Docket No. 104378.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
RODNEY J. BARTH, Appellant, v. STATE FARM FIRE &
CASUALTY COMPANY, Appellee.
Opinion filed March 20, 2008.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
A fire destroyed plaintiff Rodney J. Barth’s home, and he filed a
fire loss claim with his insurer, State Farm. State Farm denied the
claim under an exclusion in Barth’s policy voiding coverage if the
insured intentionally concealed or misrepresented a material fact
impacting coverage. Barth filed a complaint against State Farm in the
circuit court of Sangamon County seeking damages after the denial of
coverage.
The primary issue before us is whether the exclusionary clause on
misrepresentation includes the common law fraud elements of
reasonable reliance and prejudice or injury by the insurer even though
the policy does not expressly include those elements. The exclusionary
clause here precluded coverage when an insured concealed or
misrepresented material facts relating to the insurance but did not
require a showing of reasonable reliance or prejudice. The trial court
rejected the jury instruction offered by Barth on the elements of
reasonable reliance and prejudice. The jury rendered a special verdict
in favor of the insurer, State Farm Fire & Casualty Company, finding
that it proved its second affirmative defense, the exclusionary clause,
by clear and convincing evidence.
The majority of the appellate court affirmed, with the dissenting
justice stating that a showing of reasonable reliance and prejudice is
required to establish the insurer’s second affirmative defense. We
agree with the majority and affirm this portion of the appellate court’s
judgment. Due to our disposition of this issue, we need only address
two other issues raised on appeal: (1) recusal of the trial judge
because he was insured by State Farm; and (2) the sufficiency of the
evidence. The appellate court held the trial judge need not recuse
himself from the case and that the jury verdict was supported by
sufficient evidence. 371 Ill. App. 3d 498. We affirm the appellate
court judgment on these issues as well.
I. FACTS
The insured, Rodney J. Barth, filed a claim in the circuit court of
Sangamon County, seeking damages after State Farm Fire & Casualty
Company denied coverage under his homeowner’s policy for fire
damage to his home. Barth had been disabled by polio in his youth and
hired William Penn to drive him and perform errands. He did not
know then that Penn was a convicted felon. The fire began while
Barth was out with Penn and his friend, William Burmeister, who was
also a convicted felon. The fire was immediately determined to be
suspicious, and State Farm began an investigation.
After the fire, Barth accused Penn and Burmeister of defrauding
him and misappropriating his cash and credit cards. He contends he
did not know about their fraudulent acts until the fire, resulting in the
misstatements to State Farm that ultimately led to its denial of
coverage.
During State Farm’s investigation, Barth made several
misstatements but allegedly corrected them before or during his final
examination under oath by State Farm. State Farm denied his claim
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under an exclusionary provision in the policy voiding coverage if the
insured intentionally concealed or misrepresented a material fact
relating to the coverage either before or after a loss. Barth filed a
three-count second amended complaint for breach of contract,
unreasonable and vexatious delay and refusal to pay, and intentional
infliction of emotional distress. State Farm filed three affirmative
defenses: (1) the policy’s “intentional act” provision; (2) the policy’s
“concealment or fraud” provision (second affirmative defense); and
(3) set-off. Only the second affirmative defense is at issue in this
appeal.
Prior to trial, the trial judge disclosed off-the-record that he was
an insured of State Farm but did not recuse himself. Barth filed a
motion for substitution of judge for cause under the catchall provision
in Supreme Court Rule 63(C)(1) (210 Ill. 2d R. 63(C)(1)). The trial
judge considered the motion as seeking his recusal and denied it. The
motion for substitution was referred to another judge, who also denied
it.
Following presentation of the evidence and the parties’ closing
arguments, the trial court gave the jury instructions on the element of
materiality included in the policy’s exclusionary clause but declined to
give the instructions offered by Barth on the common law elements of
reasonable reliance and injury. The jury returned a special verdict,
finding in favor of State Farm’s second affirmative defense because it
had proved by clear and convincing evidence that Barth had concealed
or misrepresented a material fact to Stare Farm either before or after
the claim and that he had made the statement “knowingly, willingly,
and with intent to deceive State Farm.” Barth filed a posttrial motion
seeking judgment notwithstanding the verdict (n.o.v.) or a new trial,
but it was denied. He then filed a timely notice of appeal.
The appellate majority affirmed, relying on the analysis in Passero
v. Allstate Insurance Co., 196 Ill. App. 3d 602 (1990), and
distinguishing A&A, Inc. v. Great Central Insurance Co., 259 Ill.
App. 3d 73 (1994). The majority concluded the insurer’s second
affirmative defense relied on the “concealment or fraud” provision of
its policy and thus did not require proof of either reasonable reliance
or injury. Therefore, the trial court did not abuse its discretion by
failing to give jury instructions requiring the insurer to show
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reasonable reliance or injury as Barth claimed. 371 Ill. App. 3d 498,
505.
The appellate majority also rejected Barth’s claims that the trial
judge erred by: (1) failing to recuse himself because he was a State
Farm insured; (2) not requiring evidence that the insurer did not
reasonably rely on the alleged misrepresentations and was not injured
by them; and (3) denying Barth’s motion for judgment
notwithstanding the verdict. 371 Ill. App. 3d at 506-08. Finally, the
majority held that the jury’s verdict was not against the manifest
weight of the evidence. 371 Ill. App. 3d at 509.
In his dissent, Justice Cook strictly construed the exclusionary
clause against the insurer, applied the rationale in A&A, and factually
distinguished Passero. 371 Ill. App. 3d at 509-10, 511-12 (Cook, J.,
dissenting). The dissent believed the jury instructions should have
explained that misrepresentations were not material unless the insurer
had a right to rely on them and they negatively affected State Farm’s
investigation. 371 Ill. App. 3d at 510, 512 (Cook, J., dissenting).
Finally, the dissent concluded that the jury verdict was against the
manifest weight of the evidence. 371 Ill. App. 3d at 513 (Cook, J.,
dissenting). We allowed Barth’s petition for leave to appeal (210 Ill.
2d R. 315).
II. ANALYSIS
Due to our disposition in this case, we need only address three
issues raised on appeal, whether: (1) the jury should have been
instructed that State Farm was required to prove injury or prejudice
after justifiably relying on Barth’s misrepresentations and omissions;
(2) the trial judge erred by failing to recuse himself and the motion
judge erred by denying Barth’s motion for substitution for cause when
the trial judge was a State Farm insured; and (3) the jury verdict was
against the manifest weight of the evidence and the trial court erred by
denying Barth’s motion for judgment notwithstanding the verdict.
A. Jury Instructions on Elements of Proof
Barth claims the jury should have been instructed that State Farm
must have both reasonably relied on his misrepresentations and, as a
result, suffered prejudice or injury to succeed on its second affirmative
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defense, relying on an exclusionary provision in his homeowner’s
insurance policy. Barth asserts that without this requirement insurers
may unfairly deny coverage due to an insured’s alleged
misrepresentations without proving all the elements of fraud.
Requiring proof of reasonable reliance and injury will “level the
playing field” between insurers and their insureds. In support of this
claim, Barth offers two arguments: (1) A&A, Inc. v. Great Central
Insurance Co., 259 Ill. App. 3d 73 (1994), requires a jury instruction
defining fraudulent misrepresentation; and (2) the exclusionary clause
must be strictly construed against the insurer (Outboard Motor Corp.
v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 119 (1992)).
1. A&A & Passero
Barth argues that the jury instructions were insufficient to convey
the correct law to the jury. Although jury instructions are generally
reviewed for an abuse of discretion, our standard of review is de novo
when the question is whether the applicable law was accurately
conveyed. People v. Pierce, 226 Ill. 2d 470, 475 (2007). The primary
instruction at issue here is State Farm’s instruction no. 9, explaining
the materiality requirement. The explanation of the law stated in that
instruction is derived in large part from Passero v. Allstate Insurance
Co., 196 Ill. App. 3d 602, 608 (1990). In turn, Passero relied on a
federal appellate case, Fine v. Bellefonte Underwriter’s Insurance
Co., 725 F.2d 179 (2d Cir. 1984).
Barth contends that Passero and Fine are distinguishable and fail
to support State Farm’s argument. He asserts that Passero is
distinguishable because it involved the homeowners’ uncorrected
proof of loss statement in a property theft claim and addressed
materiality rather than reasonable reliance. Although Fine was a false-
swearing case, as here, it did not involve reasonable reliance because
the insured did not correct the misstatement before the insurer relied
on it to its detriment. Here, the misstatements were corrected at or
before the examination under oath. For this reason, Barth argues that
this court should rely on A&A, Inc. v. Great Central Insurance Co.,
259 Ill. App. 3d 73 (1994), a false-swearing case where the trial court
rejected the insured’s instruction defining fraudulent
misrepresentation.
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In A&A, the policy provision voided the policy “ ‘if the Insured
has concealed or misrepresented *** any material facts or
circumstances concerning this insurance *** or if the Insured shall
make any attempt to defraud Great Central either before or after the
loss.’ ” (Emphasis added.) A&A, 259 Ill. App. 3d at 76. The insurer’s
second affirmative defense alleged that the plaintiff’s recovery was
barred due to its “ ‘misrepresentation of the subject matter of the
insurance, and other conduct by which the insured attempted to
defraud the Defendant.’ ” (Emphases added.) A&A, 259 Ill. App. 3d
at 76. The jury affirmatively answered the special interrogatory on the
insurer’s defense, finding the plaintiff had committed fraud in
presenting the insurance claim. A&A, 259 Ill. App. 3d at 78.
Moreover, throughout the discussion of the jury instructions on the
second affirmative defense, the court referred to “fraud,” “defraud,”
and “fraudulent misrepresentation.” A&A, 259 Ill. App. 3d at 81-83.
The presence of an express fraud defense intermingled with the
simple concealment and misrepresentation defense creates a distinctly
different situation than the case before us. The insurer’s allegation of
fraud in A&A was an integral and necessary part of the court’s
reasoning. Here, the policy exclusion and State Farm’s second
affirmative defense do not include express references to “fraud.” The
exclusion mentions “fraud” only in its heading, not in any of its
substantive paragraphs. The text of the policy provision here is limited
only to the first part of the provision in A&A, addressing concealment
and misrepresentation. The reasoning in A&A provides little guidance
in this case.
In Passero, however, the policy stated:
“ ‘Concealment or Fraud.
This policy is void if you intentionally conceal or
misrepresent any material fact or circumstance, before or after
loss.’ ” Passero, 196 Ill. App. 3d at 604.
Here, the essence of the policy exclusion is nearly identical:
“Concealment or Fraud: This policy is void as to you
***, if you *** intentionally concealed or misrepresented any
material fact or circumstance relating to this insurance,
whether before or after a loss.”
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Moreover, in both Passero and the instant case, the insurer discovered
the misrepresentations before paying the filed claims in reliance on the
misstatements.
On appeal, the Passeros argued that the misrepresentations were
not material because they did not alter the insurer’s conduct. This
argument is similar to the one advanced by Barth, although the latter
is couched in the common law fraud terms of “reasonable reliance”
and “injury.” The Passero court noted that “the definition of material
misrepresentations is quite different in the realm of insurance law,”
with materiality being broadly defined in false-swearing cases since the
United States Supreme Court’s decision in Claflin v. Commonwealth
Insurance Co., 110 U.S. 81, 28 L. Ed. 76, 3 S. Ct. 507 (1884).
In Claflin, the Court stated that the insured had an affirmative
obligation under the policy to answer accurately every question
relevant to the insurer’s investigation. Thus, willfully making a false
statement, intended to deceive the insurer, was a breach of the policy
conditions and barred the insured’s recovery. Claflin, 110 U.S. at 96-
97, 28 L. Ed. at 82, 3 S. Ct. at 516. The Court refused to consider the
insured’s personal reason for making the false statements, stating that
the insured’s lack of any intent to prejudice the insurer with its
deception was “no palliation of the fraud.” Claflin, 110 U.S. at 96-97,
28 L. Ed. at 82, 3 S. Ct. at 516. Similarly, in Fine, 725 F.2d at 183-
84, the court reversed the trial court’s finding that the plaintiff’s false
statements under oath were not material, reasoning that insureds are
obliged to be truthful during claims investigations and holding that
false misrepresentations are material if they were designed to
discourage, mislead, or deflect the insurer’s investigation at that time,
regardless of whether the investigation revealed the actual facts. See
also Passero, 196 Ill. App. 3d at 608-09.
Here, the materiality instruction offered by State Farm and given
to the jury incorporates that reasoning:
“A concealment, misrepresentation, or false statement is
material if a reasonable insurer would attach importance to it
at the time it was made. A reasonable insurer would attach
importance to any fact or statement that would affect the
insurer’s action or attitude regarding a claim by an insured.
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A concealment, misrepresentation, or false statement is
material if it is calculated to discourage, mislead or deflect an
insurer’s investigation in any area that could be relevant to the
insurer at the time of the investigation.
Whether a concealment, misrepresentation, or false
statement is material does not depend on whether it relates to
a matter that ultimately proves to be significant in the insurer’s
final disposition of the claim.”
We hold that this materiality instruction is sufficient in the context of
a policy provision voiding coverage if the insured “intentionally
concealed or misrepresented any material fact or circumstance, before
or after the loss.” As Barth concedes in another portion of his brief,
the materiality requirement necessarily “implies an element of
prejudice.” Moreover, the requirement implicates a reasonable
connection between the insured’s concealment, misrepresentation, or
false statement and the insurer’s actions or attitude in investigating the
claim. Thus, the instruction adequately covers the fundamental
concerns raised by Barth’s argument about the need for a showing of
reasonable reliance and injury to preclude any potential “mischief” by
unscrupulous insurers. The exclusion at issue is not based on common
law fraud and, thus, need not require all the elements of that tort to
avoid injustice to insureds. The appellate majority properly affirmed
the trial court’s use of State Farm’s materiality instruction.
2. Construing the Exclusion Against the Insurer
Barth also contends the exclusionary provision in his homeowner’s
policy did not specifically prohibit a requisite showing of reasonable
reliance or injury, required to show common law fraud. He claims that
strictly construing this provision against the insurer and in favor of
coverage properly limits insurers’ use of a fraud defense, particularly
when, as in this case, the insured later corrects the misstatement.
An insurance policy is a contract, and its construction is reviewed
de novo as a question of law. If the words used in the contract are
unambiguous, we must give them their plain and ordinary meaning.
Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d
90, 108 (1992). Here, the exclusionary provision states:
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“Concealment or Fraud: This policy is void as to you
and any other insured, if you or any other insured under this
policy has intentionally concealed or misrepresented any
material fact or circumstance relating to this insurance,
whether before or after a loss.”
While this provision does not specifically exclude the common law
fraud elements of reasonable reliance and injury, it also does not
attempt to define common law fraud. Notably, the term “fraud” is
used only in the title and is not in the text of the exclusion. Nothing in
the text purports to rely on common law fraud definitions, and we are
not persuaded that those definitions may be properly imposed here.
The language used unambiguously conveys the contours of the
exclusion, and this court may not properly read into that language any
additional terms. See 2 Couch on Insurance 2d §15:57, at 302 (rev.
1984) (“A contract different from that made by the parties cannot be
read into the policy from the surrounding circumstances, such as the
conduct of the parties, to give it either a more extensive or a more
limited meaning than that expressed therein”). Thus, we reject Barth’s
argument that reading the exclusion against the insurer requires this
court to add common law fraud elements into the policy when they are
not specifically excluded.
B. Recusal
Barth next contends that the trial judge erred by not recusing
himself and that the motion judge erred in denying Barth’s motion for
substitution of judge for cause when the trial judge was an insured of
State Farm. Barth relied on the catchall provision in Supreme Court
Rule 63(C)(1), stating that “[a] judge shall disqualify himself or herself
in a proceeding in which the judge’s impartiality might reasonably be
questioned,” then listing several examples. 210 Ill. 2d R. 63(C)(1). He
insists that, although the trial judge admittedly had only a de minimus
economic interest in the insurance company, “the average person
would say that a judge should not sit on a case involving any party
with whom he does business.” Thus, he argues that the business
relationship created an appearance of impropriety. He asserts that his
request for another judge was improperly denied and that the cause
should be reversed and remanded for a new trial. We disagree.
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When reviewing a trial judge’s recusal decision, we must
determine whether the decision was an abuse of the judge’s discretion.
People v. Kliner, 185 Ill. 2d 81, 169 (1998). Thus, we reject Barth’s
contention that we review this issue de novo as a question of law.
Barth does not attempt to argue that the trial judge’s de minimus
economic interest in the case as an insured of State Farm provides an
adequate basis for recusal or substitution for cause. Rather, he argues
that it creates an appearance of impropriety requiring the judge to be
disqualified under Supreme Court Rule 63(C)(1).
We note that although Barth correctly states that Rule 63(C)(1)
creates “an objective test in the mind of a reasonable person,” his
argument repeatedly relies on his perception of how “an average
person on the street” would view the relationship, confounding his
purported “objective reasonable person” standard. We conclude that
the test stated in Rule 63(C)(1) imposes an objective, reasonable
person standard. As Rule 63(C)(1) states:
“A judge shall disqualify himself or herself in a proceeding
in which the judge’s impartiality might reasonably be
questioned ***.” (Emphasis added.) 210 Ill. 2d R. 63(C)(1).
This test mandates disqualification when a reasonable person might
question the judge’s ability to rule impartially.
In this case, we are not convinced that an objectively reasonable
person might conclude that simply being insured by a large,
nationwide insurance company while presiding over a case involving
that company creates an appearance of partiality or impropriety. The
personal choice to purchase coverage from a particular insurer
depends on a wide variety of factors.
In this case, the only connection alleged between the trial judge
and State Farm is that State Farm carried the judge’s home and
vehicle liability and casualty insurance, as well as his uninsured- and
underinsured-motorist coverage. Under these circumstances, we
cannot say that the trial judge abused his discretion by failing to recuse
himself or that the motion judge erred by denying Barth’s motion for
substitution for cause. Thus, we affirm the appellate court’s judgment
upholding the trial judge’s participation in the case.
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C. Sufficiency of the Evidence
Finally, Barth relies on virtually identical arguments to argue that
the jury verdict was against the manifest weight of the evidence and
that his motion for judgment notwithstanding the verdict should have
been granted. He correctly notes the standard of review for a ruling on
a motion for judgment n.o.v. This court must determine whether the
evidence, when viewed in the light most favorable to the nonmovant,
so overwhelmingly favors the moving party that no other verdict
based on the evidence could stand. Pedrick v. Peoria & Eastern R.R.
Co., 37 Ill. 2d 494, 510 (1967).
As the factual bases for his claims, Barth cites his physical and
financial condition as well as his conduct during State Farm’s
investigation. At the time of the fire, he was 58 years old, wheelchair-
bound, and required a ventilator because he had polio in his youth.
Nonetheless, Barth states he was financially stable, with a net worth
of over $70,000, with $44,000 in home equity and $27,000 in liquid
assets. Barth argues that State Farm offered no “plausible theory” for
why he would have been involved in the burning of his home over
disputed credit card bills under these circumstances.
Barth contends instead he was victimized by two convicted felons,
William Penn and William Burmeister, who misappropriated his credit
cards as well as the cash he gave them to pay his bills. When he made
the misstatements, he was unaware of the extent and full effect of
those misappropriations. In addition, he simply forgot during his
recorded statement to mention his American Express account, one of
the credit cards misused by the two felons. He claims the error was
timely corrected when he provided State Farm with a copy of his
credit report noting the account and its balance. State Farm then
deprived him of an opportunity to correct his prior omission orally by
not asking about the account during his examination under oath.
Similarly, Barth corrected his original statement that he could not get
a cash advance the evening of the fire because he used the wrong PIN
after he found out the real reason: Penn and Burmeister had
overdrawn his card with fraudulent cash advances.
At his first recorded statement, Barth accurately told State Farm
his satellite television service had been disconnected due to
nonpayment. Barth also believed at that time that his mortgage
payments were current because he did not yet know that Penn had
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misused the money Barth had given him for the payment. Moreover,
State Farm already knew from its contacts with Barth’s bank that the
mortgage payment was at least a month late. Barth claims that he was
not required to prove who committed the arson and that State Farm
did not meet the burden of proving its second affirmative defense.
Based on this evidence and argument, Barth concludes that the jury’s
verdict was against the manifest weight of the evidence and that his
motion for judgment n.o.v. the verdict should have been granted.
On the merits of these issues, State Farm counters that the
materiality of Barth’s statements and actions are questions of fact for
the jury (Passero v. Allstate Insurance Co., 196 Ill. App. 3d 602, 610
(1990)) and argues that additional evidence presented at trial supports
the verdict.
The record reveals that, at the scene of the fire, the fire
investigator from the sheriff’s office immediately suspected arson and
approached Barth, Penn, and Burmeister, who were in Barth’s car.
The three men indicated that they needed to leave because “they had
some things to do,” without identifying those “things.” The fire
investigator described Barth as “agitated” and “upset with somebody
in the car” and “with everybody else around him.” He did not
interview Barth later due to restrictions imposed by Barth’s attorney
that the investigator believed were unacceptable.
The bank employee working on Barth’s mortgage account also
testified, stating that he began calling Barth about late payments in
November 2002 and made numerous calls throughout that winter and
spring. At the time of the fire on June 2, 2003, Barth was two months
behind on his mortgage payments. He was also behind on his utility
payments. In contrast, Barth told State Farm his financial situation had
“stabilized” by that time, after he had experienced financial problems
the prior fall.
Barth also misstated the status of his American Express account,
opened in February 2003. He had authorized Penn to use the card for
specific purchases at that time and knew Penn had not returned the
card. Nonetheless, Barth did not make any payments on the account
before the fire. Although American Express called him in late May
about the large account balance, Barth did not mention the account in
his June recorded statement. Moreover, Barth never reported any
misuse of his credit cards to the police.
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The special verdict submitted by the jury found, in relevant part,
that State Farm proved by clear and convincing evidence that: (1)
Barth “concealed or misrepresented a fact or circumstance, or made
a false statement, relating to the insurance at issue *** or
misrepresented any material fact to State Farm either before or after
the claim”; (2) “the fact concealed or misrepresented, or the subject
of the false statement, was material”; (3) “the concealment,
misrepresentation, or false statement was made to State Farm or their
agents”; (4) “the concealment, misrepresentation, or false statement
was made knowingly, willingly, and with intent to deceive State
Farm.” (Emphasis added.)
To reverse a jury verdict as against the manifest weight of the
evidence, we must find that: (1) it is unreasonable, arbitrary, and not
based on the evidence; or (2) the opposite conclusion is readily
apparent. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). Here, the
evidence supports conflicting inferences about Barth’s intentions in
making the misrepresentations as well as about their materiality to
State Farm’s investigation. The jury is free to accept some evidence
and reject others, as well as to determine the credibility of the
witnesses and weigh their testimony. Maple, 151 Ill. 2d at 452. We
cannot say that the jury’s determination in this case was unreasonable,
arbitrary, and not based on the evidence presented or that the opposite
conclusion is readily apparent. Thus, the verdict was not against the
manifest weight of the evidence and was properly affirmed by the
appellate majority.
As for Barth’s alternative argument that the trial court should have
granted his motion for judgment n.o.v., we note that the test for that
claim is even more stringent. Under Pedrick, a court may not grant the
motion unless the evidence, when viewed in the light most favorable
to the nonmovant, so overwhelmingly favors the moving party that no
other verdict based on the evidence could stand. Pedrick, 37 Ill. 2d at
510. Having already decided that the jury’s verdict was not against the
manifest weight of the evidence, we are confident that the appellate
court did not err in affirming the trial court’s denial of Barth’s motion
for judgment n.o.v.
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III. CONCLUSION
For the reasons stated, we hold that State Farm need not prove
reasonable reliance or injury under the exclusionary provision at issue
because it is distinguishable from an affirmative defense relying on
common law fraud and that the materiality instruction given was
sufficient to state the correct law to the jury. We also affirm the
appellate judgment upholding the denial of Barth’s motion seeking
recusal or substitution of the trial judge for cause and his posttrial
motion for judgment notwithstanding the verdict or a new trial.
Affirmed.
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