                                                                         THIRD DIVISION
                                                                        December 6, 2006




No. 1-04-2734




MARY NOREN and GLEN NOREN,                                 )   Appeal from the
                                                           )   Circuit Court of
                     Plaintiffs-Appellees,                 )   Cook County
                                                           )
v.                                                         )
                                                           )   No. 02 L 011233
METROPOLITAN PROPERTY AND CASUALTY                         )
INSURANCE COMPANY,                                         )
                                                           )   Honorable
                     Defendant-Appellant.                  )   Paddy McNamara,
                                                           )   Judge Presiding.




       JUSTICE KARNEZIS delivered the opinion of the court:

       Defendant-appellant Metropolitan Property and Casualty Insurance Company

appeals from several orders of the circuit court in favor of plaintiffs-appellees Mary and

Glen Noren. On appeal, defendant contends the circuit court erred by: (1) denying

defendant's motion for summary judgment; (2) striking defendant's jury demand; (3)

denying defendant's motion for a directed verdict; and (4) declaring coverage in favor

of plaintiffs. We reverse the judgment of the circuit court because we find that the court
1-04-2734


erred in striking defendant's jury demand.

       On July 26, 1997, Midway Moving & Storage (Midway) removed plaintiffs'

personal property from their home in Chicago. Pursuant to the contract between

plaintiffs and Midway, plaintiffs' personal property was stored at Midway's warehouse

for approximately one month until it could be delivered to plaintiffs' new residence. On

August 31, 1997, Midway moved plaintiffs' personal property into their new home in

Chicago. Some of their items were missing and many were damaged.

       Plaintiffs filed a three-count complaint against Midway and defendant.1 Counts I

and II were directed solely at Midway, and count III was directed solely at defendant.

Plaintiffs settled with Midway prior to trial and Midway is not a party to this appeal.

       Count III of plaintiffs' amended complaint, entitled "Declaratory Judgment,"

sought a declaration that plaintiffs' insurance policy with defendant covered the

damage sustained to their personal property. The complaint alleged that some of

plaintiffs' personal property had been stolen, some had been damaged and some had

sustained water damage. The complaint specifically alleged that "on information and

belief" the water damage occurred due to one or more of the following perils:

"windstorm; hail; weight of ice; weight of snow; weight of sleet; water or steam which

accidently discharged or overflowed from within a plumbing, heating, air conditioning or

automatic fire protective sprinkler system; rupturing, cracking, burning or bulging of a


       1
          The instant matter is a refiling of plaintiffs' original cause, which was
voluntarily dismissed.

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steam or hot water heating system." A copy of the insurance policy was attached to the

complaint.

      The policy provided in pertinent part:

                          "SECTION I - LOSSES WE COVER

                                          ***

      COVERAGE C - PERSONAL PROPERTY

      We will pay for sudden and accidental direct physical loss or damage to

      the property * * * caused by:

                                          ***

             2. Windstorm or hail. We do not cover loss to personal property

             inside a building, caused by rain, snow, sleet, sand or dust, unless

             the wind or hail first damages the roof or walls and the wind forces

             rain, snow, sleet, sand or dust through the opening.

                                          ***

             11. Weight of ice, snow or sleet which causes damage to property

             contained in a building.

             12. Water or steam which accidentally discharges or overflows

             from within a plumbing, heating, air conditioning or automatic fire

             protective sprinkler system or from within a domestic appliance.

             13. Rupturing, cracking, burning or bulging of a steam or hot water

             heating system, an air conditioning or automatic fire protective

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1-04-2734


              sprinkler system, or an appliance for heating water.

                                              ***

                        SECTION I - ADDITIONAL COVERAGES

                                              ***

       14. Collapse. We will pay for sudden and accidental direct physical loss

       to covered property involving collapse of a building or any part of a

       building caused only by one or more of the following:

              A. Perils described in Section I - Losses We Cover, Coverage C-

              Personal Property.

                                              ***

                       SECTION I - LOSSES WE DO NOT COVER

                                              ***

              A. Water damage, meaning:

                     1. flood, surface water, waves, tidal water or overflow of any

                     body of water, or spray from any of these, whether or not

                     driven by wind * * *."

       Defendant filed a motion for summary judgment alleging that plaintiffs' water

damage claims were not covered under the policy because the damage was not caused

by any of the occurrences for which defendant's policy offered coverage. Defendant

attached plaintiffs' depositions, in which plaintiffs stated that they did not know the

cause of the water damage to their property. Defendant also attached an affidavit from

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1-04-2734


John Borland, an inspector employed by defendant, who averred that he inspected

Midway's warehouse on September 23, 1998, and November 5, 1998, and determined

that the water damage to plaintiffs' property was not caused by any of the occurrences

within the insurance policy. Defendant also attached the affidavit of Jerry Siegel, the

president of Midway, who averred that the portion of the roof that was directly above

where plaintiffs' property had been stored had not been "replaced, altered or modified"

from July 26, 1997, to November 5, 1998. Defendant's motion argued that because

plaintiffs had produced no evidence as to how the water damage occurred, no genuine

issue of material fact existed and defendant was entitled to summary judgment. The

court denied the motion without explanation.

      Prior to trial, plaintiffs' counsel filed a motion to strike defendant's jury demand.

The motion alleged that because the only remaining count of plaintiffs' complaint was

for declaratory judgment, defendant was not entitled to a jury. The court granted

plaintiffs' motion and struck defendant's jury demand.

      At trial, plaintiffs each testified consistent with their depositions that they had no

knowledge what caused the water damage to their property while it was at Midway's

warehouse.

      John Borland, the inspector employed by Midway, testified that he inspected

Midway's warehouse twice in the fall of 1997 and twice again in 1998. He was directed

to inspect the third floor of the warehouse, which was the top floor. Borland stated that

he did not see any plumbing, heating, air conditioning or automatic fire protective

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sprinkler system or domestic appliance in the area to which he had been directed. He

did not see any rupturing, cracking, burning or bulging of steam or hot water system, an

air conditioning or automatic fire protective sprinkler system or an appliance for heating

water. Borland further stated that he finally received permission from Midway to inspect

the roof of the warehouse in November 1998. He stated that the roof appeared to be

between three to five years old and had "a lot of wear and tear issues." Borland

believed the cause of the water damage to plaintiffs' property was the result of water

leaking through the roofing material to the interior of the warehouse, due to normal

wear and tear of the roof. He stated that he did not see any areas of the roof that

appeared to have been recently repaired.

       Dina Becker, a senior claims representative employed by Midway, testified that if

rain collected on the roof of the warehouse, causing a partial collapse of the roof and

damaging plaintiffs' property, such an occurrence would be covered under the policy.

       At the close of plaintiffs' case, defendant made a motion for a directed verdict,

arguing that because plaintiffs had failed to adduce any evidence during their case in

chief to establish the cause of the water damage, defendant was entitled to judgment in

its favor. The court denied the motion.

       The court's order found in favor of plaintiffs that their claims were covered under

the insurance policy. The court's order was comprised of two parts, one being

"Findings of Fact" and the other "Findings of Law." There were 15 findings of fact,

including the findings that "it is more probably true tha[n] not that Mr. Borland's

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conclusion that the roof was in poor condition is true," and that "it is more probably true

than not, that the water damage was caused by rain collecting on the roof which

caused the collapse of the protective covering of the roof." The court also noted in its

findings of fact that the roof had been repaired sometime between July 26, 1997, and

November 5, 1998.2 The court's order made three findings of law, including that

plaintiffs proved by a preponderance of the evidence that their loss was covered by the

terms of the insurance policy.

       We now address defendant's contentions on appeal. Because we have

determined that the court's order striking defendant's jury demand was in error, we

address this issue first.

       Section 13 of article I of the Illinois constitution, provides: "The right of trial by

jury as heretofore enjoyed shall remain inviolate." Ill. Const. 1970, art. I, §13.

Section 2-701(d) of the Code of Civil Procedure, which governs declaratory judgments,

provides that "[i]f a proceeding under this Section involves the determination of issues

of fact triable by a jury, they shall be tried and determined in the same manner as

issues of fact are tried and determined in other civil actions in the court in which the

proceeding is pending." 735 ILCS 5/2-701(d) (West 2004). Statutes regulating the



       2
           This finding is the result of a document filed in October 1999 in the previous

lawsuit in which Midway stated that the roof of the warehouse was either replaced,

altered or modified between July 1997 and November 5, 1998.

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right to a jury trial should be liberally construed in favor of the right and courts should

be inclined to protect and enforce the right. Williams v. National Super Markets, Inc.,

143 Ill. App. 3d 110, 111 (1986). In Lazarus v. Village of Northbrook, this court

determined that the Illinois Constitution guarantees the right to trial by jury as it existed

in common law actions when the constitution was adopted. Lazarus v. Village of

Northbrook, 31 Ill. 2d 146, 148 (1964). Actions for a declaratory judgment were

unknown to the common law and are neither legal nor equitable, but are sui generis,

and the right to a trial by jury depends upon the relief sought. Zurich Insurance Co. v.

Raymark Industries, Inc., 118 Ill. 2d 23, 57-58 (1987). When a declaration of rights is

the only relief sought, the predominant characteristics of the issues in dispute

determine whether there exists the right to a jury trial. Zurich, 118 Ill. 2d at 58. If

additional relief is sought, the nature of that relief determines the right to a trial by jury.

Zurich, 118 Ill. 2d at 58. The standard of review on appeal is whether the court abused

is discretion. Williams, 143 Ill. App. 3d at 111.

       Here, count III of plaintiffs' complaint sought a declaration that the water damage

to their property was covered under their insurance policy. Generally, such a

declaration would require a court to interpret the language of the policy to determine

whether there was coverage under the policy. However, in this case, there were

numerous factual issues that the court was required to decide before reaching the

question of whether plaintiffs were entitled to coverage under the policy. Namely, the

court made factual findings with respect to the cause of the water damage. The court

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found that the water damage was caused by rain collecting on the roof, which caused a

partial collapse of the roof. The court's finding is in contrast to Borland's testimony that

water had leaked through the roof through normal wear and tear. Borland had also

testified that he had not noticed any areas of the roof that had been repaired. The

court's finding is also in contrast to the affidavit of the owner of Midway, Jerry Siegel,

who averred that the roof had not been repaired or replaced during the period of time

that plaintiffs' property had been stored at the warehouse. However, the court's finding

is supported by the admission that the roof was repaired, altered or replaced sometime

between July 1997 and November 1998. Because of the conflicting evidence

presented, the court was required to make numerous factual findings. In fact, the

court's order contained 15 factual findings, whereas it only contained three conclusions

of law. Because we find that the predominant issues to be determined in this cause

were factual issues, the court's order striking defendant's jury demand was an abuse of

discretion. Defendant was entitled to have a jury assess the credibility of the witnesses

and make findings of fact with respect to the cause of the water damage. Only then

can a proper determination be made as to whether the damage was covered under the

policy.

          Because the court erred in striking defendant's jury demand, we remand this

cause to the circuit court for a new trial. In light of this determination, we need only

address one of defendant's remaining contentions on appeal, that the court erred in

denying its motion for summary judgment.

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       Summary judgment is proper if the pleadings, depositions, affidavits, admissions,

and other matters on file demonstrate that there is no genuine issue of material fact

and that the movant is entitled to judgment as a matter of law. Smith v. Armor Plus Co.,

Inc., 248 Ill. App. 3d 831, 839 (1993). The court should construe the evidence strictly

against the movant and liberally in favor of the opponent. Richter v. Burton Investment

Properties, Inc., 240 Ill. App. 3d 998, 1001 (1993). If reasonable persons could draw

different inferences from undisputed facts, an issue of fact exists. Armor, 248 Ill. App.

3d at 839. Appellate review of an order granting summary judgment is de novo.

Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

       Here, as stated above, there were numerous questions of fact the circuit court

was required to make because there was conflicting evidence as to the cause of the

water damage to plaintiffs' property. Defendant argues in its brief that because

plaintiffs presented no evidence regarding the cause of their property damage, there

were no issues of material fact. However, we point out that in defendant's brief, in

support of its argument that the court erred in striking its jury demand, defendant states

that there were factual issues as to how the property damage occurred. In fact,

defendant argued in its reply brief that there were a "litany of factual issues." We are

unable to reconcile defendant's inconsistent positions. It is illogical for defendant to

argue on the one hand that there were no factual issues for summary judgment

purposes and on the other hand to argue that there were many factual issues for jury

demand purposes. Defendant cannot have it both ways. We find that the circuit court

                                             10
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properly denied defendant's motion for summary judgment because a question of fact

existed as to how plaintiffs' property was damaged.

      Accordingly, we reverse the judgment of the circuit court and remand for further

proceedings consistent with this opinion.

      Reversed and remanded.

      THEIS, P.J., and GREIMAN, J., concur.




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