-01",
  "first_page_order": 851,
  "last_page_order": 854
}