                           No. 2--05--0932        Filed 5/2/06
______________________________________________________________________
                               ________

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
______________________________________________________________________
                               ________

CINCINNATI INSURANCE COMPANY,       ) Appeal from the Circuit Court
as Subrogee of Porrentruy, L.P.;   ) of McHenry County.
PORRENTRUY, L.P.; GEORGE           )
BROSSARD, and PATRICIA BROSSARD,   )
                                   )
      Plaintiffs-Appellants,       )
                                   )
v.                                 ) No. 05--LA--162
                                   )
ELDA DUPLESSIS,                    ) Honorable
                                   ) Michael J. Sullivan,
      Defendant-Appellee.          ) Judge, Presiding.
_________________________________________________________________________
_____

       JUSTICE BOWMAN delivered the opinion of the court:

       A house that plaintiffs Porrentruy, L.P., George Brossard, and Patricia Brossard

owned and that defendant, Elda DuPlessis, rented caught fire.            Plaintiff Cincinnati

Insurance Company (Cincinnati) paid the owners for the loss.           Plaintiffs then sued

defendant, alleging that her negligence caused the fire. The trial court dismissed the

complaint, holding that under Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314

(1992), defendant was not liable for negligently causing the fire.        Plaintiffs appeal,

contending that the trial court's reading of Dix was incorrect, and thus its dismissal of the

complaint was erroneous. We affirm.
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       Plaintiffs' complaint alleges the following. Defendant rented from plaintiffs a house in

Crystal Lake. The lease was oral, providing only that defendant would reside in the house

in exchange for paying rent of $1,500 per month. In October 2003, defendant left burning

candles unattended and the candles started a fire. Cincinnati paid the owners $104,283.59

to cover the loss. The owners paid the $500 deductible.

       Defendant moved to dismiss the complaint. She argued that, absent a contractual

provision to the contrary, where the landlord insures the property, a tenant is not liable for

negligently caused fire damage. Applying Dix, the trial court agreed with defendant and

dismissed the complaint. Plaintiffs appeal.

       Plaintiffs contend that, because of its "unique" facts, Dix creates only a limited

exception to the common-law rule that a tenant is liable for his or her negligence in causing

a fire at leased premises. Plaintiffs argue that, unlike in Dix, the parties' oral contract

contains no provision that can reasonably be interpreted as expressing the parties' intention

to immunize defendant from liability for negligently caused fires.

       Because we find it controlling, we begin by examining the Dix decision. There, the

parties, neither of whom was a "sophisticated real estate mogul," drafted a lease for a

house. Dix, 149 Ill. 2d at 317-18. The landlord's subrogee sued the tenant, alleging that he

negligently caused a fire at the premises. The supreme court held that the tenant was not

liable for his alleged negligence in causing the fire.

       The court asserted two rationales for its decision. First, although the lease did not

contain a provision expressly apportioning fault in the case of a negligently caused fire, the

court construed the lease "as a whole" and concluded:




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       " 'As a whole,' the lease does not reflect any intent that, during 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.

       Second, the court observed that the plaintiff was the landlord's subrogee. The court

reasoned that the landlord paid the premiums for the insurance and, presumably, passed

along all or part of the cost to the tenant. Thus, the tenant was in effect a coinsured with

the landlord. The court invoked the rule that an insurer may not sue its own insured for

subrogation. Dix, 149 Ill. 2d at 322-23.

       Plaintiffs argue that Dix is distinguishable because that case involved the

interpretation of a written lease while the lease in this case was oral. According to plaintiffs,

the Dix court merely interpreted the parties' inartfully drafted document and purported to

restrict its holding to the "unique" facts of that case. However, a careful reading of Dix

shows that its holding is not so limited.

       The Dix opinion sets out the lease in its entirety. We need not do so here, but it is

clear that the lease is completely silent on the question of who is to be responsible for

losses caused by fire. The court therefore attempted to tease out the parties' intent on this

question from the remainder of the document. The court observed that the lease " 'as a

whole' " provided "that the tenant wanted shelter for one year for which he promised to pay

a modest rent, furnish his own utilities, perform certain services on the farm, and assume

the risk for his own personal property. The landlord agreed." Dix, 149 Ill. 2d at 321. The

court held that the relatively simple terms of the lease did not reflect an intent that the




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tenant would be liable for negligently caused fire damage; indeed, such a "proposition

would probably be beyond the wildest dreams of the parties." Dix, 149 Ill. 2d at 321.

       The lease here shares much in common with that in Dix: it is a simple contract for

shelter in exchange for monthly rent. The mere fact that the parties chose not to reduce

their agreement to writing does not suggest that their intentions on such issues as liability

for fire damage were radically different from those of the parties in Dix.

       We acknowledge that the Dix opinion creates some confusion. The court starts by

acknowledging the "general[]" rule that a tenant is liable for negligently caused fire damage

unless the parties intended to exculpate the tenant (Dix, 149 Ill. 2d at 319), but proceeds to

turn the rule on its head. The decision's clear import is that, unless the parties' contract

expressly makes the tenant liable, it will be presumed that the parties did not so intend.

This was the culmination of a trend toward tenant nonliability that the court began nearly 40

years earlier in Cerny-Pickas & Co. v. C.R. Jahn Co., 7 Ill. 2d 393 (1955). There, the court

held that a standard clause in a commercial lease, requiring the tenant to " 'yield up said

premises to Lessor in good condition and repair (loss by fire and ordinary wear excepted)' "

meant the parties intended that the tenant would not be responsible for fire damage, even

where the tenant negligently caused the fire. Cerny-Pickas, 7 Ill. 2d at 395, 396-97. In Dix,

the court extended the rule to a situation where the lease did not contain a yield-up clause

and, indeed, had no provision whatsoever concerning fire damage.

       Plaintiffs' argument also does not address Dix's second rationale. The Dix court

clearly accepted the rationale that, where the landlord purchases insurance, the tenant

becomes a coinsured with the landlord and, therefore, the insurer may not sue the tenant




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for subrogation. Obviously, whether the lease is oral or written has no effect on the tenant's

status as a coinsured and the insurer's ability to seek subrogation from her.

       Plaintiffs devote much of their brief to arguing that the trial court incorrectly

interpreted Dix as adopting the rationale of Anderson v. Peters, 142 Ill. App. 3d 182 (1986),

a Third District case that was later overruled by that court. See Fire Insurance Exchange v.

Geekie, 179 Ill. App. 3d 679 (1989). Anderson, relying on an Oklahoma case, Sutton v.

Jondahl, 532 P.2d 478 (Okla. App. 1975), adopted the rationale that the tenant becomes a

coinsured with the landlord. Anderson, 142 Ill. App. 3d at 185-87. Thus, the trial court was

correct in stating that Dix sub silentio adopted Anderson's rationale.

       Plaintiffs contend that the coinsured rationale should not apply here because

defendant maintained renter's insurance. We note that the purpose of renter's insurance is

different from that of casualty insurance or liability insurance. It appears that the tenant in

Dix also had renter's insurance. The supreme court found that the only significance of this

fact was that each party to the lease agreed to be responsible for his own property. Dix,

149 Ill. 2d at 321. Thus, we reject plaintiffs' contention.

       The judgment of the circuit court of McHenry County is affirmed.

       Affirmed.

       GROMETER, P.J., and O'MALLEY, J., concur.




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